Reproductive Rights Prof Blog

A New UN Report Documents How Marital Rape Laws Violate the Right to Bodily Autonomy

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 Tunisia, Jordan, and most recently, Lebanon, repealed and reformed clauses within their penal codes that enabled perpetrators to evade prosecution by marrying the women they raped.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. 

Expanding Post-Partum Medicaid Is a Step in the Right Direction but More Remains To Be Done

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.

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.

 

 

Arkansas Continues Attack on Reproductive Rights With a New Anti-Transgender Law

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.

Manuela v. El Salvador Could Affect Abortion Law Across the Americas

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.

Democratic Senators and Advocates Push Biden to Make Reproductive Justice a Priority

By Fallon Parker (Mar. 23, 2021)

In President Biden’s first two months in office, his team has fulfilled a number of campaign promises meant to make broad strides for reproductive rights and undo many of President Trump’s harmful anti-choice policies. Reproductive justice advocates and a group of Democratic Senators, however, are pushing Biden to go beyond merely repealing Trump-era policies by framing reproductive justice as a broader, more holistic policy through the creation of a new office.

Senators Elizabeth Warren, Cory Booker, and Kirsten Gillibrand are leading the effort to create an Office of Sexual and Reproductive Health. On Tuesday, February 23, the group of Democratic senators sent a letter pushing President Biden to create the office in order to “more holistically address the ‘human right to maintain personal bodily autonomy.'” The office would be independent of other agencies like Health and Human Services, and would reside within the Domestic Policy Council. The separation is intentional, says the letter, because “securing true reproductive justice is beyond the scope of any one existing executive department,” and an independent department will allow the office to expand beyond traditional reproductive rights. The office intends to focus on a broad range of reproductive justice issues, including health care, economic inequality, discrimination based on race, gender identity, and sexual orientation, food security, housing stability, environmental justice, immigrants’ rights, and disability rights, issues that are central to reproductive justice, but beyond the scope of existing reproductive rights offices.

An Office of Sexual and Reproductive Health and Wellbeing would mark a significant step for President Biden in his pledge to support reproductive rights. Biden has already taken broad actions to undo some of the harmful policies instituted by former President Trump, but reproductive justice organizations would like to see more.

In his first few months in office Biden rolled back the “global gag rule,” which prevented organizations abroad receiving U.S. aid from performing or discussing abortions. The administration also began the process to roll back the Title X gag order precluding domestic organizations from referring clients for abortions under the Trump administration.

Significantly, the American Rescue Plan, which Biden signed into law, provides for a child tax credit for families, lower Affordable Care Act premiums, and extended postpartum Medicaid coverage for people giving birth from 60 days to 12 months. Advocates, senators, and the Biden administration see these policies as wins for reproductive justice.

Reproductive rights advocates, however, are pushing the Biden administration to go beyond merely repealing Trump-era anti-abortion policies. On Wednesday, March 18, Planned Parenthood and 55 other reproductive rights, health, and justice groups sent a letter to Biden urging him to increase patient access to medication abortion by removing the federal restriction that requires mifepristone, one of two medications used in medication abortions, to be picked up directly from a doctor, hospital, or health center, rather than from a pharmacy or by mail.

Additionally, international human rights and reproductive justice organizations have called on Biden to repeal the Helms Amendment, which restricts funds from the U.S. Foreign Assistance Act from being used for abortions.

Senators Warren, Booker, and Gillibrand expressed their appreciation for Biden’s initial early executive actions on reproductive rights, but echoed activists’ desire for Biden to continue to build on this work and “institutionalize a reproductive justice policy framework” through this new office. The office would (1) develop a federal strategy for promoting equitable sexual and reproductive health and wellbeing through a human rights, gender and racial equity lens, and (2) better coordinate the actions of the many departments and agencies whose actions in both domestic and foreign policy contexts impact sexual and reproductive health and wellbeing. 

A New Survey Indicates ACA Increased Birth-Control Options but COVID-19 Threatens Gains

By Kelly Folkers (March 16, 2021)

Since President Obama signed the Affordable Care Act (ACA) into law almost ten years ago, increasing numbers of patients have been able to use their desired form of contraception, according to the results of a recent national survey of OBGYNs. One of the law's most popular provisions requires insurers and employer-sponsored plans to cover most FDA-approved contraceptive methods without charging a co-pay or co-insurance. But with the COVID-19 pandemic continuing into its second year and the future of the ACA pending in the Supreme Court, these important gains furthering reproductive autonomy hang in a precarious balance. 

The Kaiser Family Foundation reports that 63 percent of providers have seen contraceptive use significantly or somewhat increase after the implementation of the ACA's birth-control coverage mandate in 2012. Importantly, 69 percent of OBGYNs surveyed reported that the number of their patients able to select their desired method of contraception significantly or somewhat increased subsequent to the provision's implementation. 

Historically, access to contraception has led to a number of beneficial outcomes for women and people with uteruses. Since oral birth control pills became legal in 1965, more women have enrolled in college and earned higher wages. But like any type of health care, birth control is not a one-size-fits-all approach. Patients need a menu of birth control options available as some may cause unwanted side effects. 

Despite the ACA's important gains, the survey also revealed that lower-income patients, particularly those on Medicaid, face significant difficulty in affording and accessing sexual and reproductive healthcare. Though 78 percent of the OBGYNs surveyed accepted Medicaid, many noted barriers to enabling contraceptive choice like the need to get prior authorization or being limited to prescribing an initial contraceptive supply for only 30 days. While the survey provides important context to suggest that the ACA has significantly improved access to contraception nationwide, the survey respondents included, primarily, providers who practice in states with Medicaid expansion, in urban settings, and in private clinics.

At the same time, the ongoing COVID-19 pandemic has created new barriers to accessing care. According to the Guttmacher Institute, one third of women reported delays or cancellations in contraceptive or other sexual and reproductive healthcare. While physician accessibility has increased with the use of telemedicine, at least five states require that providers prescribe birth control in person. 

Without guaranteed, affordable access to one's desired birth control method, many patients may need emergency contraception or abortion. But several states have essentially used the pandemic as a pretext for almost completely curtailing abortion access. For example, early in the pandemic Texas banned all abortions that were not "necessary to preserve the life and health of the mother," essentially requiring any person seeking an abortion in Texas to travel out of state. In many red states, patients have had to rely on the support of community organizations to provide transport for an abortion, risking their life and health to exercise their constitutionally protected right to reproductive autonomy. 

While the ACA laid the foundation for increased access to reproductive health care, the Kaiser Family Foundation survey signals that access to the full array of FDA-approved birth-control options remains inequitable. Further, the pandemic has revealed the need for states to ensure reproductive autonomy and justice by guaranteeing coverage for the full array of contraceptive options for all and removing unnecessary barriers to accessing reproductive health care. 

The ICC's Ongwen Decision Is a Leap Forward in Accountability for Gender-Based Crimes

By Shelby Logan (March 9, 2021)

On International Women's Day this Monday, gender justice activists worldwide were able to celebrate a long-awaited victory. In February, for the first time in history, the International Criminal Court (ICC) convicted an individual for forced pregnancy as a war crime. The Court, in a landmark verdict, found Dominic Ongwen of Uganda, a former commander in the militaristic anti-government group Lord’s Resistance Army, guilty of 61 charges, including the widest range of sexual crimes ever brought before the ICC.  

Ongwen’s conviction on charges including sexual-based violence, forced pregnancy, and outrages upon personal dignity committed against women, is a necessary move forward for the ICC: After decades of advocacy, the international community is holding individuals accountable for sexual crimes against women during conflict.

Although sexual and gender-based crimes have always been part of conflict, international criminal proceedings during the 20th century omitted them from charges beginning with the Nuremberg Tribunal, which specifically excluded sexual crimes against women from its charter. It wasn't until 2002, the year the International Criminal Court was inaugurated, that sexual crimes against women as elements of genocide, crimes against humanity and war crimes were enumerated in international criminal proceedings. Yet, even if prosecutors initially charged a defendant with sexual crimes, the charges were usually dismissed later to prioritize charges for mass killings.

A major shift occurred in 2014, when the Office of the Prosecutor of the ICC released the “Policy Paper on Sexual and Gender-Based Crimes.” Prosecutors began to introduce more charges for gender-based crimes but still failed to convict. On behalf of victims, gender-justice advocates began writing shadow reports pushing the Office of the Prosecutor to commit to charges and follow through with prosecution. As Ongwen’s personal story is also tragic—he was one of many young children who have been forced to join the Lord’s Resistance Army—the ICC found him guilty only for crimes committed after it considered him a “fully responsible adult.“ His conviction marks a first crucial step in accountability for sexual and gender-based war crimes and a turning point.

Yet, as the gender-justice community celebrates the result in the Ongwen case, it is clear that more change is needed in world courts. Even in Ongwen’s case, only charges against women-identifying persons were included. Several charges of sexual violence committed against men were left off the docket. While sexual violence against transgender and male-identifying persons is often underreported, the Ongwen decision as well as events unfolding in China and Myanmar, may provide ground for more inclusivity in prosecuting sexual-based crimes.

Advocates have a crucial window of opportunity to advance jurisprudence on sexual and gender-based violence crimes. Combined with the latest Strategic Plan for the ICC Office of the Prosecutor, which seeks to address the underreporting of sexual and gender-based crimes, and the recent Ongwen ruling, the priority of gender justice at the ICC has been pushed to the forefront.  

Fearing Federal Attack, States Move to Protect Abortion Rights

By Fallon Parker (March 2, 2021)

In the wake of Amy Coney Barrett’s fast-tracked ascendance to the U.S. Supreme Court last fall, headlines have spotlighted the flurry of anti-abortion legislation making its way through state legislatures in anticipation of a receptive Supreme Court. However, in the four months since Barrett's confirmation, several states have introduced measures that would shore up reproductive rights and protect them against federal assault.

This legislation is vital given the conservative majority on the Supreme Court and the 17 pending abortion cases that could be argued before the court in 2022.

New Mexico made headlines on February 19th when state legislators voted to repeal a 1969 law that banned most abortions in the state after a failed 2019 attempt to rescind it. Although the statute has been dormant since 1973 when Roe v. Wade was decided, it could go back into effect if Roe is overturned. The statute mandated hospital board approval for medical termination of a pregnancy and restricted abortion to situations of incest, rape reported to the police, grave medical risks to the pregnant person, or indications of grave medical defects in the fetus.  Governor Michelle Lujan Grisham (D) signed the repeal bill on February 26th, making it law as of that date. 

In Minnesota, two Democratic state legislators, Representative Kelly Morrison, and Senator Jennifer McEwen, introduced the Protect Reproductive Options (PRO) Act on January 21st. The bill would establish the fundamental right of Minnesotans to make individual decisions about reproductive health care, including abortion; recognize a fundamental right to privacy with respect to personal reproductive decisions; and prevent the state from interfering with reproductive decisions. According to Rep. Morrison's press release, this legislation is in response to the nationwide attack on abortion rights and the possibility of a Supreme Court challenge to Roe. However, Minnesota’s state legislature is under split control, with Democrats controlling the House of Representatives and Republicans controlling the Senate, which makes it unlikely the legislation will pass.

In Virginia, after years of organizing, in 2019 Democrats gained control of both state chambers for the first time since 1996. The Senate quickly passed the Reproductive Health Protection Act in April of 2020 repealing a number of medically dubious restrictions on abortion. More recently, the Senate and House each passed a parallel bill to repeal the ban on abortion coverage for people on the state’s healthcare exchange. This legislation is expected to be signed by Governor Ralph Northam (D) in April. Similar bills mandating healthcare abortion coverage have recently been introduced in Arizona, Hawaii, California, and New Jersey, although only Virginia’s has been brought to a vote.

Massachusetts--a historically liberal state--acted quickly to codify abortion rights following Barrett’s appointment. In late 2020, the state legislature expanded access to abortion beyond 24 weeks in cases of fatal fetal anomalies, and lowered the age of consent from 18 to 16. Governor Charlie Baker (R) vetoed the bill, but the Massachusetts legislature easily overrode the veto by a vote of 107-46 in the House and 32-8 in the Senate making it law as of December 29, 2020. 

Overall, since Barrett's confirmation, at least 13 states have introduced measures to protect the right to an abortion. As advocates face what could be a long battle over reproductive rights in federal courts, the importance of state-level organizing and the resulting legislation could prove paramount in the fight for abortion access. If a challenge to abortion reaches the Supreme Court, the disparity in abortion access among states could return the country to pre-Roe v. Wade conditions. If that happens, a pregnant person's access to reproductive choices will depend entirely on the political makeup and policy priorities of their state legislature.  

 

Protests Continue in Poland Following Court Decision Banning Abortion in Almost All Cases

January 29, 2021

Major protests continue in Poland following the implementation of a court decision banning abortion in almost all cases.  

Prior to the court’s ruling Poland already had one of the most restrictive abortion laws in Europe.  Under a 1993 law, abortion was only allowed in cases where pregnancy resulted from rape or incest or endangered the pregnant person’s life and in cases of severe fetal disabilities.  In October, the Constitutional Court prohibited abortions in cases of severe fetal disability, holding that “an unborn child is a human being” entitled to protection under Poland’s constitution

In 2019, fewer than 2,000 legal abortions occurred in Poland, and 98% of those abortions occurred under the fetal disability exception. It is estimated that 200,000 Polish women obtain illegal abortions or travel out of the country to obtain the procedure each year. 

When the court’s decision was announced in October, it set off a month of protests, resulting in a delay in implementing the decision. On Wednesday, the government finally published the decision, perhaps anticipating that extreme cold weather and COVID-19 restrictions would decrease protests.  Friday marked the third consecutive day of protests. 

According to the BBC, opinion polls indicate that the majority of Poles oppose increasing restrictions on abortion.  In 2016, attempts to tighten restrictions through legislation met with strong opposition and large scale protests.  As an alternative to passing legislation, conservative members of Parliament filed a court case challenging the 1993 abortion law correctly anticipating a ruling in their favor from the Constitutional Court where the majority of judges were nominated by Poland’s conservative Law and Justice party.

I Thought I Knew Everything About Miscarriages Until I Had One Myself

Jan. 26, 2021 (Elle): I Thought I Knew Everything About Miscarriages Until I Had One Myself, by Amanda Allen:

Reproductive rights lawyer Amanda Allen writes: 

I’ve been an attorney in the reproductive rights field for 12 years. I thought I knew everything about pregnancies and the ways they end: The statistics about pregnancy loss. The term “miscarriage management.” All of my options if the miscarriage didn’t happen on its own. But nothing could prepare me for how drawn-out and painful miscarrying would actually be.

Argentine president signs abortion bill into law

Jan. 15, 2021 (AA.com): Argentine president signs abortion bill into law, by Bala Chambers:

Thursday, Argentine President Alberto Fernandez signed a law permitting abortions during the first 14 weeks of pregnancy.  Prior to the passage of the law, abortions were only permitted in cases of rape or when the pregnancy posed a danger to the pregnant person's life.  During the signing ceremony, President Fernandez stated: 

"Today is a day of happiness for all, because we are making a more egalitarian and just society and we did it together. For me, it is a day of happiness and something more because I kept my word. I campaigned saying that I was going to work for this law, and today we achieved it," said Fernandez.  

"Today for many women it is the culmination of a time of struggle. For many years, they fought for abortion to stop being a crime.”  

 

SCOTUS Holds Louisiana Abortion Restriction is Unconstitutional. But Did Chief Justice Roberts Re-Write the Undue Burden Standard Along the Way?

SCOTUS Holds Louisiana Abortion Restriction is Unconstitutional. But Did Chief Justice Roberts Re-Write the Undue Burden Standard Along the Way?

(June 29, 2020)

By Cynthia Soohoo

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 workman like 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 5^th 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 5^th 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.  

Films to watch as you wait for the June Medical decision

Waiting for the Supreme Court’s decision in June Medical v. Russo?  This is a great time to catch up on a number of outstanding films on reproductive rights and justice and engage in Q&A with filmmakers.  Here are some of our picks:

Reversing Roe (2018) lays out the history of abortion activism in the United States leading up to Roe and Casey.  The documentary examines the myriad challenges facing access to abortion  today and the political forces that shape our current environment -- information that’s crucial to understanding what is at stake in June Medical.  Watch the film on Netflix and on June 25 at 2:30 pm EDT, tune in to join a Facebook Live discussion with director Ricki Stern, Amanda Allen of the Lawyering Project and Farah Diaz-Tello of If/When/How.  

Court challenges are not the only way to secure abortion access. On June 19, The 8^th will be premiering at the HRW film festival. The film follows Irish activists who successfully led the 2018 campaign to repeal the 8^th Amendment of the Irish Constitution that recognized the equal right to life of a pregnant person and an unborn fetus. The 8^th is streaming online on June 19  at 5:20 PM ET, followed by a live Q&A with Irish activist Andrea Horan and filmmakers at 7 pm EDT. 

Closer to home, Personhood, provides an in depth look at how the push to recognize fetal personhood threatens the lives and well-being of pregnant people and their families.  Personhood is not currently available on public streaming services but has been screening for smaller audiences and at film festivals.  Bei Bei, currently streaming on Vimeo, tells the story of one woman who was tragically impacted by fetal personhood laws, Bei Shuai, who was prosecuted for murder and attempted feticide following a suicide attempt while pregnant.

Finally, the Belly of the Beast follows the fight to hold the California Department of Corrections accountable for the forced sterilization of individuals incarcerated in California’s women’s prison system and provides an important history of the use of forced sterilization and Eugenics in the United States.  Belly of the Beast premiered at the HRW film fest earlier this month and is available to stream until Saturday.

Have you watched these films and want to share your views? Do you have a favorite documentary on reproductive rights and justice topics?  Feel free to share in comments!

Webinar: After June Medical Services: The Past, Present, and Future of Regulating Reproduction

(June 5, 2020)

Temple University's Center for Public Health Law Research and the Harvard Law and Policy Review are hosting a webinar on June 30, 12-1 pm ET entitled After June Medical Services: The Past, Present, and Future of Regulating Reproduction. 

Speakers:

David Cohen, Drexel University School of Law

Michelle Goodwin, UC Irvine School of Law

Carol Sanger, Columbia Law School

Mary Ziegler, Florida State University College of Law

Moderator: Sarah McCammon NPR

Register at: bit.ly/JuneMedicalCPHLR

Contact Rachel Rebouche, [email protected] with any questions

 

 

If/When/How Launches New Judicial By-Pass Wiki to Help Youth Access Abortion

April 30, 2020

In response to the COVID-19 pandemic, If/When/How, Lawyering for Reproductive Justice accelerated the launch of a new tool to help young people, lawyers, advocates, and medical professionals navigate the maze of forced parental involvement laws in 37 states across the country.

The Judicial Bypass Wiki provides a one-stop site for state-by-state information on parental involvement requirements and the judicial bypass process for young people under the age of 18.  It also offers community-sourced updates, local contacts, and best practices for accessing court services — vetted by the legal and policy experts at If/When/How. 

“For a young person who’s seeking abortion and trying to navigate forced parental involvement laws, it’s like putting together the pieces of a puzzle,” said Jessica Goldberg, J.D., If/When/How Youth Access Counsel. “While there are a lot of good resources out there, they can often be hard to find and may not all appear in one place, or be linked to each other. The Judicial Bypass Wiki is a central hub of information that lifts up the work state advocates are doing to support young people, and helps connect young people to the resources they need.”

Abortion in the context of COVID-19: a human rights imperative

April 21, 2010, Jaime Todd-Gher and Payal Shah have published a new article in Sexual and Reproductive Health Matters, discussing why abortion is an essential health service during the COVID-19 pandemic.

Amidst states' evolving emergency responses, the authors make the case that abortion care must be included and ensured from the outset and access must be provided in bold, novel and evidence-based ways. The authors discuss states' human rights obligations which include a duty to ensure that individuals do not have to undertake unsafe abortions when faced with a pregnancy that is unwanted and/or threatens their life or health.  These obligations are not waived in times of crisis; in fact, they become more pressing. 

The article calls for enabling self-managed abortion by guaranteeing access to medications and telemedicine counseling and ensuring women are not criminalized for inducing their own abortions as a critical step towards fulfilling states’ binding human rights obligations and avoiding preventable abortion complications, including during the COVID-19 crisis. While not a solution in all cases and contexts, it could be an important step forward. Countries like Ireland, England, and France have already taken this step. 

 

To read the full article, go to https://www.tandfonline.com/doi/full/10.1080/26410397.2020.1758394?fbclid=IwAR2i9I6-2uUVgrllkRd7IPHtPbxZCCV_Q94Eg8-DZdKZVT7vtgmTf4Zcln0 

 

 

Anti-abortion protesters continue to gather at clinics despite stay at home orders

April 21, 2020

As states impose social distancing requirements and emergency measures to ensure adequate medical resources to combat COVID-19, several states are taking the opportunity to ban abortions.  Yet anti-abortion protesters are continuing to gather at clinics harassing patients and providers in violation of stay-at-home orders with mixed responses from state officials and the courts.

In a press statement, Reverend Katherine Hancock Ragsdale, President of the National Abortion Federation has criticized these protests because "In many places, these protesters are able to walk right up to patients as they enter or exit the facility or surround them as they walk to and from their cars." While anti-abortion protests have long been part of the lives of abortion providers and patients, according the Ragsdale, their behavior "can feel particularly threatening to patents now that concerns about the coronavirus are heightened.  We have even heard reports of protesters intentionally coughing on clinic escorts and making physical contact with patients and providers attempting to enter clinics."

Earlier this month, police in Charlotte, NC. were forced to disperse a crowd of 50 anti-abortion protesters outside of Charlotte's Preferred Women's Health Center and arrested 8 people for violating the governor's stay at home order. After the arrest, Senator Ted Cruz tweeted support for the protesters, asserting that the gathering was "fully consistent w/ public safety" and violated First Amendment Rights. Police have also arrested protesters outside of a clinic in Greensboro and issued a citation outside a Planned Parenthood in San Francisco.

In Michigan after citations were issued to protesters who gathered outside of Detroit clinics, violating the state's stay at home order, some of the protesters alleged that their protest was a religious gathering, and one protester sued, claiming that he was engaged in peaceful expressive activity and maintained a safe distance.  The state agreed to dismiss the charges against him and the Governor's office issued guidance stating that under the state's stay at home order:

Persons may engage in expressive activity protected by the First Amendment within the State of Michigan, but must adhere to social distancing measures recommending by the Centers for Disease Control and Prevention, including remaining at least six feet from people outside the person's household.

While the guidance appears to balance First Amendment rights with responsible public health restrictions, enforcing the guidance may be more difficult in practice. In a letter to the governor, Reverend Ragsdale expressed concern that anti-abortion protesters have not been practicing social distancing and have been engaging in "large gatherings of protesters" outside of clinics and intentionally harass abortion patients and providers.  "These protesters have used the guise of holding "worship services" to gather outside of clinics, needlessly increasing the risk of exposure to and transmission of COVID-19, both among each other and to health care providers and the patients they serve."

 

 

 

 

UN Issues Statement on Ensuring Women's Human Rights During COVID-19 pandemic

April 20, 2019

Today, the UN Working Group on Discrimination Against Women released a statement providing guidance on state human rights obligations to ensure women's human rights during the COVID-19 pandemic.  In issuing the statement, Working Group Chair, Meskerem Geset Techane cautioned that “Measures to mitigate the risks to health and life posed by COVID-19 must consider the specific risks faced by women and girls, based on factors such as their sex, gender, age, disability, ethnic origin, and immigration or residence status among others.”  Otherwise, many different forms of discrimination they already face would be exacerbated.

Among the factors that states should consider are: "The dramatic increase in women’s caregiving responsibilities, the rise in what was already an epidemic of sexual and domestic violence, the continued feminization of poverty, [and] the proliferation of barriers to healthcare, especially pregnancy-related healthcare." The statement noted that women are disproportionately impacted from social and economic shocks because of their disproportionate representation in "precarious, informal, poorly paid work, including domestic work."

The statement specifically warned against responses to COVID-19 that unnecessarily violate the reproductive rights and endanger the health of pregnant people , noting that in some countries:

the human rights of women are being violated during and after pregnancy and childbirth in an attempt to allegedly expedite the process or prevent contagion (e.g. cesarean sections and forceps delivery performed without medical indication, denial of epidural, prohibition of partner’s presence, and separation of newborns from mothers). Some governments are creating new barriers to access to abortion services, by deeming it a non-essential medical procedure.

 

 

States try to use emergency powers to prohibit abortions

March 24, 2020 (Rewire.News): State Officials Try to End Legal Abortion During COVID-19 Crisis, by Dennis Carter:

As the country struggles to ensure that there are adequate health facilities to care for coronavirus patients suffering from acute symptoms, states have begun to prohibit non-urgent procedures. Some states are trying to use these new restrictions to prohibit abortions.

Last week, Ohio's Attorney General wrote a letter to Ohio abortion clinics ordering them to cease "all non-essential and elective surgical abortions" pursuant to a health department order that "non-essential and elective" surgeries be cancelled.  And on Monday, Texas's Attorney General stated that an Executive Order directing postponement of surgeries and procedures "not immediately necessary to correct a serious medical condition or to preserve the life of a patient who without immediate performance of the surgery or procedure would at risk of serious adverse medical consequences or death"  included "any type of abortion that is not medically necessary to preserve the life and health of the mother."

While officials from Texas and Ohio claim that the restrictions are needed because of the increased demand for hospital beds and protective medical equipment, the restrictions run counter to the opinions of medical professionals. On March 18, the American College of Obstetricians and Gynecologists and other leading medical organizations issued a statement recommending that abortion be excluded from the list of procedures that could be postponed. The statement notes that most abortion care is delivered in outpatient settings. Indeed because most abortions occur at specialized abortion clinics, for the most part, cancelling abortions will not free up beds in hospitals or ambulatory surgical centers. 

The ACOG statement goes on to say that "To the extent that hospital systems or ambulatory surgical facilities are categorizing procedures that can be delayed during the COVID-19 pandemic, abortion should not be categorized as such a procedure." In addition to being an "essential component of comprehensive health care," abortion is also "a time-sensitive service" for which a delay of several weeks could render the procedure inaccessible.

The Texas and Ohio clinics have taken the position that all abortions are essential procedures and that they are taking all other required steps to reduce the use of personal protective medical equipment. For now these clinics remain open for patients.

Rewire.News is planning to provide updates on abortion access as states unveil their COVID-19 policies.