Reproductive Rights Prof Blog

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The exclusion is largely symbolic: The Hyde Amendment can only be repealed by lawmakers, and Democrats who support repealing it don’t hold sufficient majority in the Senate to do so.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. 

 

With Dobbs Will the Supreme Court Roll Back Nearly 50 Years of Abortion Rights?

By Kelly Folkers (May 25, 2021)

Last week, the Supreme Court agreed to hear a case that poses a direct challenge to the right to seek an abortion in the United States. It’s a test case that has been expected by reproductive rights advocates since the Supreme Court’s rightward lurch during Donald Trump’s four years in office: Trump appointed three conservative justices, all of whom have signaled willingness to roll back reproductive rights. If the Court significantly alters abortion jurisprudence or overturns Roe v. Wade (1973) entirely, reproductive rights will evaporate in many states, leaving millions of women and people who can get pregnant without a fundamental right to their bodily autonomy.

In Dobbs v. Jackson Women’s Health Organization, the Court has agreed to consider whether all bans on pre-viability abortions are unconstitutional. Although pre-viability bans on abortions are unconstitutional under Roe v. Wade and Planned Parenthood v. Casey, the rightward swing of the federal judiciary has emboldened state legislatures to pass pre-viability bans to test the courts. Just this past month, Texas Governor Greg Abbott (R) signed into law a bill banning abortion as early as six weeks—before many people know they are pregnant. South Carolina enacted a similar law in February. Texas and South Carolina join more than a dozen other states with similar laws, many of which have been held unconstitutional and enjoined by court order.

Dobbs involves a Mississippi law called the Gestational Age Act, which prohibits abortions if the “probable gestational age” of the fetus is more than 15 weeks. While there is dispute within the medical community regarding the exact age at which a fetus becomes viable and states vary in their definition of fetal viability (i.e., the fetus’s ability to survive outside the uterus), most experts agree that it is clinically improbable for a fetus to be viable under 22 to 24 weeks. Notably, the Act does not contain exceptions for rape or incest, allowing exceptions only for medical emergencies or severe fetal abnormalities. Mississippi’s sole abortion provider filed suit within hours of the law being enacted, and for now, the Fifth Circuit Court of Appeals has affirmed the U.S. District Court for the Southern District of Mississippi’s ruling to permanently enjoin the law.

Though the Supreme Court is more conservative than it has been in decades, abortion jurisprudence has long been settled in the United States: The state cannot place an undue burden on a pregnant person’s right to have an abortion pre-viability. In 1992, the Supreme Court reaffirmed Roe’s “central holding” that pregnant people have a protected right to seek an abortion in Planned Parenthood v. Casey. Casey adopted the “undue burden” test, which provides that state action violates the right to an abortion if it has the purpose or effect of imposing a substantial obstacle to a person seeking to abort a non-viable fetus. Although Casey permits regulation of abortion before viability, it does not question that bans on abortions before fetal viability are a violation of the Due Process Clause of the Fourteenth Amendment to the U.S Constitution. 

Since Casey, Supreme Court decisions have focused on how to apply the undue burden test to laws that regulate the provision of abortion. In the 2016 case Whole Woman’s Health v. Hellerstedt, the Court struck down a Texas law requiring that abortion providers have admitting privileges at nearby hospitals and that facilities where abortions are performed meet the requirements for ambulatory surgical centers. The Court found that the requirements placed a substantial obstacle in the path of people seeking abortions and there was no evidence showing that either requirement made abortions safer. Balancing the law’s benefits and burdens, the Court held that the law imposed an undue burden. Even more recently, in 2020, the Supreme Court struck down an almost identical Louisiana admitting privileges law in June Medical Services v. Russo. The outcome of the cases was similar, but a notable difference was the justices who voted with the majority and their reasoning. In 2016, Chief Justice John Roberts was a dissenting justice, but in 2020 he added the crucial fifth vote to strike down the law in a separate concurring opinion. Justice Roberts stated that his respect for precedent motivated his decision to vote with the Court’s liberal bloc in June Medical, but he stood firm in rejecting the balancing test the Court applied in Whole Woman’s Health.

After June Medical, it remains uncertain what test the Court will apply to determine if restrictions on the provision of abortion impose an undue burden. But Dobbs presents the court with a different issue that goes to the heart of Roe’s central holding: whether a law banning abortion before viability can ever be constitutional.

Some constitutional law experts predict that if the Court holds that bans on pre-viability abortions are permissible, it will effectively allow states to outlaw abortion. Indeed if Roe v. Wade is reversed, more than 20 states have laws banning abortion at various points in fetal viability that are designed to be triggered automatically, enacted swiftly, or dormant only because of Roe, according to Nancy Northup, the president of the Center for Reproductive Rights. These laws would make abortions difficult or impossible to obtain in many states.

A decision in Dobbs is not expected until the spring or summer of 2022, but some state legislatures are already taking action to codify protections for pre-viability abortions if Roe v. Wade is overturned. Some states are going even further: In Oregon, Governor Kate Brown (D) recently signed the Reproductive Health Equity Act, which requires private insurers to cover abortions with no out-of-pocket costs. Similar bills are pending in New Jersey and Virginia. These bills go beyond what the federal Constitution guarantees because they obligate public and private insurers within their states to pay for abortion; the Supreme Court has previously held in Maher v. Roe and Harris v. McRae that state and federal payers, respectively, are not constitutionally obligated to cover abortions.

Until the Supreme Court hands down what may be a landmark decision for reproductive rights, people seeking abortions retain their right to do so, but just barely.

California Governor Signs SB 464 into Law, Requiring Perinatal Health Providers To Receive Implicit Bias Training

Essence (Oct. 10, 2019): California Now Requires Perinatal Health Providers To Receive Implicit Bias Training, by Tanya A. Christian: 

California Governor Gavin Newsom signed the "California Dignity in Pregnancy and Childbirth Act" (SB 464) earlier this month, which mandates implicit bias training for health care providers serving pregnant persons. State Senator Holly Mitchell authored the bill. Reproductive justice-oriented groups, including Black Women for Wellness, NARAL Pro-Choice America, Act for Women and Girls, as well as California Nurses Association all backed the law, which earned unanimous support in the state legislature. 

The law is aimed at reducing maternal mortality among Black women--who face a disproportionately high rate--in the United States. It will require all care providers to both engage with bias training and improve their data collection processes in order to better understand the causes behind pregnancy-related deaths.

"As it stands, the U.S. leads the developed world in the number of pregnancy-related deaths. Black women compromise a large portion of those casualties, presenting a risk of mortality that is three to four times that of White women."

California currently has the lowest maternal mortality rate in the country and hopes to improve it further through SB 464.

A woman gave birth alone in a jail cell after her cries for help were ignored

Aug. 29, 2019 (The Washington Post): 'Nobody cared': A woman gave birth alone in a jail cell after her cries for help were ignored, lawsuit says, by Allyson Chiu: 

Diana Sanchez was booked into Denver County Jail just three weeks ahead of her due date in July 2018. Early in the morning on July 31, Sanchez's contractions began. Her water broke and labor progressed without any help from prison or medical personnel. Sanchez gave birth to a baby boy alone in her jail cell, on top of a single absorbent pad--the only item provided to her despite her persistent cries for help. Immediately after the birth of Sanchez's son, a man wearing surgical gloves entered her cell to apparently examine the baby; however it wasn't until over 30 minutes post-birth that Sanchez and her new baby were transferred to the hospital.

Sanchez's birth experience was captured in full on surveillance footage of her cell. In the footage, Sanchez is seen unfolding the square pad deputies provided her and placing it on her bed. The video also shows her labor in full, including her water breaking, her shouts for help, her frantic efforts to remove her pants and underwear as the baby was coming. In August, Sanchez told KDVR: "They put my son's life at risk. When I got to the hospital, they said I could have bled to death." 

The U.S. has the worst maternal mortality rates in the developed world across the board, but for women of color and incarcerated women, the rates rise significantly.

Sanchez has filed a lawsuit against the city and county of Denver, Denver Health Medical Center, and six individuals after the internal investigation found no wrongdoing. Mari Newman, Sanchez's attorney, says she hopes to "achieve some measure of accountability and to force wrongdoers to change their behavior.”

The suit mentions several past incidents in which inmates under the supervision of the city and county of Denver and Denver Health Medical Center personnel allegedly did not receive adequate care. One case, which was settled about 10 years ago, resulted in an agreement that jail staff are required to report medical emergencies up the chain of command and if no action is taken, to call 911 themselves, Newman said. Had that commitment been followed, Sanchez’s experience might have been avoided, she said.

A spokesperson with the Denver Sheriff Department asserted that deputies took appropriate action and "followed the relevant policies and procedures," adding that the Department has updated its policies to "ensure that pregnant inmates who are in any stage of labor are now transported immediately to the hospital." 

Telemedicine Abortion is Safe

July 23, 2019 (Rewire.News): Telemedicine Abortion is Safe, No Matter What Anti-Choice Lawmakers Claim, by Auditi Guha: 

A study released July 9 finds that outcomes for medication-driven abortion through telemedicine are comparable in-person medication abortion.

The results support the importance of telemedicine for reproductive health and safety particularly for those who cannot easily reach abortion clinics due to oppressively-restrictive anti-choice legislation. 

Medication abortion has been legal in the United States for nearly twenty years and is supported by the American College of Obstetrics and Gynecologists, National Abortion Federation, and Planned Parenthood. The procedure uses a combination of mifepristone and misoprostol pills and the telemedicine aspect helps clinicians have a wider reach in authorizing and supervising the process through remote video conferencing.

Telemedicine medication abortions have often been provided in clinics where the licensed clinicians video conference in while the patient is in clinic with nurses or other professionals, but direct-to-patient telemedicine abortion services are growing. Most patients requesting these services live in abortion-hostile states where they cannot easily reach a clinic at all.

The anti-choice movement has responded by working to restrict access to telemedicine abortion as well as in-clinic abortion services. Legal bans or restrictions currently exist in Arkansas, Idaho, Mississippi, and Utah. 

The recent study, though, "indicates that telemedicine abortion is 'a safe and effective way of ending an early pregnancy, with very rare complications' and can provide the same quality of health care patients receive at a health center," according to Dr. Julia Kohn, national director of research at Planned Parenthood Federation of America and the lead author of the study.

Kohn further says: "In many ways, this study does reaffirm what we already know: Medication abortion via telemedicine is safe and effective at ending an early pregnancy."

For Black Women, Reproductive Justice Is About More Than High-Risk Pregnancies

YES! Magazine (Apr. 2, 2019): For Black Women, Reproductive Justice Is About More Than High-Risk Pregnancies, by A. Rochaun Meadows-Fernandez: 

Recently, journalists, medical professionals, and advocates have been emphasizing the discrepancy in medical care between White women and women of color. The maternal mortality rate is already abysmally low in the United States; this rate is even worse for Black women. These reports have largely focused on the medical risks of pregnancy and childbirth for women of color, but there is another, lesser-reported area of reproduction that also disproportionately burdens women of color: infertility. 

"While infertility affects roughly 12 percent of the population, Black women are twice as likely to experience challenges achieving or sustaining a pregnancy—and less likely to seek assistance." Infertility can also severely harm the mental health of someone wishing to get pregnant. 

Options to prevail against infertility often include the use of assisted reproductive technologies, including surrogacy. 

Surrogacy has been met with controversy from many angles over the years. Those against the practice express concerns of stigma, exacerbated classism, commodification of women's bodies, and exploitation. "Some countries, including Mexico, have banned commercial surrogacy under the guise of protecting low-income women and children from exploitation."

Advocates, however, argue that surrogacy is a viable option for many people to pursue their dreams of parenthood they otherwise have trouble achieving. 

Black women in particular are less likely to pursue surrogacy, among other reproductive technology, and are less likely to be surrogates as well.

According to the Centers for Disease Control and Prevention, from 1999 to 2016, gestational carriers resulted in 13,380 deliveries and the birth of 18,400 infants.  Although the current figures are unknown, surrogacy is helping to counter infertility struggles.

Still, the number of Black surrogates and Black intended parents remain low.

This could possibly be because of the stigma from slavery that historically frames enslaved Black women as surrogates for their White female owners. But is most likely because of the high costs normally associated with surrogacy (about $100,000, which includes medical and health care expenses for the carrier and agency or finder fees)—although some may turn to family or friends where there is no compensation—called altruistic surrogacy.

Surrogacy can occur in two ways: the traditional way in which the surrogate is impregnated by either the intended father's sperm or that of a donor, while using her own eggs; or, gestational surrogacy in which the surrogate is impregnated using the eggs of either the intended mother or an egg donor. In the former, the surrogate is genetically related to the child and the in the latter, she is not. Gestational surrogacy requires a few additional interventions, like IVF, and is generally more expensive. 

Many intending parents prefer gestational surrogacy, though, in order to lessen the likelihood that the surrogate will develop an emotional connection and assert a biological claim of custody over the resulting child. "This is an intended parent’s worst fear."

"Juli Fraga, a psychologist who specializes in women’s health, including pregnancy-related depression...suggests that it is especially important for all members of the surrogacy contract to be open to seeking mental health services."

In re Baby M is one of more famous cases illustrating potential legal battles that may arise over surrogacy. In this case, intended parents William and Elizabeth Stern fought for custody after their surrogate, Mary Beth Whitehead, invalidated their contract and attempted to claim custody over "Baby M." The court ultimately held that the surrogacy contract was entirely unenforceable, likening it to the "sale of a child." The court also held that William Stern, the child's biological father, retain custody according to the best interests of the child, but that Whitehead, the surrogate and also the child's biological mother, also retain visitation rights with the child.

Similar cases have continued to arise between surrogates and intended parents. Baby M influenced a shift in the legal protections and parameters for surrogacy, though. "It’s now suggested that intended parents prioritize entering contracts in states that support protective surrogacy legislation. But only 17 states and the District of Columbia have laws governing the conditions of surrogacy."

It is important to ensure that Black women are receiving the same medical care and equitable access to reproductive services, including reproductive technology and protections in cases of surrogacy (either as the intending parent or the surrogate), as White women. Equally as important is removing the stigma around infertility and opening conversations to all women about their reproductive options. 

In once recent case, GloZell Green, a Black woman and YouTube star, was told by a fertility specialist that she'd waited too long to have children at age 39. Green began searching for the best way to enter motherhood and ultimately had a baby girl through gestational surrogacy. Green shared her surrogacy journey with her millions of subscribers, hoping to break the stigma and open conversations. She highlights that "above all else, she doesn’t want Black women to be embarrassed about infertility."

An 11-Year-Old in Argentina Was Raped. A Hospital Denied Her an Abortion.

The New York Times (Mar. 1, 2019): An 11-Year-Old in Argentina Was Raped. A Hospital Denied Her an Abortion, by Daniel Politi: 

Despite laws in Argentina saying that pregnant people may seek abortions in the case of rape (one of the only instances in which abortion is legal in the country), an 11-year-old rape survivor was denied the abortion she requested and instead forced into a C-section delivery. 

The child was reportedly raped by her grandmother's boyfriend. She discovered her pregnancy at 19 weeks after going to the hospital complaining of severe stomachaches. Both the child and her mother pushed for her to receive the abortion, but doctors administered drugs without consent to hasten the development of the fetus so that she could deliver instead (the doctors told her that they were giving her "vitamins"). 

Fernanda Marchese is the executive director of Human Rights and Social Studies Lawyers of Northeastern Argentina, which is representing Lucía (a pseudonym) and her family. Marchese reports that the hospital permitted anti-abortion activists to enter Lucía’s hospital room, "where they urged her to have the baby, warning that she otherwise would never get to be a mother."

"Reproductive rights groups filed emergency lawsuits that led to a court order instructing the hospital to carry out an abortion at once." The doctors still refused, citing conscientious objections. 

Private sector doctors Cecilia Ousset and José Gigena agreed to conduct the abortion, but because Lucía’s pregnancy was so far along, they decided they had no choice but perform a C-section. Dr. Ousset identified that Lucía’s life was at risk throughout the ordeal in a phone interview with the New York Times. Lucía is now healthy and should be discharged soon. 

Genetic material from the umbilical cord will be studied and possibly used to prosecute the man who is alleged to have raped Lucía. He has already been arrested. 

Although the case has gained notoriety, many say it reflects a reality in parts of Argentina. “In the north of Argentina,” Dr. Ousset said, “there are lots of Lucías and there are lots of professionals who turn their back on them.”

In Nigeria, Trump administration policies bite hard

Devex (Feb. 5, 2019): In Nigeria, Trump administration policies bite hard, by Paul Adepoju: 

Trump's policies limiting reproductive rights and funding for reproductive health and education services continue to wreak havoc on foreign initiatives aimed at promoting family planning, slowing population growth, and educating girls and women.

Nigerian hospitals and NGOs are facing severe shortages of reproductive health supplies since Trump both cut funding to the United Nations Population Fund (UNFPA) and implemented the "global gag rule," withdrawing funding from any agency that offers abortion-related education or services. 

Nigeria, a middle-income country facing a population boom, lost over 60% of its funding for family planning supplies and services in the year after Trump pulled UNFPA funding. "In 2016, when UNFPA got its last support from the U.S. government, it was able to spend $15,444,880 on family planning in Nigeria. In 2017, it spent just $6,132,632."

Trump justified these funding cuts by promulgating theories that the UNFPA cooperated with coercive abortions and involuntary sterilization, which the UNFPA categorically denies and is readily backed up by multiple human rights organizations.

The rate of contraceptive usage in Nigeria is already very low, and the African country also faces one of the highest maternal mortality rates in the world. 

Several organizations--including Generation Initiative for Women and Youth Network--are on-the-ground in Nigeria working to educate women and provide safe and reliable access to health care to shift these statistics. Their work, though, has been severely limited by the loss of funding as a result of U.S. policies under the Trump administration. 

Erin Williams, program officer for grantmaking and international partnerships at the International Women's Health Coalition, told Devex: 

As a result [of these policies], Nigerian health services will continue to fragment, deteriorate, and decrease, increasing the burden on vulnerable women and girls in search of comprehensive and quality health care. More women will look for contraceptive and pregnancy alternatives outside the medical and legal system.

While much of the justification for pulling U.S. funding relies on anti-abortion ideology, the implications of the policies are much farther-reaching than "just" abortion. Nigeria has slowed in its ability to address maternal health needs generally, including instances of gender-based violence, as well in its ability to address wide-reaching disease concerns like the spread of malaria and tuberculosis. Furthermore, the policy-shift has actually led to increased numbers of abortions throughout Sub-Saharan Africa in the countries hit hardest by the loss of funding. 

Congress this week is set to introduce the Global Health, Empowerment and Rights Act, which would repeal the global gag rule permanently and help to ensure consistent reproductive health care around the world. It is unlikely to be passed by the Republican-controlled Senate, however, or to be signed by Trump. 

NY’s Reproductive Health Act is Not Radical; It Simply Recognizes that the Lives and Dignity of Pregnant People Count Too

NY’s Reproductive Health Act is Not Radical; It Simply Recognizes that the Lives and Dignity of Pregnant People Count Too (Feb. 7, 2019), by Cynthia Soohoo:

Not surprisingly, President Trump’s attack on New York’s Reproductive Health Act during Tuesday night’s State of the Union address blatantly mischaracterized the RHA. But it also underscores a glaring gap in anti-abortion advocates’ pro-life views -- the right to life and dignity of people who are pregnant.

The RHA continues to recognize a state interest in fetal life and prohibits abortions after 24 weeks in almost all circumstances. However, the law also recognizes that in some situations, denying a pregnant person the ability to end a pregnancy imposes serious and irreparable harm on her, including situations where the pregnancy endangers her life and health. And in those situations, the state cannot force the pregnant woman to continue the pregnancy against her will. This is consistent with current Supreme Court jurisprudence and international human rights law. The UN Human Rights Committee made this explicit in a recent General Comment clarifying that while states can regulate abortions, they should not do so in a manner that violates the right to life of the pregnant person or her fundamental human rights.

The RHA does no more than protect the human rights of pregnant people. The law only allows abortions post-24 weeks in two situations. First, abortions are allowed where the fetus will not survive outside of the womb. The RHA recognizes that a woman should not be forced to continue what was often a wanted pregnancy -- knowing that the fetus will not survive -- against her will. In such cases, the state’s interest in protecting a viable fetus is not at issue, and human rights experts have held that denying a woman access to an abortion in these circumstances is cruel, inhuman and degrading treatment.  

Second, the RHA allows a woman to have an abortion where continuing the pregnancy endangers her life or health. Some women may choose to continue pregnancies in these circumstances. But the RHA acknowledges that the pregnant person must be allowed to make her own choice taking into account the risk that she faces and the impact her death or disability would have on her family and community.

In both situations covered by the RHA, human rights experts have held that state denial of an abortion violates the human rights of the pregnant person. In fact, concern over state prohibition of abortions in those circumstances led UN human rights experts to write to the U.S. to encourage passage of laws like the Reproductive Health Act. This is not a radical position. It is merely the recognition of the value of the life and dignity of pregnant people. The failure of critics of the RHA to understand this is a glaring gap in their “pro-life” views.

Woman who bore rapist’s baby faces 20 years in El Salvador jail

The Guardian (Nov. 12, 2018): Woman who bore rapist’s baby faces 20 years in El Salvador jail, by Nina Lakhani: 

In the wake of fetal personhood, or similar, ballot measures being proposed and passed throughout the U.S., it's important to look to other countries where abortion is criminalized to see the effects of living in a world where abortion and those who seek or perform them are punished.

A survivor of habitual sexual abuse by her grandfather has been imprisoned in El Salvador since April 2017 on charges of attempted murder. Last April, Imelda Cortez, then 20-years-old, gave birth to a child fathered by her rapist.  She experienced intense pain and bleeding before the birth, which caused her mother to bring her to the hospital. The doctors there suspected an attempted abortion and called the police. The baby was born alive and well, but Imelda has never been able to hold her, as she's been in custody since her time in the hospital last year. 

Authorities conducted a paternity test, which confirmed Imelda's claims of rape, yet her grandfather has not been charged with any crime. Imelda's criminal trial began this week and a decision from a three judge panel is expected next week. 

Abortion is illegal in all circumstances--no exceptions--in El Salvador. The strict ban has led to severe persecution of pregnant people throughout the country, often most heavily affecting impoverished, rural-living people. Most people accused of abortion simply experienced a pregnancy complication, including miscarriage and stillbirth.

This pattern of prosecutions targeting a particular demographic suggests a discriminatory state policy which violates multiple human rights, according to Paula Avila-Guillen, director of Latin America Initiatives at the New York based Women’s Equality Centre. Cortez’s case is a stark illustration of how the law criminalises victims.

Abortion has been criminalized in El Salvador for 21 years. While a bill was drafted nearly two years ago--with public and medical support--aiming to reform the system and relax the ban to allow the option of abortion at least in certain cases (for example, rape, human trafficking, an unviable fetus, or threat to a pregnant person's life), it remains stuck in committee and is not expected to make it to vote. 

 

House Republicans Jam ‘Personhood’ Language Into New Tax Bill

Rewire.News (Oct. 1, 2018): House Republicans Jam ‘Personhood’ Language Into New Tax Bill, by Katelyn Burns: 

The U.S. House of Representatives last week passed a bill that would extend "the ability to count 'unborn children' as beneficiaries under 529 education savings plans."

The bill, referred to as the Family Savings Act, is a part of a current push for updated tax legislation. Anti-choice activists have promoted the addition of personhood language--effectively defining zygotes, embryos, and fetuses as persons with all the rights that entails--to legislation for some time. The cause is now embraced by many Congressional Republicans as well.

"Personhood laws" have consistently been rejected in ballot measures across the country. 

Representatives and activists alike warn lawmakers to be vigilant of the tactic of sneaking anti-choice provisions into larger bills. “This is how extremist views creep into the mainstream," said Rep. Diana DeGette (D-CO). "Provisions like this one should never become law—they can lead to limits on access to abortion and even birth control.”

Supporters of the legislation--personhood language and all--claim that it will "finally" allow expectant parents to begin saving for their future child's education through a 529 plan. Parents-to-be, however, "can already open a 529 plan listing themselves as the beneficiary before switching it over to the child once they are born."

The Family Savings Act is not expected to pass in the Senate ahead of the midterms, but this is not the first time--and surely not the last--lawmakers have tried to slip similar provisions into tax reform or other legislation.  

Women--and Robust Reproductive Rights--Are Key to Solving Climate Crisis

Sierra (Sept. 18, 2018): Climate Activists Say Women Are Key to Solving the Climate Crisis, by Wendy Becktold: 

Last week, San Francisco hosted the Global Climate Action Summit (GCAS). The three-day conference brought together heads of state, policy makers, scientists, and leaders from civil society to discuss clean energy and averting catastrophic climate change. One of the recurring topics focused on the necessity of investing in women's rights, including sexual and reproductive rights, in combating climate crises. 

Decades of research indicate that investing in women's rights can dramatically contribute to addressing both development and climate challenges around the globe. In particular, access to education and robust reproductive rights strengthens opportunities for women worldwide. Supporting women is proven to translate to more sustainable development including the promotion of clean energy over fossil fuels.

"Access to reproductive health services is...key to reducing pressure on natural resources." A lack of access to contraception, for example, leads to many millions of unplanned pregnancies, which in turn can prevent women from creating the productive and sustainable systems they would otherwise be able to contribute to. Better education can also reduce birth rates and further improve the livelihood of women around the world.

In poorer parts of the world, women produce 60-80 percent of food crops. Providing women with better education and resources such as access to small business loans (like their male counterparts often have) could could reduce the number of people who go hungry around the world by 150 million. 

Many summit conversations at the conference, in addition to countless side events, highlighted the shared frustrations of women around the world.

Some climate activists found the summit’s emphasis on high tech solutions exasperating. 'There’s often a focus on techno fixes,' said Burns [of the Women’s Environment and Development Organization], 'when for years, we’ve been saying that investing in women’s human rights is how we can address climate change. There is still this huge disconnect between the rhetoric and the solutions that are coming from feminists and frontline voices.'

"Women are also disproportionately affected by climate change," in part because global warming reaches the impoverished first and most people living in poverty are women. 

The conversations at the GCAS highlighted how integral reproductive rights and support of women's opportunities are to innumerable issues. The ripple-effect of guaranteeing sexual and reproductive rights, the research shows, extends far past simply being able to plan a pregnancy; such support builds up communities around the globe, reduces poverty, and has the power to fight behemoth challenges like climate change as well. 

Supreme Court Backs Anti-Abortion Pregnancy Centers in Free Speech Case

New York Times (Jun. 26, 2018): Supreme Court Backs Anti-Abortion Pregnancy Centers in Free Speech Case, by Adam Liptak: 

Justice Thomas wrote for the five-justice, conservative majority who decided Tuesday that California's "crisis pregnancy centers" cannot be forced to provide information on abortion services in the state. 

The case, National Institute of Family and Life Advocates v. Becerra, No. 16-1140, centered on a California law that requires pregnancy centers whose aim is to dissuade pregnant people from abortions to provide information on the availability of abortions in California.

The state requires the centers to post notices that free or low-cost abortion, contraception and prenatal care are available to low-income women through public programs, and to provide the phone number for more information.

The centers argued that the law violated their right to free speech by forcing them to convey messages at odds with their beliefs. The law’s defenders said the notices combat incomplete or misleading information provided by the clinics.

The state legislature enacted the law after finding that hundreds of the pregnancy centers used "intentionally deceptive advertising and counseling" to confuse or intimidate women from making informed decisions about their health care. The law also required that unlicensed clinics disclose that they are unlicensed. 

Justice Thomas wrote that the requirements for the notices regarding abortion availability were too burdensome and infringed on the clinics' rights under the First Amendment. The ruling reverses a unanimous decision from a three-judge panel of the United States Court of Appeals for the Ninth Circuit, which had upheld the law.

Justice Breyer penned a dissent, joined by Ginsburg, Sotomayor, and Kagan, citing the contradiction between the majority's decision here and a Court decision in 1992 that upheld a Pennsylvania law that required abortion-performing doctors to inform their patients about other options, like adoption. 

Is Your Hospital Catholic? Many Women Don’t Know.

Rewire.News (June 6, 2018): Is Your Hospital Catholic? Many Women Don’t Know, by Amy Littlefield: 

About one in six women in the United States name a Catholic facility as their go-to hospital for reproductive health care.

However, more than a third of these women are unaware that their hospital is Catholic, according to a survey revealing an “information gap” about Catholic hospitals, where religious rules dictate access to contraception, sterilization, and abortion services.

Among women who listed a Catholic hospital as their primary facility for reproductive care, only 63 percent knew that the hospital was Catholic, researchers found. The study, published in the journal Contraception, did not address whether respondents knew how Catholic hospitals restrict care.

Women with annual incomes under $25,000 are less likely to realize their hospital is Catholic than women who make more than $100,000 a year, the researchers found, underscoring how these barriers disproportionately affect marginalized patients. A January report found women of color are more likely to give birth in Catholic hospitals and thus bear the brunt of these religious restrictions.

Patients seeking care in Catholic facilities have been turned away while bleeding and made to wait until they sicken to receive miscarriage treatment. Cesarean section patients in Catholic hospitals often can’t have their tubes tied at the same time they give birth, requiring a second surgery elsewhere. Transgender patients have had gender-affirming surgeries canceled on religious grounds.

The researchers called on hospitals to better advertise their Catholic affiliations. “Efforts are needed to increase hospital transparency and patient awareness of the implications that arise when health care is restricted by religion,” they wrote.

Women overwhelmingly want to be informed about religious restrictions: eighty-one percent say it’s important to know these barriers when they decide where to go for care.

Iowa Lawmakers Pass Strictest Abortion Law in the U.S.

The Hill (May 2, 2018): Iowa lawmakers pass strictest abortion law in the US, by Julia Manchester:

On Wednesday, May 2, 2018, Iowa legislators passed "the heartbeat bill." The legislation bans abortions once a fetal heartbeat is detected. Essentially, the heartbeat distinction would ban abortions by the sixth week of pregnancy. 

Opposition to the bill claims that it would ban abortions before some women even know they're pregnant. 

The passage of the bill comes as the Trump administration has taken a hard-line stance on abortion, spurring a slew of abortion laws across the nation.

Nineteen states adopted a total of 63 restrictions to the procedure in 2017, which is the highest number of state laws on the issue since 2013, according to the Guttmacher Institute.

The bill now goes to Gov. Kim Reynolds's (R) desk, but, if signed, is expected to be challenged as a violation of Supreme Court precedent including Roe v. Wade. 

Why America’s Black Mothers and Babies Are in a Life-or-Death Crisis

The New York Times Magazine (April 11, 2018): Why America’s Black Mothers and Babies Are in a Life-or-Death Crisis, by Linda Villarosa:

Villarosa of The New York Times Magazine profiles several black mothers and their pregnancy, child birth, and health care stories while exploring the extraordinarily wide disparity in care that black women receive compared to white women.

The U.S. is one of only 12 countries whose maternal mortality rates have actually increased in recent years and now has a mortality rate worse than 25 years ago. Maternal mortality refers to "the death of a woman related to pregnancy or childbirth up to a year after the end of pregnancy." Women of color are three to four times more likely to die from pregnancy-related causes as white women.

Moms are not the only ones facing the consequences of underdeveloped care. 

Black infants in America are now more than twice as likely to die as white infants — 11.3 per 1,000 black babies, compared with 4.9 per 1,000 white babies, according to the most recent government data — a racial disparity that is actually wider than in 1850, 15 years before the end of slavery, when most black women were considered chattel.

In the past, many explanations for the disparity turned to poverty, assuming that it was poor and uneducated black women and their babies that suffered the most. But the crisis does not consider class lines, it turns out. "In fact, a black woman with an advanced degree is more likely to lose her baby than a white woman with less than an eighth-grade education."

In 2014, Monica Simpson--the executive director of SisterSong, an organization dedicated to reproductive justice for women of color, and a member of advocacy group Black Mamas Matter Alliance-- testified before the United Nations Committee on the Elimination of Racial Discrimination. She called on the United States to “eliminate racial disparities in the field of sexual and reproductive health and standardize the data-collection system on maternal and infant deaths in all states to effectively identify and address the causes of disparities in maternal- and infant-mortality rates.” That the United States has not done so is a violation of the international human rights treaty, she says.  

This is important for many reasons, one of which is the dramatic effect that society and systemic racism have on a pregnant person's "toxic physiological stress levels." This stress increases the chances for hypertension, pre-eclampsia, and other dangerous pregnancy complications, and it is exacerbated by the pervasive, systemic racial bias embedded in the United States' health care system. Racial bias, discrimination, and the toll it takes on women of color throughout their lives and pregnancy contributes to increased maternal complications across all class and education levels. 

Even when controlling for income and education, African-American women had the highest allostatic load scores — an algorithmic measurement of stress-associated body chemicals and their cumulative effect on the body’s systems — higher than white women and black men. ...Though it seemed radical 25 years ago, few in the field now dispute that the black-white disparity in the deaths of babies is related not to the genetics of race but to the lived experience of race in this country.

Community care systems that incorporate the medical and personal support of doulas and midwives have proven to increase black women's chances at a healthy pregnancy, delivery, and postpartum experience. 

"One of the most important roles that doulas play is as an advocate in the medical system for their clients." A doula may sometimes be the only person consistently present with the mom-to-be during her birth experience, too. One study of 2,400 women found that "more than a quarter of black women meet their birth attendants for the first time during childbirth, compared with 18 percent of white women." 

Doulas “are a critical piece of the puzzle in the crisis of premature birth, infant and maternal mortality in black women.”

Rachel Zaslow, a midwife and doula in Charlottesville, Virginia established Sisters Keeper--a collective of 45 black and Latina doulas in Charlottesville. They offer free birthing services to women of color.

'The doula model is very similar to the community health worker model that’s being used a lot, and successfully, throughout the global South,' Zaslow says. 'For me, when it comes to maternal health, the answer is almost always some form of community health worker.' Since 2015, the Sisters Keeper doulas have attended about 300 births — with no maternal deaths and only one infant death among them.

An analysis of a similar program in New York City showed that, over a five-year period, moms receiving the support of the doula program experience half as many preterm and low-weight babies compared to other community  members.

A Larger Role for Midwives Could Improve Deficient U.S. Care for Mothers and Babies

ProPublica (Feb. 22, 2018): A Larger Role for Midwives Could Improve Deficient U.S. Care for Mothers and Babies, by Nina Martin:

The results of a five-year study, conducted by researchers in both the U.S. and Canada, on the effects of midwifery on maternal and infant health are in. The study was published in the peer-reviewed journal PLOS ONE; it analyzes hundreds of laws throughout the United States that dictate what a midwife can and cannot do when it comes to prenatal care and the birthing process. 

'We have been able to establish that midwifery care is strongly associated with lower interventions, cost-effectiveness and improved outcomes,' said lead researcher Saraswathi Vedam, an associate professor of midwifery who heads the Birth Place Lab at the University of British Columbia.

The midwife model emphasizes community-based maternal and infant care along with avoiding any unnecessary, and potentially dangerous, interventions. Midwives have long been widely embraced in Europe as a positive component of maternal care. In the U.S., though, midwives often represent a "culture war that encompasses gender, race, class, economic competition, professional and personal autonomy, risk versus safety, and philosophical differences." 

The title "midwife" can have multiple meanings, ranging from "certified nurse-midwives," to "direct-entry midwives," to "lay midwives." Depending on the title and the state in which the midwife works, the midwife will have a different level of training and may or may not be licensed or regulated by the state. 

This new study indicates, though, that midwives may be part of the answer to the U.S.'s problematic infant and maternal mortality rates. Severe maternal complications have sharply risen over the past 20 years, and maternal care is seriously sparse in certain areas of the country. "Nearly half of U.S. counties don't have a single practicing obstetrician-gynecologist." 

While midwife regulations vary widely among states, the study shows that states that have more fully integrated midwifery systems within their health care have significantly better outcomes for mothers and babies. States with restrictive midwife regulations--like Alabama, Ohio, and Mississippi--regularly score much lower on tests of maternal and neonatal well-being.

Alabama, which has the worst infant mortality rate in the country, has long had strict midwife regulations, "reflecting attitudes that wiped out the state's once-rich tradition of black birth attendants." Alabama lawmakers, though, recently passed a bill legalizing certified professional midwives, taking one small step toward the process of greater midwife integration, and, hopefully, improved maternal and infant health care across racial and economic lines. 

Access to midwifery is often split among racial lines, as many of the states with the worst outcomes (and higher levels of opposition to midwives), including Alabama, have large black populations. The study suggests a correlation between improved access to midwifery and reduced racial disparities in the maternal health care field.

Jennie Joseph, a British-trained midwife who runs the Florida birthing center and nonprofit Commonsense Childbirth affirms this:

“It’s a model that somewhat mitigates the impact of any systemic racial bias. You listen. You’re compassionate. There’s such a depth of racism that’s intermingled with [medical] systems. If you’re practicing in [the midwifery] model you’re mitigating this without even realizing it.”

The study, though, does not conclude that better midwife access will directly lead to better outcomes or vice versa. It acknowledges that many other factors also affect maternal and infant health among states, including access to preventative care, insurance, and rates of chronic disease.

Nonetheless, maternal health advocates have long recognized the benefits of midwifery and this is not the only study to highlight the positive effects of supporting midwives. A 2014 study found that integrating midwives into health care could prevent more than 80 percent of maternal and infant fatalities worldwide, in both low and high-resource communities. Even in the U.S., organizations such as the American Congress of Obstetricians and Gynecologists have begun embracing nurse-midwives despite lingering skepticism by many. 

Planned Parenthood Will Launch 10 New Video Chat Abortion Locations in 2018

Cosmopolitan (Feb. 6, 2018): Planned Parenthood Will Launch 10 New Video Chat Abortion Locations in 2018, by Jennifer Gerson Uffalussy: 

A safe, early-pregnancy abortion option has been making waves across the United States since Planned Parenthood began its telemedicine abortion pilot program in Iowa in 2008. 

Telemedicine abortions enable those seeking a pregnancy termination to meet with a nurse in a local clinic where both patient and nurse loop in an abortion-providing doctor via video chat. The doctor consults with the patient to determine that they are a good candidate for early pregnancy termination and then authorizes the nurse to dispense two small pills to the patient. The patient takes the first pill in the office in the presence of the nurse and doctor and then later takes the second pill at home. The pregnancy is terminated within a day or two. 

These medications have become known at "the abortion pill" and include both mifepristone and misoprostol, which work together first to block the hormones a woman's body needs to sustain a pregnancy and then to empty her uterus. The FDA-approved abortion pills are for ending pregnancies less than 10 weeks along. A study of Planned Parenthood's telemedicine pilot program found that access to telemedicine abortions decreased second-trimester abortions throughout the state. Second-term abortions require surgical procedures and can carry increased risks.

Although abortion is legal in all 50 states, many states have tightened their restrictions on abortion access, making it very difficult for a person facing an unwanted pregnancy to safely terminate it. Restrictions such as mandatory waiting periods and insurance limitations are compounded in states with very few clinics that can perform abortions. In fact, about 90% of counties in the U.S. do not have an abortion provider. 

Telemedicine allows a patient to meet with an abortion provider even if she doesn’t live near one. Instead of driving long distances, women can go to a closer clinic or Planned Parenthood and video-chat a live, somewhere-in-state abortion provider who prescribes and (virtually, via on-site clinic staff) hands over the meds. “There is no increased risk of complications with a telemedicine visit,” says Daniel Grossman, MD, director of Advancing New Standards in Reproductive Health at the UCSF Bixby Center for Global Reproductive Health. He led a groundbreaking study published last fall that found telemedicine abortions are just as safe as those in which a woman swallows mifepristone in the same room as a physician.

While mifepristone has so far demonstrated a highly-safe success rate (its rates of complications are fewer than most common pain relievers), it cannot be obtained over-the-counter; instead a clinic, hospital, or doctor's office must dispense it.

Some states will allow a pregnant person to video chat with a doctor from her home and then receive both pills in the mail. Since 2008, though, 19 states have challenged the expansion of telemedicine abortions by passing laws that specifically require mifepristone to be dispensed "in the physical presence of the prescribing clinician."

Planned Parenthood continues to expand its telemedicine program despite the challenges. It has now established 24 telemedicine locations in the nation and plans to add at least 10 additional locations--some in new states--throughout this year. 

To find out if telemedicine abortion is available in your area, call the national Planned Parenthood hotline at 800-230-PLAN.

For Nonbinary Parents, Giving Birth Can Be Especially Fraught

Rewire (Jan. 25, 2018): For Nonbinary Parents, Giving Birth Can Be Especially Fraught, by S.E. Smith

Pregnancy and childbirth are vulnerable times in any parent's life. Add to that the highly gendered-status of both pregnancy and birth, and trans and non-binary parents are finding it difficult to locate an inclusive community with educated medical staff as they, too, enter childrearing chapters.

With the trans community, conversations about birth and parenting are few and far between and often fraught with discomfort. Now, though, more parents-to-be identify as trans men or somewhere else on the non-binary spectrum of gender identity. And the medical community has not yet caught up. "And, as in any area of reproductive health-care services, this isn’t simply a matter of gender: Race, class, and geography can play a huge role in whether non-binary people are able to access inclusive, affirming birth care."

Gender-affirming care--including asking for a patient's pronouns with their name, using gender-affirming language, and regularly seeking consent before performing examinations, particularly those that require a medical professional to touch the patient's genitalia--is important.  When it is absent, patients report both physical and psychological trauma.

Many in the trans and non-binary communities are increasingly seeking home births with gender-affirming midwives in order to create the most comfortable environments for themselves. Midwifery can be prohibitively expensive though, and insurance rarely covers it. So for others, a hospital may be the safest or the only choice. Advocates say that hospitals and birth collectives would do well to invest in specialized training for medical providers "to ensure that everyone at a facility is trans-competent, or working on getting there."

This issue is likely to amplify in coming years with a more visible nonbinary community, as well as a more active movement to reframe the way we look at pregnancy and birthing. Trans people—binary and otherwise—are some of the biggest stakeholders in the conversation, and they’re contributing with inclusive birthing classes and provider training in addition to working as care providers themselves.

The trans and non-binary communities call on leaders within the medical community to initiate changes from the inside, including re-training initiatives and reframing core educational documents for inclusivity. 

Study Finds States With More Abortion Restrictions Score Worse On Women's Health

WBUR 90.9 (Aug. 1, 2017): States With More Abortion Restrictions Score Worse On Women's Health, Study Finds, by Eojin Choi

A newly released report by Ibis Reproductive Health and the Center for Reproductive Rights found that the the twenty-six states with more than ten abortion restrictions had poorer health outcomes for women than the twenty-four states with fewer than ten restrictions.

Titled Evaluating Priorities: Measuring Women's and Children's Health and Well-being Against Abortion Restrictions in the States, the report's findings challenge anti-choice politicians' claims of passing abortion restrictions under the guise of protecting women's health and safety.

Some examples of positive, supportive policies include Medicaid expansion, expanded family and medical leave, mandated evidence-based sex education, maternal mortality review boards, and contraceptive parity laws. The study found that many states with more abortion restrictions lack these supportive policies.

The report was first published in 2014 and is updated for 2017. You can read the full report here.