Wednesday, June 29, 2022
By Cynthia Soohoo, Professor of Law and the Co-Director of the Human Rights and Gender Justice Clinic at CUNY School of Law
After Dobbs, Are Rights for Zygotes, Embryos and Fetuses Next? by Cynthia Soohoo (June 29, 2022)
Justice Alito’s decision overturning Roe v. Wade and Planned Parenthood v. Casey marks a watershed shift in the way that the country treats people who are pregnant versus an “unborn life.” By stripping constitutional protection from the decision to have an abortion, Dobbs v. Jackson Women’s Health Organization equates pregnant people’s right to control their bodies and the state’s interest in protecting prenatal life.
Without a recognized constitutional right to abortion as a backstop, Dobbs specifically paves the way for states to impose their theory of when a human life begins and push for recognition of personhood for fetuses, embryos, and zygotes. Not only will this result in some states banning abortion from conception and treating abortion as homicide, it also threatens some forms of contraception and in vitro fertilization (IVF).
One recurring theme in Alito’s majority opinion and Justice Kavanaugh’s concurrence is that there are “two sides” with strong views on abortion. The argument goes that because there are strong opposing opinions on abortion, the issue should be left “to the people and their elected representatives” with individual states (or Congress) determining how to value prenatal life verses the rights of pregnant people. While there is superficial appeal to the “two sides” argument, it improperly equates one group’s beliefs about when human life begins with the concrete harms imposed on pregnant people.
It also obscures the real issue. We don’t all get a vote on what happens to someone else’s body. As Justices Breyer, Kagan, and Sotomayor write in the joint dissent, “when it comes to rights, the Court does not act ‘neutrally’ when it leaves everything up to the States. Rather the Court acts neutrally when it protects the right against all comers.”
Cleverly cloaked in originalist arguments and claims about democracy and judicial neutrality, at bottom, the Dobbs decision is about the expansion of state power and control. Alito admits as much when he criticizes Roe and Casey for allowing “States less freedom to regulate abortion” than in other countries. (emphasis added). Alito’s opinion gives states enormous power to use a belief about when human life begins to take dominion over a person’s body, forcing them to endure a pregnancy, give birth, and become a parent.
The Disappearing Rights and Shrinking Personhood of Pregnant People
Recognizing the fundamental liberty at stake in the abortion decision, the Supreme Court explicitly rejected the “two sides” argument 30 years ago in Planned Parenthood v. Casey. In doing so, the Court carefully considered how to balance the state’s interest in protecting prenatal life and the individual liberty and autonomy rights at risk. While the Court eliminated the trimester framework established in Roe, giving states more power to regulate abortion to protect fetal life, Casey emphasized that a pregnant person must retain the ultimate decision of whether or not to continue a pregnancy. Until the Dobbs decision, this meant a state could not ban abortion outright or impose regulations that impose an undue burden prior to fetal viability.
To justify scrapping Casey’s careful balancing of individual rights with government interests, Alito’s opinion scrupulously avoids any serious discussion of the rights of pregnant people or the implications of allowing the government to impose forced pregnancy. Instead of recognizing that allowing states to ban abortion imposes a real and substantial harm, Justice Alito downgrades the fact of a state’s invasion of a pregnant person’s liberty and autonomy to a “feeling” that “regulation of abortion invades a woman’s right to control her own body, and prevents women from achieving full equality.” He then suggests that this “feeling” is on par with the fervent belief “that a human person comes into being at conception and that abortion ends an innocent life.”
Alito also refuses to acknowledge that reproductive autonomy is a basic and fundamental liberty for people with the capacity to become pregnant. Rather than engaging in an honest discussion of what personal liberty requires for a body with a uterus, Alito hides behind a historic reading of the Fourteenth Amendment based on state laws that were passed in the 1860s when women could not vote and were not viewed as persons fully protected by the Constitution.
Paving the Way for Personhood for Zygotes, Embryos, and Fetuses
Even as Dobbs demotes people who can become pregnant from the status of full rights holders, it paves the way for states to promote the rights of zygotes, embryos, and fetuses at the expense of people who will be forced to carry them. (A zygote is a fertilized egg. It becomes an embryo10-12 days after fertilization and a fetus eight weeks after fertilization.) In 1973, Roe explicitly rejected Texas’ argument that the Constitution recognizes the unborn as a “person” with rights protected under the Fourteenth Amendment.
However, as argued in many of the amicus briefs submitted to the Court in Dobbs, constitutionally prohibiting abortion through the recognition of personhood for zygotes, embryos, and fetuses remains a long-term goal for the anti-abortion movement. Alito’s decision will likely encourage these arguments in courts and legislatures.
While the Dobbs decision declines to directly take on the personhood issue, religious and moral views about the status of zygotes, embryos and fetuses creep into the decision’s language and reasoning. Rather than discussing the state’s interest in potential life like past Supreme Court decisions, Justice Alito explicitly imports Mississippi’s belief that a fetus is a human being into the decision’s reasoning. He argues that abortion is different from other constitutionally protected decisions around intimate sexual relations, contraception and marriage, because abortion is a “critical moral question” that involves destroying what the statute describes as “an unborn human being.”
Alito even chides the dissent for imposing their “theory about when the rights of personhood begin” for adhering to the Roe and Casey standard. Alito’s criticism reveals his own assumptions about fetal life as he bemoans that under the Roe/Casey standard, states were prohibited from recognizing a fetus’ “most basic human right – to live” prior to viability. (emphasis added).
For now, Alito claims that the Dobbs decision “is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” But even absent the Court’s explicit recognition of rights for prenatal life, Dobbs opens the door for states to do so without constitutional restraints. Roe recognized that there are widely divergent views on when life begins and held that the state cannot “adopt one theory of life [and] override the rights of the pregnant woman.” In order to prevent this outcome, Roe and Casey explicitly declined to adopt a theory of when life begins, but recognized fetal viability as the point at which the state’s interest in fetal life rose to the compelling level necessary to justify banning abortions.
This meant that while states could pass laws protecting prenatal life prior to viability,the constitutional rights of pregnant people to liberty and bodily autonomy limited how far the state could go. Now that Dobbs has stripped away this constitutional protection, a state need only show that a law passed to protect prenatal life bears a rational relation to a legitimate state interest to withstand judicial scrutiny. Further, without the viability line, states can bestow heightened protection and rights to prenatal life at any stage without any consideration about the impact on the bodies and lives of the people who carry them.
What Does Personhood for Zygotes, Embryos, and Fetuses Look Like?
The idea that states may seek to promote legal personhood for zygotes, embryos, and fetuses may seem farfetched. But for decades, states have passed laws to protect and, in some cases, bestow rights onto the “unborn” by recognizing them as human beings or even legal persons. These laws are often referred to as fetal personhood provisions, but the term is a misnomer because the provisions go beyond protecting fetuses and typically protect the “unborn” from conception or fertilization. Personhood provisions vary and include legislative findings, policy statements, and definitions for specific statutes, including criminal homicide laws, and general personhood provisions that purport to apply to all laws in the state.
The idea that the zygotes, embryos, and fetuses are independent human beings is often included as a finding or definition in legislation to justify extreme abortion bans. For instance, in 2019, Georgia passed an act that included both a general personhood provision recognizing unborn children defined as “a member of the species Homo sapiens at any stage of development who is carried in the womb” as “natural persons” under Georgia law and a separate provision banning abortion at six weeks. In 2021, Arkansas passed the “Arkansas Unborn Child Protection Act” and in 2019, Alabama passed the “Human Life Protection Act,” both banning abortion from conception.
The laws cited provisions in their state constitutions adopting policies protecting the life (Arkansas) and rights (Alabama) of unborn children and made legislative findings or defined embryos and fetuses as human beings. Because these laws clearly violated the constitution, they were quickly blocked by the courts and never went into effect. Immediately after the Dobbs decision, a federal court granted an emergency motion dissolving the injunction stalling the Alabama law. Similar motions will likely follow in Arkansas and Georgia.
If we want to understand what laws might look like now that legislatures no longer have to comply with Roe, the abortion bans passed by Alabama and Arkansas, as well as similar bans recently passed by Oklahoma and Louisiana, provide good examples. These laws ban abortion at conception and do not include any exceptions for pregnancies that result from rape or incest.
These measures reflect an absolutist view that embryos and fetuses are human beings that must be protected irrespective of the impact on the people who carry them. International human rights bodies have recognized that forcing a person to continue a pregnancy in such circumstances constitutes cruel, inhuman and degrading treatment. Perhaps reflecting the view that zygotes, embryos, and fetuses are human beings, the laws also impose severe criminal penalties for performing abortions, including sentences ranging from 10 to 99 years and criminal fines ranging from $100,000-200,000.
In addition to explicit criminal abortion bans that will either be triggered, passed, or no longer enjoined now that Roe has been overturned, personhood provisions that already exist in the laws of many states will no longer be limited by constitutional protections for abortion. Many state criminal statutes already define homicide victims to include zygotes, embryos, and fetuses. Dobbs potentially authorizes the use of these criminal homicide statutes to prosecute people who perform abortions.
It is not just abortion that is under threat. As pointed out by the joint dissent, Alito’s cramped, backward-looking reading of liberty places constitutional protection for contraception and same-sex marriage squarely at risk. Justice Thomas explicitly invites reconsideration of Griswold, Lawrence and Obergefell in his concurrence. But even absent further unravelling of constitutional precedents, the Dobbs decision opens the door for attempts to ban forms of contraception that may prevent implantation of a fertilized egg based on embryonic personhood claims. Laws banning or limiting IVF to prevent the creation of embryos that are not implanted will also become more prevalent.
Since 1973, Roe v. Wade prevented the state from imposing its views about the value of prenatal life and the role of women in society on individuals. While Casey expanded states’ ability to regulate abortion, it recognized that prior to fetal viability the state’s interest in prenatal life cannot override “the urgent claims of the woman to retain the ultimate control over her destiny and her body.”
Together, Roe and Casey placed important limits on state power. By stripping away constitutional protection for abortion and erasing the viability line, Dobbs v. Jackson resets the constitutional balance between pregnant people and the claims that the state can make on their bodies on behalf of prenatal life. In doing so, it opens the door for zygotes, embryos, and fetuses to gain rights even as pregnant people lose them.
Thursday, July 2, 2020
SCOTUS Holds Louisiana Abortion Restriction is Unconstitutional. But Did Chief Justice Roberts Re-Write the Undue Burden Standard Along the Way?
The pro-choice community breathed a collective sigh of relief following the Supreme Court’s decision in June Medical v. Russo, striking down a Louisiana statute requiring that doctors who provide abortions have admitting privileges at hospitals within 30 miles of the procedure. The good news is that the Court did not overrule Roe v. Wade, the three remaining abortion clinics in Louisiana can remain open, and the people in the state can continue to access care.
However, although June Medical retains the undue burden standard, when read together, the six separate opinions authored by the justices once again muddy the waters about how courts should apply the undue burden standard and cast doubt on the “balancing test” the Court articulated just four years ago.
June Medical should not have been a difficult case. The Court struck down a virtually identical Texas admitting privilege law in Whole Woman’s Health v. Hellerstedt in 2016. The district court conducted lengthy proceedings and found that the law did not advance a state interest in protecting women’s health and would “result in drastic reduction in the number and geographic distribution of abortion providers.” Writing for a four justice plurality, Justice Breyer, who penned Whole Woman’s Health, applied the WWH’s standard in a workmanlike fashion and reaffirmed key aspects of the decision, including that the undue burden standard requires a court to weigh an abortion restriction’s asserted benefits against its burdens and that courts have an obligation to “independently review the legislative findings upon which an abortion-related statute rests.”
These two points resolved a disagreement among the lower courts about how to apply the undue burden standard to admitting privilege laws and other targeted regulations of abortion providers (TRAP laws). This was important because in recent years, churning out TRAP laws has become a cottage industry for anti-choice legislators who seek to regulate abortion clinics out of business through TRAP laws that make it difficult or impossible for clinics to stay open by imposing onerous and expensive requirements without actually making abortion provision safer.
In order to strike down the Louisiana law, Justice Breyer’s plurality decision needed a 5th vote that was supplied by Justice Roberts, but at a cost. Recognizing that June Medical was basically a re-do of Whole Woman’s Health and perhaps feeling pressure to maintain the Court’s legitimacy, Justice Roberts voted to strike down the law after engaging in a lengthy discussion about why stare decisis is important.
But in reaching his decision, Justice Roberts took pains to critique WWH’s balancing test and purported to apply a substantial obstacle test that does not balance a restriction’s benefits against its burdens instead. Specifically, his concurrence held that the admitting privilege law imposed a substantial obstacle “independent of its discussion of benefits,” but he went further characterizing the Whole Woman’s Health decision as making a similar finding, willfully ignoring that Whole Woman’s Health explicitly adopted a balancing test. Justice Roberts’ attempt to re-write the undue burden standard, led Justice Kavanaugh to declare that “five Members of the Court” – Justice Roberts and the 4 dissenting justices - “reject the Whole Woman’s Health cost benefit standard.” And, in a less politic and more direct manner, Justice Gorsuch’s dissent described the Chief Justice’s decision as a vote “to overrule Whole Woman’s Health insofar as it changed the Casey test.”
Given the strong factual record, the deference shown to trial court factual determinations, and the similarities between the Louisiana law and the law struck down in Whole Woman’s Health, Justice Roberts cast the 5th vote to strike down the Louisiana admitting privilege law. His vote preserves abortion access in Louisiana and the undue burden standard, but it does so in a manner that casts substantial doubt on the balancing test the Court adopted just 4 years ago, which may it more difficult to challenge other types of abortion restrictions in the future.
Editors' Note: This post originally appeared on the Reproductive Rights Prof Blog
Sunday, March 8, 2020
Despite calls from conservative lawmakers to overturn Roe v. Wade, last week's Supreme Court argument in June Medical Services v. Russo focused narrowly on how the Court should apply its 2016 holding in Whole Woman’s Health v. Hellerstedt rather than on whether the Court should overrule or overhaul the undue burden standard. And despite Louisiana’s last-minute assertion that the physician plaintiffs lacked standing to bring the case, only Justice Alito seemed interested in taking on the third-party standing. All eyes were on Chief Justice Roberts and Justices Gorsuch and Kavanaugh, the two newest members of the Court. Gorsuch did not ask a single question. Both Roberts and Kavanaugh focused on how the Court should apply Whole Woman’s Health to future cases.
A few minutes into the argument, Justice Alito asked Julie Rikelman, counsel for June Medical, several questions on third-party standing. Louisiana’s Solicitor General Elizabeth Murrill also led off with third party standing, but the other justices did not substantively engage with the issue. Alito vehemently disagreed with Rikelman’s position that Louisiana waived the standing argument, but through questioning Justice Ginsburg underscored that if the Court were to consider standing at this point it would prejudice plaintiffs who might have added a non-doctor plaintiff if Louisiana had raised the issue sooner. Justice Breyer also expressed some frustration that the Court was being asked to consider standing, noting there have been at least 8 cases in which the Court has recognized third party standing going back over 40 years. He questioned when it was appropriate to reconsider established precedent, asking are we to “go back to Marbury v. Madison.”
The bulk of the argument focused on how Whole Woman’s Health’s holding (that a Texas law requiring doctors providing abortions to have admitting privileges at a hospital within 30 miles of the procedure constituted an undue burden on abortion) applied to other admitting privilege cases. In June Medical, the 5th Circuit reversed a district court decision holding that a virtually identical law imposed an undue burden. Justice Roberts asked counsel whether courts reviewing admitting privileges still needed to conduct a state by state factual inquiry into whether the laws constitute an undue burden after Whole Woman’s Health.
Rikelman maintained that when courts review an admitting privilege law, they should apply Whole Woman’s Health’s finding that such laws do not provide any health benefit. Then, turning to the other part of the undue burden test, courts should consider the burdens placed on abortion access on a case by case basis. She emphasized that in June Medical, the district court found that the law imposed significant burdens. Justice Kavanaugh seemed interested in how the benefits and the burdens should be weighed, posing a hypothetical about whether an admitting privilege law would be unconstitutional even if it did not impose any burdens on abortion provision.
Rikelman expressed some skepticism that an admitting privilege requirement would not impose any burden on abortion provision and noted that such a law was not before the Court. She emphasized that admitting privilege laws are always likely to pose an undue burden because they create barriers without any benefits.
In response to similar questions, Murrill argued that Whole Woman’s Health's reasoning would not be controlling on the benefit side of the undue burden test where the state can show a greater benefit based on its regulatory structure.
The rest of the argument focused on whether Louisiana could establish that its law imposed greater benefits or lesser burdens than the Texas law. Louisiana’s main argument on the benefit side was that the admitting privilege law serves a credentialing function. During this line of questioning, like the 2016 Whole Woman’s Health argument, the female justices asked several questions reflecting a familiarity with abortion and reproductive health procedures that made it difficult for Murrill to make unsupported assertions about a health benefit. Ginsburg and Justice Sotomayor repeatedly noted that the law’s 30-mile requirement made no sense if Louisiana’s purpose was to improve care for the treatment of complications from medical abortions. Ginsburg emphasized the low complication rate for abortion procedures and Louisiana’s failure to impose a similar requirement on doctors who perform DNCs to manage miscarriages. Justice Kagan stated that in Whole Woman’s Health, the Court held that an admitting privilege requirement could not serve a credentialing function if privileges are denied for reasons other than quality of care. She, Ginsburg and Sotomayor noted that admitting privileges are often denied based on factors, such as the number of admissions a doctor makes to a hospital, which reflect hospitals’ commercial interests rather than doctors’ competency.
On the burden side, Murrill and Principal Deputy Solicitor General Jeffrey Wall argued that the admitting privilege law did not cause the burden on abortion care because the doctors could have tried harder to get admitting privileges. Wall asserted that it was not in the plaintiff doctors’ interest to try hard to get privileges, and Murrill went further, suggesting that the doctors “sabotaged” their own applications. There was substantial back and forth between counsel and justices about what individual “John Doe” doctors could have done. Rikelman emphasized that many of the hospitals bylaws had provisions that disqualified the doctors because of insufficient hospital admissions, the doctors had applied to the hospitals where they had the best chance of being admitted, and the district court found that all but one of the doctors were unable to get privileges for reasons that had nothing to do with competency. Despite the disqualifying provisions and the district court’s findings, Wall took the position that the doctors should have applied to the full range of hospitals.
While Gorsuch’s silence makes it difficult to assess his views, questioning from the other justices (besides Alito) suggested that a majority of justices wished to focus on the very narrow question of how lower courts should apply Whole Woman’s Health to admitting privilege laws rather than to revisit the Court's abortion jurisprudence. Given the consistent onslaught of new and different types of laws restricting abortion each year, such a narrow focus may be unsatisfying for those looking to the Court for more guidance, but it may be the most the Court is willing to do at this point.
(reprinted courtesy of Reproductive Rights Law Profs Blog)
Sunday, February 10, 2019
NY’s Reproductive Health Act Is Not Radical; It Simply Recognizes That The Lives And Dignity Of Pregnant People Count Too
by Cindy Soohoo
Not surprisingly, President Trump’s attack on New York’s Reproductive Health Act during Tuesday night’s State of the Union address blatantly mischaracterized the RHA. But it also underscores a glaring gap in anti-abortion advocates’ pro-life views -- the right to life and dignity of people who are pregnant.
The RHA continues to recognize a state interest in fetal life and prohibits abortions after 24 weeks in almost all circumstances. However, the law also recognizes that in some situations, denying a pregnant person the ability to end a pregnancy imposes serious and irreparable harm on her, including situations where the pregnancy endangers her life and health. And in those situations, the state cannot force the pregnant woman to continue the pregnancy against her will. This is consistent with current Supreme Court jurisprudence and international human rights law. The UN Human Rights Committee made this explicit in a recent General Comment clarifying that while states can regulate abortions, they should not do so in a manner that violates the right to life of the pregnant person or her fundamental human rights.
The RHA does no more than protect the human rights of pregnant people. The law only allows abortions post-24 weeks in two situations. First, abortions are allowed where the fetus will not survive outside of the womb. The RHA recognizes that a woman should not be forced to continue what was often a wanted pregnancy -- knowing that the fetus will not survive -- against her will. In such cases, the state’s interest in protecting a viable fetus is not at issue, and human rights experts have held that denying a woman access to an abortion in these circumstances is cruel, inhuman and degrading treatment.
Second, the RHA allows a woman to have an abortion where continuing the pregnancy endangers her life or health. Some women may choose to continue pregnancies in these circumstances. But the RHA acknowledges that the pregnant person must be allowed to make her own choice taking into account the risk that she faces and the impact her death or disability would have on her family and community.
In both situations covered by the RHA, human rights experts have held that state denial of an abortion violates the human rights of the pregnant person. In fact, concern over state prohibition of abortions in those circumstances led UN human rights experts to write to the U.S. to encourage passage of laws like the Reproductive Health Act. This is not a radical position. It is merely the recognition of the value of the life and dignity of pregnant people. The failure of critics of the RHA to understand this is a glaring gap in their “pro-life” views.
Editors Note: This piece is cross-posted with the Reproductive Rights Blog
Monday, June 4, 2018
By Cindy Soohoo
For two weeks at the end of last year, Philip Alston, the UN Special Rapporteur on Extreme Poverty criss crossed the United States, speaking to communities in Los Angeles, San Francisco, Lowndes County and Montgomery, Alabama, Charleston, West Virginia, and San Juan, Guayama and Salinas, Puerto Rico and meeting with indigenous leaders and community activists gathered at the US Human Rights Network national convening in Atlanta, Georgia. Last Friday, he issued his official report on the visit.
While the report’s findings are not surprising, they are still jarring. Almost 1 in 5 children in the United States lives in poverty. People in the United States live shorter and sicker lives than people living in countries with comparable wealth, we have the highest incarceration rates in the world, and tropical diseases like hookworm are re-emerging because of lack of public sewage in places like Lowndes County.
But perhaps more troubling than the findings is Alston’s conclusion that rather than working to eradicate poverty, government policies are actually making things worse. The Special Rapporteur loudly calls out the Trump administration’s recent $1.5 trillion tax cut, attempts to take away health insurance, and radical financial, environmental, and health and safety deregulation.
But Alston makes clear that wrongheaded government policies and attitudes towards social welfare precede the current administration: the “United States is alone among developed countries in insisting that . . . human rights . . . do not include rights that guard against dying of hunger, dying from a lack of access to affordable health care or growing up in a context of total deprivation.” Our failure to recognize social and economic rights has led to the abdication of government responsibility to provide a safety net and basic community necessities like sewage systems and clean water.
We have also failed to adequately address historic and long-standing structural discrimination which result in persistent disparities in poverty rates based on race and gender. These inequalities are compounded by the legal status of immigrants, indigenous people and the people of Puerto Rico. For these communities, lack of legal protection, recognition, and political representation exacerbate poverty and vulnerability to other human rights abuses.
In the U.S., rather than developing policies to help alleviate poverty, criminalization has been used to conceal the problem. According to Alston “[p]unishing and imprisoning the poor [has become] a distinctively American response to poverty in the twenty-first century.” The report describes criminalization of homelessness, taking away children from their parents because poverty is equated with neglect, criminalization of pregnant women suspected of substance abuse problems, and detaining poor people in jail, separating them from their families and risking their employment, because they can’t make bail. “Mass incarceration is used to make social problems temporarily invisible and to create the mirage of something having been done.” But it is a self-defeating strategy.
Alston recognizes that it is impossible to do an in-depth analysis of extreme poverty in the United States. His goal was a more modest one: to access whether the United States is living up to its human rights obligations (it’s not) and articulate important principles for reform including: decriminalizing being poor, recognizing a right to health care and reforming tax policy. But he doesn’t provide great detail about how to eliminate extreme poverty and how to gain support for anti-poverty initiatives in our current political environment.
Indeed, the report reveals a deeper dis-function in our society and democracy that may make such change more difficult. The U.S. currently has the highest income inequality in developed world, and it is only getting worse. And “[s]ince economic and political power reinforce one another,” Alston warns that “the political system will be even more vulnerable to capture by wealthy elites.” Addressing our long history of racism and inequality as well as newer problems like dislocation and lack of decent jobs in the face of globalization and changes in technology require more fundamental changes addressing who is making decisions and how.
In its recent report, the National Economic and Social Rights Initiative, emphasizes that we must rebuild democracy from the ground up and work to develop policies based on human rights values and the creation of universal and equitable social systems that meet the needs of all. Deep democracy requires wresting decision-making out of the hands of the powerful few and “community control over the agencies and institutions that shape people’s lives.” According to the report, community engagement is not only essential for democracy; it is also the best way to develop sustainable policy solutions that serve the needs of our communities.
The Special Rapporteur’s report is important and timely, but only scratches the surface of the human rights violations that many communities are facing. By starting a dialogue about the government’s obligation to end extreme poverty, I hope the report will encourage communities to speak out about the human rights violations they face and to develop and demand community-driven solutions that respect human rights values and ensure that everyone, rich and poor, can lead a safe, healthy and dignified life.
Tuesday, June 20, 2017
by Cindy Soohoo
Since the Presidential election last fall, we’ve seen intensified attacks on women’s reproductive health. In the current political environment, it’s even more crucial that U.N. human rights bodies call out the U.S. when it violates human rights. Yesterday, United Nations human rights experts sent a letter to the U.S. government expressing concern about criminalization of abortion and the declining access to reproductive health services. The letter welcomed state efforts to turn back the “negative trend on women’s reproductive rights” and urged states to adopt laws to help ensure that women’s human rights are respected, like the Reproductive Health Act currently pending in the New York state legislature.
Human rights bodies have repeatedly recognized that women’s access to reproductive health services implicates multiple human rights including the right to dignity, autonomy, personal integrity, health, non-discrimination and freedom from cruel, inhuman and degrading treatment. Given the range of rights involved, U.N. experts on health, violence against women, and discrimination against women banded together to write a joint letter to the U.S. expressing their concerns.
The experts’ letter focused on two current threats to reproductive rights – “the failure to provide adequate access to services for the termination of an unwanted pregnancy” and the “criminalization of abortion.” Last year, the U.N. Working Group on Discrimination Against Women criticized the “ever-increasing barriers . . . created to prevent [women’s] access to abortion procedures” in the U.S. Yesterday’s letter reiterated these concerns and specifically focused on laws that allow women to be criminally prosecuted for terminating their own pregnancies.
The human rights experts emphasized that criminalizing women for having abortions “instrumentalizes women’s bodies, undercuts women’s autonomy and puts their lives and health and risk” because women who experience complications will not seek medical help for fear of prosecution. The letter also warned that because symptoms of spontaneous miscarriage and self-induced abortion can be similar criminalizing abortion often results in “collateral consequences, including the imprisonment of women who have had miscarriages.” Last month, the experts criticized an El Salvador law criminalizing abortion noting that, in addition to violating the rights of women who chose to terminate their pregnancies, the law resulted in the arrest and prosecution of women who suffered miscarriages.
Human rights law emphasizes that governments must ensure that people can meaningfully access their human rights. In the U.S. context, this means that a constitutional right to abortion is not sufficient if women cannot actually access abortion and family planning or are punished or penalized for their reproductive health choices. The experts expressed concern that criminal prosecution of self-induced abortions “has discriminatory effects on economically disadvantaged women whose limited resources render them unable to access safe reproductive health services in the same manner as privileged women.”
In addition to the onslaught of anti-choice laws that are being passed in Texas and other states, laws criminalizing women who have abortions are often remnants of laws passed before Roe v. Wade that were never repealed. For instance, New York still has a pre-Roe law on the books that imposes criminal penalties on women for self-inducing an abortion. It also criminalizes health care providers who perform abortions after 24 weeks -- even if the abortion is necessary to preserve a woman’s health or if the fetus is not viable. Human rights bodies have recognized that forcing a woman to continue a pregnancy knowing that the fetus she is carrying will not survive is cruel, inhuman and degrading treatment. And denying a woman access to an abortion when necessary to preserve her health violates the U.S. Constitution.
The experts’ letter is addressed to the U.S. government, but the experts aren’t holding their breath awaiting a reply from the Trump Administration. Instead, the letter urges New York to pass the Reproductive Health Act, which would repeal the criminal abortion provisions, and encourages similar state efforts to bring their laws in compliance with human rights law.
Monday, June 19, 2017
As I wrote in an earlier post, the Special Rapporteur on Trafficking, Maria Grazia Giammarinaro conducted an official visit to the U.S. last December. Her final report issued last week emphasizes that the U.S. needs to do more to address inadequate labor protections, restrictive immigration policies, discrimination and poverty, which are the root causes of trafficking. She also criticizes U.S. laws and policies that criminalize trafficking victims for acts they were forced to commit.
The report had a strong labor focus, noting the U.S.’s “limited identification of trafficking for labor exploitation and forms of trafficking other than for sexual exploitation.” It emphasizes that “economic inequality and social exclusion, discrimination, organised crimes such as drug trafficking, and insufficient labour protections are causes of vulnerability to human trafficking.” As a result many workers “have been compelled to work in precarious or informal employment, on short-term or part-time contracts, on temporary visa if they are migrants rendering them vulnerable to human trafficking.” In particular, the report emphasized that non-immigrant visas that tie immigrants to an employer create vulnerabilities for abuse and trafficking. The report noted that “40 percent of labour trafficking reported to the national hotline/textline are linked with temporary visas.”
The report recommends that the U.S. strengthen protections for workers, including laws that require fair terms of employment and increase the minimum wage. It also states that the U.S. should ensure that migrant workers with temporary non-immigrant visas are free to leave or change employment or return to their country of origin.
The report recognizes that criminalization of prostitution also makes people more vulnerable to trafficking. Prostitution related arrests and raids create “fear of arrest, prosecution or deportation” which increases the insecurity of trafficking victims and forces them “to work underground in dangerous environments; which in turn renders their identification as victims of trafficking more difficult.”
In addition to making it more difficult to identify trafficking victims who fear coming forward, criminalization of victims of trafficking for acts they were forced to commit violates international standards. The report emphasizes the U.S. should fully implement the “non-punishment principle” which requires that “trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries . . . , or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.” The report also notes with concern that in many states minors can be prosecuted for prostitution/sex work. The report recommends that the U.S. decriminalize the selling of commercial sex and raise the age of criminal responsibility to ensure that children under 18 are immune from prosecution for prostitution/sex work.
In order to mitigate the impact of criminalization, the Special Rapporteur welcomed state efforts to adopt laws that allow trafficking victims to vacate convictions for crimes committed as a result of their status as trafficked persons. However, she criticized gaps in laws including only providing relief for minors or limiting the types of offenses that can be vacated and recommends that vacatur laws be adopted that allow vacatur of all convictions that result from being subjected to trafficking.
Tuesday, February 7, 2017
Editor's note: Prof. Cynthia Soohoo brings this post by her student Megan Lynch
In August 2014, a Wisconsin woman named Tammy Loerscher went to her local services agency because she believed that she was pregnant, but had serious medical conditions and could not afford health care. She was referred to the emergency room of a nearby hospital, where her urine was collected to test for pregnancy and for controlled substances. When the results returned “unconfirmed positive,” she was reported to child protective authorities. A temporary order of custody was issued to detain Tammy in the hospital. The next day a hearing was held over the phone. There was a lawyer representing the child protective agency, and a legal guardian to represent Tammy’s fetus, but Tammy herself was not given a lawyer, and the judge refused to delay the hearing to permit Tammy to find one. The judge ordered her to report to an inpatient treatment facility after being discharged from the hospital. No assessment was ever completed as to whether Tammy had a substance use disorder or needed inpatient treatment. When Tammy refused to enter inpatient treatment, she was ordered to serve 30 days in jail. While incarcerated she was denied medical care, held in solitary confinement, and threatened to be tased. Tammy was released after 18 days in jail subject to drug monitoring for the duration of her pregnancy. All subsequent drug tests were negative.
Last October, Tammy told her story to Seong-Phil Hong of the United Nations Working Group on Arbitrary Detention during the Working Group’s visit to the United States. An expert on arbitrary detention, Mr. Hong recognized that Wisconsin’s actions violated Tammy’s human rights and that there are better ways for the state to address concerns about fetal health. Late last year, the Working Group issued a statement emphasizing that confinement of pregnant women suspected of drug is inappropriate and that involuntary detention should be used only as a last resort, for the shortest period of time needed, and with appropriate due process protections. The group emphasized that “confinement should be replaced with alternative measures that protect women without jeopardizing their liberty.”
Despite the Working Group’s statement, every year, hundreds of pregnant women are involuntarily detained in the United States because they are suspected of drug use. Wisconsin is one of 5 states with laws that permit pregnant women to be detained for the supposed benefit of a fetus. These statutes were designed in the 1990s amid fears of the effects of in utero exposure to cocaine. Despite decades of research undercutting the belief that use of criminalized drugs is certainly and uniquely harmful to fetal health, these laws continue to be used to issue protective custody orders against pregnant women.
In addition to lacking scientific basis, laws that punish people who use drugs during pregnancy threaten the public health. As the American College of Obstetricians and Gynecologists has stated: “Incarceration and the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse.” Instead, threats of arrest and incarceration harm fetal and maternal health because they discourage women from seeking medical advice and prenatal care. The medical community in the United States and around the world universally condemn punitive approaches, recommending support and voluntary treatment where appropriate.
Not only do these laws harm the people they purport to protect, they also violate women’s fundamental human rights. Detaining pregnant women based on suspected drug use unfairly deprives them of liberty based on their pregnancy status. While civil commitment is permitted under U.S. law, the laws used to detain pregnant women lack the stringent standards required for civil commitment in other contexts, including a risk of imminent harm and due process protections. These statutes set no requirement that the state prove that a woman has a substance use disorder, or that the substance she is alleged to use is harmful to fetal development before detaining her. Nor do they require that the state consider alternative, less invasive measures before authorizing involuntary confinement. Rather, in most cases, simply testing positive for a drug is grounds for confinement in a treatment facility, regardless of whether it is medically appropriate.
Even if state intervention could be justified under extreme circumstances, these overbroad laws fail to provide adequate procedural protections. Indeed, in Wisconsin, a woman is not entitled to an attorney until appeal, even if she explicitly requests one. Further, the proceedings are sealed, closed proceedings, preventing public scrutiny of the process. This places the onus on women who have undergone this process to come forward to tell their stories.
The UN Working Group made clear that these laws run contrary one of the most fundamental rights under international law: the right to liberty and to be free from arbitrary detention. The right to liberty is deeply embedded in the American psyche, dating back to our nation’s birth and the Declaration of Independence’s promise of the right to life, liberty and the pursuit of happiness. The right to liberty would later be emphasized in the UN Declaration of Human Rights, and the US reaffirmed its commitment to liberty and freedom from arbitrary detention when it ratified the International Convention on Civil and Political Rights.
Because freedom from arbitrary detention is a fundamental right, international human rights standards require that individuals only be detained as a last resort, for the shortest period of time needed, and with appropriate due process protections. Any use of detention must be necessary and proportionate. According to the Working Group, Wisconsin’s law failed to meet these standards.
The Working Group’s recognition that detaining pregnant women suspected of drug use violates their human rights, and the widespread agreement that this practice actually threatens maternal and infant health, should be a call to reconsider our approach to substance use in pregnancy. Instead of spending money on counterproductive punishment and coercive treatment, we should ensure that women like Tammy are able to trust that the people they turn to will provide help, not handcuffs.
Wednesday, December 21, 2016
UN Special Rapporteur on Trafficking Recommends that the U.S. Adopt a Stronger Focus on Labor Exploitation and Cease Prostitution Arrests
In what may be the last official UN human rights expert visit to the U.S. for a long time, last Friday, Maria Grazia Giammarinaro, the UN Special Rapporteur on Trafficking, concluded her 10-day visit to the U.S. In an official statement issued on Monday, she encouraged the U.S. to adopt a more proactive and systemic effort to address forced labor and labor exploitation. She also questioned the focus and impact of the U.S.’s current anti-trafficking strategies, which rely heavily on prostitution arrests.
U.N. human rights experts must be “invited” before conducting official country missions. The Obama administration has been fairly open to visits from UN Special Rapporteurs and expert Working Groups. Since 2009, at least 13 official visits were conducted prior to Giammarinaro’s visit. However, the U.S. has been widely criticized for refusing to invite Juan Mendez, the former U.N. Special Rapporteur on Torture, despite repeated requests for in an invitation over Mendez’s 6 year term.
Special Rapporteur and Working Group visits can provide important opportunities to raise the visibility of current rights violations and pressure government reform. For instance, following visits this past summer and fall, the UN Working Group on Arbitrary Detention urged the U.S. to cease mandatory detention of all migrants and specifically called for the end of detention of families and unaccompanied minors, and the Special Rapporteur on the Rights to Freedom of Assembly and Association criticized U.S. security forces for using excessive force against the protesters at Standing Rock.
Visits can also challenge current policy assumptions and provide opportunities to encourage human rights based solutions. Preparation for visits often brings activists working on different issues and in different locations together providing unique opportunities to collaborate. This is especially important on issues like trafficking where there is widespread public and political attention, but where current policies may be ineffective or have an adverse impact on victims of abuse and exploitation.
In her official statement the Special Rapporteur on Trafficking praised the U.S.’s commitment to address trafficking and its “impressive number of laws and initiatives,” but she noted that many anti-trafficking initiatives can have “an adverse impact on trafficked persons.” In particular, laws and policies that focus on arrest of people engaged in sex work result in fear of law enforcement that make it more difficult for trafficking victims to come forward. Further, criminal convictions make it difficult for victims to gain stability and independence by imposing substantial barriers to obtaining housing, education and employment.
The Special Rapporteur recommended that the U.S. adopt “a human rights based approach to trafficking which includes the de-criminalization of those who engage in prostitution” and “encourage[d] law enforcement officials to use their discretion to avoid arresting sex workers as they can be potential victims of sex trafficking.” Her recommendations are consistent with international human rights principles that emphasize that victims of trafficking should not be prosecuted for violations they were forced to commit as a result of their trafficking situation.
The Special Rapporteur urged the U.S. to adopt a preventative approach to trafficking and explore root causes that make people vulnerable to trafficking including “[s]ocial and economic inequalities, humanitarian and economic situation in neighborhood countries, [and] increasing stigmatization of migrants.” She also encouraged the U.S. to reconsider immigration and labor policies that make workers vulnerable to traffickers, specifically criticizing work visas that tie workers to employers because “they are prevented from denouncing exploitation for fear of losing their job or their residence status.”
The Special Rapporteur’s recommendations will become all the more urgent in the coming months as the Trump administration considers whether to adopt even more restrictive immigration policies. “Walls, fences and laws criminalizing irregular migration do not prevent human trafficking,” she warned. “On the contrary, they increase the vulnerabilities of people fleeing conflict, persecution, crisis situations and extreme poverty, who can fall easy prey to traffickers and exploiters.”
Sunday, November 20, 2016
I knew something was up when a policeman ushered me away from a cordoned off entrance to the Richard Rodgers Theater. But then again, this was Hamilton, and the presence of celebrities and politicians in the audience is almost a common occurrence. So it wasn’t quite a surprise when the woman in the seat in front of me told me the Vice President was attending the show. How great to watch the show with Joe Biden, I thought, glancing around the theater to see if I could spot him. That’s when Mike Pence walked in.
I bought our tickets to see Hamilton back in January. My daughter’s friend Alicia, a self-proclaimed theater geek had introduced us to the show. Alicia is Chinese-American, like me, and has written eloquently about what Hamilton means to children of immigrants, who are Americans but are often made to feel we are not part of our own country. Our family listened to the soundtrack non-stop. We were entranced by the story of the imperfect founding father, “a bastard, orphan, son of a whore.” We loved the history and patriotism, the focus on the promise of America in a story centered on immigrants, African-Americans and women. It made us feel that we were part of the narrative.
Then the election happened.
When Mike Pence walked in, there was a mix of applause and jeers. I stood silent, annoyed that Pence was going to ruin yet another thing for me. As the show went on, I’ll admit that it was cathartic to cheer with fellow New Yorkers when Angelica Schuyler sang we “hold these truths to be self-evident/that all men are created equal/and when I meet Thomas Jefferson/I’m gonna compel him to include women in the sequel.” And again when Hamilton and Lafayette proclaim “Immigrants: we get the job done.” Towards the end of the first act, King George comes on stage to warn the newly freed colonists how hard it is to rule, singing “when your people say they hate you, don't come crawling back to me.” Cheers were so loud that the actor, Rory O’Malley, had to stop singing.
During the intermission, my daughter speculated that Pence might skip the second act. Even though I’ve written to criticize Pence’s policies in Indiana and am truly scared about his agenda for the country, I found myself hoping that he would stay. I actually wanted him to see Hamilton. Hamilton is a beautiful play created by a diverse cast and crew. It represents a vision of America and American values that is important for the Trump/Pence administration to hear.
After the play, Donald Trump tweeted that the cast should apologize. The theater should be a special place, he said, calling the cast “rude” to Mike Pence, “a good man.” Like many others, I question the hypocrisy of essentially asking for a safe space for the future vice president, when Trump and his supporters mock the need for such spaces for young people and minorities on college campuses. However, I agree that as a country, we need to create spaces for dialogue and theater should be one of them.
But Hamilton’s cast and crew have absolutely nothing to apologize for. They performed a wonderful, inspiring, and thought provoking show. Rather than allowing Pence to sneak out after being jeered by the audience, the cast asked Pence to stay, urging the crowd to refrain from boos. The crew welcomed the Vice-President Elect and thanked him for attending the show. They also expressed a fear that many of us feel: that the new administration will not protect us. Brandon Victor Dixon, the actor who plays Aaron Burr, closed by saying he hoped that the story told by a diverse group of men and women of different colors, creeds and orientations would help to inspire Pence to uphold our inalienable rights and to work on behalf of all of us to uphold American values. I can’t think of anything more American than that.
Wednesday, June 29, 2016
The Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt to strike down two provisions of a Texas law that would have closed more than 75% of the state’s abortion clinics was a major victory for women’s rights. As I explain in an earlier post, the decision should deal a fatal blow to TRAP laws (targeted regulation of abortion providers), sham laws that purport to be health regulations but really are designed to impose onerous unnecessary requirements on abortion providers making it difficult or impossible for them to remain open.
Justice Breyer’s opinion makes it clear that the undue burden standard requires courts to balance the “burdens a law imposes on abortion access together with the benefits those laws confer.” The opinion also rejects the Fifth Circuit’s position that courts should defer to the legislature and not consider whether a law purporting to be a health regulation actually has any medical benefit, emphasizing that a higher level of judicial scrutiny is required when a constitutionally protected liberty is at stake.
Given the sham nature of Texas’ health justification, it’s not surprising that Justice Breyer’s opinion spends a significant amount of time showing why the Texas provisions do not provide any health benefit. Because the undue burden standard balances the burden and benefits of abortion restrictions, the lack of any health benefit significantly influenced the Court’s determination that the provisions are unconstitutional. But, perhaps as a result of this, the opinion spends less time discussing the burden imposed by the law and the impact of the provisions on women.
Notably absent from Justice Breyer’s opinion and Justice Ginsburg’s concurrence is any discussion of the significance of abortion in women’s lives and the reason why state laws designed to undermine women’s access to abortion violates their fundamental rights. Perhaps this indicates that the Court (with the exception of Justice Thomas) so accepts Planned Parenthood v. Casey’s holding that a woman’s right to choose to terminate a pregnancy is “central to [her] personal dignity and autonomy [and] the liberty protected by the Fourteenth Amendment” that the court does not feel the need to repeat it.
But it would have been nice to hear the Court reaffirm reproductive choice as essential to women’s liberty and autonomy and perhaps even recognize that access to abortion also implicates other fundamental rights. International human rights law and countries around the world recognize that access to abortion can implicate women’s right to health, right to be free from discrimination based on gender and socio-economic status, and right to be free from torture and cruel and inhuman and degrading treatment. Indeed, Mellet v. Ireland, a recent case from the U.N. Human Rights Committee, found that Irish laws criminalizing abortion in most circumstances violated the human rights of a woman who sought to terminate a pregnancy after learning that the fetus she carried had a fatal genetic condition. Ireland’s abortion restrictions forced her to travel from her home in Dublin to Liverpool England (approximately 136 miles away) to obtain an abortion. The Committee found that, under the circumstances, forcing Mellet to travel out of the country to obtain an abortion constituted cruel, inhuman and degrading treatment, violated her right to privacy and constituted impermissible discrimination.
Although the challenged Texas provisions did not make it illegal for women to obtain a pre-viability abortion, like the restrictions in the Mellet case, they would have forced many women to travel hundreds of miles to obtain an abortion. Some women forced to travel may have been the victims of rape or domestic violence, carried a fetus with a severe fetal anomaly or experienced other circumstances making it more likely that the restrictions violated their right to be treated humanely and with dignity.
In Mellet, the Human Rights Committee specifically recognized that prohibiting access to abortion and forcing women to travel great distances to obtain treatment constitutes discrimination. In a concurring opinion, Committee member Sarah Cleveland explained that interference with women’s access to reproductive health services can violate their right to equality and non-discrimination by denying access to health services like abortion that only women need.
Cleveland also found that Ireland’s law constituted discrimination based on socio-economic status because forcing women to travel to get health services results in unequal access to care based on income. Recognizing the disproportionate impact of restrictions that limit access to health care services on poor women is important because the district court in Whole Woman’s Health found that the Texas provisions “erected a particularly high barrier for poor, rural or disadvantaged women.”
Although the U.S. Supreme Court did not recognize discrimination based on socio-economic status as an independent basis to strike down the Texas provisions, Justice Breyer made it clear that the undue burden standard requires that the Court consider whether the restrictions imposed a substantial obstacle in the path of certain women seeking an abortion even if they did not have the same impact on all women of reproductive age in Texas. And lower courts have recognized that application of the undue burden standard requires consideration of the ways abortion restrictions interact with women’s lived experiences. These aspects of the undue burden test will be crucial to ensuring that the test not only strikes down sham TRAP laws, but also protects the right to abortion for all women.
Wednesday, March 9, 2016
Following last week's argument in Whole Woman’s Health v. Hellerstedt, commentators have focused on the impact of the women on the Court. One area where Justices Ginsburg, Sotomayor and Kagan made their presence felt was on the quality of the Court’s discussion of women’s health. Collectively, they (with significant help from Justice Breyer, and even some from Justice Kennedy) probably spent more time considering the health impacts of Texas HB2 than the entire Texas legislature did when it passed the law.
And it was appropriate that they did. Since it would be unconstitutional for Texas to pass a law with the purpose of preventing women from having abortions, the Texas Solicitor General had to argue that HB2 was enacted to protect women’s health. Petitioners have maintained that by delaying or preventing women’s access to abortion, the law actually increases the health risks that women face.
The challenged law imposes two requirements: (1) that doctors who perform abortions have admitting privileges at hospitals within 30 miles and (2) that facilities that provide abortions meet the requirements of an ambulatory surgical center (ASC). Collectively, the requirements will result in closure of three-quarters of Texas’s abortion clinics (About half of Texas’s 40 clinics closed when the admitting privileges requirement went into effect. The ASC requirement has been stayed).
The Texas SG tried to make broad, conclusory statements that the additional requirements would make abortion provision safer, but the Justices pushed back asking the SG why the requirements were necessary given the nature of abortion procedures – medical abortion just requires women to take two pills and early surgical abortion does not even involve general anesthesia - and the procedures’ extremely low complication rates.
Justices Sotomayor questioned the necessity of having a woman “travel 200 miles or pay for a hotel” to take 2 pills for a medical abortion in an ambulatory surgical center. When the Texas SG later tried to argue that the ASC requirement was necessary in case complications arose, Justice Ginsburg shut him down, noting that if complications arose from a medical abortion, they would happen several hours later after the woman returned home.
The Justices also took note that the risks associated with abortion are extremely low, less than 1% (the risks of a colonoscopy are 28 times greater) and did not justify the ASC or admitting privileges requirement. Justice Sotomayor pointed out that surgical abortion is essentially the same medical procedure as the treatment women receive following a miscarriage, but Texas has not imposed additional requirements for treatment of miscarriages. After Justice Ginsburg noted that early stage abortion is “among the most safe” and “least risk procedures” and that child birth is much riskier, the Texas SG made the mistake of trying to disagree with her. Justice Ginsburg shot back, “Is there really any dispute that childbirth is a much riskier procedure than early stage abortion.”
Several Justices also showed real concern about the law’s negative impact on women’s health. Justice Kennedy noted that the law appeared to be increasing surgical abortions as opposed to medical abortions in Texas, which “may not be medically wise.” Justice Sotomayor expressed concern that the lack of access to legal clinical care would bring us back to the time before Roe v. Wade, where women were forced to get abortions from unlicensed providers. And, Justice Breyer questioned Texas’s health purpose given evidence that lack of accessibility will increase self-induced abortions and the risk of “many more women dying.”
The Justices also emphasized the need to consider how the law affects access to care for all Texas women. Justices Kagan and Ginsburg pushed back on the Texas SG’s statement that the law would leave abortion facilities in metropolitan areas. Justice Kagan pointed out that in 2012 less than 100,000 women lived more than 150 miles from an abortion provider, and as a result of the law 900,000 women would live further than 150 miles from a provider and 750,000 further than 200 miles. Justice Ginsburg emphasized that in determining women’s access to abortion under Planned Parenthood v. Casey, “the focus must be on the ones who are burdened and not the ones who aren’t burdened.” Thus, the Court’s inquiry should not focus on the women who live in Austin or Dallas but “the women who have the problem who don’t live near a clinic.”
Many of the questions posed by Justices Ginsburg, Sotomayor, Kagan and Breyer revealed skepticism about Texas’ asserted health justification for the requirements. In responding to questions about availability of services, the Texas SG stated that women in West Texas could obtain abortions in New Mexico. Justice Ginsburg questioned how Texas could rely on women traveling to facilities in New Mexico, which does not impose admitting privileges or ASC requirements.
The Texas SG was repeatedly questioned about the lack of evidence of a need for the new restrictions and the fact that Texas did not act to impose similar requirements on much riskier procedures. He consistently responded that the Texas legislature can set much higher standards on facilities that provide abortion than facilities providing much riskier procedures. Then, Justice Kagan asked the question that was on everyone’s mind, “I just want to know why Texas would do that?”
Wednesday’s argument is a good indication that at least half of the Justices understand and take the impact of the Texas law on women’s health and access to abortion seriously. Hopefully, that understanding and respect for women’s health will be reflected in the Court’s decision.
Monday, February 29, 2016
On Wednesday when the Supreme Court hears oral argument in Whole Woman’s Health v. Hellerstedt, its first major abortion case in several years, Justice Scalia, the Court’s biggest opponent to abortion and international and foreign law will be missing. The Court is set to consider whether a Texas law that would shut down 75% of the state’s abortion clinics and leave vast swaths of the state without a legal abortion provider imposes an undue burden on women’s access to abortion. International human rights law could provide a useful perspective to aid the Court in its deliberations if the newly constituted Court is open to considering it.
As recognized in a recent post on this blog, around the world reproductive rights are recognized as an integral part of, and necessary pre-condition for, gender equality. The Supreme Court invoked equality values to support its Due Process analysis in Planned Parenthood v. Casey but has stopped short of adopting the Equal Protection clause as an independent basis for affirming women’s right to abortion. International law could help further develop and expand the Court’s equality analysis.
But, even if the Court continues to rely on the Due Process clause as the main source of women’s right to abortion, as set forth in an amicus brief submitted by the National Latina Institute for Reproductive Health (NLIRH) that CUNY Law School’s International Women’s Human Rights Clinic co-authored with NLIRH attorneys and Freshfields Bruckhaus Deringer, there are several ways that international law can provide helpful insights to inform the Court’s analysis.
Rights can’t just be theoretical. At the heart of Whole Woman’s Health is Texas’s argument that it may pass laws that shut down medical facilities that legally provide abortion without unduly burdening women’s access to abortion. The European Court of Human Rights and other human rights bodies have emphasized that where a country recognizes that a woman has a right to an abortion, it must ensure that the right can be meaningfully exercised. For instance in R.R. v. Poland, the European Court stated that when a state allows abortion in some situations “it must not structure its legal framework in a way which would limit real possibilities to obtain [an abortion].”
The Court must consider those most adversely affected. Human rights law emphasizes that the experience of the most marginalized populations should be at the center of determining whether laws violate human rights. The forced clinic closures will impose long waits for appointments, lengthy and expensive travel, including overnight stays, and increased costs for many Texas women seeking abortions. These barriers will have the greatest impact on women without the means or ability to travel. NLIRH’s brief describes the experience of Latina women working low wage jobs and in school - many of whom are mothers - who do not have access to cars, days off, child care or financial resources. Immigrant women and women in domestic violence situations will be particularly impacted because of the challenges they already face in traveling outside their communities. In determining whether the Texas law imposes an undue burden, the Court should consider the law’s impact on these women.
Impact of lack of clinical abortion services on women’s health: Another important factor for the Court to consider is the impact that the Texas law will have on women’s health. Around the world, it is well documented that when women do not have access to legal abortion services, the rate of unsupervised and unsafe abortion rises. As a result, international human rights bodies have warned that restrictive abortion laws lead to “unsafe, illegal abortions, with attendant risks to life and health.” Consistent with international experience, recent studies have found that self-induction in Texas is likely to increase if the law goes into effect and that Latinas living near the Mexico border and poor women facing barriers to reproductive health care are most likely to be affected.
Tuesday, December 8, 2015
Has anti-choice propaganda led to an increase in violence and attacks on abortion clinics? Following last week’s tragic attack on the Colorado Springs Planned Parenthood, the news has focused on the impact of videos released by the Center for Medical Progress and political rhetoric targeting Planned Parenthood. Meanwhile, the New York Times and Washington Post have published pieces trying to figure out what motivated Robert Dear, Jr.
But, regardless of how the media depicts this latest act of violence, it’s clear that there’s a long and well-documented history of attacks on abortion clinics and providers. The Colorado shooting should remind us of the dedication and bravery of abortion providers who daily face intimidation, threats and harassment designed to prevent women from accessing health services and rob them of their right to make their own reproductive rights decisions. For their work, abortion providers are often stigmatized, but they should be acknowledged as human rights defenders.
In an op ed in the New York Times, Dr. Willie Parker describes how he gave up his OB practice in Chicago and moved to Alabama to provide abortions full-time. He explains “[i]n public health, you go where the crisis is. If there is an outbreak and you have the ability to relieve suffering, you rush to the site of the need. This is why, a year and a half ago, I returned to my hometown, Birmingham, Ala., to provide abortions.”
Despite physical threats and threats to their livelihood, abortion providers remain committed to providing care to women. A recent article in Rolling Stone profiled a doctor who was bombarded with harassing calls and “veiled threats online (‘I wonder if someone will shoot the new provider...’).” She eventually gave up her family medicine practice after anti-choice activists picketed her practice and pressured the building where the practice was located. “I wasn't about to let awful tactics like that work, because that would just encourage them to keep doing that to others. So the ultimate effect was that I became a full-time provider of abortion care.”
Mother Jones describes the heroic efforts of abortion providers to keep clinics open in the face of new and frequently arbitrary requirements and regulations imposed on them by anti-choice legislatures each year. And Pro Publica describes the constant barrage of personalized harassment providers face, including picketing of private homes and the targeting of families for harassment. To avoid harassment and threats of violence, providers register their homes in their spouses’ names; they change their path to work; they buy bullet-proof vests. All to ensure that women are able to make their own reproductive health decisions.
The international community has recognized that medial and health services professionals are human rights defenders when they provide services to ensure that women can exercise their reproductive health rights. In 2010 the Special Rapporteur on Human Rights Defenders, a U.N. human rights expert who monitors and speaks out about attacks on human rights defenders, stated that “[i]n certain countries . . . health professionals, as a result of their work, are regularly targeted and suffer harassment, intimidation and physical violence.” The report recognizes that attacks have led to “killings and attempted killings of medical professionals.”
Last month, the Special Rapporteur on Human Rights Defenders, joined by five other human rights experts, issued a statement emphasizing the need to protect sexual and reproductive rights defenders in the Americas. The statement recognized that sexual and reproductive rights defenders “face the same risks as many other activists, but they are further exposed to retaliation and violence because they challenge power structures based on patriarchy and deeply-held gender stereotypes about the role of women in society.”
For their commitment to women’s rights and the challenges that they face to provide services, abortion providers should be recognized as human rights defenders. Let’s change the dialogue and recognize them as the heroes they are.
Wednesday, October 14, 2015
Last week, the Nuestro Texas campaign—a joint project of the Center for Reproductive Rights and the National Latina Institute for Reproductive Health—issued a report documenting a women’s human rights hearing held last March in the Rio Grande Valley. Lately, Texas has made front-page headlines because a challenge to HB 2 a Texas abortion statute is making its way to the Supreme Court. Abortion access was very much an issue at the hearing, but the testimony made it clear that the human rights problems in the Valley are much broader and deeper.
I served as an expert, along with 6 other human rights experts from the U.S. and Mexico for the hearing. In addition to attending a community meeting in a colonia (an unincorporated area that lacks paved roads and other infrastructure) and touring the last remaining abortion clinic, the experts listened to a full day of women’s testimony. The testimony illustrated multiple human rights issues, including the historic lack of health care infrastructure and affordable services for poor and rural women, the profound barriers that immigrants face in accessing health care in Texas, and the impact of recent Texas laws and policies that have gutted family planning services through cuts in funding and the exclusion of Planned Parenthood from receiving state funds for preventive care. (Although the funding was reinstated during the most recent session of the Texas legislature, the facilities that served women in poor and rural communities—dozens of clinics across the state that were forced to close or severely cut back on services—will not receive this new funding).
During the hearing, women shared stories about being turned away from clinics that did not have appointments available or funding only to later learn they had cancer. They described fears about their families’ future as they live with the uncertainty of undiagnosed breast lumps. They described the lack of available and affordable family planning, and the difficulties that an unplanned pregnancy creates for a mother struggling to care for her family or a woman trying to pursue her education.
The women who took part in the hearing also conveyed their vision for Texas’s future, and their commitment to fight for change. As Lucy Felix, field coordinator for the Texas Latina Advocacy Network stated, “We are all fighting together for a different Texas—a just Texas. What we want is a Texas with human rights for all.”
Monday, September 21, 2015
Cindy Soohoo introduces one of her CUNY students, who writes the following post:
By Katy Naples-Mitchell
This year marks the 20th Anniversary of the Fourth World Conference on Women – a convening on women’s human rights that produced the landmark Beijing Declaration and Platform for Action. Recent press coverage of the anniversary has focused on the Beijing Declaration’s relationship to the new sustainable development goals. But a new campaign called GQUAL by the Center for Justice and International Law (CEJIL) is taking a different tack by focusing on women’s representation in international positions of power.
What does Beijing+20 have to do with GQUAL?
Part G of the 1995 Beijing Declaration addressed “Women in Power and Decision-making,” focusing on the strategic objective to “Take measures to ensure women's equal access to and full participation in power structures and decision-making.” Although the Declaration was primarily aimed at gender parity commitments within Member States, the Declaration also targeted obligations to bring women into the fold in the upper echelons of international decision-making. For example, in paragraph 193(a), the Declaration explicitly called on the UN to “achieve overall gender equality, particularly at the Professional level and above, by the year 2000….”
Fast-forward to today:
CEJIL’s new GQUAL campaign reveals the significant shortfalls in reaching these gender equality goals and frames the issue as a violation of states’ obligations to respect the principle of non-discrimination. According to the GQUAL campaign launch materials, as of June 2015, women occupied only 21% of all positions within the main international and regional tribunals. In most cases, member states are responsible for nominating and electing candidates for these positions. Not only are they falling short on their non-discrimination obligations, but states also continually fail to circulate transparent guidelines that respect gender parity to ensure equality in candidate nominations and voting processes.
GQUAL calls for bringing awareness to, and ultimately correcting, the severe gender imbalances in international tribunals and monitoring bodies – putting the onus on states to nominate qualified women judges to serve on international tribunals. The GQUAL campaign’s strategies will include:
Publicizing the current lack of gender parity within international mechanisms and tribunals
- Growing grassroots support for gender parity
- Disseminating information regarding available positions
- Demanding transparency behind selection processes and enforcement guidelines
The campaign launch is timely, not only because of the Beijing+20 anniversary but also because of statements out of Geneva just this week. On Tuesday at the 30th Session of the UN Human Rights Council, UN High Commission for Human Rights Zeid Ra’ad Al Hussein spoke about the lack of gender parity in UN human rights bodies and the “need to do better than our societies…to lead by example.” Mr. Al Hussein reminded Member States that at its 6th session in 2007, the Human Rights Council had encouraged states to nominate more women to human rights treaty bodies, mechanisms, and international courts and tribunals. He remarked that he pledged to undertake his own efforts to correct continuing imbalances, including refusal to take part in any panel that does not include women experts and to improve gender parity within his office, where “although women are 57% of staff graded ‘Professional’ and above, they still represented barely one-third of senior managers.”
Monday, May 25, 2015
Editor's Note: Continuing their report on the U.N. Human Rights Committee's review of the United States' treatment of juveniles, Prof. Soohoo and students Tawakalitu Amusa and Chelsea Guffy grade and discuss U.S. compliance with HRC recommendations.
[The U.S.] should encourage states that automatically exclude 16 and 17 year olds from juvenile court jurisdictions to change their laws. Grade: C
In July 2014, New Hampshire passed a law requiring that all cases involving individuals under 18 originate in juvenile courts. Nine states, however, still exclude children under 18 from juvenile court jurisdiction. Currently, there are legislative campaigns to raise the age in New York and North Carolina, the only two states that exclude both 16 and 17 year olds from juvenile court jurisdiction. In NY, a governor’s task force recommended comprehensive juvenile justice reforms including expanding juvenile court jurisdiction, and the budget passed in April allocates $135 million towards the reform. The North Carolina legislature is considering a bill that would allow the juvenile system to hear cases involving 16 and 17 year olds charged with misdemeanors, which if passed, would reflect a small but significant step forward for the state.
[The U.S. should ensure] that juveniles are not transferred to adult courts. Grade: C-
All states have transfer laws that allow or require youth under 18 to be tried as adults in certain circumstances. However, some states are making efforts to decrease the frequency that youth are tried as adults. CFYJ reported that in 2013-14, fourteen states and Washington, D.C. engaged in legislative efforts to reform and limit the ways that youth can be transferred into adult courts. Two states, Nebraska and Indiana, passed legislation making it more difficult to try youth as adults for certain offenses. In Indiana, legislation was passed to give juvenile courts jurisdiction over youth charged with gang related activity and to require that youth tried as adults serve their sentences in juvenile facilities.
[The U.S.] should also ensure that juveniles are separated from adults during pretrial detention and after sentencing. Grade: C-
National standards promulgated under the Prison Rape Elimination Act (PREA) require that youth be separated from adults in jails and prisons. In 2014, only two states certified full compliance with these standards, and seven states and one territory refused to comply with PREA altogether. The majority of states (46 states and territories) submitted assurances that they are working toward compliance.
States were due to submit new certification forms last week. As of the May 15, 2015 deadline, 10 states had submitted certifications of compliance and 36 states and 4 territories had issued assurances. Three states that refused to comply with PREA in 2014, Indiana, Florida, and Nebraska, switched to assurances in 2015. Although the switch and the increased number of certifications is a positive sign, there is continuing concern that there is no deadline by which states must come into compliance and that they can continue to issue assurances in perpetuity. Further there are continuing attempts in Congress to change and potentially weaken the financial penalties imposed on states that fail to comply with PREA.
The [U.S.] should prohibit and abolish the sentence of life imprisonment without parole for juveniles. Grade: C
Following the Supreme Court decisions in Grahamand Miller, the U.S. Supreme Court significantly limited the imposition of juvenile life without parole sentences. However, the Supreme Court decisions still allow states to sentence youth who are convicted of homicide crimes to be sentenced to life without parole if they have an individualized sentencing hearing (ie they are not given a mandatory sentence).
Last week Vermont passed legislation completely abolishing juvenile life without parole sentences. West Virginia and Hawaii passed similar legislation in 2014 bringing the total number of states that do not impose juvenile life without parole sentences for any offense to 14 states plus the District of Columbia. State courts continue to disagree about whether Miller should be applied retroactively. On March 23, 2015, the United States Supreme Court agreed to hear Montgomery v. Louisiana to resolve the retroactivity question.
[The U.S.] should impose strict limits on the use of solitary confinement . . . and abolish the practice in respect of anyone under the age of 18.
IWHR did not have comprehensive data around changes in solitary confinement laws and policies. However, the following positive developments have occurred in New York. In New York City, Rikers Island, the second largest jail in the U.S., excluded youth under 18 from the punitive segregation and is slated to extend the ban to youth under 21 as of January 1, 2016 contingent on the provision of sufficient resources for staffing and programming alternatives. The HALT Solitary Confinement Act is gaining momentum in the NY State Legislature. The bill would bar the use of solitary for youth under 21 as well as the elderly, pregnant women, LGBTI individuals and those with physical and mental disabilities and would ban extreme isolation for all populations beyond 15 days.
This year, there has been a steady stream of international criticism exposing U.S. youth justice practices that violate human rights. Although the U.S. continues to be in violation of international standards, there have been significant reform efforts at the state level. Many of these efforts recognize that justice policies must respect the human rights of youth and have begun to explicitly push for reforms that meet our international human rights obligations. For instance in New York, Assemblyman Daniel O’Donnell introduced a bill to reform solitary confinement that emphasized the need to comply with recommendations from the U.N. Committee Against Torture. Over the next year, we hope to see increasing activism at the state and federal level to bring U.S. youth justice polices into compliance with international human rights standards.
This post first appeared at Juvenile Justice Information Exchange
Friday, May 22, 2015
by: Cynthia Soohoo, Tawakalitu Amusa and Chelsea Guffy
Editor's note: This post, by Prof. Soohoo and students Amusa and Guffy, is part one of an assessment of the United States regarding treatment of juveniles. Part two will address specific issues and grades assigned to the U.S.
Last spring, the U.N. Human Rights Committee (HRC) reviewed U.S. compliance with the International Covenant on Civil and Political Rights and called out multiple ways that U.S. treatment of youth in conflict with the law violates human rights standards. The HRC review began a year of steady international criticism.
- In September and December and U.N. Committees Against Racial Discrimination and Torture reiterated that the U.S. must reform its youth justice policies.
- In March, the U.N. Special Rapporteur on Torture, Juan Mendez, issued a report emphasizing the use of alternatives to detention to protect children from torture and ill-treatment. The report singled out the U.S. as the only country that imposes life without parole sentences on children.
- Last week, during the U.S.’s Universal Periodic Review (a peer review of the human rights record of each country in the U.N.), several countries emphasized that youth under 18 should not be in the adult criminal justice system and recommended that the U.S. end life without parole sentences for juveniles in all circumstances.
One year after the HRC review, CUNY Law School’s International Women’s Human Rights Clinic (IWHR) and its partners issued a Report Card to evaluate U.S. progress on youth justice issues. The Report Card finds that the U.S. continues to be in violation of its human rights obligations and has not taken satisfactory action to respond to the recommendations. For more in depth information about state reforms check out the Campaign for Youth Justice’s State Trends report.
This post first appeared in Juvenile Justice Information Exchange
Monday, April 13, 2015
By Cindy Soohoo and J.M.Kirby
After an almost two-year legal battle, this February, Phoenix prosecutors dropped criminal charges against activist Monica Jones, a transgender woman of color. Jones had been arrested and convicted of violating a prohibition against “manifest[ing] an intent to commit or solicit an act of prostitution.” The statute criminalizes such behavior as engaging passersby in conversation, waving at cars, or making “any other bodily gesture.” An appellate court reversed Jones’ conviction on a technicality and ordered a retrial.
As an ardent transgender rights and sex worker rights activist, Jones noted that while the prosecutors’ decision to drop the charges was positive, it denied her the opportunity to challenge the constitutionality of the statute. She stated, “it is a small win in our larger fight for justice. There are so many trans women and cisgender women who might be charged under this law in Phoenix and similar laws across the country.”
Jones’ case illustrates the phenomenon that human rights activists call “walking while trans.” This describes the rampant and widespread police profiling of transgender women of color as sex workers. Jones joined activists in Geneva to raise this issue before the U.N. in advance of the U.S.’s upcoming Universal Periodic Review. Speaking to the ways that police use anti-sex work laws as a tool to harass transgender people of color, she said, “as long as the police can target my community using these anti-sex-work laws, we will never be safe from violence, including the violence of incarceration.”
Community and human rights groups have documented how a combination of discriminatory police practices and vague and overbroad statutes have led to the harassment and criminalization of transgender and gender non-conforming communities. In 2005, an Amnesty International report found "a strong pattern of police unfairly profiling transgender women as sex workers." Reports and testimony from groups like Make the Road in Queens, NY and LGBTQ youth group BreakOUT! in New Orleans show that transgender women of color continue to be subject to police violence, including arbitrary arrest, and police profiling. A 2013 study by the National Coalition of Anti-Violence Programs (NCAVP) found that transgender people are seven times more likely to experience physical police violence than cisgender people and that among the transgender community, people of color are more than twice as likely to face police violence.
On Wednesday, April 15 at 6 pm, CUNY Law School’s NLG and OUTLAWS are hosting a panel and workshop that will bring together transgender rights activists and the legal community to learn about and develop strategies to challenge the criminalization and discriminatory police practices targeting transgender women of color in New York City. Scheduled speakers are:
Emma Caterine from Red Umbrella Project
LaLa Zannell from Anti-Violence Project
Olympia Perez from BlackTransMedia
Monica Jones from Sex Workers Outreach Project--Phoenix
Aisha Lewis-McCoy, Criminal Defense Practice, The Legal Aid Society
Lynly Egyes from the Sex Workers Project at Urban Justice Center
The event is free with Spanish translation and light food, but RSVP is required: http://bit.ly/19RdXdk
Monday, February 9, 2015
Co-Editor Cindy Soohoo writes on a shift in China's one child policy. Tomorrow's post will discuss the differences between US - China policy in both motivation and social policy in addressing women's equality.
Prof. Soohoo writes:
After years of pursuing a one-child policy, China is taking steps to try to increase its birth rate, but is finding that it’s not so easy. The current policy changes respond to demographic shifts caused by a low birth rate and aging population. The prospect of a smaller labor pool saddled with supporting an aging population has fueled fears that China will “get old before it gets rich.” Promoting women’s equality may be the key to addressing China’s labor and population problem.
China’s one child policy has been criticized for employing coercive tactics that violate women’s reproductive autonomy and for triggering a gender imbalance in the population due to a historic societal preference for sons. Human rights bodies have denounced abusive tactics employed pursuant to the policy including forced abortion and sterilization. They have also emphasized the need to address the structural causes of son preference by eliminating gender stereotypes and promoting women’s equality. The same emphasis on improving the status of women, including eliminating barriers faced by working mothers, will go a long way to support China’s current efforts to encourage births and economic growth.
Since China’s current 1.5 birth rate is substantially below the 2.1 rate needed to maintain a stable population, last year it decided to allow parents a second child if one of the parents was an only child (the prior policy allowed only two children if both parents were only children). But the number of couples that applied to have second children is much lower than expected. This is especially true in urban areas like Shanghai. At the end of 2014, only 5% of couples in Shanghai eligible to have a second baby applied to do so.
Chinese reticence to take advantage of the new policy is consistent with regional trends. East Asia has the lowest fertility rate in the world, and some demographers say that China’s birth rates would have declined even without the one child policy. There are dire forecasts about the future of Japan, where the birth rate is currently 1.4, and social security costs are projected to be 24.4% of the country’s GDP by 2026. Last summer, South Korea’s birth rate dropped to 1.19 leading a government research service to declare that at current rates, its population will be extinct by 2750.
Reports suggest for the growing middle class in these countries the cost of child-rearing, including housing, child-care and education have become prohibitively expensive. An official in Shanghai cited the high cost of raising children and the negative impact of having a child on a woman’s career development as driving the lack of interest in having a second child.
Promoting women’s equality and economic opportunity can make it easier for families to bear the costs of larger families and expand the work force. But often parents face substantial hurdles in the workplace, forcing women to choose between work and motherhood. In Japan 70% of women stop working after having a child due in part to inflexible work hours and lack of male participation in household chores and children rearing. And if they return to work they end up in low wage, part-time or contract positions. The loss of female talent has led economists to suggest that closing the gender gap could substantially improve Japan’s GDP.
Japan and South Korea have funded match-making and dating services to address their low birth rates. Adopting family friendly policies that encourage and support working parents could have a greater long term impact. Japan’s prime minister is reportedly considering a number of policies to encourage women to stay in the workforce after having children, including increasing the availability of affordable child care, changing tax rules favoring single income couples, encouraging more flexible hours in the workplace, and encouraging companies to employ more women in senior positions.
The current demographic pressures may cause China to further relax regulation of family sizes. But, if China is serious about increasing its birth rate and increasing the labor pool it must ensure that women have equal economic opportunities and working families have the support they need.