Sexual Rights and the Post-2015 Agenda: A Call to Action

Rhiannon DiClemente, Resident Blogger (’16, Temple University Beasley School of Law)

Sexuality, a source of pleasure and well-being, is, for many, a central aspect of being human. Over the past twenty years, tremendous strides have been made in the engagement of human rights with sexuality. Despite this progress, global actors—notably the United States—have not accepted a clear definition of sexual rights. As the international community begins to outline the post-2015 sustainable development goals, sexual rights must be enshrined in this new agenda.

Sexual rights embrace human rights that are already recognized in national laws, international human rights documents and consensus statements. The most commonly cited definition of sexual rights was created by the World Health Organization:

[Sexual rights] include the right of all persons, free of coercion, discrimination and violence, to: (1) the highest attainable standard of sexual health, including access to sexual and reproductive health care services; (2) seek, receive and impart information related to sexuality; (3) sexuality education; (4) respect for bodily integrity; (5) choose their partner; (6) decide to be sexually active or not; (7) consensual sexual relations; (8) consensual marriage; (9) decide whether or not, and when, to have children; and (10) pursue a satisfying, safe and pleasurable sexual life.

Sexual rights are a unifying force for important reproductive justice issues and a core element of sustainable development. Claims to sexual rights have emerged from distinct and often disjointed conversations on sexual violence against women, sexual and reproductive health, HIV/AIDS, and LGBT advocacy. Around the globe, new initiatives advancing sexual rights demonstrate the centrifugal forces at work. The Yogyakarta Principles outline rights related to sexual orientation and gender identity; the Latin American and Caribbean Committee for the Defense of Women’s Rights Campaign adopts a feminist analysis of patriarchy; and the International Planned Parenthood Federation declaration adopts a sexual health focus. Acceptance and advancement of sexual rights is essential to combat extreme movements—justified through religion, culture, and nationalism—that seek to impose a narrow view of sexuality and reproduction through laws, policy, and global development work.

Despite the fact that the U.S. government has endeavored to support women raped in conflict and to promote the rights of LGBT persons globally, it has failed to acknowledge that sexual rights exist—let alone advance them. The failure of the U.S. government to accept a definition of sexual rights and promote those rights within foreign policy initiatives undermines its own goals. This is a critical moment for the United States to live up to its promises and protect sexual rights for all. Just as the U.S. took the lead in crafting the definition of reproductive rights agreed to in 1994 at the International Conference on Population and Development, the U.S. must demonstrate leadership on advancing agreements on sexual rights. This is a call to action—U.S. government: ensure that everyone, everywhere, can exercise their freedom to live in dignity—recognize sexual rights!

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Marriage Equality and Reproductive Justice

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

In light of the news about the Supreme Court rejecting marriage equality cases, it might interest you to know how these cases intertwine with reproductive justice.

When they fought to uphold their bans against gay marriage, Indiana and Wisconsin framed their argument chiefly in terms of reproduction.  Marriage, the states argued, is a regulatory framework meant to incentivize fathers to help raise accidental children.  Since same-sex couples cannot procreate, there is no reason to grant them the right to marry.   The Seventh Circuit Court of Appeals found this approach laughable, reproaching the states’ reasoning in a must-read, highly entertaining opinion.

Notably in the opinion, the Court alluded to a central reproductive justice issue: abortion.  The Court reasoned that due to the likelihood of a married same-sex couple adopting a child, the number of abortions would decrease.  “Carrying a baby to term and putting the baby up for adoption is an alternative to abortion for a pregnant woman who thinks that as a single mother she could not cope with the baby.” (p. 22)

Behind this dictum is the principal that Pro-Life advocates can work towards their goal through marriage equality; rather than placing legislative roadblocks in the way of access to abortion, enacting marriage equality will naturally lead to fewer abortions.

When it comes to granting civil rights or violating reproductive rights to achieve the same effect, let’s hope legislators chose the former.

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It’s Up to the Courts to Block Alabama’s Extreme Parental Involvement Law

Abbey Marr is a Law Students for Reproductive Justice Fellow at Advocates for Youth

Last week, the American Civil Liberties Union sued the state of Alabama on behalf of one of its only abortion clinics to block a new parental involvement law that could put some young people on trial simply for seeking abortion care. Alabama’s restriction is one of the worst laws in a huge, nasty pile of laws passed by state legislatures to put obstacles in the way of people – particularly poor people, people of color, and young people – who are seeking abortions.

Parental involvement laws require that when people under eighteen seek abortion care, they notify or get consent from one or both parents first. Most young people seeking abortions do involve their parents, but there are a variety of reasons that is not always possible. In fact, one study found that thirty percent of pregnant teens who do not tell their parents about their abortions make that decision because they fear violence or being kicked out of their homes. Young people who are not threatened with abuse in their homes may be afraid to let their families down or uncomfortable involving their parents. Yet, under these laws in order to get around the parental involvement requirement a person has to file an petition to the court for a “judicial bypass” saying that the person is mature enough to make the decision to get an abortion – petitions judges can and do reject. Parental involvement laws delay access to abortion, endanger health and safety, and fundamentally disrespect young people’s ability to make their own decisions. Unfortunately, the Supreme Court upheld just such a law in the early 1990s, and 38 states have adopted them. Alabama has required people under 18 to get the signature of one parent or legal guardian since 1987.

This past year, however, Alabama passed a new law that is unimaginably worse. As the ACLU wrote in its brief to the court, the law “radically alters the judicial bypass process in a wholly unprecedented manner that goes well beyond any judicial bypass statute that has ever been upheld by a federal court.” Now, when a person under 18 petitions for a judicial bypass, the District Attorney is automatically notified, and the court may appoint an advocate for the fetus (Yes, you read that right!). Further, if the person’s parents know of the bypass proceeding already, the court must allow them to participate. The District Attorney, fetus, and parents may call any witnesses they want to testify against the person’s petition – including witnesses who may be the very reason the person has chosen to ask for a judicial bypass in the first place, such as an abusive partner or family member. With this law, Alabama is literally putting young people who need abortion care on trial.

It is best for young people who find themselves pregnant to be able to seek the advice of a trained medical professional rather than face the situation alone and afraid. Further, young people should have the same right to access the full range of reproductive and sexual health services that other people have. That right includes the ability to access reproductive and sexual health services confidentially and with dignity. It does not include being put on trial to get the services they need. The Alabama legislature seems to have forgotten this, but hopefully the courts have not.

This blog has been cross-posted on Advocates for Youth’s youth activist site amplifyyourvoice.org

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Making Sexual Health a Part of the Health Discussion

Jamille Fields, Resident Blogger (’13, St Louis University School of Law)

The health care provider’s office is intended to be a confidential space for health discussions. It should be a place where all can discuss personal health issues as they arise, or practices to prevent health issues from arising. Conversations on sex and sexuality should be among these health discussions throughout youth. Education on sexuality has been shown to increase contraception use, reduce adolescent pregnancy rate, and reduce the risk of sexually transmitted diseases. But sadly, sexual health often is not discussed with youth in the provider’s office.

Earlier this year, the Journal of the American Medical Association published a study, documenting–perhaps for the first time–sexual health discussions occurring in physicians’ offices.  The study observed adolescent patients’ visits and found nearly one-third of physicians did not discuss sexual health. For those that did have sexual health discussions, the conversations lasted only 36 seconds. Now, count out 36 seconds and see how much of a “discussion” you can have.

In 36 seconds, one certainly cannot have a discussion that includes the full range of topics recommended. The American Academy of Pediatrics’ Bright Futures Guidelines for Health Supervisions of Infants, Children, and Adolescents recommends that sexuality education be provided from infancy to 21 years old. These recommendations include teaching the proper name of genitalia to young children. As children grow older, the discussions should include hygiene, privacy, and sexual development. By adolescence, these conversations should advance to counseling on contraceptives, HIV and STD prevention, and counseling against domestic violence. Notice, these conversations do not start in adolescence – the ground work should have been laid since infancy.

Failure to provide children and adolescents education on sexual health can also violate Medicaid and some Children’s Health Insurance Program (CHIP) rules. Specifically, the required benefit for those younger than 21 years old enrolled in Medicaid and some CHIPs includes medical screenings. And health education is a required component of each medical screen. This education must encourage a healthy lifestyle, be forward-looking and age-appropriate. As the Bright Futures recommendations indicate, age-appropriate health education must include sexuality education.

Unfortunately, children and adolescents are not receiving screenings as the law requires. A 2010 report from the Department of Health and Human Services notes that 76% of youth did not receive the required screening. And even when the screening did occur, it often failed to include any health education (over 20% screened did not receive any health education). So clearly changes must be made.

Thanks to the Affordable Care Act (ACA) sexuality education is also now a clear requirement for children and adolescents enrolled in Marketplace (Exchange) plans. The ACA requires most individual and group health plans to cover certain preventive services. One such service is sexuality education as Bright Futures recommends.

The explicit coverage requirements are an important first step to ensure that sexuality education and counseling are included in health care delivery. However, efforts should not stop there. Changes in the health care system must be made to ensure this actually occurs. To encourage these conversations, I offered recommendations in an issue brief and on a webinar LSRJ and American University hosted.

 

My Professor, the Genius

Amy Krupinski, Resident Blogger (’14, William Mitchell College of Law)

Probably by now, you’ve heard about the MacArthur Foundation Fellows, aka the Genius grant recipients.  If not, you can review the Geniuses here. In my last year of law school, I approached Professor Sarah Deer, who I knew would be teaching my feminist jurisprudence class in the spring semester, about a paper topic that would blend my interests: access to contraceptives and reducing the unintended pregnancy rate with some new element reflective of current needs that hopefully I’d be able to identify with her help. I knew full well she’d steer me in the direction of Native women and their access to emergency contraceptives—I just didn’t anticipate the overall effect it would have on me. Needless to say, from the first book she lent me to begin my research on emergency contraceptive access through Indian Health Services, I became completely invested in the project.

I had spent a lot of time researching emergency contraception access on a state level when I lived in Colorado, so I already knew many of the basics—it’s expensive, it’s often stored behind the counter (if it’s stocked at all), and there is a stigma associated with its acquisition, especially in small towns. I read all the books she loaned to me, dozens of scholarly articles she had collected over the years, and eventually finished a paper that not only am I happy to have researched and written for my own person growth, but in order to take a topic she wanted explored and produce something worth sharing.

Now, I am proud to say that she has molded and shaped my legal education, which I hope to maintain throughout my entire legal career. I would have been proud anyway, but she is an unstoppable force and her work has received (in my opinion) a fraction of the commendation it deserves. Because of her encouragement, insight, and guidance, I know the overall direction I want my career to go, I became a better feminist, and most importantly, I learned from her when to be angry, how to turn that anger into something productive, and when to accept people for who they are.

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Regressive Voting Policies Emerging Across the Nation

Anne Keyworth, Resident Blogger (’16, North Carolina Central University)

There are few things more priceless in a democratic society than the notion that our vote is just as valuable and important as the next person’s.  My generation has grown up with a firm understanding of the fact that we have a right to vote, we should vote, and, depending on who we are, we may be encouraged to vote.  We have lived through some historic elections and have indeed witnessed the value each vote can have in battleground states.  For decades, there has been a consistent shift in voting laws and policies, making it easier and more convenient for voters to register and cast their ballot.  Many states now offer early voting and same day registration in an effort to increase voter participation.

But voting rights in many states are currently under attack, and in states like mine, it has become nothing less than a battle to protect every person’s vote.  Voter ID laws and placing limits on early voting are ways many states are working to make it more challenging for certain groups to exercise their right to vote.  Here in North Carolina, a destructive collection of changes to our voting laws were passed in 2013 in merely two days.  Prior to these changes, we had 17 days of early voting, same day registration, allowed for provisional ballots, allowed 17 year olds to register, and did not require a photo identification at the polls.  These are measures that North Carolinians have become accustomed to and that have been heavily relied upon in recent elections.  All of this changed last year and, if left in place, these limitations will have a profound impact on the outcome of our elections and therefore the composition of our state legislature, and potentially the control of the US Senate this year.  What limitations like this do is further marginalize communities of color and low income families, who are already underrepresented and who historically have had more difficulty securing their vote.

These changes are not unique to North Carolina.  They represent a major regression in what had long been a national trend of making voting more accessible, more convenient, and more reachable by more people.  If these efforts are not stopped, they will deeply compromise the integrity of the American political system and the notion that each citizen’s vote is as important as the next.  Entire groups of people will feel as though there are organized efforts to suppress their participation in our democratic process. In a system where our vote is our voice, this will send destructive and polarizing messages to a significant portion of our electorate.

The implications of this year’s election are far reaching, and that’s why I hope that groups like Law Students for Reproductive Justice can mobilize our peers and ensure that people understand and appreciate the value their vote has.  If we show up to the polls, we will show that we are here to fight back and win this battle to protect each person’s vote.

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“Do you have a [female] condom?”

Rhiannon DiClemente (’16, Temple University Beasley School of Law)

In case you missed it, September 16 marked the third anniversary of Global Female Condom Day.  Two decades since its introduction, the female condom hasn’t quite lived up to its potential.  Today, less than two percent of all condoms distributed worldwide are female condoms.  When our LSRJ chapter asks local organizations to donate condoms, we are usually sent boxes full of male condoms.  On the rare chance that we do get sent a few token female condoms, they are often met with skepticism and laughter from the student body.

It’s true—the female condom is less intuitive and less familiar than the male condom.  Some may call it aesthetically unappealing and technically difficult to master, but we shouldn’t give up on the female condom just yet…

The female condom is the only woman-initiated technology that prevents both unintended pregnancy and sexually transmitted infections (STIs), making it an important tool in the fight against the spread of HIV.  Women now account for more than half of the world’s population living with HIV.  Worldwide, HIV and AIDS is the number one cause of death for women of reproductive age.  In Sub- Saharan Africa, 72% of new infections among young people age 15 to 24 are women.

Despite these facts, I can’t even give these female condoms away to fellow students.  Only 13% of people have heard of the female condom, and much fewer have ever used one.  However, organizations like PATH, a global health non-profit, are working to reinvent the female condom.  In 2012, the United Nations Population Fund released a new version of the female condom.  The Gates Foundation has also awarded grants for a “next-generation condom,” male or female, that would be easier and more pleasurable to use.  This is an important step.  Greater variety in female condoms can help increase the odds that women even choose to use, or at least try, any female condom at all.

But putting more female condoms on the shelves is not enough.  Advocates need to create education campaigns at the local, national, and global levels on the benefits of female condoms, including the fact that they give women the power to control safe-sex negotiation.

As an LSRJ chapter leader, I hope to start a larger conversation about the benefits, and shortcomings, of the female condom.  I want to encourage women, including myself, to at least try one before we form an opinion about it.  I want men to be involved in this discussion as well; there is no reason a man shouldn’t introduce a female condom to his partner.  Normalizing female condoms in a conversation about pleasurable and safe sex is an important first step.  With informed feedback, the unattractive, clumsy female condom can only get better.

Condom Dispensers are Rad, Cool Things

Emily Gillingham, Resident Blogger (‘15, Michigan State University College of Law)

I lead the chapter of Law Students for Reproductive Justice at Michigan State University College of Law. Whenever we get a chance, we hand out free condoms at the school.

Valentine’s Day? Condoms.

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Halloween? Condoms.

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Student organization fair? Condoms. I can’t tell you the joy I get from pressing a condom into the hand of a 1L who wandered up wondering what reproductive justice is.

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Last year, our then-chapter-president was visiting University of Minnesota Law School and realized that their LSRJ chapter (HOLLA!) was distributing condoms in a way we weren’t: WALLS.

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Our e-board talked it over and decided that we most definitely wanted to see a condom dispenser go up at our school. This June, we got word from the administration that we’d be getting a bulletin board at the school to post news about upcoming meetings and other information about our organization. Just look how fabulous it is.

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The timing couldn’t have been better; the board seemed like a perfect home for our condom dispenser. We expected that approval from the administration would come at a glacial pace, so we put in a request right then to purchase a dispenser and mount it on our board. I have to say, I was pretty surprised when we got word that the plan could proceed as long as it was ‘accompanied by a tasteful message explaining our support for the dispenser.’ Our school’s administration is awesome, but if you have experience trying to integrate reproductive justice, sex education, or sex positive programming into an environment that isn’t built around that ideology (read: law school), you know that asking for something like this can feel like asking the conservative wing of the Supreme Court for a condom.

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We’ve picked out a dispenser that we like. You can check it out here. I’d be lying if I said I wasn’t amused that they’re “made from the same material used in police riot vehicles .”

Our next step is funding. I just submitted our funding request to the Student Bar Association at MSU Law, which feels more like asking Justice Kennedy for a condom- wish us luck!

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Update: Michigan State’s LSRJ chapter has successfully installed a condom dispenser:

Michigan State condom dispenser2

 

You can purchase your own dispenser here. (It’s actually a lens wipe dispenser, but it gets the job done!) Go Michigan State LSRJ!

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Oral Contraceptives and Why We Shouldn’t Count Out Over-The-Counter

SJ Chapman, Resident Blogger (12, Northwestern University Law School)

Recently, some Republican candidates have entered the spotlight for doing a 180 on issues of contraceptive access. Take Congressman Cory Gardner (R-Col.) for example.  Gardner has a sinister record when it comes to matters of reproductive justice.  However, in a recent op-ed, Gardner argued for over-the-counter availability of oral contraceptives.

Practically overnight, leery reproductive justice advocates leapt to attack this position, denouncing it as an insidious political tactic to ultimately decrease access to oral contraceptives.  The logic goes like this: oral contraceptives are widely available without a copay under the Affordable Care Act, but would be costly (as much as $600 a year) OTC.  Women who had previously been able to access oral contraceptives thanks to the ACA would be squeezed out due to the price.

I have to say, although I am against most of Gardner’s positions on reproductive justice, this one might not be as bad as we’ve made it out to be.  In countries where oral contraceptives are sold, most already offer them OTC.  Even Planned Parenthood advocates for OTC oral contraception in the United States.  And I have to wonder – when drugs have gone OTC in the past, there have still been prescription-only versions.  Wouldn’t this be the case with birth control as well?

Even though it comes from someone with history of deplorable stances on reproductive justice, maybe we shouldn’t be so quick to denigrate this one.

Politician Advocates Birth Control for Welfare Recipients

Elise Foreman, Resident Blogger (‘16, Emory University School of Law)

Stories depicting the regulation and subsequent criminalization of the poor are far too common, almost mundane, in a country that espouses the virtues of democracy and asserts constitutional rights in the drop of a hat. However, the recent kerfuffle in Arizona points to something even more sinister baked into America’s apple pie coating. Earlier this week, the state’s GOP vice president (rightfully) resigned his post after advocating for sterilization of the state’s Medicaid recipients. This cracker-jack reasoning was punctuated with the statement: “. . . if you want to (reproduce) or use drugs or alcohol, then get a job.” (Full story here). The debate over drug testing for government aid recipients has been dissected ad nauseum, and fortunately been struck down in the courts. (For a review of this issue, see The Huffington Post’s collection).

But this latest call for sterilization should cause hesitation in even the most conservative thinkers. In a political climate that still hotly debates abortion even 40 years following Roe v. Wade, these statements point to a dissonance in the reproductive debate. Certainly there is a difference between birth control and abortion, however the point remains centered over the control one has over his or her reproductive future. Individuals, by virtue of being human, claim the right to exercise complete autonomy over their reproductive choices; this right is not premised on his or her financial situation or employment status. Regulating the reproductive choices of an individual based upon his or her Medicaid status demonstrates that such individual should be disallowed of this inherent human right because he or she is in fact less than human. No person or entity should breach another’s bodily integrity, nor advocate for rules that do so. For once and for all, get the government out of these intimate decisions and focused on topics it should be discussing. I have a list.