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The Absurd Practice of Punishing Pregnancy

Melissa Trent, Guest Blogger (’15, University of California, Berkeley School of Law)

November 20th was National Absurdity Day, a day to recall some of the absurd things in history, our country and our lives. Unfortunately, there are still absurd practices and laws restricting people’s reproductive freedom in the United States. So, in the spirit of National Absurdity Day, let’s think about the absurd practice of punishing pregnant people who are struggling with addiction based on a broader practice of placing more importance on fetal “rights” than on the person who is pregnant.

Across the country, individuals are subject to criminal punishments –including jail time- under the idea that consuming drugs while pregnant is a form of child abuse. In fact, many of these prosecutions are under so called “fetal harm” laws, which originally were written to increase penalties against someone who harms a pregnant person.  These laws often don’t include exceptions for the person who is pregnant and legitimatizes the idea that the fetus is a separate and distinct person that has “rights” against the pregnant individual. What’s more absurd is that at least 38 states have these “fetal harm” laws on the books that can then be used against the pregnant person instead of offering them more protection.

National Advocates for Pregnant Women have found at least 413 cases of pregnant women being incarcerated or forced into treatment between 1973 and 2005, and since then, NAPW has counted at least 300 more cases and report that this number is a “severe undercount.” These practices are based on a criminalization of pregnancy where people who become pregnant are have fewer rights and are more likely to face government intrusion than someone who is not pregnant. They are no longer their own free person and can be punished under laws that not only harm them, but can be harmful to their families and pregnancies. This is absurd.

These practices ignore the information we have about substance abuse and pregnancy and are based on an exaggeration of the harm caused to fetuses by substance abuse. In the case of opioid abuse, the American College of Obstetricians and Gynecologists has found that the abrupt discontinuation of use can be more dangerous to the fetus because it can cause “preterm labor, fetal distress, or fetal demise. “ Additionally, criminalizing pregnant people makes them less likely to seek help or medical support because they know they might be subject to mandatory drug testing and criminal penalties for trying to access healthcare and substance abuse support.

Rather than discouraging pregnant people from seeking prenatal healthcare, hospitals should be a safe place for individuals to come for support in their pregnancy and for their substance abuse problems, as there are treatments and medications than can help pregnant people through dangerous withdrawals and help them get clean. So, as a nod to National Absurdity Day, let’s take a moment to think about how ridiculous it is to treat pregnant people as less deserving of privacy or freedom than non-pregnant people and the continued absurd trend of focusing on fetal rights while ignoring pregnant people’s rights.

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Stop Stigmatizing Parental Leave

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

Claire Cain Miller brought men into the reproductive justice spotlight last weekend with her great article, “Paternity Leave: The Rewards and the Remaining Stigma.” Turns out men who take paternity leave experience the same “motherhood penalty” that working women have historically been subject to. They receive worse job evaluations, lower raises, and are at greater risk of demotion or layoffs.

Taking parental leave isn’t an automatic right. The federal government requires only certain employers to provide leave: companies with 50 or more employers must provide 12 weeks of unpaid leave for new parents. The parents must have worked at the company for 12 months, and work within 75 miles of the workplace. Parents who want paid leave? They have to bank enough sick or vacation days over the years to use them as part of their leave.

Miller wrote that men who take leave are stigmatized because they are perceived to possess traits that normally stigmatize women, like weakness and uncertainty, instead of stereotypically male traits like competitiveness or ambition. I’ve heard these types of stories. A female friend told me ruefully that the culture at her husband’s employer – a big corporate bank – seriously discouraged men from taking paternity leave, even though the government required the bank to offer it. The attitude was that men should care more about work than their children.

When I worked at a large law firm in New York before law school, my supervising attorney bragged to me about how dedicated his colleague was by telling me that she scheduled her C-Section for a Friday night so she could work right up until that evening, and then be back at work within weeks. To him, he admired a woman who cares enough about work to not take a full 12 weeks maternity leave.

The thing is, people should care more about their children than their jobs. As Miller points out, men who take parental leave along with their partners turn out to be more involved fathers later on, and even bolster a mother’s future earnings by an average of 7% for every month of paternity leave. It’s time to stop stigmatizing people – female or male – who take time off after their child is born or adopted.

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Cultural Competency in Drug Courts

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

Drugs courts have become increasingly popular in America since the 1990’s. They are an intervention program meant to alleviate caseload from the “regular” criminal justice system, provide intensive treatment and other services to participants in order to reduce drug use, reduce crime, save money, restore lives, save children and reunite families.

Designing a drug court requires the team to make a lot of difficult choices. Even choosing the right entry process for participants can be controversial! For some people, it makes sense to have drug court candidates come after a probation violation. These people may see probation as a form of intervention, especially if it requires treatment and counseling, it may be a less invasive intervention than drug court. Others may think that all drug court participants should be diverted into the program before failure of probation. What model the team chooses could depend on the capacity of your drug court and other factors. My point is, even from the beginning, implementing a drug court is a challenge met with diverse opinions and a myriad of complaints.

One major barrier in implementing a drug court is cultural competency. Here, we face challenges including court personnel who understand what it means to be culturally sensitive or culturally competent, but they don’t care to be and they won’t start acting that way because there is no reason for them to change.

One might say that obviously the best solution is then to make sure the insensitive, incompetent persons are not drug court team members, or perhaps these people need training that might open their eyes a little bit.  And the drug court team may have to face the pervasive unspoken opinion around the courthouse that is tip-toed around—“participants don’t care, and we don’t care, so why bother? The program isn’t going to change the participants.”

These are hardcore, lifelong users. It’s the adult version of ring-around-the-rosie, we chase each other ’round and ’round until we all fall down . . . from exhaustion, from repeated failure, from being burned out. Here especially, the drug using culture is a different culture than the one many of us experience in our daily lives.

I don’t mean to say that all people involved in drug court are so negative about the drug court experience; I hope to share an aspect of my job that I find unique and challenging. I can already see that these participants have experienced more successes (even with their relapses and failures) than they ever have in their drug using careers. When the participants are clear-headed and sober and tell us about their weekly successes and negative UA’s, it’s rewarding to feel their happiness. They are grateful someone is listening to them, they are enthusiastic about changing, and they have a sense of humor. Sure, it’s frustrating to know that they are high in court and lying about their last use—but that’s not so much their failure alone as it is the team’s failure to provide tools and resources.

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Teach them the Way: The Role of Sexuality Education in Preventing Sexual and Domestic Violence

Jamille Fields, Resident Blogger (Law Students for Reproductive Justice Fellow at the National Health Law Program)

The infamous TMZ video showing Ray Rice, a 5’8’’, 206 pound-football player punching his then-fiancée (now wife) out, the University of Montana at Missoula being dubbed “America’s Rape Capital” after at least 80 rapes were reported on campus within the last three years, the recent New Jersey high school football hazing scandal that resulted in three players being charged with various sexual assault crimes. Despite making recent headlines, sexual and domestic violence are unfortunately nothing new. To me, these instances indicate that we are not effectively teaching youth what constitutes a healthy relationship and acceptable sexual behavior. Youth then carry this lack of knowledge into adulthood.

Last month, I wrote about sexuality education in health care delivery, and this month I would like to pick up where I left off. There, I discussed how to help adolescents gain greater sexual health knowledge. But what is often overlooked is the important role sexuality education has in preventing sexual and domestic violence.

Young children are vulnerable to sexual abuse from teachers, parents, and other adults with whom they have a trust relationship. A recent United Nations Children’s Fund report correctly noted younger children are less likely to comprehend what is considered abuse. Sexuality education can teach children what constitutes inappropriate touching and behavior.

Adolescents in informal or dating relationships can be just as vulnerable to intimate partner violence as adults. Adolescents are often new to relationships and romantic feelings, and not knowing how to cope with these new feelings may lead them to physically act out against their mates. Their mates often don’t know how to respond to this physical abuse. Seventy percent of 15 to 19 year old adolescent girls who have been the victims of physical or sexual violence never sought help. The reasons vary, and include not understanding the abuse was a problem. Boys who experience abuse are even less likely to seek help due to stigma. LGTBQ youth and others who don’t conform to gender norms often become the targets of violence. Sexuality education can teach the signs of abusive relationships and healthy forms of sexual expression. Sexuality education should also include information on sexual orientation, and the sexual health education provided should be inclusive of same-sex relationships and sex.

Those who have unhealthy relationships during adolescence are more likely to have unhealthy relationships in adulthood. It is estimated that 1 in 4 women will experience domestic abuse, but it is hard to get an accurate estimate given that domestic violence often goes unreported. Youth who witness violence at home are more likely to be victims of domestic or sexual violence as adults. Also, youth who have been sexually abused in early childhood are at a higher risk of being exploited in sex work and engaging in unsafe sex practices later in life. For all of these reasons, counseling against sexual and domestic violence must begin long before adulthood.

October was domestic violence awareness month, so it is an apt time for these conversations to begin, but it should not be where these conversations end. Sexuality education both in classrooms and providers’ offices offer the opportunity to prevent violence before it makes it to TMZ.

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Should Young Women be Allowed to Choose Sterilization?

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

I’ve been reading a lot lately about the many young women who, after much careful deliberation and research, have concluded that they want to be sterilized- only to be turned down by their doctors.  The story plays out again, and again, and again, on blog after blog.  This is A Thing That Is Happening, and it really burns my toast.  Some doctors are telling women that they won’t perform the procedure until the women are 30 or even 35 years old, in case they decide later that they want kids.

Let me be clear here- there is a long, complicated, and painful history (and present) of sterilization where the woman is being coerced or forced by a person or by the government, or targeted because of her race, class, religion or disability, or lacks informed consent.  I’m talking about women who are being denied the procedure only because their doctors are worried that they will regret it.

For those women, being denied the procedure is frustrating.  As blogger Bri Seeley wrote, “I was livid. I had asked for a procedure for six straight years with no break in my desires, opinions, or beliefs.  Why did the medical community continue to deny me of my personal right to sterilization?”

Sterilization is safer than pregnancy, and actually reduces the risk of ovarian cancer and pelvic inflammatory disease.  It doesn’t increase women’s risk of breast cancer, unlike a certain birth control method might (I’M LOOKING AT YOU, PILL), and it’s reversible in 25% to 87% of cases.  It also leaves some women options like in vitro fertilization and adoption if they decide that they want to have a child and reversal doesn’t take.  Also, although some IUDs and hormonal implants are actually more effective than sterilization, not every method is a good fit for every woman, so making sterilization available to women who want it is important.

If your brain is exploding with the effort of trying to understand why this is happening at a time where the right to choose abortion is being severely restricted, politicians seem to have some sort of bet going about who can be the biggest jerk about restricting contraceptive access, and raising kids is hella expensive, I totally feel you.

I hesitate to blame the medical community, because although studies vary widely on sterilization regret rates, the strongest predictor of regret is young age.

Nonetheless, there is something creepily paternalistic about medical professionals making women who’ve decided that they don’t want kids risk birth control failure for a decade or more, just in case they’re wrong.  After all, some of the research about young age and sterilization regret that the National Institutes of Health points to is based on procedures performed in the 1970s and 1980s, and our attitudes about women’s role in society and the number of women who wish to remain childless have shifted dramatically since then. It would be interesting to see future research focus on women who are denied sterilization procedures. We could learn a lot from the women’s motives, the doctor’s rationales for denial, and demographic data. The most visible blog posts on this subject are written by white women, and there is value in knowing why we aren’t reading women of color blog on this topic.

Denial of sterilization to young women is related to, and perpetuates, the myth that all women want children and that those who do not will change their minds.  As reproductive justice advocates, we should be fighting for doctors to respect women’s personal decisions about sterilization.

The Texas Threat

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

Last week we received some news worth raising our hopes for.  The Supreme Court restored the decision of a Texas district court, which found several abortion restrictions, including policies regarding admitting privileges and medically induced abortions, to have an “undue burden” on women.  This effectively allowed 13 abortion clinics to reopen, and is reason to celebrate.  The 6-3 split suggests that the court is cognizant of the gravity of this legislation and is cautious of its potential impact.

However, this fight is not over.  If the law moves forward in its full form, it would pose a serious threat to Texan women’s access to safe abortion facilities.  Worse still, this law could pave the way for other states in the south and across the nation to enact similarly restrictive legislation.

The outcome of this case will largely be based on the interpretation of what an “undue burden” means in the context of abortion restrictions.  There is little precedent on this, and therefore depends on the how the judges at the next level interpret such a phrase, and eventually on the swing votes at the Supreme Court, if it hears the case down the road.  This could lead to a great reproductive justice victory if the courts rule that restrictions on admitting privileges and medically induced abortions are not beneficial to women’s health but rather are placing superfluous obstacles in their path to accessing abortion care.  A favorable ruling at the circuit level would set precedent for the most conservative circuit in the nation, and a ruling at the Supreme Court would set nationwide precedent.  An unfavorable ruling, on the other hand, could open the floodgates to a plethora of destructive legislation that could have devastating effects on women.

To date, the Supreme Court has not addressed the specific issues faced in this suit and, while Justice Kennedy and Chief Justice Roberts voted to restore the district court’s decision and temporarily disallow the restrictions, there is no indication that they would vote to overturn the law and block the restrictions if the case ends up on their docket.  Justice Kennedy, the main swing vote on the court, has not voted to protect abortion rights since Planned Parenthood v.  Casey in 1992; rather, he has voted to uphold 20 of the 21 abortion restrictions that have come before him.

While Texas is in flux, several of their clinics have reopened after the Supreme Court’s ruling last week.  However, some were not able to reopen because they either they believed they would not be able to conform to the new standards or they had already taken irreversible measures in reaction to these standards.  Additionally, the back and forth nature of this legislation has caused a great deal of trouble and anguish for Texas women whose healthcare choices should not be in a constant political sway.  Let’s hope that Texas women will prevail and will not be deprived of access to the full range of safe, legal healthcare options every woman should unquestionably be entitled to.

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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.