Reproductive Rights Prof Blog

Forced Contraception in China Among the Uyghurs

By Shelby Logan (June 29, 2021)

With a fast moving, targeted strategy, the Chinese government is successfully decreasing the population of Uyghurs in Xinjiang through permanent and temporary birth control measures. In November 2019, news broke worldwide that China had begun a gendered campaign of ethnic cleansing, separating male and female Uyghurs into internment camps, or “reeducation centers” and threatening women with prosecution or torture if they did not agree to birth control measures. Survivors of the camps claim to have experienced extreme conditions from nonconsensual sterilization to physical abuse.

Recent reports document plans for forced IUD placement, mandated abortions, and sterilizations and injections that reportedly cease menstruation cycles. Uyghur women deemed to have too many children are forced into labor camps for “training purposes.” In one instance, a Uyghur woman from Urumqi paid a fine for having had three, instead of two, children and was offered free surgical sterilization. At first the sterilization was only a suggestion, but after she did not go through with it, the government threatened to place her in an internment camp if she did not submit to the procedure. Another woman, a Uyghur mother of triplets, said that during detention she and other women were given unknown drugs and injections that caused irregular bleeding and the loss of their menstruation cycle. U.S. doctors later confirmed that she had been sterilized.

Through a program called the “Free Technical Family Planning” project, sterilization surgeries are widely available to all Uyghur women. Alongside the project, counties in the region are waging a campaign to ensure women with three or more children are sterilized. Additionally, authorities actively encourage interethnic marriages between Han Chinese men and Uyghur women in an effort to dilute Uyghur cultural identity, and likely the bloodline. With a majority of Uyghur men interned in camps and labor facilities, the Uyghur women have fewer choices, and are often coerced into relationships with Han Chinese men. The mass sterilization movement and the forced relationships, already raising concerns of eugenic practices, have led human rights experts to call for an investigation of genocide.

The reproductive rights and freedoms of Uyghur women are under fire in Xinjiang. The international community continues to discuss next steps but is constricted by the lack of legal mechanisms available for accountability. Meanwhile, the situation continues to deteriorate as China furthers its tactics to control reproductive health in the country.

Reaching for Reproductive Justice & Coming Up Short: The Women's Health Protection Act

By Kelly Folkers (June 22, 2021)

As the country braces for the Supreme Court to hear a challenge to Roe v. Wade, Congressional efforts continue to codify the right to abortion into law. This month, Senate Democrats reintroduced the Women’s Health Protection Act (WHPA), which would prevent state governments from interfering with the right.

The reemergence of the WHPA comes as abortion rights hang in a particularly precarious balance. According to the Guttmacher Institute, state legislatures in 47 states have introduced 165 pre-viability bans since January 2021, and 83 have been enacted. At least 10 states have “trigger laws” in place that would ban abortion if the Supreme Court does overturn Roe next year.

The bill’s primary sponsors, Senator Richard Blumenthal (D-CT) and Senator Tammy Baldwin (D-WI) have reintroduced the WHPA in every Congressional session since 2013. Yet, the bill has never received a vote. Likely in reaction to the upcoming Supreme Court challenge, the 2021 WHPA has a record number of sponsors: 48 in the Senate and 176 in the House. Representatives Judy Chu (D-CA), Lois Frankel (D-FL), Ayanna Pressley (D-MA), and Veronica Escobar (D-TX) are the bill’s lead sponsors in the House.

The bill is described as a “guarantee” of abortion rights and would make it significantly harder for individual state legislatures to impose medically unnecessary restrictions. However, this is a misnomer as it does not establish a positive right to abortion services. The WHPA only codifies the pre-existing right to abortion access without doing more to ensure access is available to all.

Instead of taking proactive steps to increase abortion access beyond the current system, the bill goes on the defensive by targeting state laws that make abortion access unnecessarily restrictive. The bill states that patients have a statutory right to services without a variety of limitations or requirements that many state legislatures have in place, like requiring patients to receive an ultrasound, to visit a clinic for a medically unnecessary reason, or to be given medically inaccurate information.

In a reaction to litigation on access impediments, the WHPA creates a framework for analyzing laws across the states. The analysis includes whether a limitation or requirement is reasonably likely to delay access to care, whether it directly or indirectly increases the cost of care, including associated costs for taking time off work, childcare, or travel, or whether it is reasonably likely to result in a decrease in the availability of abortion services in a given state or region.

Though the WHPA would be a welcome step forward, more will be needed to create true reproductive justice. The bill cites reproductive justice as the main goal, stating that reproductive justice is “a human right that can and will be achieved when all people […] have the economic, social, and political power and resources to define and make decisions about their bodies, health, sexuality, families, and communities in all areas of their lives, with dignity and self-determination.” Without a shift from defense to offense and the creation of true structural changes, congressional Democrats fall short of achieving their goal.

What to do in a post-Roe world? Politically organize.

By Fallon Parker (June 15, 2021)

With the Supreme Court’s decision to take up Dobbs v. Jackson Women’s Health Organization, the constitutional right to an abortion hangs in the balance. Since Roe v. Wade, the Supreme Court has held that bans on abortion before fetal viability (around 24 weeks) are unconstitutional. Dobbs involves a Mississippi law that outlaws abortions at just 15 weeks.  As the Court prepares to hear Dobbs pro-choice advocates and attorneys must start to plan for a possible post-Roe world.

Without Roe as a federal stopgap to prevent state legislatures from adopting anti-abortion legislation, the ability to obtain an abortion will vary greatly from state to state. The Center for Reproductive Rights predicts that as many as 30 states will either enact laws prohibiting abortion or already have trigger laws in place that will automatically ban abortion if Roe is struck down.

In a post-Roe world, protection of abortion rights will move squarely into the political arena. A long term strategy of passing laws that support people exercising their full range of reproductive choices, including abortion, will require significant political organizing in all states. An organizing platform focused on electing pro-choice Democrats and progressives would supplement the work that reproductive justice advocates are already doing in their communities and could provide the pro-abortion movement with the momentum to maintain abortion rights in a post-Roe world.

As of November 2020, and due to a 40 year effort on the part of the GOP, Republicans control 30 state legislatures and Democrats control 18. This political dynamic will have far reaching consequences for abortion rights in a post-Roe era and for reproductive justice overall. Anti-abortion legislation is trending all over the country and includes bills that ban abortion after a fetal heartbeat is detected (typically around six weeks into the pregnancy). These same states have launched legislative attacks on the right to economic security, safety, and participation in democracy. In the past six months 14 states made it harder to vote, ten states adopted laws targeting transgender folks, six states allowed people to carry guns without permits, and almost two dozen states voted to reject the federal unemployment benefits in President Biden’s stimulus package.

Part of this political success in state government can be attributed to the GOP’s consistent messaging, including their anti-abortion message. At least while Roe is still intact, Republicans have an “intensity advantage” in the PR war. Their strategy of staking the alleged moral high ground on the issue of abortion has been, unfortunately, effective at putting Democrats and pro-abortion advocates on the defensive and helped the GOP to coalesce local political power.

However, there are bright spots on the horizon. Democrats and reproductive justice advocates were motivated by Stacey Abrams’ success in turning the traditionally Republican state of Georgia blue in 2020. Much of that success, according to Abrams, can be attributed to over ten years of clear messaging and strong local organizing from the state Democratic party and its allies. Democrats, progressives, and reproductive justice advocates around the country are hoping to build on that success. The Democratic National Committee is investing over $23 million in state parties for the 2022 midterm elections, including Democratic parties in historically red states. Organizations like Run for Something, Swing Left, Emerge, Indivisible, and Vote Pro Choice are recruiting and supporting progressive candidates running for local office. Progressive groups have taken a page out of the anti-abortion playbook and drafted model pro-choice legislation for local elected officials to rely on.

All of these political strategies will be crucial to abortion access in a post-Roe world and will serve to supplement the grassroots work reproductive justice advocates have been doing all along.

Women and Rohingya Fear Continued Military Rule in Myanmar

By Shelby Logan (June 8, 2021)

It has been four months since the February 1st military takeover of the civilian government of Myanmar. Not only did the coup stifle democracy: It endangers women in Myanmar as the military has a history of gender-based violence. Activists fear that continued control would result in a rollback of hard-won women’s rights, but even more immediate are the ramifications of military rule for the Rohingya.

The military coup puts the livelihood of 600,000 Rohingya, currently living in Myanmar, in jeopardy. Since August of 2016, the Burmese Military, Border Guard, and police forces have conducted a systematic campaign of brutal violence against Rohingya Muslims in Myanmar’s Northern Rakhine State, with Rohingya women bearing the brunt. The Rohingya have been denied free movement, citizenship rights, access to healthcare, the right to marry and the right to choose how many children to bear. 

Before the coup, the military’s persecution of the Rohingya had already escalated to the point where, the Pre-Trial Chamber of the ICC authorized an investigation into crimes against the Rohingya that are within the Court's jurisdiction. Because Myanamar is not a party to the ICC, the investigation is limited to crimes where one of the elements or part of the crime took place in Bangladesh, a state party to the Rome Statute.

More recently, The Gambia filed a case on behalf of the Rohingya against Myanmar with the International Court of Justice alleging violation of the Genocide Convention. The complaint identifies elements indicating genocidal intent: among them, the restrictions on the Rohingya’s ability to marry and bear children, the prevention of free movement including internment in detention camps, and hate campaigns aimed at demonizing the group. The complaint lists genocidal acts including mass executions of Rohingya men, the targeting of children, and the massive scale commission of rape and sexual violence against women.

Although the United States announced sanctions targeting the leaders of the coup, many were already subject to sanctions for the military’s treatment of the Rohingya in recent years, proving that sanctions have been inefficient in stemming the violence. History has shown the consequence of allowing genocide to go unpunished. The international community must work together to force Myanmar to cease its heinous treatment of the Rohingya. 

Biden's Symbolic Exclusion of the Hyde Amendment Won't Help Native American Women

By K.A. Dilday (June 1, 2021)

On Friday, President Joe Biden released a proposed budget for 2022. Reproductive rights advocates hailed it for the historic exclusion of the Hyde Amendment: It is the first White House budget in decades to exclude the 1976 Amendment prohibiting the use of federal funds for abortion.

The exclusion is largely symbolic: The Hyde Amendment can only be repealed by lawmakers, and Democrats who support repealing it don’t hold sufficient majority in the Senate to do so. But it is a turnaround for Biden who voted to pass the Amendment as a senator and continued to back it for many years. With this latest step, President Biden is signaling that his administration will support the right of reproductive freedom for all women.

Thus, some reproductive rights activists are cautiously optimistic despite the looming specter of the Supreme Court’s hearing next term of a case that could potentially eviscerate the protections of Roe v. Wade. But there is a group of women in the United States that has suffered disproportionately under the Hyde Amendment and therefore to whom symbolic gestures mean little.

Although all low-income women bear the weight of the Amendment’s restrictions as it affects recipients of the federal-state healthcare program Medicaid, non-elderly American Indian and American Native women use public health services at a higher rate than any other ethnicity according to the healthcare research foundation KFF.

While some states have a workaround for abortion services provided by Medicaid—using exclusively state funds rather than federal—many of the U.S. Indigenous population use the federally funded Indian Health Service (IHS) which operates hospitals and outpatient facilities in addition to providing other support services. Approximately 1.9 million American Indian and Alaska Native women living on or near reservations receive care at those facilities and through linked health service providers.

The Hyde Amendment did not technically apply to the Indian Health Services until 2008: As noted by Andie Netherland in the American Indian Law Review,  “...the Hyde Amendment provided that ‘[n]one of the funds contained in [the] Act’ could be used for abortions, [but] the Amendment did not apply, at that time, to the funds allocated to the Indian Health Service through a different act.” In 2008, the Senate expanded the Hyde Amendment’s application to the Indian Health Service.

Despite its not being legally bound by the Hyde Amendment, the Indian Health Service adhered to it in years preceding 2008. A 2002 report by the Native American Women's Health Education Resource Center (NAWHERC) found that between 1981 and 2001, only 25 abortions had been performed by IHS units. The report also cites a 1996 memo from the IHS director clarifying that the IHS would only provide abortions in the case of rape, incest, or limited circumstances when the mother’s life was in danger, the three exceptions permitted under the Hyde Amendment that were pushed through in 1993 under the Clinton Administration.

Reproductive rights activists say that the difficulty of obtaining an exception under the Hyde Amendment is particularly hard on Native American women based on findings that Indigenous women are 2.5 times more likely to report experiencing sexual assault than other races, and one in three Native American women reports having been raped. And, the American Addiction Centers compiled data from the 2018 National Survey on Drug Use and Health indicating that Indigenous Americans have the highest rates of alcohol, marijuana, cocaine, inhalant, and hallucinogen use disorders compared to other ethnic groups.

A recent federal case highlights the particular burden that these challenges and the Hyde Amendment’s restrictions to reproductive rights place on Indigenous women. In the precedent-setting United States v. Flute (2019), the Eighth Circuit reinstated an indictment dismissed by the District Court for South Dakota-Aberdeen against a young Native American woman for manslaughter, after prenatal drug use resulted in the death of her baby four hours after birth. As Eighth Circuit Judge Steven M. Colloton noted in his dissent: “According to the United States Attorney, the government has never before charged a mother with manslaughter based on prenatal neglect that causes the death of a child.”  

Flute gave birth on the Lake Traverse Reservation of the Sisseton Wahpeton Oyate Tribe, which is under federal jurisdiction. Her case was characterized by the Harvard Law Review as escalating “to the federal level the state judicial trend of using broad interpretations of statutes designed for other purposes to criminalize prenatal conduct.”  As Judge Colloton also wrote in his dissent: "No federal statute enacted after 1909 has expanded the manslaughter statute to encompass a mother’s prenatal neglect." In an article about the Flute case in the most recent edition of the American Indian Law Review, Andie Netherland noted that pregnant Indigenous women who face addiction may face criminal prosecution for involuntary manslaughter “more frequently than non-Indian women due to the unavailability of abortion services within the Indian Health Service.”

For these reasons, Native-American reproductive rights activists say that even post Roe v. Wade, the immediacy of their fight for reproductive justice and self-determination never changed. A 2019 article in Indian Country Today noted “the new abortion laws don’t ever have to be implemented and the Supreme Court doesn’t have to overturn Roe to make abortion inaccessible for Native women; restrictions are nothing new. For Native women, the lack of access to abortions has been real for years.”  

The looming loss of reproductive rights feared by many in the United States would not be a loss but a reiteration of the status quo for many Indigenous women. In the absence of real, tangible change, the symbolic exclusion of the Hyde Amendment does not give Indigenous women much cause for celebration.