Tuesday, April 27, 2021
By Shelby Logan (April 27, 2021)
This month, the United Nations Population Fund (UNFPA) issued a report on women's bodily autonomy detailing scenarios in which rapists in 20 countries can marry their victims, often against their will, to escape criminal prosecution. In Russia, for example, if an 18 year old statutorily rapes a minor younger than 16, the perpetrator is exempt from punishment if they marry the survivor. These laws, and other laws discussed in the report, deny women bodily autonomy and reflect archaic and discriminatory views about women and girls' right and ability to decide whether or when to have sex.
“Marry Your Rapist” laws deny justice to survivors and signal that rape is not a serious crime. The laws also put survivors at risk for continued abuse and perpetuate stigma against them. Human rights activists fear that even if these laws are abolished, families may still coerce women and girls who become pregnant as a result of rape into marrying their attackers in countries where abortion is criminalized and there are barriers to getting birth certificates for children born out of wedlock.
UNFPA reports that fifty percent of women in 57 countries that were analyzed in the report are denied the right to make their own decisions about having sex, using contraception, or seek reproductive healthcare. In addition to "Marry Your Rapist" laws, 43 countries have no legislation criminalizing marital rape. Further, it is estimated that there are 650 million women alive today who were married before the age of 18 and every year an additional 12 million girls are married before they become adults.
Although all but one of the world’s countries has ratified the Convention on the Rights of the Child, many countries still allow marriage under the age of 18, sometimes with the consent of a parent, guardian, judge or other governmental official. Many countries that prohibit these types of marriage by law still struggle to prevent child marriage. Much like the forced unions resulting from “Marry Your Rapist” laws, many of these marriages take place in traditional or religious ceremonies and are never registered with civil authorities.
Yet, as much as there is a tremendous amount of work to be done, progress is slowly being made. Tunisia, Jordan, and most recently, Lebanon, repealed and reformed clauses within their penal codes that enabled perpetrators to evade prosecution by marrying the women they raped. In August 2017, Lebanon removed a discriminatory legal provision related to article 522 of the Lebanese Penal Code after a successful nationwide advocacy campaign led by UN Women Lebanon and ABAAD Institution for Gender Equality. Activists mobilized during the 16 Days of Activism against Gender-Based Violence to strengthen legislation to protect women and girls from sexual violence and exploitation and to spur broader changes of societal norms. All three countries also closed loopholes that enabled families to force women into marriage with their rapists to prevent the social stigma of pre-marital sex.
These changes are historic legal victories for women’s movements in the protection of bodily autonomy, and examples of the path forward to combatting these patriarchal laws. By centering the stories of real women harmed by these violent policies, advocates are demonstrating how passionate and skillful activism can bring about landmark change and provide a blueprint for legal reform in the countries where these harmful laws remain.
Thursday, April 22, 2021
By Genevieve Marcy (April 22, 2021)
The Biden administration has touted the American Rescue Plan as “one of the most progressive pieces of legislation in history.” Included in the legislation is a provision that promotes reproductive justice and the health and human rights of pregnant and birthing people by allowing states to expand Medicaid to cover birthing parents up to one-year post-partum. While the new provision represents an important step forward, by extending the time period Medicaid covers pregnant people after birth, the expansion will not provide coverage for pre-pregnancy health issues that cause and exacerbate pregnancy-related health concerns. Pregnancy-related health conditions do not arise in a vacuum, and they do not disappear one year after birth. Additionally, by allowing states to decide whether to opt-in to the expanded coverage, this expansion may do little to shrink the disparities in health outcomes and maternal mortality rates between the states.
To be clear, any increase in Medicaid coverage for birthing parents will have a positive effect on maternal health. The United States has the highest maternal mortality rate among wealthy nations, likely due in part to our country’s high rates of uninsurance. Currently, the Medicaid provision that covers birthing parents extends only 6 weeks after birth—even though a full third of pregnancy-related deaths occur between 1 week and 1 year after birth. Expanding Medicaid coverage also could help fight racial disparities in maternal mortality, as Black women and Native women are much more likely to suffer pregnancy-related deaths, and have higher rates of cardiovascular issues that can be especially dangerous post-partum.
While racial disparities in maternal mortality rates cannot be explained by deficient healthcare alone, inadequate care before pregnancy contributes to the elevated maternal mortality rate faced by Black pregnant people and other pregnant people of color. Conditions that could have been treated or prevented with regular access to healthcare—like cardiovascular disorders or diabetes—can become dangerous or even deadly during pregnancy. Even if Medicaid coverage allows an individual to access appropriate care during pregnancy, nine months is often not long enough to solve health problems that have been brewing for years. Similarly, while extending Medicaid coverage for one year post-partum will help prevent many pregnancy-related deaths, pregnancy-related health complications can continue to affect a person’s health for years after giving birth.
There remain significant challenges for people to obtain and keep Medicaid coverage before and after pregnancy that stem from states’ ability to opt out of expanding eligibility. Twelve states refused to expand Medicaid eligibility under the Affordable Care Act. These states are primarily in the southeast and have higher Black populations than average—meaning that the decision to refuse Medicaid expansion in these states has had a disproportionate effect on Black Americans. Leaving the decision to expand post-partum Medicaid coverage to the states is likely to replicate and exacerbate this disparity. This has led Rep. Ayanna Pressley to introduce a bill that would make the ARP extension of Medicaid coverage for one year post partum mandatory for states.
In its most recent concluding observations on the US, the U.N. Committee on the Elimination of Racial Discrimination, which oversees compliance with the Convention on the Elimination of All Forms of Racial Discrimination, pointed out that allowing states to opt-out of Medicaid expansion prevented the ACA from adequately addressing racial disparities in access to health care. The Committee specifically recognized the link between racial disparities in maternal and infant mortality and Medicaid coverage and called on the federal government to take action to reduce the disparity. While the post-partum Medicaid expansion is a solid step in the right direction, allowing states to opt-out means that, like the ACA, the ARP provision’s effect on racial disparities in maternal mortality will be limited. The US should build on the ARP by making the one year post-partum expansion mandatory and taking steps to ensure that all people in every state have access to the care they need—whether they are post-partum or not.
Tuesday, April 20, 2021
New York Saves Stopgap Funding for Reproductive and Sexual Health Clinics Waiting in Limbo for Title X Fixes
By Fallon Parker (April 20, 2021)
The final 2021-2022 New York State budget passed by the NY Senate earlier this month included great news for Brooklynites in need of low cost reproductive health care. The budget restored $1.8 million in funding to two Brooklyn clinics run by Public Health Solutions The clinics primarily serve low-income Black and Latino women and offer low or no-cost reproductive care, including midwife-led prenatal care and referrals for adoption and abortion.
The New York State Legislature allocated the $1.8 million to PHS as a part of a $16 million package to replace federal Title X family planning funds. In 2019, President Trump’s “domestic gag rule” banned organizations receiving Title X funds from providing abortions or even referring for them. Because of the restriction, 25% of Title X clinics left the program, including the majority of clinics in New York. While President Biden is moving to reverse the rule and largely restore prior Title X requirements, clinics supported by grantees that left the program during the Trump Administration will have to reapply under Biden’s new regulations, creating a delay in allocating funds. PHS CEO Lisa David said their clinics would not be able to survive until Title X is fully restored without the $1.8 million in stopgap funding from New York.
The Title X program has existed since 1970, but the regulations implementing the program can fluctuate based on the politics of the current president. Given the increasingly partisan political atmosphere and the rise of the “defund Planned Parenthood” movement, it’s possible that the whiplash of Trump’s domestic gag rule could become more common. In order to protect providers, experts like the Guttmacher Institute are recommending HHS include provider nondiscrimination protections in all Title X regulations and work to ensure the relationship between Title X grantee (the entity that administers the grant, sometimes a state health department) and subrecipient (clinic that contracts with grantee to provide services) is not politicized.
In light of the politicization of the funding, New York’s decision to fund PHS’ clinics through FY 2022 is encouraging. In addition to New York, at least ten other states implemented some form of stopgap funding to support organizations that were forced to leave the Title X program during the Trump administration. Of these ten states, Maine, Oregon, and Washington lost 100% of their Title X clinics. However, in the wake of COVID-19 and a declining economy experts are unsure about the sustainability of stopgap state funding.
PHS serves 3,500 Brooklyn patients, and it clinics fill an important role in the family planning health center network, says Dr. Herminia Palacio, CEO of the Guttmacher Institute. Dr. Palacio notes that clinics like PHS are especially important for people who may experience implicit and explicit bias at private medical offices, in particular Black women, who are three times more likely to die from pregnancy and birth than white women. Given the crucial role reproductive and sexual health clinics play for pregnant people and families, it’s worth considering how New York can continue to proactively mitigate future federal cuts to services so reproductive health services remains accessible and affordable, regardless of who controls the White House.
Tuesday, April 13, 2021
By Kelly Folkers (April 13, 2021)
On April 6, the Arkansas state legislature overrode a gubernatorial veto and enacted a bill (H.B. 1570) that will ban access to gender-affirming care (GAC) for people under the age of 18, the first law of its kind in the United States.
H.B. 1570 is one of 80 bills regulating transgender and gender expansive (TGE) people’s access to societal resources that were introduced in state legislatures during the first three months of 2021. Considering the already hostile landscape for reproductive rights in Arkansas, the new law further threatens reproductive rights by legalizing discrimination in healthcare.
The Arkansas law creates a blanket ban on GAC for minors, carving out exceptions only for persons with disorders of sex development, people who are injured by or later regret GAC (an extremely rare occurrence), and people who require surgeries similar to gender-affirming operations for reasons unrelated to gender transition. Notably, the law states that medical care under these circumstances is not gender-affirming care, although patients meeting the criteria for the exceptions receive the same or similar prescription medications and surgeries. This disparate treatment among patients receiving the same or similar care raises an important question: Why is the Arkansas legislature so concerned with TGE youth specifically?
Across the board, professional medical associations consider GAC to be a safe, ethical, and a sometimes life-saving form of healthcare for minors and adults. GAC includes a wide array of psychosocial, medical, and surgical care options aimed at helping TGE people achieve a physical appearance consistent with their gender identity. (It is important to note that not all TGE people choose some or any of these options; having a TGE identity is not a medical or psychological condition that, in and of itself, requires treatment.)
For minors who want treatment, they can start with the administration of puberty suppressing hormones, which prevent potentially distressing bodily changes like breast growth, voice deepening, or facial hair development. Medical experts say that puberty suppression is fully reversible although there is ongoing study of its long-term effects.
For those who want more treatment, gender-affirming hormone therapy involves the administration of estrogen or testosterone aimed at enabling the development of secondary sex characteristics that more closely align with an individual’s gender identity. As gender-affirming hormone treatment can affect adolescents’ fertility, professional medical guidelines state that clinicians should counsel youth on possible options for fertility preservation, which involves harvesting and storing gametes. Though fertility preservation is expensive and often not covered by insurance, the standard practice is to ensure that TGE youth and their families receive fertility counseling before starting any treatment that may affect future reproductive choices.
Even in states with liberal GAC policies for minors, gender-affirming surgical procedures are typically only accessible to individuals who have reached the age of majority, with some limited exceptions.
The Arkansas legislature claims it has a compelling government interest in “protecting the health and safety of its citizens, especially vulnerable children.” The bill’s title is the “Save Adolescents from Experimentation Act,” implying that GAC is a form of medical experimentation on unwilling youth. Bioethicists have long held that there is a distinction between clinical care and medical research, each of which requires different ethical standards and responsibilities toward patients and research participants. It is uncontroversial within the medical field that GAC is a valid form of healthcare.
Additionally, the bill perpetuates the “desistance” myth, or the erroneous notion that the majority of youth who begin puberty suppression or gender-affirming hormone therapy eventually stop treatment and identify with the gender they were assigned at birth. The conservative right wields these and other claims to justify policies that serve to exclude TGE people from accessing healthcare and other public accommodations, thinly veiling their transphobia as a “compelling government interest” to protect youth.
Combined with another recently passed Arkansas law (S.B. 289) that allows doctors to refuse to treat patients because of religious or moral objections (even though clinicians already have federal protections for conscientious objection to abortion and sterilization procedures), TGE people’s right to medical care is rapidly being eroded in the state. S.B. 289’s opponents, including the Human Rights Campaign and the American Civil Liberties Union, predict that it could allow doctors to refuse care to LGBTQ+ patients altogether in addition to further justifying limits on access to abortion, contraception, and other forms of reproductive healthcare.
This recent legislative action in Arkansas is part of an alarming nationwide policy trend of discrimination against TGE people. Anti-trans policies are continuing to diffuse throughout the United States, including state legislation restricting transgender girls from participating in sports and requiring TGE people to use bathrooms that correspond to their gender assigned at birth. This wave of new legislation is not random: the sheer volume of bills that have been introduced this year suggests a highly organized attack on the rights of transgender people that will require an equally coordinated response.
Author’s note: The author of this article, a cisgender white woman, wishes to note that her perspective does not fully capture the variety and nuance of perspectives among TGE people.
Tuesday, April 6, 2021
By Shelby Logan (April 6, 2021)
In 2008, Manuela, a 33-year-old Salvadoran, had a miscarriage at home. When she lost consciousness, concerned family and friends took her to a hospital in San Francisco Gotera, a small town in eastern El Salvador. When Manuela was discharged some days later, instead of returning home, she was taken to jail.
Manuela (the pseudonym used to protect her family’s identity) was accused of having an abortion and charged with aggravated homicide.
She had been reported to the police by hospital staff. Because her pregnancy occurred outside of marriage, they believed Manuela, a mother of two young children, must have tried to abort. Manuela, who could neither read nor write, was not provided legal counsel while being questioned. After a process in which she was represented by three different public defenders, Manuela was sentenced to 30 years in prison. While the doctors focused on criminalizing her obstetric emergency, they missed a large mass in Manuela’s neck and, while in prison, she was diagnosed with cancer. She died behind bars two years later.
On March 10, 2021, the Inter-American Court of Human Rights heard the first arguments in Manuela y Otros v. El Salvador, marking the first time a Latin American country's anti-abortion law and its effect on women's health and human rights, have been challenged in an international court.
Manuela’s story had motivated an international slate of activists who brought her case to the Inter-American Commission on Human Rights in 2012. Finding that Manuela’s fair-trial rights had been violated, the Commission referred the petition to its judicial affiliate, the Inter-American Court of Human Rights. Almost nine years to the day after they brought Manuela’s case to the Commission, last month, an international coalition of groups argued before the Court for reparations for Manuela’s family and asked that the Court compel the Salvadoran state to take public responsibility for not guaranteeing the human right of Manuela and others like her to life and health.
El Salvador has among the world’s most strict abortion law, outlawing the procedure entirely. This includes special instances where a child was conceived by rape or incest or where the health of mother or child is at risk. In the last 20 years, at least 181 women who experienced obstetric emergencies were prosecuted for abortion or aggravated homicide just like Manuela.
Activists continue to express that a total ban on abortion further develops a culture of systemic discrimination and gender-based violence, one that disproportionately affects women in vulnerable situations. They are arguing that El Salvador’s mandatory reporting of obstetric emergencies to the police is a violation of women’s right to privacy and health, a human rights violation.
The plaintiffs have asked the Court to hold El Salvador accountable for laws that deny and criminalize reproductive health, and cause violence against women who suffer obstetric emergencies.
The Court’s decision, due to be released this year, is expected to create jurisprudence within the Inter-American Human Rights system. Including El Salvador, 20 states in Latin America and the Caribbean have recognized the Court’s jurisdiction. The Court can require the payment of reparations to victims but, more significantly, it can order structural and normative changes to State practice.
It is activists’ hope that the Inter-American Court of Human Rights' decision becomes a path for justice and hope for all women in Latin America and the Caribbean who are criminalized for their obstetric and reproductive processes and needs.