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Mirena IUD Litigation, Misinformation, and a Few Thoughts on Informed Choice

Gavin Barney, LSRJ Summer Intern (’16, University of California, Berkeley School of Law)

According to a recent commentary in the Association of Reproductive Health Professionals (ARHP) peer reviewed journal, Contraception, reproductive health care clinics are currently witnessing a notable upswing in the number of patients requesting the removal of their Mirena IUDs. Mirena is a hormonal intrauterine system that prevents pregnancy for around five years through the release of levonorgestrel. And like other types of IUDs and long-term birth control, Mirena is very popular among the public health community: the ARHP refers to the device as safe and effective a number of times throughout the commentary. However, many women are choosing to have their IUDs removed and report being frightened by prevalent online and television publicity of common and devastating side-effects, including migration, perforation, and infertility. The problem, explains ARHP, is that these side-effect are not common, and some of them are actually fake – or “medically implausible” as the article puts it.

The supposed dangers of the Mirena device have made their way into the public consciousness as the result of solicitations for plaintiffs in mass litigation against the device’s manufacturer Bayer. This all initially passed me by, but after researching for this blog post I can report back that there is a lot of if-you-or-a-loved-one-has-been… out there. Mirena, like any other form of birth control, has potential risks, but as a result of media and advertising coverage these risks appear hugely magnified. ARHP contends that this hurts women in two ways: 1) by decreasing the number of women using long lasting birth control, and 2) by deterring contraceptive development by threatening that future technology will be met with similar litigation – note that from the 1970s to the 1980s, the number of companies pursuing contraceptive research fell from 13 to 1.*

For me, the most significant impact that misinformation around the Mirena device causes is not a reduction in the overall number of women using long term contraception. Rather, I am most concerned that opportunistic Mirena litigation and junk science could dissuade women from pursuing or keeping a birth control method that they would otherwise have chosen. IUDs do have some common side-effects – especially immediately following insertion – that can range from unpleasant to awful, so there are entirely legitimate reasons to remove the device early. But for those who actually do want to use and keep an IUD, misinformation can be tantamount to manipulation. Therefore, the central question the ARHP article raises is: what does informed and dignified decision making actually look like when we are so often bombarded with misinformation?

A quick search of the word “Mirena” shows just how murky the waters are when it comes to information on this IUD. Case in point: the first search result on Google, after Mirena’s official website, is DrugWatch.com, which describes a terrifying and “frequently encountered complication,” called “migration,” in which the IUD perforates the uterus and enters the body cavity, causing pain, infection, and damage to nearby organs. The ARHP article, on the other hand, scathingly refers to this problem as “fictitious.” Another site, in its review of the truth behind Mirena lawsuit ads, refers to migration as “so rare that even with tens of millions of women using IUDs worldwide, we can’t estimate how often it happens.”

I can easily envision a situation where a woman may encounter that first explanation of migration and immediately visit her doctor to have her IUD removed. Should the doctor simply dismiss her concerns out of hand because she knows that they are unfounded? Or should the doctor obey her patient’s wishes with the knowledge that she may have been manipulated into removing a device she actually wanted? The answer, as answers so often do, falls somewhere in the middle. LSRJ’s definition of reproductive justice holds that people must be able to “exercise the rights and access the resources they need to thrive and to decide whether, when, and how to have and parent children with dignity…” Here, my hypothetical patient has the right to access the resources she actually wants and needs, so it is her doctor’s responsibility to explain the true nature of the risks and dispel the misinformation. Then, should the patient still decide that the risk is too great, that choice should be met with the same degree of respect. Of course this all relies on the doctors themselves being entirely up on the most recent data about the device they are inserting/ removing and that they themselves are not intent on spreading misinformation.  So… fingers crossed on that one.

*From the ARHP article, this appears to have resulted from the litigation concerning the Dalkon shield. I do not think the writer intended to suggest that that was a case of junk science or junk law. I certainly don’t suggest that.

Apologists are enablers: I don’t celebrate governments

I don't celebrate governments. I celebrate people. I don't apologize for socio-economic political systems that kill people by saying "nothing is perfect." I apologize for not doing enough to dismantle it more quickly. It's really not an "oh well nothing is perfect" kind of thing for people who have to worry about being shot by law enforcement when they are doing nothing wrong. It's not just a "well nothing is perfect" kind of happening when SCOTUS wants to deny women access to birth control and leave our clinics unprotected. And that's just the shit they are doing here. The thing is, our "nothing is ever perfect" government is killing MILLIONS of people in the name of capitalism. It's not a blessing to be free in a nation that goes out and kills others across the globe. It's a duty to make sure you use any level of freedom you have to dismantle and undermine that system. 

The Changing Abortion Conversation in Latin America and the Caribbean

Sasha Young, LSRJ Summer Intern (’16, Northwestern School of Law)

I recently saw a film that caught me by surprise, “La Espera” (released in the States as images“Expecting”) by Chilean filmmaker Francisca Fuenzalida. The film is devoted to one night, when Natalia and Rodrigo, a teenage couple from Santiago, self-induce an abortion with Misoprostol. The film was released in 2011 to critical praise for great filmmaking and the courage to tackle the subject of abortion in a country with one of the strictest abortion bans in the world.

Earlier this year I traveled to Chile, the skinny country that lines the western coast of South America, with a bit of angst over what I would find. I wondered what a country that in the last 50 years had a socialist president, a revolution, and a dictator [who, despite his human rights violations, brought incredible economic development and one of the most oppressive abortion laws in the world] would actually look like. I’d heard stories from friends about their own botched Misoprostol abortions, and I’d read about little Belén, the 11-year-old girl who was raped by her mother’s partner and then praised by the former president for deciding to continue her pregnancy. What I found was a country where, although it’s not uncommon to see hormonal teens passionately rolling around the manicured lawns of el Cerro Santa Lucía or see street art cursing the bourgeoisie, the conversation about abortion is hard to find.

I worked in an abortion clinic in Bogotá, lived beside an abortion clinic in Mexico City, and marched to stop restrictions on reproductive rights in Atlanta. I’m from a little island where abortion is still illegal, but even there in Aruba, the conversation of abortion happens. So I was really excited a few weeks ago to hear a debate happening around new Chilean president Michelle Bachelet’s plans to introduce therapeutic abortion exceptions to Chile’s abortion law later this year. The controversial president is a physician by profession, a single mother of three children, and possibly made of steel considering the political risk she’s taking with this new initiative. Abortion is a controversial topic, but in a region with one of the highest rates of teenage pregnancy, where bad abortions are the leading killer of young women, and where criminal penalties for abortion disproportionately affect poor women, we have to at least have a conversation about what reproductive justice in our region looks like.  The winds are changing throughout Latin America and the Caribbean, and having an open and honest conversation is the first step to achieving equal access to tools that help us decide when, how, why, and if we want to parent.

 

Reproductive Oppression Comes at a Cost, Literally

Grace Ramsay, LSRJ Summer Reproductive Rights Activist Service Corps (RRASC) Intern (’16, Smith College)

In 2010, I needed emergency contraception.  Asking my moms (yes, moms) for help was out of the question. So, I waited in the CVS parking lot while my 18 year old friend bought it for me because I was sixteen and Plan B was not yet over the counter. If my friend had said no, if I couldn’t afford the $50 upfront charge, or if I lived in a different state, there’s a good chance I wouldn’t have gotten the morning after pill at all.

Contraception access should not depend on your age, your provider or pharmacist’s religious beliefs, or the employer you work for. Naturally, I was dismayed to see the Supreme Court decision that allows corporations to refuse birth control coverage on religious grounds.  Justice Ruth Bader Ginsberg  reminds us that reproductive oppression comes at a cost, literally: “It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.” 

My snarky feminist side can’t help but wonder, (as so many have already lamented,) how come Hobby Lobby still covers vasectomies and Viagra? And why are condoms are available at practically any store, to any age, but it took until last year to have OTC emergency contraception? Can it be as simple and paternalistic as men not wanting women to have control over their personal reproductive decisions? I’m trying to remain hopeful that the outpouring of negative response to the Hobby Lobby decision will translate into renewed activism for reproductive justice.  In the meantime, I have to keep remembering that progress does not move in a linear direction and we have to keep up the good fight.

Birth Control vs. Population Control, and Why it Matters

Grace Ramsay, LSRJ Summer Reproductive Rights Activist Service Corps (RRASC) Intern (’16, Smith College)

Earlier this month, I attended a discussion hosted by Population Action International, NARAL, and the Ibis Foundation, addressing the global gag rule and its effects on reproductive health worldwide.  Basically, the gag rule is a U.S. executive policy that prevents any countries receiving U.S. family planning aid from offering abortion services, even if the country wants to use its own funds to do so.  It was created under the Reagan administration – every Democratic president has since reversed it, and every Republican president has reinstated it.  It’s a clear anti-choice policy that has disastrous effects on family planning initiatives worldwide.

During the talk, the NARAL representative alluded to allying with environmental action groups.  When birth control advocates/family planning initiatives “go abroad” and team up with environmentalists, I tend to get concerned.  The language can quickly move away from the need for universal access to the variety of contraceptive methods and instead focus on how developing nations are “irresponsibly reproducing”.   So often I hear rhetoric like, Lower birth rates will put less strain on our natural resources! Or, We’re reaching our carrying capacity!  Such statements are especially misleading because the U.S. actually consumes more natural resources than developing countries.  I was pleasantly surprised that this talk kept its focus on ensuring the right to family planning for all women.

As a person who cares about RJ, I absolutely support the right to global contraceptive access and I also think it’s really important to take a nuanced look at the way we talk about population control in relationship to birth control access, in the light of the U.S.’s own eugenic history.

Let’s not forget that not one generation ago we were forcing sterilization upon disabled people, incarcerated people, and poor people, in an attempt to create a more “fit” American population.

Let’s not forget that in the 1970s, African American and Puerto Rican women were disproportionately sterilized without their consent.  Meanwhile, white women were campaigning for the right to birth control.

Let’s not forget that the United States knowingly sold the dangerous Dalkon Shield contraceptive to developing countries, after it was removed for sale in America.

Let’s not forget that the reproductive justice movement aims for the freedom to choose when and how to have a family (or not).   When we introduce anything else into the equation – even for the sake of “saving our planet” – it becomes coercive.  If we shift away from this concept for the sake of “saving our planet” we lose the voices that matter most: the people in the population.  And if replacement population rates become the end goal for contraception distribution, rather than enabling women’s agency and autonomy worldwide, we’re at risk of replicating our eugenic past (and present).  Population control efforts and RJ efforts may both create the same result (a lower population), but to me, intent is what matters most.

It’s the World Cup Again! Time to think about RJ.

Gavin Barney, LSRJ Summer Intern (’16, University of California, Berkeley School of Law)

I adore the World Cup.  I try my very best to spare my friends and loved ones, but I could happily talk all their ears off about the tournament all day without it ever getting old. And the fact that this year’s games are taking place in Brazil – the spiritual home of futebol – has made it all the more exciting.

However, given the ludicrous scale of this kind of global sporting event, some of the most important, fascinating, moving, and upsetting stories have taken place outside the newly built stadiums and team base camps. For example, with the collective eyes of the world trained on Rio de Janeiro and São Paulo in the months preceding the games, Brazilian citizens spilled into the streets to protest their government’s allocation of massive funds to stadium building at the expense of transportation, education, healthcare, and other vital services. Events like the World Cup or the Olympics give people around the world a unique opportunity to learn about the internal issues of the host nation because mainstream news outlets give the country more in-depth coverage than they ever would otherwise.

You might be wondering, well what does the World Cup have to do with RJ? Well, several articles have been cropping up about the effects the World Cup has had on sex work in host cities around Brazil. The tone and content of articles have varied widely, and while the influx of tourists and media has created an environment of heightened exploitation, it has also given some Brazilian sex workers an opportunity to be heard on a world stage.

Sex work is legal in Brazil, so long as the worker is over the age of eighteen, but according to the Huffington Post, the World Cup is expected to cause a marked increase in child prostitution in areas near the stadiums. The HuffPo article points out that this type of phenomenon is all too common and cites an expert writing on human trafficking at this year’s Super Bowl who wrote that events that attract huge numbers of (male) fans “could never not be breeding grounds for sexual exploitation.” Apparently, the last two World Cups also saw increases in child exploitation as high as 30-40%, and this year’s tournament will once again juxtapose the vibrant celebration of the games with the tragic reality of human trafficking. As advocates for reproductive justice –or any kind of social justice for that matter – this type of pattern is unacceptable, and the notion that it is just the-way-these-things-are needs to be strongly countered.

Elsewhere, in an altogether different kind of story, RT.com reported on a public pick-up style game of soccer played between professional (adult) sex workers and a group of American Christians on a street in Belo Horizonte. The “naked match” was organized by the Prostitutes’ Association of Minas Gerais to draw attention to sex workers’ rights and to protest prejudice and stigma. Above all else, these members of the “naked Brazilian forces” called for their profession to be treated like any other legal job. In addition to providing a refreshing take on the dignity of sex work, this event has produced some of the most striking images I have seen during the World Cup. I highly recommend that you take the time to look through them.

Ultimately, I’m not entirely sure what to take from these stories or how they should color my enjoyment of the actual soccer matches. Just as the World Cup itself is complex – simultaneously a bloated and exploitative celebration of excess and an event of pure joy – this small sample size of media coverage speaks to many more complicated issues than these journalists have the time or inclination to fully flesh out. But in the end, I suppose it is just more proof that there are very few things in this world that don’t lend themselves to some thoughts on reproductive justice.

“You’re so domestic. How are you a feminist?”

Mangala Kanayson, Resident Blogger (’15, Emory University School of Law)

I get this question way too often for it to really be 2014. It’s asked under the impression that feminism is something ‘anti-femininity’ or ‘anti-masculinity’ when really, my feminism is about honoring the authentic self. When I talk about feminism, I’m not talking about swapping gender roles or making “men” out of “women” or “women” out of “men”. I’m talking about dissolving gender roles completely. My feminism is a refusal to let anyone but my most authentic self define who I am. Feminism is about all of us. It’s about challenging the restrictive ways we’re socialized and questioning external forces that coax us into compromising our identities. It’s about embracing who we are and striving to improve on our own terms, even at the risk of being vulnerable before others.

Feminists can be any gender. They can lift and code and knit and cook and go to space and still express whatever gender (or non-gender) feels true to them. Feminism defies hierarchy because it demands that we think for ourselves and speak truth despite our socialization.

My feminism is about dismantling oppression in all its forms – in our choices, in our words, in the way we treat each other and ourselves. It’s radical as sin because it’s the resistance – the refusal to praise despots and the conviction to subvert consolidated power when it denies our inherent right to be architects our own fates. Feminism is for anyone who believes to the core of their being that all people are inherently equal in human dignity and worth.

Feminism is for you.

Anti-shackling Laws and Fetal Rights – Finding the Common Ground

Deodonne Bhattarai, Resident Blogger (’12, Northeastern University School of Law)

The “Birthing Justice” panel at the recent Civil Liberties and Public Policy Conference at Hampshire College celebrated Massachusetts’ recent success in passing an anti-shackling bill.  It also highlighted the dangers inherent in treating pregnant people differently from non-pregnant people. These two issues, at first seemingly at odds with each other, point to an important lesson for those pursuing the protection of pregnant people forced to give birth while in state or federal custody – as important as anti-shacking laws are, it is crucial that they be drafted using language that empowers the pregnant woman rather than in a way that protects the unborn fetus.

Fetal separateness laws ultimately convey legal rights upon the fetus, often from the moment of conception. As Lynn Paltrow, Executive Director and founder of National Advocates for Pregnant Women has explained, there is no way to grant rights to an egg, embryo, or fetus without diminishing the rights of the pregnant person. Over the last three decades, hundreds of women have been charged with crimes due to pregnancy related conduct and we have seen the application of existing criminal and civil child protection laws upon pregnant women in unprecedented ways.

For example, pregnant women who test positive for drugs have been charged with assault with a deadly weapon – the deadly weapon in these cases is the drug and the assault is the in-utero transmission of that drug from the woman to her fetus. Pregnant women have also been charged with contributing to the delinquency of a minor, unlawful child neglect, and child endangerment. Even women participating in government sponsored methadone programs have had their newborns taken away due to in-utero “abuse” when the baby tested positive for the drug. Certain conduct including attempted suicide as well as being HIV positive, has subjected pregnant women to charges of murder, feticide, and sentencing enhancement triggers. Late last month, Tennessee passed the nation’s furthest reaching law, a law that subjects any woman struggling with drug addiction to criminal prosecution based upon her pregnancy outcome.

The creative application of laws upon pregnant people is not only destructive to maintaining family unity but is also counterproductive in assisting with any mental health issues or drug addictions the pregnant person might have.  As Paltrow explained in a recent interview with NPR, “The biggest threats to life, born and unborn, do not come from mothers. They come from poverty, barriers to health care, persistent racism, environmental hazards and prosecutions like these that will frighten women away from getting help from the problems they do have.”

The shackling of pregnant, laboring, and post-natal inmates has been outlawed in eighteen states. When asked about Massachusetts’ pending legislation, Megan Amundson, executive director of NARAL Pro-Choice Massachusetts stated, “Shackling pregnant women is unsafe and inhumane, and it is shocking that this barbaric practice continues today.”  As prisoners rights advocates understand, shackling any human, pregnant or not, is inhumane and barbaric but while we wait for greater criminal justice reforms, we must remain vigilant.  As anti-shacking legislation continues to gain momentum, it is incumbent upon reproductive justice advocates to ensure that such laws are constructed carefully so as to protect women’s rights while avoiding language that would strengthen fetal separateness jurisprudence. For not only do fetal rights laws potentially curtail abortion rights by establishing dangerous precedent but they also create a maternal-fetal conflict by pitting the woman’s autonomy, right to privacy, and right to bodily integrity against those of her fetus.

Trans Sex Workers and Reproductive Justice

Candace Gibson, Resident Blogger (’12, University of Utah S.J. Quinney College of Law)

The reproductive justice and LGBTQ liberation movements share the values of bodily autonomy and sexual liberation and believe that all persons should have the resources they need to form the families they want.  However, many of these desires, including bodily autonomy, are often denied to trans persons, especially trans sex workers, many of whom are trans women of color. At a recent conference that I attended, Cyndee Clay, Executive Director of HIPS, painfully articulated the experiences of trans sex workers and their attempts to survive in our economy.  She had mentioned how trans sex workers not only faced violence from their clients but also from the police as they were arrested, how police officers often sexually harassed these individuals. In 2013, a D.C. police officer shot three transgender women in a car after one of the transwomen refused to provide sex for money.  Clay also discussed how often young trans persons were forced onto the streets because their families rejected who they were and that trans persons are excluded and erased from larger conversations on anti-trafficking efforts, unfortunately nothing new to many of us in different movements.

Clay’s comments remind me that we still live in a society hung up with gender, body parts, and the selling of sex.  Unfortunately, through our regulation and, in this case, criminalization of sexual desire for sale, we often harm and kill the most vulnerable without providing critical solutions and resources for those who are merely trying to survive.  Survival should not be the standard for some-we should all have the resources we need to thrive as persons and as members of our community.

Maybe, it’s time for the broader reproductive justice community to center the voices of sex workers, especially trans sex workers, in our conversations.  It may be hard at first but we have never shied away from a challenge.  

Parentage Laws and Reproductive Justice

S J Chapman, Resident Blogger, (’12, Northwestern University Law School)

Gay marriage is an issue in which LGBTQ justice and reproductive justice go hand-in-hand. Illinois provides a concrete example.  Illinois’ landmark gay marriage law goes into effect this June. But its parentage law is lagging behind and unless it’s changed, it will impede reproductive justice for same-sex spouses.

Like most states, Illinois has a “presumed father” law, under which a child born during a marriage is presumed to be the husband’s legal child, even if it’s not biologically his. The legal parent-child relationship has important consequences in areas like guardianship and inheritance. If one spouse dies, the other spouse has automatic guardianship over a legal child. Or, if a spouse dies intestate, half their property goes to their spouse and half to their legal children.

Take, for example, a different-sex married Illinois couple — we’ll call them Bob and Heather — whose child was conceived through an alternative reproductive therapy, and where biologically, Bob isn’t the father.  Bob is, however, the legal parent when the child is born.  If anything happens to Heather, Bob will have automatic guardianship of their child. Furthermore, their child stands to inherit half Bob’s property if he dies.

But what if Heather were instead married to Rachel when she conceived the child?  Now Heather’s spouse, Rachel, is not considered the legal parent.  Instead, Rachel must go through the adoption process to gain the parental rights that were automatically Bob’s. Until Illinois revises the law from “presumed father” to “presumed parent,” it is discriminating against same-sex couples like Heather and Rachel.

In general, the government should stay out of private parties’ decisions about family formation. Where the government does have a say, reproductive justice demands that laws not discriminate on the basis of sexual orientation. As the states pass gay marriage laws, they need to pay attention to their parentage laws to ensure both reproductive and LGBTQ justice.