Wednesday, December 11, 2019
The Columbia Human Rights Law Review On-Line continues with its publication of articles addressing the Commission on Unalienable Rights. Continuing our discussion of reproductive rights, this time in the framework of the Commission, we address a recent publication appearing in Columbia's On-Line Law Review. The article is Canary In The Coal Mine: Abortion Rights and The Commission on Unalienable Rights by Akila Radhakrishnan and Elena Sarver both of the Global Justice Center. The abstract follows:
This past July, the Trump administration announced the creation of a new body with a curious name—the “Commission on Unalienable Rights.” Secretary of State Mike Pompeo described the effort as an attempt to “ground our discussion of human rights in America’s founding principles.” However, universal human rights norms exist to hold states accountable: they cannot be defined, redefined, or limited based on the demands or viewpoints of a single government. While Secretary Pompeo claims that he wants to depoliticize human rights, this commission does the exact opposite.
The establishment of this panel is yet another offense on the international system as part of the Trump administration’s regressive agenda. This action follows a clear pattern of ideological attacks on US engagement with the human rights system and the norms they uphold. Such recent examples, as this submission will discuss in greater detail, include withdrawing from the Human Rights Council, erasing reproductive rights from human rights reports, and cutting funding to the Organization of American States in an attempt to censor abortion-related speech. Additionally, the denial of abortion care to women held in detention at the US border, the problematic nomination of Andrew Bremberg as US Ambassador to the Office of the United Nations and Other International Organizations in Geneva, and the removal of language referencing sexual and reproductive health care in UN Security Council Resolution 2467 also fall into the administration’s pattern of undermining the importance of women’s health and bodily autonomy.
The full article may be downloaded here.
Tuesday, December 10, 2019
SCOTUS has declined to hear a challenge to a Kentucky law that requires details of ultrasounds be given to women seeking abortions. Among other details, the ultrasound law requires that the "fetal heartbeat" be played for the pregnant woman.
Could there be any clearer message that SCOTUS supports abortion restrictions that are unrelated to health law? The requirement reinforces the distrust of women's decisions and efforts to control those choices. Playing sounds of a "heartbeat" has no relevance to medical safety, leaving the rationale for the requirement to dissuade women from completing abortions. Emotional manipulation should find no cover in the law. But it has.
Sunday, September 29, 2019
September 28th was the International Day of Safe Abortion. As part of bringing awareness to this serious global issue organizations, activists and scholars from around the world signed on to a letter submitted to the 42nd Session of the UN Human Rights Council. The letter was delivered on behalf of 37 organizations and 506 individuals. The letter follows:
In the Vienna Declaration and Programme of Action, States explicitly agreed to prioritize the realization of women’s human rights and recognized that all human rights are universal, indivisible, interdependent and interrelated. Yet, 26 years later, women and girls’ human rights and bodily autonomy continue to be routinely violated, including through the denial, criminalization and stigmatization of access to safe and legal abortion - all of which is rooted in the discrimination, oppression, violence and coercion affecting the material conditions that shape people’s lives and ability to exercise their bodily autonomy and human rights.
In 1994, Black feminists came together as the Women of African Descent for Reproductive Justice, in reaction to the white supremacy, colonialism and capitalism they observed shaping reproductive politics and inherent in the broader population control narratives. Reproductive justice is centered on the rights to bodily autonomy and self-determination, and to parent and not to parent in safe and healthy environments.iii It is rooted in an intersectional analysis and moving beyond an individualistic conception of “choice” to instead place emphasis on the material conditions necessary to exercise reproductive rights. Reproductive justice also addresses the legacy of population control informed by white supremacy and replacement theory, which has resurfaced in current populist politics.
Reproductive justice is achieved when all people are able to enjoy their right to bodily autonomy and sexual and reproductive self-determination. It requires people to enjoy economic, social, and cultural rights and freedoms, and the ability to make and exercise choices not limited by oppression, discrimination, stigma, coercion, violence, lack of opportunities or possible consequences. Treaty bodies and special procedures have echoed this need and recognized that the realization of women’s reproductive rights depends on the material conditions in which they are born, grow, live, work and age, and on power structures and resource distribution at all levels - in other words, the social and other determinants of health.v These include access to housing, safe drinking water, effective sanitation systems, access to justice, and freedom from violence, among other factors, and impact the agency that individuals can exercise with respect to their sexual and reproductive health.vi Our discussions on abortion and sexual and reproductive rights cannot continue ignoring these factors.
The realization of reproductive justice, the right to bodily autonomy and substantive equality also requires freedom from control and interference by State and non-State actors, including private companies, donors and multinational corporations, including criminalization of sexual and reproductive behaviors and decisions, restrictive abortion laws, punitive sanctions, and legal restrictions to regulate women’s control over their own bodies.
These laws, policies and practices typically target and disproportionately impact women of color, women from the Global South, women with disabilities, women living in poverty, migrant
women, ethnic minorities and indigenous women, women living with HIV, young women and adolescents, sex workers and gender-non-conforming persons based on racial, class, disability and gender stereotypes.viii
Today, on 28 September, International Safe Abortion Day, we urge States to respect, protect and fulfill women and girls’ human rights and realize reproductive justice for all. We call on states to:
● Ensure access to available, accessible, acceptable and quality sexual and reproductive health services as part of universal health coverage and public health systems, including modern contraceptive options, comprehensive abortion and post-abortion care, financed adequately through taxation and free from control from other governments, multilateral agreements and transnational corporations.
● Remove all legal and social barriers to safe abortion, including its criminalization, which is broader and including sanctions and no sanction regimes, and commit to providing safe abortion services on request.
● Address social and other determinants of health in law and practice from an intersectional perspective to ensure that they enable all individuals to effectively enjoy their sexual and reproductive rights.ix
● Hold private companies and multinational corporations accountable for unethical research practices, violations and abuses of women and girls’ reproductive rights and bodily autonomy.
● Prioritize the meaningful participation of local movements, women human rights defenders and feminists demanding accountability for sexual and reproductive health and rights violations, and center their demands and recommendations for the realization of reproductive justice.
You may listen to a concise version of the letter being read at the UN Council meeting here.
Thursday, September 26, 2019
Following up on last week's post on an article advocating for free menstrual products in schools, we report that the issue has taken on some national publicity.
CBS News reported recently that actress Sophia Bush has taken up the cause against "period poverty". As reported "Bush is partnering with Always which makes period products, to raise awareness about just how widespread the issues is. She plans to help them surpass last year's donation of 20 million products to girls across the country."
The numbers of girls who have missed school due to inability to afford products is astounding. CBS reports the following numbers: 143,000 girls in New York City; 88,000 in Los Angeles; 65,000 in Chicago; 57,000 in Atlanta; and 38,000 in Houston.
The movement is gathering support. The Pacific Standard reported on a group of activists demanding the elimination of taxes on menstrual products and free products in school, prison and shelter restrooms as well as those in public spaces. Boston established a pilot program to devote $100,000 to stock products with school nurses.
This is the time for advocacy to accelerate. With more school systems acknowledging the need, this is the time to bring the same demands to institutions of higher learning and all government buildings.
Monday, June 10, 2019
Editors' Note: This piece was originally published in the NY Daily News
The New York State Legislature banned surrogacy in 1992. The only other state that similarly criminalizes and holds all surrogacy contracts unenforceable is Michigan. New York prohibited surrogacy on the heels of a nationwide debate that ensued after a surrogate in New Jersey, Mary Beth Whitehead, sought to keep custody of her biological child.
Almost exactly a year ago today, the New Jersey legislature legalized gestational surrogacy, which is to say cases in which the pregnant woman is not also the genetic mother. Yet New York still lags behind in recognizing modern families.
Last week, I testified in Albany before the New York State Senate Judiciary Committee in favor of a bill that would legalize and regulate compensated surrogacy in New York State. In speaking to state legislative representatives, I learned that one reason some worry about allowing surrogacy is because they think women (particularly poor and minority women) will be exploited.
This is exactly the argument made by some women’s rights advocates. Catholic groups argue that because surrogates face abusive conditions in Thailand, Cambodia, and other developing countries, they will also be exploited in the United States.
The problem with these arguments is that they conflate an ideological objection to surrogacy with a prediction that surrogates in New York will be abused. Those who shroud their objections to surrogacy by pointing to the abusive conditions in other countries object to surrogacy on religious grounds or because they think women’s gestational care should never be bought and sold.
This top-down feminism appears in debates about surrogacy in India as well. Marxists oppose surrogacy in India because they oppose the buying and purchasing of labor more generally. These viewpoints are married to create the exact same arguments being made today in New York: that women will be exploited by surrogacy.
But like the anti-surrogacy lobby in New York, many opponents of legal surrogacy in India would still oppose it even if every surrogate was paid her a million dollars and put up in the Ritz-Carlton by intended parents.
Even in the numerous other states in the U.S. where there is no legislation, industry actors have adopted many surrogate-protective guidelines. Surrogates in the United States additionally have the ability to seek damages from doctors, lawyers or the intended parents if they have been harmed, unlike the women who are surrogates in India.
Wednesday, May 29, 2019
The Supreme Court Can’t Avoid Sex-Selective, Race-Selective, and Disability-selective Abortion Bans Forever
After considering the case in fifteen consecutive conferences, the Court in Box v. Planned Parenthood of Indiana and Kentucky gave us a rare window into its politics. In a carefully negotiated compromise, the Court denied certification on the U.S. Court of Appeals for the Seventh Circuit’s finding that laws that banned sex-selective, race-selective, and disability-selective abortion are unconstitutional. In addition, the Court summarily (without further briefing or oral argument) reversed the Seventh Circuit’s finding that Indiana’s law that fetal remains must be disposed of like human remains is unconstitutional.
On the question of disposal of fetal remains, Justice Ginsburg points out that the litigants used the weaker “rational basis” test rather than the “undue burden” standard articulated in Planned Parenthood v. Casey for “strategic” reasons. It is also for strategic reasons that pro-choice advocates have tried to keep what pro-life advocates call “anti-discrimination” provisions as far away from the Court as possible. While there were numerous amicus briefs from pro-life groups urging the Court to take certification in the case, no pro-choice group wrote an amicus brief. Sex-selective abortion bans were adopted by Pennsylvania along with a host of other abortion restrictions in 1989. Planned Parenthood challenged a number of restrictions but didn’t challenge the one on sex-selection.
In the last decade, states started to ban sex-selective abortion on the false empirical premise that women, particularly Asian American women, abort fetuses when they learn of its sex. Proponents of those bans make reference to laws and practices in other countries to justify bans in the United States. Similarly, Justice Thomas also refers to countries where sex-selective abortions are widespread in his opinion. For example, he cites to an article I wrote about sex-selective abortion in India. Vice President Pence who signed the Indiana laws when he was governor of Indiana released a statement urging the United States to follow the lead of other countries around the world and ban sex-selective abortion.
Pointing to the disproportionate abortion rate among African-American and Hispanic women, Justice Thomas suggests that race-selective abortion bans are necessary to prevent eugenics. Race-selective abortion bans prevent a woman from aborting her own fetus on the basis of its race. The text of the race-selective abortion ban was crafted to mirror the language of sex-selective abortion ban. However, the analogy becomes absurd when the actors with the purported racist and sexist intent are brought into the picture. It makes little sense to say that minority women obtain abortions because they object to the race of their own fetuses. The concept of “race” itself is socially constructed so it is not even possible to know the “race” of a fetus before it is born.
The reality is that among the so-called “anti-discrimination” bans, the only type of abortions that are known to occur in the United States are disability-selective abortions. Some women who may not want to raise a child with a severe disability might choose to abort a fetus in that situation. This issue deeply divides liberal communities with some advocates arguing that aborting fetuses with disabilities such as down syndrome devalues people with down syndrome.
For the moment, Justice Thomas agreed with his liberal colleagues to punt this complicated question to a different day, but he is right to say that the Court can’t avoid it forever. Rarely does the Supreme Court explain why it refuses to hear cases on appeal, but in Box v. Indiana, they stated that they refused to hear a challenge to the Indiana bans because the Seventh Circuit was the only appeals court that had ruled on the issue. Recently, a Federal judge granted a temporary injunction against Kentucky’s bans. That case will likely be appealed to the Federal Court of Appeals for the Sixth Circuit and their opinion might diverge from the judgment of the Federal Court for the Seventh Circuit. If that happens, it would create the circuit-split that would make granting certification more compelling. Bans on specific reasons for abortion could appeal to members of the Court that do not want to drive a truck through Roe v. Wade, but are willing to kill it with a thousand cuts.
Tuesday, May 28, 2019
The Supreme Court upheld the lower court's a portion of the lower courts decision that an Indiana law that requires doctors who perform abortions to see that fetal remains are either buried or cremated. The Indiana provision requires those who perform abortions to either bury the fetal remains or cremate them. According to the court, when Planned Parenthood of Indiana and Kentucky brought this case to challenge the disposal requirement, they did not argue that the requirement placed an undue burden on women seeking abortions. That left the court to decide the constitutionality of the law using a lower, rational basis standard.
But the regulations do burden women albeit indirectly. Every time a new condition is imposed upon doctors who perform abortions their costs are increased and they are under additional scrutiny. Higher costs, increasing professional and personal pressures will likely push an increasing number of doctors to abandon the practice.
So this is how reproductive rights will be de facto abolished. Burden the doctors to such an extent that the real costs of providing abortions become untenable. As the majority of the Roberts court may seek to undo abortion rights incrementally, a successful legal challenge to the burdening laws will likely be cumulative. Eventually, details on the increased costs will be available, along with evidence of the cumulative personal costs to the doctors. At some point, the case might be made as to undue burdens, but in the meantime, the weightiest burden lies on those women in need of abortions.
Thursday, May 23, 2019
Ultimately women's health decisions, including reproductive rights, are about women's autonomy. The abortion "debate" is about some men's efforts to limit women's control over their bodies and their futures. Some men make decisions whose consequences fall only on women. Whether or not to reproduce is a decision that should be private and without state interference. But male supremacists cannot permit women to have a voice in choices that will impact them for the rest of their lives. Reproductive rights are perhaps the last arena for men to control women. The laws, at least in theory, have assured that women have equal access to employment and education. While in practice women often struggle to achieve equity and respect, under the law equal treatment has been supported through state and federal statutes and supporting case law.
But legislation on reproductive rights is not an area where equality and autonomy are respected. Legislation to limit women's autonomy on reproductive health is perhaps the last aspect of women's autonomy that can be effectively curbed by the (primarily) white, male legislators. Force a woman to have children and you succeed in assuring that obtaining education and professional status for women is less likely. Conflating religious beliefs with legislative goals is improper under the separation of church and state. The pretext of religious and moral commitment easily reveals itself to be a sham. "Pro-life" legislation such as that in Alabama actually extends to unborn fetuses only. Birthed children lose protection as soon as they leave the womb.
The exceptions in the Alabama legislation that permit abortion in the face of serious health threats to the mother are shams within a sham. The only straightforward exception is where there is a medical emergency where continuation of the pregnancy would result in the death of the mother or impairment such that the mother would result in loss of a serious bodily function. This is by far a minority of reasons why abortion is elected. The act carefully delineates that second exception, serious medical risk, but serious medical risk does not include mental or emotional distress. For an abortion to be approved under those conditions the treating physician's opinion is insufficient. In addition, a psychiatrist must examine the patient and find that the woman's condition would result in her death or the death of the child, if born. And should the woman meet these prerequisites, despite a shortage of psychiatrists in rural Alabama, the abortion must be performed by a physician licensed by Alabama and in an Alabama Hospital in which the physician has privileges. Guess how many Alabama Hospitals permit abortions to performed on premises? Denying privileges to doctors who perform abortions is an impossibly slow process by design. Then there are consequences for the mother who has a termination under these conditions. Will the state be prepared to take any child the woman might give birth to later? Will the state determine that danger to the child will not be problematic because they will take the child at its birth?
Oh- and that exception for the health of the mother? Well - post-abortion and within 180 days of the procedure, a second physician must certify in writing that the abortion was medically necessary. That physician shall not be subject to liability for the certification. If the performing physician is unable to find a certifying physician, prosecution will result. If one is found, the certification will be "prima facie evidence for a permitted abortion", The language of prosecution.
But returning to the premise that Alabama is not pro-life:
Alabama provides limited education for children K-12. The state ranks 49th in children who graduate high school and are prepared for college. Alabama refuses to expand Medicaid, which would vastly enhance the ability of mothers and children to receive proper medical care. Child abuse rates reduce when women have access to abortion. Abortion rates reduce when women have access to contraceptives. The United States leads the developed countries in maternal death rates. Hardly pro-life or pro-children! Childcare largely remains the burden of mothers, with little in the way of government subsidies. Alabama executes the convicted at high rates, even when there are solid legal doubts as to whether the individual received a fair trial.
Alabama legislators and those of other states that have enacted severe anti-abortion laws are not pro-life. They are anti-women.
Tuesday, April 30, 2019
Thank you Kansas! A state with a history of passing some of the most restrictive anti-abortion laws in the country has revealed itself to be a defender of a woman's right to choose. The Kansas Supreme Court upheld women's reproductive rights with only one dissenter and declared that any legal issue involving personal autonomy is determined under the highest standard of strict scrutiny. The court gave hope to pro-choice advocates early in the opinion stating: "Kansas Courts have the authority to interpret Kansas constitutional provisions independently of the manner in which federal courts interpret similar or corresponding provisions of the United States Constitution. This can result in the Kansas Constitution protecting the rights of Kansans more robustly than would the United States Constitution."
The court based its decision soley on the provisions of the Kansas constitution, setting a roadmap for possible future strategies for challenges to state anit-abortion laws.
"Section 1 of the Kansas Constitution Bill of Rights affords protection of the right of personal autonomy, which includes the ability to control one's own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy."
Tuesday, April 2, 2019
Anticipating federal restrictions on reproductive choice, states and cities have been looking to implement legislation that will protect reproductive rights. New York City recently enacted a bill that prevents employment discrimination based upon sexual health choices.
The bill summary notes:
"The bill would prohibit discrimination in employment, and discriminatory harassment or violence, based on an individual’s sexual and reproductive health decisions. Sexual and reproductive health decisions would be defined to include any decision by an individual to receive services, which are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions. Such services include, but are not limited to, fertility-related medical procedures, sexually transmitted disease prevention, testing, and treatment, and family planning services and counseling, such as birth control drugs and supplies, emergency contraception, sterilization procedures, pregnancy testing, and abortion."
The law will go into effect on May 20, 2019. To read further commentary, click here.
Tuesday, March 12, 2019
Recently we wrote on the administration's consideration of de-funding the Inter-American Commission on Human Rights. As reported, nine senators requested the defunding. Eight white men and one white woman comprised the group seeking to erase funding from the budget because they are unhappy with the Commission's positions on abortion. They claim that the Commission's efforts amount to "lobbying" for reproductive rights that is prohibited for those receiving US funds.
While we have focused on the Inter-American Commission on Human Rights, the Inter-American Commission of Women is impacted, as well, and identified in the letter. (Both are under the umbrella of the Organization of American States.) The Commission on Women has a rich history of investigating and obtaining resolutions that clarify and enhance laws that impair women's rights. When the Commission was first formed in 1928, it took on the task of addressing laws that interfered with women's statehood. Some countries removed original citizenship from women when they married a native of another country. Sometimes the country of the husband's citizenship would not grant citizenship to the foreign-born wife, leaving those married women stateless. The Commission took on universal suffrage for women and other issues impacting women's liberty. When the organization became permanent in the 1930s, it was the first international organization devoted to studying the needs of women in the Americas. In 1994, the Commission presented the first resolution on violence against women, which was passed as the Convention of Belém do Pará. Violence against women remains one of the Commission's priorities. The Commission's visibility has been more limited during the past year, experiencing the financial stressors of the IACHR.
Two of the Commission's goals are to
- Contribute to the development of international and inter-American jurisprudence on women’s human rights and gender equity and equality
- Foster the formulation and adoption of inter-American instruments for the recognition of women as rights holders and agents of democracy
Since the beginning of the Trump Administration, women's rights and agency have been eroding. We need the Inter-American Commission on Women more than ever. As women in the US fight to maintain fundamental freedoms, we turn to international women's organizations for assistance. The international community of women may be one of the few effective voices in reminding that world that indeed, women's rights are human rights.
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
Thursday, October 25, 2018
Former Secretary of Health and Human Services Kathleen Sebelius warned in a recent Washington Post article that the administration is already seeking to restrict women's health care beyond what the Supreme Court has permitted under Hobby Lobby and administration efforts to eliminate protections for pre-existing conditions. Sebelius focused on pending regulations that would not only limit access to birth control but access to information on birth control.
Pending regulations would make access to contraceptive difficult for about 4 million low income women. The regulations would create a "gag" order on providers giving referrals for abortion services. We are familiar with these restrictions on overseas health who receive federal funds. Now the administration seeks to implement the same restrictions on US providers. The regulations would primarily impact lower income women who lack insurance. Money saved from funding reproductive health care and low-cost contraception will be used to fund notoriously unsuccessful abstinence promotion.
As Sebelius informs "The draft rules, issued in June, not only would block any federal funding for family planning clinics that also offer abortion services, such as Planned Parenthood, but also would eliminate the current requirements that all health clinics receiving federal family planning funds offer a broad range of approved family planning methods, including prescription contraception." All at a time when teen pregnancies have drastically declined.
The full article may be read here.
Monday, August 27, 2018
Martha Davis and Risa Kaufman have published an Issue Brief with the American Constitution Society. The Issue Brief is entitled "Truth is Truth: U.S. Abortion Law in the Global Context". The Society's website reads:
"With Justice Anthony Kennedy’s retirement from the U.S. Supreme Court, the fate of reproductive rights is once again at the center of national debate. Abortion opponents have been preparing for a time they might be able to revisit many of the key Supreme Court decisions upholding this fundamental right. To support their efforts, they often point to a report that finds that the United States is more permissive than the majority of other countries with regard to abortion access. In a new ACS Issue Brief, Martha F. Davis, Professor of Law and Associate Dean for Experiential Education at Northeastern University School of Law, and Risa E. Kaufman, Director of U.S. Human Rights at the Center for Reproductive Rights and lecturer-in-law at Columbia Law School, explain how the report and its use of a rudimentary global tally is misleading, inaccurate, and ignores both important protections for women’s health provided by many other countries and the international trend towards liberalization, particularly in Europe. In so doing, Davis and Kaufman provide a more complete understanding of comparative abortion law that will better equip policymakers, judges, and the public when reproductive rights are under attack."
The brief may be read here.
Thursday, June 28, 2018
While the nation was distracted by the crisis of children being separated from their parents at the US border, a Supreme Court decision impacting abortion providers was less noticed. In The National Institute of Family and Life Advocates, dbs NIFLA, et al v. Becerra, Attorney General of California, et al, the court decided that free speech protections prevented California from requiring anti-choice organizations to provide information on abortion availability as part of their services.
Justice Breyer pointed out the inconsistency with Planned Parenthood v Casey requires abortion providers to distribute certain kinds of information to clients. "As the question suggests, there is no convincing reason to distinguish between information about adoption and information about abortion in this context. After all, the rule of law embodies evenhandedness, and 'what is sauce for the goose is normally sauce for the gander'" Justice Thomas attempted to distinguish the cases by arguing that the 1992 Planned Parenthood case involved a medical procedure. Justice Thomas responded "Really? No one doubts that choosing an abortion is a medical procedure involves certain health risks. But the same is true of carrying a child and giving birth." Justice Breyer noted that childbirth is 14 times more likely to result in the woman's death than abortion.
Justice Breyer might have added that US maternal death rates are the highest in the developed world.
I would have said that perhaps it is time for laws imposing speech on abortion providers be revisited. But given this week's news of Justice Kennedy's retirement, maybe not.
Thursday, March 15, 2018
By Sital Kalantry, Clinical Professor of Law at Cornell Law School and author of Women’s Human Rights and Migration: Sex-Selective Abortion Laws in the United States and India.
The Chicago-based Court of Appeals for the Seventh Circuit heard an appeal from Indiana last month which will decide whether a state can specify the reasons a woman can terminate her pregnancy. The law in question, signed in March 2016 by then-Governor Mike Pence, prohibits a woman from aborting a fetus on the basis of its sex, disability (including Down syndrome), race, color, national origin, or ancestry.
The lower court, the U.S. District Court Southern District of Indiana, found that the reason-based bans are clearly unconstitutional under Roe v. Wade and Planned Parenthood v. Casey. That court found a state may not prohibit any woman for terminating her pregnancy before viability for any reason. The court also found the portion of the law that required abortion providers to inform their patients of the anti-discrimination provisions and the types of abortions those provisions prohibit and a portion of the law related to fetal tissue disposition were also found to be unconstitutional. The State of Indiana has now appealed this decision, bringing it to the Seventh Circuit.
Ten states have laws to punish doctors for performing an abortion knowing the woman is seeking it because she doesn’t want a child of a certain sex. There are injunctions in place in three of those states. For example, the sex-selective abortion ban in Arkansas was enjoined by a lower court because it was likely unconstitutional. In 1984, Illinois was the first to adopt a ban on sex-selective abortion, but the state eventually agreed to limit the statute only to abortions post-viability after the U.S. Supreme Court’s decision in Casey in 1993. Other states have other forms of reason-based restrictions: North Dakota and Ohio bans disability-selective abortion and Arizona has enacted a race-selective abortion ban.
Reason-based bans are sweeping the nation, particularly sex-selective abortion bans. If states are allowed to limit the reasons for which a woman can terminate a pregnancy, it will drive a huge hole into reproductive choice. Women will be subject to questioning about their motives, an inquiry that can be humiliating and invasive for someone already embarking upon what is likely a difficult decision. When medical professionals face criminal penalties for performing an abortion for the “wrong” reasons, this creates a strain on the doctor patient relationship, and jeopardizes the quality and accessibility of health care services overall.
The state of Indiana and other advocates for reason-based bans on abortion claim that the bans are needed to address discrimination in society. Using misinterpretations of narrow demographic data, anti-abortion advocates have even convinced some pro-choice legislative representatives that the bans on sex selection are needed to prevent widespread abortion of female fetuses among Chinese Americans and Indian Americans. This dominant (and false) narrative misrepresents data in order to play upon feminist concerns related to the desire of some people in some Asian countries to have at least one son. Playing on this stereotype has been successful: over half of state legislatures and the majority U.S. House of Representatives have voted to consider bans on sex-selective abortion.
Anti-abortion groups have also received support from some disability rights groups for bans on disability-selection abortion. An amicus brief in the Indiana case submitted by Down Pride, Saving Down Syndrome, Fondation Jérôme Lejeune, and Women Speak for Themselves, argues that permitting disability selective abortion risks eliminating entire communities of people with disabilities. This disability-selection ban would also prevent abortions for women whose fetuses have been diagnosed with severe disabilities and may require life-time medical care or whose children may die soon after birth.
Anti-abortion advocates also claim that race-selective abortions are needed to prevent the disproportionate rate of abortion among African American and Latina women. Indeed, some African American pro-life groups, such as the National Black Pro-Life Coalition, have spoken in support of such bans. Although the disproportionate rate of abortion among some minority groups is an issue worthy of examination, the notion that minority women are racially discriminating against their own fetuses is absurd, and cannot sustain a straight-faced discussion.
The U.S. Court of Appeals for the Seventh Circuit should find pre-viability reason-based bans to be unconstitutional under Roe and Casey. The constitutional status of post-viability bans is less clear. In light of the most recent reproductive rights case, Whole Woman’s Health, the Seventh Circuit may undertake a cost/benefit analysis if it applies the “undue burden” test to post-viability sex-selective abortion bans. In such a scenario, pro-choice advocates could argue that sex-selective abortion bans in particular will create a tension in the relationship between a medical professional and her patient, could lead to racial profiling by medical professionals, and will burden the rights of women who desire to obtain non-selective abortions. Importantly, the composition of the justices and whether or not they follow the dominant narrative put forth by anti-abortion activists (for example, that such bans are necessary to prevent widespread sex discrimination amongst Asian Americans) could also have a great impact on the ultimate decision of the Court.
If the Seventh Circuit decides that the Indiana reason-based bans are constitutional, many states will rush to limit the specific reasons for women obtaining abortion. The result may well be a Handmaid’s Tale-esque dystopia, where only a few are deemed to be the “right” reasons. Perhaps we will be headed in the direction of many of our South American neighbors that permit abortion only in the case of rape and to save the life of the mother. No matter how the Seventh Circuit rules, the case is likely headed to the U.S. Supreme Court. If reason-based bans are deemed to be constitutional, it will significant restrict women’s reproductive choice in many ways.
Wednesday, June 21, 2017
Women’s Human Rights and Migration, has just been published as part of University of Pennsylvania's Human Rights book series. In the book, Prof. Sital Kalantry describes how the U.S. Congress and state legislatures across the country have used stereotypes Indian-Americans and Chinese-Americans to restrict women’s rights to choose. The legislators misuse information about people living in other countries to argue that certain minority groups are aborting female fetuses. Using new national census data and survey data, the book presents evidence that some Asian Americans desire to have balanced families with both girls and boys. Practices like sex-selective abortion and veiling that occur in the country of origin of a migrant but also emerge or are attributed to migrants in their country of destination call into question traditional universal approaches human rights. Kalantry argues for a transnational approach to domestic regulation on migrant women’s practices. Read more about the book here. You can look inside the book and purchase at Amazon.
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.
Wednesday, May 31, 2017
The rights guaranteed in the Universal Declaration of Human Rights are quickly being eroded in the United States.
In an assault on women, the Trump Administration has announced proposed changes that will severely curtail women’s autonomy.
The administration announced that it is reviewing rolling back a rule that mandates employers who provide health insurance to cover birth control. Closely held businesses employers were found exempt from the mandate in the Hobby Lobby decision based upon religious freedom. This executive order expands the exemption to all employers who decline to cover birth control upon grounds of conscience, that is religious grounds. This action, under cover of religious freedom, greatly expands employer choice while further limiting women's reproductive choices. The disdain and disregard in which this administration holds women has never been subtle. This latest assault particularly affects poor women. In completing the cover sheet that will accompany the rollback, the administration responded “no” to the query as to whether the change would be economically significant.
The administration has demonstrated its inability to understand circumstances of those who live outside of the white, wealthy circles in which the president confines himself. Women of the 1% are unlikely to experience adverse consequences of this rollback. While wealthy women are more likely to enjoy expansive health benefits, the out of pocket cost of birth control will not force them to make difficult budget choices. Forcing lower income women to choose between food and birth control or transportation to work and birth control, removes from them one of the few “choices” they have. The economic impact is significant.
While attending the January Women’s March, I saw an older woman carrying a sign pronouncing “I’m too old to be demonstrating against this *s__t* ” I get it. We thought we had won this battle in the 70’s. Mad Men is back.
Monday, March 20, 2017
Over the course of the past few weeks, women's organizations have reviewed Judge Gorsuch's record in an attempt to determine his understanding of the myriad legal issues women face. Judge Gorsuch by and large has not appreciated the difficulties of women's lives and how laws and policies can have a disparate impact on them.
The National Association of Women Lawyers found Judge Gorsuch to be "not qualified" on women's issues. The organization's Supreme Court Committee members, of which the author is one, review candidates' opinions and other writings and conduct interviews with a wide number of people who have interacted with the candidate in various capacities. While the committee found that Judge Gorsuch generally treated litigants and lawyers with respect, and that he has the intellectual capacity for the position, his record on issues important to women displays a lack of understanding. In a press release containing the committee's findings, the committee noted concerns around the Judge's giving religious freedom rights deference over women's reproductive rights. Likewise, the committee noted "Judge Gorsuch's writing also exhibits a reluctance to recognize precedent that applies substantive due process to protect the rights of women." The committee further noted concern in other areas, including his failure to recognize transgender women as women thus denying them rights that are afforded to other women.
The National Women's Law Center also issued their report on Judge Gorsuch. Concerned with Judge Gorsuch's lack of support for regulatory authorities, the Center's press release stated: "Judge Gorsuch has explicitly praised Justice Scalia's approach to the law. While he has not opined on Roe v. Wade, he voted to override a woman's coverage of contraception if her boss objected. Justice Scalia was highly skeptical that courts should defer to the interpretations of laws by expert government agencies - and Judge Gorsuch would go even further, making it harder for agencies to implement the laws that have literally opened doors of opportunity for women and girls."