Editor's Note: This article was updated at 10:40 pm on July 14th, 2009 to reflect information provided in a Miami Herald article citing White House sources confirming Benjamin's pro-choice perspective and her clinics commitment to referring patients in need of abortion care. See the entry at the end of the article. The title was subsequently changed to reflect this update.
A further update clarified restrictions on abortion under Alabama law.
Regina Benjamin, Obama's pick for surgeon general, is certainly an advocate for her patients. In 1995 the New York Times reported that one of her patients, Emile Lyons, then 79 years old, called her an angel. He was suffering from an abdominal aneurysm and being rushed to the hospital. As he was loaded into an ambulance, he noticed a familiar face, his family doctor. Benjamin had climbed into the ambulance to ride with him on the 30-minute journey to the hospital in Mobile, Alabama.
Benjamin has impressive credentials for the position of surgeon general. Her general practice clinic, Bayou La Batre, is based in rural Alabama. A woman who has both her M.D. and M.B.A. (the Times profile noted that she made a 250-mile round-trip commute to New Orleans twice a week to earn her M.B.A.), she also has impressive public policy credentials. She worked on Kaiser Family Foundation's Commission on Medicaid and the Uninsured, served on the American Medical Association's Women in Medicine Panel from 1986 to 1987, was president of the AMA's Alabama chapter (the first black woman) from 1997 to 1998, and has served on local and state government health boards. She even made Time's list of young leaders to watch in 1994. She also is the recipient of a MacArthur Foundation "genius grant."
But the announcement of Benjamin as the surgeon general pick was met with silence from pro- and anti-choice groups alike, largely because it remains unknown where, exactly, Benjamin stands on reproductive health and rights. The White House refused to answer questions about reproductive rights at a press conference where they announced her nomination on Monday. She also hasn't worked with Planned Parenthood or the ACLU in Louisiana, and has kept her distance from abortion-related discussions in the press.
In fact, the only statement Benjamin has made on public record about abortion came on the heels of a debate over the American Medical Association's official policy on abortion at a conference in December 1996. The AMA's governing body voted to re-affirm the organization's policy that the "termination of pregnancy is a medical matter between the patient and physician, subject to the physician's clinical judgment, the patient's informed consent and the availability of appropriate facilities."
During the conference, on Dec. 10, 1996 the AMA discussed whether they should recommend training doctors in how to perform abortions. The organization urged doctors to learn "more than just the ethics of it," according to a report by the Associated Press. The report quoted Benjamin, who was then a delegate to the AMA, as saying, "We are adopting a policy that medical school curriculum provide the legal, ethical, and psychological principles associated with abortion so students can learn all the factors involved."
That is the extent of Benjamin's known position on abortion. Some have discussed whether her religion, practicing Catholicism, might affect her position on this issue, but many who identify as Catholic or practice Catholicism also identify as pro-choice. (A poll conducted by Catholics for Choice shows that about three-quarters of Catholics don't believe they must endorse the views put forth by the Pope.) It's hard to tell whether she falls into the more traditionalist camp of Catholics or has views more in line with the majority of more progressive Catholics in the United States.
The state of Alabama, where Benjamin has done much of her work, makes it extremely difficult for women to obtain abortions. While the state's climate regarding choice on its face can't provide clues about Benjamin's own positions, it's worthwhile considering the reality of reproductive health access in her state. Alabama's governor and state legislature are both anti-choice. NARAL Pro-Choice America has determined that 93 percent of Alabama's counties do not have an abortion provider; this includes six of the state's major metropolitan areas. In fact, abortion rate for Alabama women has been falling since the mid-1990s. The Guttmacher Institute reports that the abortion rate was 11.8 per 1000 women in Alabama in 2004, down more than 22 percent since 1996. Alabama has passed laws that ensure contraception for low-income women through Medicaid.
Elizabeth Nash, a public policy associate at Guttmacher, notes that laws in Alabama are extremely restrictive on abortion.
Guttmacher Policy Brief on Alabama indicates that the following restrictions on abortion care were in effect as of January 2008:
The state will only pay for abortions under Medicaid in cases of rape, risk to the mother's life, or incest; women who choose abortions must have an ultrasound performed with an option to view it. The state also allows the sale of the infamous "choose life" license plates.
But despite the fact that Benjamin has remained largely silent on abortion rights, she certainly advocates for women who are uninsured. According to the results from the Kaiser Commission on the Uninsured to which Benjamin was a consultant, 41 percent of poor women (those at or below the federal poverty line) are uninsured. Of women that qualify as near poor (below 200 percent of the poverty line and excluding those under it) 31 percent are uninsured.
Current president of the Medical Association of the State of Alabama Dr. Jorge Alsip has been a colleague of Benjamin's in various capacities, including occasionally running into her at church, for more than 15 years. He noted that while she doesn't work specifically on women's issues, she has worked on insuring access to underserved areas. "Her clinic's certainly providing care to an underserved community. A lot of times that falls onto women ... so she's supporting them in that way," Alsip said. "Just knowing her and knowing her practice, I think providing health care coverage to the uninsured is going to be at the top of her list, [as well as] eliminating health care disparities and trying to get health care to the underserved areas."
It's certain that, if done right, health care reform will in a broader sense be a win for women. Still, reproductive rights and access to reproductive health services have not been significant parts of the debate over health care reform. In many ways, what Obama is doing with a pick like Benjamin is side-stepping reproductive issues. She is an outstanding candidate with an impressive resume, free of any reference to pro-choice groups. By choosing a woman who rebuilt her rural clinic three times after it was destroyed by hurricanes and fire, pursued a medical degree despite never encountering a black doctor before college and became a strong advocate for the uninsured in rural areas, Obama has offered a candidate that may be difficult to criticize. And in what may be a political bonus for Obama, she also has managed to largely avoid the abortion question in the public sphere. This might be good for the Obama administration, which doesn't want to get bogged down in debates over abortion at the cost of reforming health care, but it does little to improve access to reproductive health services more broadly or abortion care more specifically for women in Alabama....or nationwide.
UPDATE 7-14-09, 10:40 PM:
Regina Benjamin's Bayou La Batre Rural Health Clinic doesn't perform abortions. A clinic employee who declined to be identified said by telephone that patients seeking information about abortions would be referred to providers in the state.
But White House spokesman Reid Cherlin said Benjamin "supports the president's position on reproductive health issues."
Obama supports abortion rights and public funding of contraception and sex education.
Cherlin continued: "Like him she believes that this is an issue where it is important to try and seek common ground and come together to try and reduce the number of unintended pregnancies. As a physician, she is deeply committed to the philosophy of putting her patients' needs first when it comes to providing care."
Benjamin also was a board member of Physicians for Human Rights, an international group that has advocated access to safe abortions in its investigation of human rights conditions in some countries.
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Still, pro-choice activists in Louisiana are optimistic. “What came out is something that we consider to be a major victory,” said Marjorie Esman, executive director of the American Civil Liberties Union in Louisiana. When the bill was first introduced it placed no restrictions on what procedures could be legally refused by a medical professional. “Any medical care of any kind could be refused,” Esman said.
Now the bill not only has an enumerated list, but it also cannot legally interfere with access to care. “If you’re the only pharmacy in a small town and there’s no [other] pharmacy within 100 miles, you have to have someone on your staff that will distribute emergency contraception,” Esman said.
Esman, who testified before the state legislature three times on behalf of changing, said that the ACLU called the bill “discriminatory medicine.” The more sinister potential of the original bill could have expanded far beyond reproductive services, Esman said. “If you were anti-gay, you didn’t have to treat gay people. If you were a white supremacist and worked at a doctor’s office you could refuse to make appointments for people who are non-white.” It was by raising concerns of broader threats of the legislation that the ACLU was able to build a diverse coalition to work on the bill.
Through the compromise ultimately reached on this bill, the ACLU achieved two objectives: protecting religious freedoms and protecting the rights of patients as consumers by ensuring access to care. Even so, Esman is sanguine. “[M]y feeling is that you shouldn’t enter into a medical profession if you object to some of its procedures,” Esman said.
Still, conscience clauses are becoming an increasingly popular mode of anti-choice legislation, and not all states will result in the kind of compromise reached in Louisiana. Arizona’s bill combines a conscience clause, allowing pharmacists to refuse to dispense emergency contraception, with a 24-hour waiting period for abortions. The bill also increases penalties (from one year of prison to two years) for physicians that perform the already-illegal late abortion procedures erroneously and misleadingly termed "partial-birth abortions."
Gov. Jan Brewer, an anti-choice Republican who took Janet Napolitano’s place when she accepted the job of Secretary of Homeland Security, is expected to sign such legislation if it comes to her desk. Elizabeth Nash, public policy associate at the Guttmacher Institute, says that Brewer is “hot to trot on bad anti-choice stuff … she wants to sign some anti-choice [legislation].” Arizona is also considering legislation that would require that a parental consent form for a minor’s abortion, already required by law, also be notarized. This would create one more hurdle for teenagers seeking an abortion.
Nash also points out that while there is some movement on anti-choice pharmacy access legislation in the states, 11 other states have introduced consumer protection bills that would ensure access to birth control and emergency contraception. Four states, California, Illinois, New Jersey, and Washington, already have laws in place that ensure access. However, as I’ve written before, Washington’s law has a temporary injunction while pharmacists that are making a constitutional claim to religious freedom challenge it in court. The case could ultimately make its way to the Supreme Court, forcing a decision on whether such conscience rules are constitutional.
Of the 11 states that introduced measures to ensure access to contraception this legislative session, the bill furthest along in the process is one in Wisconsin. Known as the Prescription Protection Act, the bill is currently folded into the state’s annual budget bill, so it has a significant chance of getting passed. It is unlikely that Gov. Jim Doyle, a pro-choice Democrat, would support the bill.
Wisconsin’s bill requires pharmacies to have someone available during business hours willing to fill prescriptions for birth control. The bill also has broad public support. A 2007 poll showed that 84 percent of Wisconsinites support guaranteed access to birth control, according to NARAL Pro-Choice Wisconsin. And there are no anti-choice bills on the docket this year.
Nash would like to see more states with guaranteed access to birth control and emergency contraception. “This movement got started in response to pharmacists' refusal to fill prescriptions,” Nash said. Indeed, just last year the Washington Post wrote about Pharmacists for Life, a group that aggregated a list of pharmacists that refused to fill birth control prescriptions. Pharmacists are increasingly targeting birth control, but more commonly they refuse to dispense Plan B, often because of a misconception that Plan B is a form of medical abortion.
Perhaps the best way to fight pharmacist refusal bills is to approach these from a consumer protection perspective. Few pharmacists refuse prescriptions that don’t affect women’s reproductive heath and rights. Bills that allow pharmacists to refuse to fill birth control or emergency contraception are unfairly targeting women as consumers. Women deserve access to birth control and emergency contraception, just as other consumers deserve access to heart disease or other medications.
]]>"This was not one of Justice Souter's finest moments," said Harper Jean Tobin, a staff attorney for the Herbert Semmel Federal Rights Project of the National Senior Citizens Law Center and has written about the case for the American Constitution Society's blog. "Hulteen is a bad decision and has a significant impact on a large number of workers. At the same time it's a narrow decision." Tobin estimates that the ruling only affects the roughly 15,000 women who worked at AT&T and took maternity leave before the PDA was put into place.
But Marcia McCormick, a law professor at the Cumberland School of Law and a contributor to Workplace Prof Blog, estimates this ruling might have a more sinister impact on constitutional law. One of the most disturbing things is that it seems to suggest that pregnancy discrimination is not sex discrimination. That determination could have vast and reaching impacts on women in this country.
"I am a little worried about what this is going to do about constitutional analyses, even beyond potentially the employment context," McCormick said. "There are lots of situations in which the government interacts with women in relation to their pregnancies or deciding not to become pregnant."
The Hulteen ruling reaffirms a long-since disputed view of the Court. After the Civil Rights Act became law, many lower courts ruled that pregnancy discrimination was a form of sex discrimination, using the reasoning that only women can become pregnant. But in 1976, the Supreme Court ruled in the case of General Electric Co. v. Gilbert that pregnancy discrimination was not sex discrimination. The opinion, delivered by Justice William Rehnquist, described General Electric's plan "as representing a gender-free assignment of risks in accordance with normal actuarial techniques. From this perspective the lone exclusion of pregnancy is not a violation of Title VII insofar as all other disabilities are mutually covered for both sexes."
It didn't take long for the public outrage at this ruling to cause Congress to pass the Pregnancy Discrimination Act and make it clear that pregnancy discrimination is, in fact, illegal under the Civil Rights Act. The law stated, "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work." The PDA said that pregnancy was no different from other forms of disability, and should be treated as such.
In terms of Hulteen, the court was primarily concerned with "seniority systems" and that because AT&T treating pregnancy leave as personal leave was considered legal at the time, the company is not required to amend its pension system now. But, as Justice Ruth Bader Ginsberg noted in her dissent, "[The plaintiffs] seek pension benefits, now and in the future, equal to the benefits received by others employed for the same length of time. The actionable conduct of which they complain is AT&T's denial of equal benefits to plaintiffs "in the post-PDA world."
Drexel University College of Law professor David Cohen agreed with Ginsberg's take on the case. "What we can say is that an employer shouldn't be able to do things now that continue to perpetuate discrimination based on pregnancy, which is what AT&T is doing. They're paying pension based on differential calculations based on pregnancy-current action. It's not past action."
The underlying context in this case is that pregnancy discrimination, like other forms of discrimination cases, are becoming harder and harder to win. A recent study published in the Harvard Review of Law & Policy found [PDF] that "Compared to other plaintiffs, [those who allege employment discrimination] manage fewer resolutions early in litigation, and so they have to proceed to trial more often. They win a lower proportion of cases during pretrial and at trial. Then, more of their successful cases undergo appeal. On appeal, they have a harder time both in upholding their successes and in reversing adverse outcomes." Plaintiffs who prevail in employment discrimination cases are becoming ever scarcer.
The reasons for this are complicated, McCormick said. The kind of discrimination that people experience today tends not to be overt. It's often a subtle form of discrimination in which employers either don't disclose their biases or sometimes even aren't aware of them. "Some people say that's not what Title VII was designed to reach," McCormick said. "I personally argue that people just don't agree on what discrimination is anymore. Maybe they never did."
Another high-profile case brought this into light, the Ledbetter v. Goodyear Tire Co. case of 2007. Arguing that Lilly Ledbetter ought to have filed her pay discrimination complaint within 180 days of her first discriminatory paycheck, the court refused to grant Lilly Ledbetter back pay for her years of sex discrimination. It was a cause around which women's rights advocates and women generally rallied, and which resulted in passage of the Lilly Ledbetter Fair Pay Act earlier this year. The Hulteen ruling, because it affects a much smaller segment of the population, is unlikely to evoke such a popular movement for Congress to reverse the decision, although some feel that they should.
"Congress can step in and rectify this decision too by passing a law that makes it clear that this kind of pension program based on differential treatment of pregnancy is unlawful," Drexel University's Cohen said. "The administration can put regulations [in place] that are consistent with statute that make it clear that certain things are unlawful based on sex discrimination. Other branches of government and state courts and state governments are going to have to step in because the Supreme Court is not a sympathetic venue right now."
Cohen points to the fact that the Supreme Court has consistently been ruling against those that bring forth discrimination cases, much as in the Ledbetter ruling. It's not beside the point to note that the court is composed mostly of white men. In fact, a recent study of judges in sex discrimination cases determined that women were 10 percent more likely to rule in favor of plaintiffs in such cases, regardless of political ideology. When the Lilly Ledbetter Act was passed in the Senate, every female senator voted in favor of the law, regardless of political party.
It would seem that President Obama's indication that he's in favor of appointing a female justice to replace Souter is well justified if the interests of victims of discrimination are to be better protected by the Supreme Court. Still, there are some that are less optimistic. "The issue is that we have five justices -- Justice Scalia, Thomas, Alito, Kennedy, and Chief Justice Roberts -- who are relatively young for Supreme Court justices, they're very conservative, they're not at all sympathetic to women," Cohen said. "Getting newer, more progressive, younger justices would certainly be good long-term because they'll be on the court a lot longer, but it's not until the five conservative justices are changed that we're going to see any improvement."
]]>An important consideration related to who ultimately fills Souter's seat centers on what issues the Supreme Court would face in the near future. RH Reality Check examined some of the cases being challenged in state or other appellate courts that might make their way to the Supreme Court over the next few years. It is, of course, nearly impossible to predict which cases will come before the Supreme Court. Thousands of cases are brought to the court each year and only a handful are heard. Nonetheless, here we highlight some of the possibilities.
Outright Abortion Bans and Fetal Personhood Amendments
"It's hard to predict what might make its way up to the court," said Gretchen Borchelt, senior counsel at the National Women's Law Center. "Certainly we know that the anti-choice side keeps trying to propose some flat-out unconstitutional ban on abortion that's directly challenging Roe and will be litigated in the courts."
South Dakota, which defeated two outright abortion bans in 2006 and 2008, both of which would have directly challenged Roe, is one state where anti-choice activists have targeted their efforts in recent years. "But this year in the state legislatures we've seen a different attempt, which is [to] establish fetal personhood," Borchelt said.
North Dakota battled over such legislation earlier this year. This type of legislation, drawing inspiration from a ballot initiative that was defeated in Colorado last fall, usually seeks to define a person as beginning as a fertilized egg. The approach is problematic for a number of reasons. "There are bills that would not only ban abortion but would have far-reaching consequences and would get into other life decisions like birth control, they could trigger investigations into miscarriages, ban in vitro fertilization, all those things," Borchelt said. The bill was ultimately defeated in the state senate.
"They're not giving up [such fetal personhood legislation]," she said. "We've seen that in a lot of state legislatures this session." Other states that introduced such legislation included Maryland, South Carolina, Montana, and Alabama. Though none of the states successfully managed to pass laws that would have defined so-called "fetal personhood" a national organization, Personhood USA, continues to put forth efforts to pass such legislation in the states. According to their website, Personhood USA's goal is to introduce such legislation in every state. While it is unlikely that their efforts in states like Maryland, which has a Freedom of Choice Act in place, will succeed, they have been more successful in states like North Dakota. As Borchelt notes, such "personhood" legislation, if passed, would not only be a direct challenge to Roe v. Wade, but it would also force courts to rule on the constitutionality of birth control and in vitro fertilization, among other laws.
Mandatory Ultrasound Viewing
One state that is currently battling out abortion legislation in the courts is Oklahoma, where a law that places limits on abortion was passed last year, vetoed by the state's governor and then overridden by the legislature. The law places restrictions on the administration of a medical abortion, requires women seeking an abortion to view an ultrasound, and places other restrictions on women's right to sue a provider if he or she intentionally withholds information about the pregnancy, particularly if the fetus has developmental defects. This kind of legislation seeks to push the boundaries in the Supreme Court's 1992 ruling in Planned Parenthood v. Casey, in which Souter and two other justices joined together to simultaneously preserve Roe v. Wade while opening the doors for states to place limits on the right to abortion, so long as the laws do not place an "undue burden" on the woman's ability to obtain an abortion.
The Center for Reproductive
Rights is currently challenging Okalahoma's law in state courts and
the case is known as Nova Health Systems v. Brad Henry.
There are two particularly objectionable components to the Oklahoma
legislation, according to Crepps. First, it requires doctors do
a "follow up examination" on women receiving mifepristone (commonly
known as RU-486) for medical abortion, despite the fact that no such
examination is required either by federal regulation recommends or by
sound medical practice. The American College of Obstetricians
and Gynecologists, for example, does not recommend such a protocol.
Similar legislation was passed in Ohio in 2004 that is
currently being challenged by Planned Parenthood.
The law mandates ultrasounds for surgical abortions, requires that women undergoing abortion view the ultrasound, and requires physicians to describe the ultrasound to her out loud.
"Forcing a doctor to say and forcing a woman to listen to an ultrasound description when neither of them are interested or think it's a good idea or necessary for informed consent is a violation of both their privacy rights but [also] of their free speech rights," Crepps said.
Legislation asking women to view ultrasounds is increasingly common. Today, half a dozen states, including South Carolina and Michigan, have milder versions of Okalahoma's ultrasound legislation. Kathleen Sebelius, in one of her last acts as governor of Kansas before being confirmed as secretary of the Department of Health and Human Services, signed a law that mandates offering women the option to view an ultrasound before undergoing an abortion. But if Okalahoma's legislation is upheld in state court, other states might begin to copy it. "Obviously anti-abortion people will be watching [the Okalahoma] case as well as the Ohio case and seeing if they can pursue that as a strategy," Crepps said.
Because Okalahoma's law is
being challenged in state courts, it is unlikely the Supreme Court will
rule on it. But if the anti-choice community is successful in defending
this law, copycat legislation in other states could present a challenge
that could make its way eventually to the Supreme Court.
Pharmacist Refusal Laws
In the Ninth Circuit, pharmacists are challenging a law that ensures a woman's access to birth control, including emergency contraception (commonly known as "Plan B"), because they say it interferes with their religious rights.
Because of the challenge, the
court has issued a temporary injunction. That means pharmacists can
still refuse to fill birth control prescriptions or sell emergency contraception
to women until the court issues a ruling on the case.
Such legislation touches on the midnight regulation in the Department of Health and Human Services that the Bush administration put into place. If the rule is rescinded, as the Obama administration has pledged to do, then organizations that supported it may challenge the legislation all the way to the Supreme Court.
Partial-Birth Abortion Ban
Although the Supreme Court
has already upheld the federal Partial-Birth Abortion Ban in their 2007
ruling on Gonzales v. Carhart, Virginia passed a similar ban
that did not include a health exception in 2003. The law has been challenged by the Center for Reproductive rights
in a case known as Richmond Medical Center v. Herring. An appellate
court ruled last May that the Virginia ban placed
an "undue burden" on a woman's right to obtain an abortion.
If the Supreme Court decides
to hear the case, the ruling on Virginia's ban could determine how
courts interpret the federal partial-birth abortion ban.
The battles that are currently taking place in state and appellate courts are important. These are the cases that could end up before the Supreme Court. The next justice, whoever that might be, will be facing important decisions about how women access reproductive health care. Perhaps Crepps is right and Obama will appoint and the Senate will confirm someone who is "Souter or better" on women's rights.
]]>Souter has maintained a position as an ally of reproductive choice during his time on the Court, despite the fact that he was appointed by President George H.W. Bush in 1990. He voted in to uphold laws that maintained buffer zones for protesters around abortion clinics and dissented in Planned Parenthood v. Casey in 1992, a case that opened up states' ability to place restrictions on abortion. Most recently he dissented on the Court's decision to uphold the partial birth abortion ban. But Souter, despite defending abortion rights, recently said he thought it might be reasonable for a principal to decide to strip-search a 13-year-old girl in an Arizona school district in a recent case.
"At the certain point only women get women's stuff," said Ann Bartow, professor of law at the University of South Carolina and administrator of the Feminist Law Professors blog. Her sentiments are echoed by Joan Walsh in Salon, writing that, "no president has had a better choice of female picks than Obama does."
Janet Crepps, deputy director of the U.S. legal program for the Center for Reproductive Rights, said that while her organization would likely not take a stance on whoever President Obama ends up nominating, "We need someone who is not just a vote but a voice."
The lists of prospective nominees already circulated have a lot of pro-choice women that top the list.
Sonia Sotomayor is currently a justice on the U.S. Court of Appeals for the 2nd Circuit and a graduate of Princeton University and Yale Law School. She was raised by a single mother in the Bronx housing project, and, if nominated and confirmed, would be the first Latina on the Court. Indeed, choosing someone like Sotomayor might help Obama fulfill a campaign promise he made. While speaking at Planned Parenthood in July 2007, Obama said of the standards used to evaluate justices, "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."
Another sitting judge that has been floated as a potential nominee is Leah Ward Sears, the first woman to serve as chief justice on the Georgia Supreme Court and the first African American to serve in a Georgia high court. She is a graduate of Cornell University and Emory Law School. It's hard to say, though, if Sears is just considered liberal for a southern state like Georgia or if she would be a staunch liberal on the court.
But there's reason to caution the appointment of sitting judges. After all, Souter was a sitting justice when he was named to the Supreme Court. Although he was appointed by a fairly conservative president, he has turned into a reliable liberal vote on the Court. "Souter wasn't who everybody thought he was," Bartow said. "The reverse could happen."
Some view an academic as a safer choice, since they tend to have articulated a more extensive range of public thoughts about judicial philosophy and constitutional interpretation. Elena Kagan, who before her political appointment was dean of Harvard Law School. She, as a former clerk for liberal lion Thurgood Marshall, could be viewed as a strong liberal that Dahlia Lithwick has asked for. "If, then, we're totting up all the qualities the current court's liberals ostensibly lack, we'd need to blend boldness with passion and persuasiveness with volume and then hope the next candidate also comes with some sort of just-add-water Sweeping Constitutional Vision kit. Preferably this persuasive, passionate constitutional bomb-thrower is also a woman, and, with any luck, an African-American or Latina or Asian-American as well," Lithwick wrote. Another academic that has been floated is Diane Wood, a lecturer at the University of Chicago. She also served on U.S. Court of Appeals for the 7th Circuit and at Department of Justice during the Clinton administration. Additionally, Cass Sunstein has also been suggested. He's a prolific legal scholar who spent time at the University of Chicago and is now at Harvard Law School. He has written for many left-of-center publications in his time as an academic.
"Maybe I'm old fashioned, but I don't see anything wrong with appointing someone from the administration or political office," said Scott Lemeiux, an assistant professor of political science at Hunter College in New York and contributor to the blog Lawyers, Guns and Money. In addition to Kagan, others have speculated that political leaders like Massachusetts governor Deval Patrick or Michigan governor Jennifer Granholm would be good choices.
Interestingly enough, as Lemieux said, historically "it's been Democrats and not Republicans who make the biggest deal about abortion." It's true that Arlen Specter, who switched to the Democratic party last week, was the senator that lead the fight against overly conservative justices during George W. Bush's administration. "It seems unlikely Republicans will put that much stock in. I'm not sure that's going to be the center of the battle." Lemeiux believes that other issues may become more important to Republican senators, like the role of the executive branch and its interaction with international law.
Still, once Obama selects the nominee, he will still have to have that person confirmed. With potentially 60 Democratic votes, Obama may be blessed with a smooth confirmation process, but social conservatives have already begun to object to the nomination process, despite the fact that Obama refused to even discuss it at a press conference on Friday. "It's not going to be smooth because it doesn't matter who the candidate is," Bartow said. "It doesn't matter who the person is; they're going to have a tough confirmation." Indeed, The Hill reported that a coalition of more than 50 conservative groups had formed on Friday, including the American Center for Law & Justice, an anti-choice legal group that positions itself as the American Civil Liberties Union for the right.
Ultimately, as Lemieux said, the nomination "depends on how much political
capital Obama is willing to spend."
The Senate Republicans are behind the delay, with Senate Minority Mitch McConnell leading the fight. They are making a last-minute attempt to block Sebelius' confirmation, raising objections because of her stance on abortion. This makes her the last member of Obama's Cabinet yet to be confirmed.
Last week, the Family Research Council, an anti-choice lobbying group, raised a stink about Sebelius's purported "ties" to Dr. George Tiller, one of Kansas' few late-term abortion providers. Last month, Tiller was acquitted of 19 counts of misdemeanors brought against him. But FRC, and now Senate Republicans, are objecting to Sebelius based on donations Tiller made to a 2002 political PAC that supported Sebelius in the primary for governor.
The objections raised by Senators Chuck Grassley (R-IA) and Mike Enzi (R-WY) during confirmation hearings were that they didn't want to see health care reform achieved through the budget reconciliation process. (In a budget reconciliation, debate is significantly limited and only requires a simple majority to pass. Since Republicans have far fewer than 50 senators, they fear Democrats will steamroll health care reform this way.) It's an objection that seems like a distraction, since both President Obama and Democratic leadership have said they are committed to working with Congress to achieve bipartisan health care reform.
Sen. Jon Kyl (R-AZ) isn't
opposing Sebelius on abortion, but rather on her general approach to health care reform. Kyl has taken a stance against comparative
effectiveness research, a field of inquiry that many health care reformers suggest can evidence about the effectiveness of treatments in order to better regulate health care. Kyl thinks that such
research and regulation might be used to "deny treatment" and would
rather the private market determine which treatments are used in hospitals.
Senate Republicans have likewise raised objections over the confirmation of Dawn Johnsen to the Office of Legal Council at the Department of Justice, who has a history of working at pro-choice organizations like the American Civil Liberties Union and NARAL Pro-Choice America. Anti-choice groups worry that Johnsen, if confirmed, would have a significant influence over future nominations to the Supreme Court. Even Ben Nelson (D-NE) has voiced "concern" over Johnsen's stance on abortion, but his office said that concern may not actively translate into obstruction of her confirmation.
Despite the stalling tactics
of some Republicans, Sebelius has already received broad, bipartisan
support as HHS Secretary Nominee. Few objections over Sebelius' stance on abortion
were raised during the committee hearings and no one asked about her
ties to Tiller. Sebelius has also received an endorsement from Kansas Republican Sen.
Pat Roberts
and former Sen. Sam Brownback. But Brownback has recently been debating pulling his support of Sebelius, especially after she vetoed some anti-choice legislation in Kansas. He has
recently emerged as the favored Republican candidate
in recent polls to run for governor.
Meanwhile Sebelius last week vetoed legislation (pdf) that attempted to place restrictions on late-term abortion providers. The bill sought to have clinics compile a report about the conditions of late-term abortions and make it easier to for anti-choice groups to pursue civil cases for "unprofessional or dishonorable conduct or professional incompetency," a broad and vague standard. The legislation also stipulates many other restrictions, known as TRAP laws, including requiring abortion providers to inform patients of "abnormalities in breast tissue," presumably based on the anti-choice myth that abortions cause breast cancer.
Despite the work of McConnell and others, reports suggest a confirmation vote on Sebelius may come as early as Tuesday. The Senate has already scheduled eight hours of debate that day and expects, barring a filibuster, the confirmation of Sebelius following the debate.
The scrambles to block the nominations of Sebelius and Johnsen may show just how desperate the anti-choice community is. CQ Politics reported that "efforts to defeat other nominees on social policy grounds have fallen flat, as even Republican senators have ignored the pleas of outside conservative groups until lately." Anti-choice groups, which during the Bush administration enjoyed real power in high-level government positions, seem to be losing their grip. It's unlikely that anti-choice groups will actually prevent these two women from their appointed positions, but it's also unfortunate that the work of anti-choice activists is stalling important work of Congress, the Department of Health and Human Services, and the Department of Justice.
]]>At first glance, the legislation proposed in Illinois, called the Reproductive Health and Access Act, looks like a Freedom of Choice Act, aimed at codifying Roe v. Wade in state statute. The proposed legislation affirms that the state should not "deny or interfere a pregnant woman's right terminate a pregnancy" and would ensure state funding of abortion services, even while the Hyde Amendment remains in place. The legislation also ensures access to contraception, as well as the right to refuse contraception (in response to histories of coercive and forced sterilization for women of color and women deemed unfit to reproduce).
Early members of the coalition, which has been spearheaded by Planned Parenthood Illinois and Illinois ACLU, began their work with meetings in Chicago and Springfield in the fall of 2007, where they debated what the legislation should cover, how it should be phrased, and how to get it passed. Following the 2008 election, they conducted focus groups and polls into early January. "It was that broad-ranging access that got early polling in the 60-70 percent across the board," said Lorie Chaiten, director of the ACLU's Reproductive Rights Project in Illinois. "It was really the whole continuum of choices that people supported very strongly."
But the proposed legislation doesn't stop at access to contraception and abortion. It goes on to demand that "all Illinois public schools shall offer medically accurate, age appropriate, comprehensive sexual health education" and that any provider conscience clause in the state be amended so that a patient can still receive the full range of reproductive options regardless of the provider's personal or religious objections. The reason for including this last component is that Illinois has a version of the conscience clause on the books that was passed in 1977; in its most extreme reading, it forbids employers from even asking employees if they plan to refuse service. The law is for "people who want for there to be an absolute right for the refusing physician or health care provider," Chaiten said. "So the HHS regs, in some ways, bring federal law to where some people argue the Illinois law already is."
It was that last part that got the coalition into the most trouble. The Catholic Church's Cardinal George wrote a letter (PDF) objecting to the bill, claiming that the passage of such legislation would cause Catholic hospitals to close and Catholic doctors and nurses to flee the state. Similar objections were raised when Illinois passed a requirement for emergency rooms to provide information about emergency contraception to sexual assault victims in 2002, said Terry Cosgrove, president and CEO of Personal PAC. Such dire predictions turned out to be false. But the opposition's rhetoric worked best on legislators with close ties to the Catholic Church.
Some local Catholic Church leaders put up opposition to the bill, even campaigning against it on Sunday mornings and gathering signatures at church, but the opposition wasn't universal. "Our steering committee for the campaign includes a pro-choice nun," Chaiten said. "In fact, one of my colleagues who has been out meeting with different organizations, met with a coalition of pro-choice nuns. Not just pro-choice [but also] questioning nuns walked through the legislation and talked through it."
The coalition, made up of community groups like Mujeres Latinas en Acción, Black Women for Reproductive Justice, and the Chicago Abortion Fund, along with women's health care providers and the big reproductive rights groups, held a lobby day that they considered a success. "More voices were included in this discussion....diverse voices that served many different populations around the city and state," said Gaylon Alcaraz, executive director of the Chicago Abortion Fund, in an email. "Another positive that came out of this is because of these diverse voices, legislators, the public and media had the opportunity to hear from the ‘unusual suspects' and not just Planned Parenthood. The feedback we received from legislators was overwhelmingly positive. They were happy to see women of color speaking out about reproductive health and justice. They felt that Planned Parenthood shouldn't always be at their doors bringing the same message every year."
It's a sentiment echoed by Planned Parenthood. "It was so critical to these legislators and it was so important that they saw this whole long list of organizational support it really made a difference to them. Planned Parenthood and the ACLU, we have lobbyists down there everyday," said Beth Kanter, senior vice president of external affairs at Planned Parenthood Illinois. "What made a difference to these legislators was seeing the activists down there and seeing the other organizations down there who weren't typically there. I think that that moved people."
The bill ended up gaining support from 32 co-sponsors, 20 of which were female legislators. "So many groups did so much to push this issue forward and get it on the radar screen," Kanter said. "For example, Mujeres Latinas en Acción did a great job reaching out to a lot of the Latino legislators. Toni Bond's group, Black Women for Reproductive Justice, reached out to all of the African-American members and sent a letter and lobbied, which was so unbelievably helpful."
Even though the legislation didn't come to a vote this session, the coalition is continuing to work in the state and plan on introducing the legislation again next year. "We're going to keep fighting the good fight on this," Kanter said. "We continue to have a hard fight ahead of us but we're committed to this bill's passage because the women and men of the state of Illinois deserve a right to make choices about their reproductive health."
It's a battle that will be along one. "One thing we really have to focus on in the next nine months before we go into the next legislative session is to try to really mobilize the support around the state," ACLU's Chaiten said. Cosgrove admits that there are still many roadblocks in their path. "From my standpoint we need more pro-choice legislators. We need a lot more education with people around the issues that we're talking about." It won't be an easy battle, but if this coalition is successful in enacting pro-choice legislation, it could be a model for other states to follow -- instead of working to deflect anti-choice legislation year after year.
]]>
"The culture of masculinity
is pretty rigid. In order to be a man you have to fit inside of a certain
box," said Byron Hurt, the producer and director of documentaries
that explore the paradigm of black male masculinity like Hip Hop: Beyond
Beats and Rhymes.
"The average guy is not invested in these issues."
Hurt is one of the few men willing to step forward as an advocate against sexual and dating violence. Often, he'll do workshops at colleges or universities where he'll be in a room full of young African-American men and ask them how many have been victims of police harassment or brutality; nearly every one will raise their hand. He'll then ask if the men felt what they were wearing invited harassment. Not a single young man will raise his hand. This is the analogy he uses to talk about how women aren't inviting or deserving of sexual violence or abuse. "These women didn't invite what happened just because of what they were wearing," Hurt said. "Intersections of race and class are really important for men of color."
The work that Hurt and groups
like Men
Can Stop Rape do
is important because, as Hurt said, "We don't see how the patriarchy
hurts us...Young men and boys are thirsty to talk about masculinity."
In an era where Vice-President
Joe Biden was a leader on passing the Violence Against Women Act and
has (so far unsuccessfully) pushed for the International Violence Against Women Act,
the work of groups on sexual assault and abuse are getting more attention.
"Actually the federal government is leading the way in many ways. We don't say that very often, but we're seeing more initiatives and demonstration projects coming out of the federal system," said Men Can Stop Rape president and CEO Stephen Glaude. From the Department of Health and Human Services beginning to rethink how to include men in their women's health programs to the Department of Justice offering their first-ever education grant for men, the federal government is starting to rethink how they approach sexual assault and relationship violence.
Men Can Stop Rape has recently partnered with the Department of Defense on an ad and public information campaign that encourages all members of the military to work together to prevent sexual assault with the tag, "Preventing sexual assault is part of our duty." One of the challenges to tackling sexual assault is to change the whole culture of gender relations in the military. That's a tall order.
Glaude said he was surprised by the dedication from some people within DoD. "When we started working with the Department of Defense, we weren't certain there was sincerity awaiting us," Glaude said. "What I'm really enthusiastic about is that we found a wonderful infrastructure of personnel, in not only the Department of Defense, but in each of the branches that deeply cares about this issue." The second day of the conference included briefings with HHS, the DoJ, and the Centers for Disease Control and Prevention.
Another topic that received a lot of attention was marital rape. Jaclyn Campbell, a professor at the Johns Hopkins University School of Nursing, noted that marital rape laws weren't passed in the United States until the 1970s and today, less than one percent of the reported marital rapes result in any jail time for the perpetrator. In some states, like Campbell's home state of Maryland, marital rapes can only be prosecuted if the couple has been formally separated or they have already filed for divorce at the time of the rape.
Campbell related a story of one woman she encountered early in her career, who said that 11 years earlier in her marriage her husband threatened her with a shotgun when she refused to have sex. The woman told Campbell, "I don't know if you'd call that forced sex or not." Campbell's astonishment signified how ill-equipped we are to deal with intimate relationship violence.
Much of our rape prevention focuses on stranger rape, but not on the way men and women interact in relationships. When the assault happens during an ongoing relationship, or if it were sex that was initially consensual but turns violent or painful during the act, such as forced anal sex. "You'd have trouble in court with that one," Campbell said.
Some new programs will train young boys, from fifth to eighth grade, but most are voluntary after school programs and others aren't implemented until high school. "And I think that's too late," Campbell said.
How we talk about sexual assault and sexual abuse is connected to how we perceive masculinity in our culture. That is a much harder thing to change, and it's why community programs and the work of those like Byron Hurt is so important. Still, the fight against sexual assault has a long way to go. While official numbers show the reported number of sexual assaults going down, a large number of sexual assaults still go unreported. Changes to culture and masculinity won't just happen overnight. It will take committed work and partnerships to bring an end to end violence against women and those in abusive same-sex relationships. "I think we've reached a point where the work can only go forward if men and women work together," Glaude said.
]]>When the House first considered the bill, Planned Parenthood represented itself in the House Committee hearing on the proposed legislation, known as HB 1572. Tim Stanley, senior director of government and public affairs for Planned Parenthood Minnesota, North Dakota, South Dakota, testified after 90 minutes of anti-choice rants that the passage of such legislation would be expensive, unconstitutional, and unwise.
By the time the bill had been
revised and the State Senate held a hearing on the issue, some things
had changed. The Catholic bishops in state put up some soft resistance,
releasing a statement that said, "We agree with the goal of establishing
the full legal recognition of the right to life of every unborn child
from the moment of conception and will never waver from that objective
...While opinions can vary, it is apparent to us that HB 1572, as written,
raises many unanswered questions, could lead to unintended consequences
and injustices, and would not achieve the goal of providing a direct
challenge to Roe v. Wade and its progeny."
When even Catholics are opposing the personhood bills, it is evident that there is division within the anti-choice movement about the strategy. Still, Stanly thinks the legislation was outrageous enough on its own. "Certainly the bill would have been more difficult to defeat if the other mainline groups had been involved in it," Stanley said, "but I think overall it was the fact that this bill just went too far and got into areas they just did not feel comfortable regulating."
Then the state's second-largest
paper, the Grand Forks Harold, which isn't exactly known for
its liberalism, wrote an editorial opposing HB 1572. The headline read,
"‘Personhood' bill in N.D. goes much too far." The largest paper
in the state, the Fargo Forum, ran a reported
article that pointed
out many questions raised by the proposed legislation.
The Senate hearing, according to Stanley, was very different than the initial hearing on the bill in the State House. This time, Planned Parenthood representatives didn't even testify. Instead, they called in an in vitro specialist, a constitutional lawyer, and a religious leader to oppose the bill. In other words, the arguments about the bill didn't even include defending the right to abortion or abortion access. "We really stayed away from it, just really feeling like our best arguments to defeat this thing were not necessarily about abortion," Stanley said.
Ultimately, the strategy of
PPMNS was effective. The North Dakota personhood bill was defeated, 29-16, after getting a 5-0 recommendation
from the Senate Judiciary Committee of "do not pass."
Immediately following the vote on HB 1572, however, the legislature passed, by voice vote, a resolution not to adhere any future Freedom of Choice Act legislation that Congress might pass. Such FOCA legislation hasn't even been introduced into this session of Congress.
Ultimately, North Dakota is
in limbo. They're not willing to take a stand to challenge
Roe v. Wade by passing personhood legislation, but they are completely
unwilling to see access to abortion codified by the federal government.
They're a socially conservative state that is eager to limit abortion
access in a number of ways. After all, North Dakota only has one abortion
clinic, located in Fargo, at the eastern border of the state.
State legislators have also introduced a
slew of anti-choice legislation this session : a bill that would require a doctor
to read to a woman seeking an abortion that she will terminate "the
life of a whole, separate, unique, living human being"; a bill that
gives women the "option" to view the fetus through an ultrasound
before terminating the pregnancy; requiring abortion clinics to post
signs that read, "NOTICE: No one can force you to have an abortion.
It is against the law for a spouse, a boyfriend, a parent, a friend,
a medical care provider, or any other person to in any way force you
to have an abortion"; and setting aside at least $100,000 for promoting
"alternatives-to-abortion" programs. Almost all of these pieces
of legislation are likely to pass and have been widely endorsed by the
anti-choice community, including the Catholic bishops.
The personhood movement, spearheaded
by the group Personhood USA, has outlined their definition of a fertilized
egg as a person as the new way forward, but what has historically proven more effective
is the incremental strategy the anti-choice movement has been
pushing for years. Even the arguments over whether or not to pass personhood
legislation didn’t focus on a woman’s right to abortion access,
but rather looked at the inability of women to access in vitro treatments
and the costs of defending such legislation in court.
What’s happening in North Dakota is, in some ways, the opposite of the public conversation that resulted from the fight against the South Dakota abortion ban. In South Dakota, the dialogue that emerged was about family health and keeping health decisions between women and doctors. North Dakota is seeing “personhood” legislation as complicating other aspects of reproductive health. These arguments are, of course cheaper than launching an all-out public information campaign, especially when many non-profits are strapped for cash. And the strategy against HB 1572 was ultimately effective, but it may have left pro-choice activists open to future attacks on choice.
]]>Yesterday Gov. Kathleen Sebelius underwent her first confirmation hearing to become Health and Human Services Secretary, testifying before the Senate committee on Health, Education, Labor, and Pensions (HELP). The hearings largely avoided issues of reproductive health, but near the end of the hearing, Sen. Tom Coburn (R-OK), a self-described "pro-life obstetrician," asked Sebelius about the so-called conscience clause, implemented at the end of President Bush's days in office. The Obama administration has announced plans to rescind the regulation after a comment period, but Coburn wanted to know, "I would like is reassurance that we'll at least get a heads up on what that's going to be prior to unilateral announcement. Can you give us that assurance?"
At a confirmation hearing HHS Secretary nominee Gov. Kathleen Sebelius answered questions about RU-486 and the Hyde Amendment, Bush's midnight HHS conscience clause and prenatal care as it relates to infant mortality in the U.S.
Sebelius, a Democrat who has worked in elected office for years in a state where registered Republicans far outnumber registered Democrats by about two to one, responded in a way that suggests she has taken a more conservative stance on this than the broader reproductive rights community has.
"I can tell you right now that the President supports and I support a clearly defined conscience clause for providers and institutions. I always have. It's been in place in Kansas the entire time I've been in elected office," Sebelius said at the hearing. "I know there was some concern about the regulation that was proposed and implemented at the very end of the previous administration that it was overly broad and frankly overly vague. So I don't think from the discussions that I've had that there is any intention of interfering with the underlying legal basis."
The hearing comes on the heels
of Sebelius's recent singing into law a piece of anti-choice
legislation that will require women seeking abortions to be given the option of getting an ultrasound
or hearing the fetus' heartbeat. The law also puts state funds toward
producing literature and a video on abortion. Sebelius vetoed a similar bill a year ago; it seems likely that she signed this one to avoid an dust-up with anti-choicers just moments before her confirmation hearings. Her approval of this bill, in conjunction with her comments about the HHS rule, raise questions about
exactly how pro-choice Sebelius is and whether she'll prioritize health
care reform over reproductive rights -- a question the reproductive health community had for previous nominee Sen.
Tom Daschle, too.
Still, Sebelius has a long history of working with Planned Parenthood in Kansas, even attending a fundraising dinner (PDF) held by the organization in 2007, as well as an event held by Planned Parenthood just before the inauguration. The anti-choice right has also focused on her association with Dr. George Tiller, a doctor that has performed late-term abortions who won a fundraising dinner with Sebelius. (Tiller was acquitted of all 19 counts of misdemeanor in a state court last Friday. Abortions in Kansas also declined by about 10 percent while Sebelius was in office.)
Much of the hearing focused not on reproductive health but rather on health care reform. "I am and will remain staunchly pro-life, and will advocate for the lives of the unborn," ranking member Sen. Michael Enzi (R-WY) said at the hearing; yet Enzi said he preferred to focus on health care reform, something that he said is "not Republican or Democratic issue" but "an American issue."
In an exchange with the former Republican nominee for President, Sen. Jon McCain asked if Sebelius would support a plan that would include a public insurance option. Sebelius, confirming that she supported President Barack Obama's plan, said she would support a public insurance option that would compete with private insurance plans. This is widely viewed by many progressive health care policy experts as one of the best ways to increase competition on health insurance and bring costs down. Although Sebelius didn't advocate a particular kind of public insurance option, she said she, like the President, supported having one to increase access to health care.
It's true that the list of
concerns for health care reform is long. Much of the debate will change
depending on which plan is chosen for implementation. New proposals seem to surface almost monthly, including one billed
by former presidential candidate Sen. Bob Dole, who appeared before
the committee to testify in support of fellow Kansan Sebelius. "I
can't think of a tougher job to step into now than the secretary of
HHS," Dole said. He is working in conjunction with other former senators
Daschle, Howard Baker, and George Mitchell to produce health care forums
and a proposed plan to contribute to the health care debate.
Health care reform has certainly been identified as a priority for the Obama administration, especially to counteract the long-term skyrocketing costs that are projected. It's clear that investment in health care reform will reduce costs in the long run.
But it's unclear if Sebelius, who comes from a background as a legislator, a governor, and an insurance regulator, will first look to overall reforms before looking at expanding access to reproductive services, including abortion. Sebelius is used to working with Republicans, and even former Sen. Sam Brownback, a staunch anti-choice conservative, has endorsed her nomination for HHS Secretary. She's also earned the support of other Kansas-proud Republicans, like Dole and Sen. Pat Roberts.
It will be essential that pro-choice women's advocacy groups and pro-choice health care reform groups keep pressure on Sebelius if confirmed as HHS Secretary as well as on Congress and the administration. Health care reform is such a multi-faceted issue that dozens of groups are already clamoring to get their perspective included. Let's hope Sebelius' bipartisan tendencies won't interfere with the right to reproductive choice.
]]>In states across the country this spring, the mounting evidence condemning abstinence-only programming -- studies that reveal it is ineffective and half of states rejecting federal funding for it -- is having an effect on legislatures. Some states are introducing bills that would compel schools to teach comprehensive sex education, and many are stipulating that curricula be "medically accurate." While some of the states are the usual blue state suspects, including Hawaii, New York, Minnesota, and Oregon, others are more surprising: the Indiana, Texas, North Carolina, Florida, and Utah legislatures have all introduced bills that are taking a big step toward teaching comprehensive, medically accurate sex education in schools. About 19 states total have introduced such legislation.
The momentum has been building for a long time. Measures to require more comprehensive sexuality education began appearing 15 years ago. Teen pregnancy rates are once again on the rise after dropping during the 1990s. The Centers for Disease Control reports that one in four teenage girls has a sexually transmitted infection. Even Bristol Palin, daughter of the conservative darling Alaska Gov. Sarah Palin, said that abstinence wasn't a "realistic" expectation. States are beginning to realize that abstinence-only programs aren't working for students. Such proposed legislation comes on the heels of changes to California's sex education program and adoption of a comprehensive sex education program in the District of Columbia, both of which passed last year.
"It seems that right now is a really good time for states to try to make sure that students are getting the most they can out of sex education," said Elizabeth Nash, public policy associate at Guttmacher Institute. The reason it's a good time, besides the increased number of social progressives in state legislatures, is that, of those state legislatures that meet every year, odd years are those when state legislature focus on non-budget-related bills (legislatures tend to work on two-year state budgets during even-numbered years). Several states are trying to use that window of opportunity to create a comprehensive sex ed strategy in schools.
Nash noted that Utah is an interesting example. Technically, Utah already has a definition of sex education on the books -- but that definition is damaging. The law currently says that sex education that is taught in Utah schools "...shall stress...the importance of abstinence from all sexual activity before marriage and fidelity after marriage as methods for preventing certain communicable diseases." It even goes farther, forbidding the "advocacy or encouragement of the use of contraceptive methods or device." The bill proposed in Utah would require the state to not only teach sex ed in a comprehensive way, including contraception as means of preventing the spread of infection and preventing pregnancy, but also be "medically accurate." The term, which is defined in about half of the states that uses it in laws, usually has language along the lines of "verified or supported by research conducted in compliance with scientific methods and published in peer-reviewed journals, where appropriate, and recognized as accurate and objective by professional organizations and agencies with expertise in the relevant field, including the federal Centers for Disease Control and Prevention and the American College of Obstetricians and Gynecologists." Unfortunately, the clause of the Utah legislation that would have pushed public schools to provide comprehensive and medically accurate information to students in the state was struck last Friday, essentially killing the bill. The measure would have overturned Utah's current damaging language.
North Carolina's proposed legislation, called the "Healthy Youth Act" is a slightly compromised step forward. While the legislation would require the state to teach comprehensive sex education classes, it would also allow parents to "opt out" by signing a form. The students whose parents have opted out of the comprehensive sex ed class can be placed in an abstinence-only class. This may be while the legislation in North Carolina is gaining traction in a more socially conservative state. Still, "I think it's going to have a real fight on its hands," Nash said.
Advocates for Youth, a pro-sex ed youth organization, held a lobby day in North Carolina earlier this month that more than 200 teens attended. "There are definitely a lot of young people on the ground who are talking to principals, who are talking to school boards, who are talking to their governors, to their state legislators, to their federal representatives about sex education," said Meghan Rapp, state strategies program manager at Advocates for Youth. "There's a shift going on in that people are waking up after almost a decade."
Rapp noted that one Pittsburgh teenager, Madeline Chandler, began working as an activist to start conversations with her principal and school board to push for comprehensive sex education. In a blog post, Chandler wrote, "I was treated with wonderful respect. Nobody yelled at me or called me inappropriate names. Many adults and teachers even walked up to me, thanking me for being at the meeting. ... A few days later, I was on Facebook when my dad sent me a link. The board had passed the new policy. Students will now be learning from a comprehensive sex education curriculum." Thanks to the work of young activists like Chandler, teens can get the education that most benefits them.
Even if a state were to pass legislation that would require medically accurate comprehensive sex education, the policy takes time to implement. "A lot of times it is working with the state board or the state entity that supervises education, usually the department of education or the superintendent of education, or like in California's case, the school board association. But then it's also working school board by school board, which is really challenging and is actually one of the big challenges we're facing right now, is implementation," Rapp said.
Of the states that have introduced legislation, the ones that look most promising to actually pass it are Oregon and Hawaii. Oregon already has comprehensive sex ed requirements, but this law would just codify them. Hawaii has already passed the bill through the state senate and under consideration by House committees, Nash says.
Even if legislation is only introduced and won't pass in red states like Utah, it's important that states are beginning to beginning to open up the discussion about what kind of sex education is best for the students. Unless Congress passes the REAL Act, states are left to decide to choose a path of abstinence-only programming or to do the best they can to distribute accurate information about the best ways to prevent pregnancy and the spread of HIV and other infections "Even though a lot of young people, especially high school students can't vote, they have a really powerful voice and they're the ones that are actually being affected by this," Rapp said.
]]>However, the study also revealed that the use of contraceptives is becoming less common in this country for woman who are black, Hispanic, and low-income. Gaps between usage levels among white women and other populations that had been narrowing during the 1980s and early ‘90s have been widening again. Only 7 to 10 percent of white women from 1982 to 2002 (the most recent year data is available) did not use contraception, but rates among black and Hispanic women actually rose to 15% and 12%, respectively, in 2002, figures that had dropped to 10% and 9% in 1995. And the gap isn't just race-based. Now, about 20 percent of women who are at risk of unintended pregnancy who are at or below the poverty line aren't using contraception, a rate that had dropped to just 8% in 1995.
As a result, unintended pregnancy is on the rise for minority and low-income groups. Though the overall national rate of unintended pregnancy has held steady in recent years, falling rates among affluent women masked an increase among poor and low-income women. "Between 1981 and 1994, the national rate of unintended pregnancy fell 14%, from 60 to 51 unintended pregnancies per 1,000 women aged 15-44. But between 1994 and 2001, that overall national rate stagnated. Worse yet, rates among poor and low-income women rose considerably over the latter period, even as they continued to fall among more affluent women, thereby exacerbating already substantial disparities," reported to study, called "Next Steps for America's Family Planning Program." (PDF)
"We were seeing the successes of the family planning efforts in this country [that were giving] poor and low-income women equal access to contraception in this country and seeing that translate into reduced levels of unintended pregnancy and increased levels of contraceptive use to the point where there was very little difference between a low-income woman and a higher income woman in this country," said Adam Sonfield, Senior Public Policy Associate at the Guttmacher Institute and one of the co-authors of the study. "To see that reversing itself during the late 1990s was a really disturbing trend for us."
The study examines both how important family planning is in today's medical landscape but also reveals that family planning, a program that has had flat funding for the last eight years and hasn't been reevaluated for the last 25, leaving the program with an "antiquated structure." There are often needless overlaps and bureaucratic loopholes that create an inefficient use of family planning funds. Additionally, the funding isn't adequate for newer, more expensive family planning technologies.
Startlingly, six in ten of all women who visit Title X-funded family planning clinics say the clinics are their primary source of medical care. Like upper-income women, these women might go to a gynecologist for an annual exam, but might also get referrals to other doctors for other forms of care. "It's their entry into the health care system," Sonfield said. In fact, of women who are on Medicaid, some other form of public insurance, or are uninsured, 67%, 78%, and 75% of them respectively consider family planning centers their "usual" source of medical care.
Medicaid, while it does address family planning needs, is funded separately from Title X funds. The funds for Title X are distributed in large operational grants to individual clinics or care centers, while providers charge Medicaid on a per-service basis. A family planning provider might receive both Title X and Medicaid funding, but because there are more restrictions on how Medicaid reimbursements are processed, Title X fills important gaps that might otherwise cause a provider to turn away someone in need of family planning services.
Title X family planning funds can provide increased quality of service by paying for counseling and other kinds of services not covered by Medicaid. And increasingly, Title X provides funding to clinics to serve those for those who don't qualify for Medicaid, notably immigrants. "That's one big piece of the puzzle is the extensive counseling and education that women need," Sonfield said. "The average woman uses four different methods of birth control over the course of her life. It's not just the first-time users. Women have different needs over the course of their lifetimes."
Even though women use many different types of birth control over the courses of their lives, family planning clinics all too often can only offer a narrow range of options. New technologies in contraception, like the NuvaRing, the patch, and IUDs, do a better job of preventing unintended pregnancy but they are also much more expensive. With funding remaining stagnant the last eight years, what to offer patients becomes a difficult choice for many clinics. "These new technologies are wonderful for their clients but on limited or stagnant funding it creates a real dilemma for them," Sonfield said. "‘Do we make these methods available for our clients and therefore be able to serve fewer clients or reduce our hours or do things like that? Or do we limit women's choices so that we are able to serve more women?"
The first step to improving access to family planning will be to increase levels of funding. Laurie Rubiner, Vice President for Public Policy at Planned Parenthood Federation of America, an organization whose clinics are one of the largest recipients of Title X funding, said that they're asking for a total of $700 million to bring funding levels up to inflation-adjusted rates that match those in 2000. Current funding levels are at about $300 million. "The money is obviously key," Rubiner said.
But it is about more than just increasing funding. The Guttmacher study outlines a number of steps that would make the relationship between Medicaid and Title X funding to work more seamlessly together. Some of the changes are straightforward, like the Medicaid family planning waiver that was proposed for inclusion in the stimulus package.
"Unfortunately there was a lot of misrepresentation about what that bill would have done," Rubiner said. "It doesn't cost $200 million. It actually saves money." Though the Medicaid waiver is a bureaucratic savings, reducing the amount of paperwork to obtain a waiver, the Guttmacher report also shows that for every dollar invested in family planning, Medicaid saves $4.02 in expenses on pregnancy-related care.
An earlier report from Guttmacher by Rachel Gold that was released last summer showed that many clinics are still behind in providing bilingual services, and are lacking in evaluating patients for substance abuse or if they are victims of domestic violence. These are all things that require clinic administrators to spend more, not less time with their patients. Currently, family planning effectiveness is measured by the number of patients served and the amount of dollars spent. Rather than just focusing on the number of total patients, Sonfield said, perhaps they could look at the number of months of contraceptive use provided for. A one-time visit is a one-time visit, regardless of the method of contraception received. "Right now, inserting an IUD counts the same [in congressional evaluations] as giving a woman a condom," he said.
Some of the biggest changes in the US approach to family planning, though, might be ideological ones. The Bush administration appointed Susan Orr, who came from the anti-choice and anti-contraception group the Family Research Council, to be deputy assistant secretary of Health and Human Services and head the Office of Population Affairs, the office primarily responsible for overseeing the distribution of Title X funds. "This past administration, the Bush administration, is one that just put evidence- and science-based evidence to the side in favor of ideology," Rubiner said. "We'd like to see evidence and clinical guidelines put back in place so that's what's driving policy."
With the Health and Human Services Secretary yet to be confirmed, changes to the OPA, an office within HHS, may be a while in coming. Still, the Guttmacher report and PPFA urge Congress and the administration to take on legislation that would increase access to family planning services sooner rather than later.
]]>State Rep. Dan Ruby introduced the legislation, which declares that "for purposes of interpretation of the constitution and laws of North Dakota, it is the intent of the legislative assembly that an individual, a person, when the context indicates that a reference to an individual is intended, or a human being includes any organism with the genome of homo sapiens."
"It was at the bottom of
the calendar and we didn't expect [the House] to get to it, so it
caught us a little bit by surprise," said Tim Stanley, senior director
of government and public affairs for Planned Parenthood Minnesota, North
Dakota, South Dakota. "This bill dangerous, far reaching, and allows
government -- not women and families -- to make critical decisions about
health care." Some state legislators have
been quoted
saying the intent of the measure is not to ban abortion outright. However,
many legal experts agree that defining life as beginning at conception
would affect access to birth control and emergency contraception as
well as affect in vitro fertilization. "I'm not sure if this is naivete or if this is sincere," Stanley said. "The bottom
line is that our attorneys have looked at this and are extremely concerned."
The state's legislature,
in a slightly more robust year for anti-choice legislation than usual,
will also be considering other anti-choice legislation this session.
Other bills under consideration would require the state's only abortion
clinic to place signs outside declaring that no one can force a woman
to have an abortion, and legislation that would mimic South
Dakota's "informed consent" legislation, a requirement that abortion providers must read a statement to women seeking abortion care stating that the procedure "will terminate the life of a whole, separate,
unique, living human being." The state legislature is also considering
a measure that would resolve not to adopt a Freedom of Choice Act. "It's
a sort of anti-FOCA," Stanley said. But because it hasn't been introduced
in Congress, "it's a complete red herring."
Stanley hopes that these other,
"less extreme" measures that he believes will probably pass, will
be enough to "placate" the anti-choice community in North Dakota's
legislature. Stanley also notes that his Planned Parenthood affiliate
has only been in active in the state's legislature since 2007 and
is the only pro-choice group that advocates at the state's legislature.
"The grassroots pro-life
base in North Dakota very vibrant," Stanley said. "This movement,
if it had more of a foundation, be it money or what have you, that they
would be a substantial group. And that I find fairly alarming." During
the panel hearing on the so-called personhood legislation, Stanley said
he followed more than 90 minutes of anti-choice testimony by five or
six anti-choice groups with a about six minutes of testimony pointing
out the unconstitutional nature of the legislation.
The personhood bill will go on to the
state Senate by the end of the week, and Stanley says it is likely not
to be voted on until the end of the legislature's session, in April.
Stanley believes that ultimately North Dakotans may not want to draw national attention with a challenge to Roe. If the bill does pass, Planned Parenthood's
affiliate will begin reaching out to the medical and religious community
to begin building a coalition of support to fight the measure.
"My experience had been that this legislature is grounded in reality, as opposed to some other legislatures," Stanley said. "South Dakota is not the most rational legislature when it comes to this kind of stuff. They're known as being slightly out there and willing to take those high-profile risks to fight this fight. My feeling is that North Dakota is just slightly more reticent to do that. To their credit they're not a state that looks [for] and seeks undue attention."
Egg-as-Person in Pro-Choice Maryland
A state legislator in Maryland has proposed a similar measure. The state seems like a strange place for such a measure; it has an overwhelmingly pro-choice legislature and passed a law that codified Roe v. Wade in 1992. "It's public relations for them," said Wendy Royalty, public relations director of Planned Parenthood of Maryland. "There's very little likelihood of [the bill] passing at all."
Delegate Don Dwyer, a socially
conservative delegate who also introduced a ban on same-sex marriage
this week as well, introduced the legislation last week. The judiciary
committee will consider the legislation and the chairman, Delegate Joe
Vollario, is rated anti-choice by NARAL Pro-Choice Maryland. But Maryland's
house has an overwhelming pro-choice majority, Royalty said, so it is
most likely that the bill will be killed in committee.
"Nobody wants to see a bill like that get on the floor because all it does is waste everybody's time," Royalty said. "We've seen the anti-choice people introduce bills that appear to be more reasonable, but this one will not be perceived this way." Three other states have introduced similar "personhood" measures: North Carolina, Montana, and Alabama.
The lesson we might draw from the pushes for personhood legislation in these two states is that it pays to have a legislature that views anti-choice bills as a waste of time. In North Dakota, a strong grassroots anti-choice lobby can go far with incremental legislation because the legislature is far more amenable to its cause -- even if it's hesitant to pass an all-out ban. While many resources aren't devoted to Midwestern states until direct attacks on Roe are presented, these states might have an easier time fighting both incremental and more sweeping anti-choice legislation if a strong anti-choice grassroots movement there didn't make being an anti-choice legislator worthwhile.
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The Personhood Conference,
organized by the American Life League, enlisted speakers from a variety of segments of the pro-life movement, including a rising star, Kristi Burton.
Burton is a 21-year-old woman who spearheaded the campaign for a state constitutional amendment in Colorado that
sought to define life as beginning at fertilization. Burton says the
Colorado personhood movement projects a "positive message," unites
pro-lifers, and doesn't personally attack pro-choice activists.
Although Burton may say she leads a new way, the overall message of the conference was conflicted. She said she promotes a positive message, but two of the other speakers at the conference, Lila Rose and Alan Keyes, both presented very traditional messages from the pro-life movement. Rose, who gained fame in the movement for her "investigative" work on Planned Parenthood by posing as a 13-year-old girl, claimed to be a "new media" advocate, but Rose's first video was one that displayed cut-up fetal tissue, an age-old tactic in the anti-choice movement. The parallels she drew to the Holocaust, abuse of Native Americans, slavery, and women's suffrage movements are long-established narratives in the movement. Rose also adopted the language of painting the woman as a victim and women's "complex psychological needs."
Former contender for the Republican presidential ticket Alan Keyes harked to an even older age of fire-and-brimstone preaching. Keyes' entire speech, which lasted 57 minutes, discussed Cain, Abel, Noah, and other biblical figures, but didn't mention the word abortion explicitly. Largely, his speech served to motivate, but lacked any real substance on the future of the anti-choice movement. He urged the audience to fight against the "army of darkness" and told the audience that "God wants us to live." Keyes' only mention of policy was to fight against the Freedom of Choice Act, legislation that hasn't even been introduced into the current congressional session.
Burton's message was more practical. She was proud of the fact the personhood amendment was simple: "Person defined. As used in sections 3, 6, and 25 of Article II of the state constitution, the terms 'person' or 'persons' shall include any human being from the moment of fertilization." She urged the pro-life movement to begin to hire political consultants, analyze polling data, and raise more money. This, she admits, comes from her active work with the Republican Party. She noted that the personhood movement often doesn't get support from mainstream Republicans, pointing to the Republican Senate candidate in Colorado, Bob Schaffer, who came out against the personhood amendment despite identifying as pro-life. "Politicians and pro-lifers don't really get along that well," Burton said.
Most of all, she noted, the
movement needs to unify. "Do you ever see NARAL, Planned Parenthood
or NOW fighting against each other? No, because they have one goal and
they don't really care about anything but their goal," Burton said.
She apparently thinks the pro-life
movement should follow suit and use the personhood framework to support
other amendments that aren't necessarily aimed at achieving personhood.
She supports informed consent laws, like those that South Dakota recently
passed, "What it did is it required doctors, before they give an abortion
to a woman, to tell her, ‘If you have an abortion you'll be terminating
the life of a new, unique, separate living human being,'" Burton
said. "If something like that is tried could we use the personhood
message to educate people while that battle's going on."
She believes the personhood
framework can be adapted to battles like abortion, stem cell research,
fetal alcohol syndrome, "fetal homicide" (laws that criminalize
accidental or intentional death of a fetus), and emergency contraception.
But Burton seemed ill-informed about the "lies" of her opposition: "They
said, ‘If the Colorado personhood amendment passes birth control will
be outlawed. In vitro fertilization will be outlawed.' All these things
that weren't true," she said. "The personhood amendment was a
definition. What it said was that in the future, when our courts and
our legislators are considering laws relating to those kind of things--I
mean in Colorado there isn't even a law on birth control so how a
definition can affect a law that doesn't exist, I'm not sure."
When I asked Burton after her speech to talk in more depth about the Colorado personhood amendment, she said, "Our basic viewpoint is anything that purposely kills a human being shouldn't be allowed. However, there are plenty of forms of birth control that don't do that. For instance, I am not against all birth control. A lot of the forms of birth control are a personal choice between couples." It is interesting that she is willing to admit that couples may want to make a private decision about birth control but not about abortion. Even more interesting, she seems to accept birth control, the most common form of which is an oral contraceptive, but opposes emergency contraception, something that is essentially the same hormonal drug in two different doses.
Burton, someone who the pro-life movement is beginning to look to in their time of frustration with incrementalism and someone who seems to offer sweeping change, strays from one of the firmest tenants of the pro-life movement--an opposition to birth control. Yet their rhetoric, in an effort to be simple, raises more questions than it answers. While the anti-choice movement might agree that life begins "at fertilization," its members seem to differ over just what that means. Ultimately this might mean the movement is more divided than ever.
]]>Two separate controversies have already arisen since Gupta's name has publicly been floated as the next surgeon general. First, New York Times columnist Paul Krugman lambasted Gupta's critique of Michael Moore's 2007 film Sicko, saying that Gupta's accusation that Moore "fudged the facts" was, well, just plain wrong. Then Rep. John Conyers (D-MI) wrote a letter to his fellow Democrats urging them to oppose Gupta as surgeon general. Conyers claimed that Gupta would face a "credibility problem," given his lack of experience in the National Health Service Corp and that "it is not in the best interests of the nation to have someone ... who lacks the requisite experience needed to oversee the federal agency that provides crucial health care assistance to some of the poorest and most underserved communities in America."
Many bloggers have already
written about Gupta's lack
of administrative experience,
his opposition
to marijuana reforms,
and some of his biggest
medical reporting mistakes.
But little is known about where Gupta stands on reproductive health.
(RH Reality Check attempted to contact Gupta for an interview, but was
told he isn't available for interviews at this time.)
The biggest source on Gupta's public record, the transcript archives from "House Call," reveals little; Gupta's show has largely avoided the issue. In a 2004 special on the worldwide HIV/AIDS epidemic, Gupta discussed "prevention" abstractly without ever mentioning condoms or even sex. In another episode on the spread of HIV a few months later, he quotes an HIV-positive man, Peter Staley, saying, "You can't stop the spread of HIV unless you talk about sex." But Gupta's show doesn't talk about sex. Instead, it cuts to an interview with former basketball star Magic Johnson. But the show's ability to deal with HIV/AIDS improves over the years, and in 2007 "House Call" addressed the problems of transactional sex in African countries that presents challenges to stopping the spread of HIV.
Still, reproductive issues specifically rarely grace the screen. An entire episode devoted to "women's health issues" covered only the topics of breast cancer, smoking, and heart disease. In a 2004 special on multiple births, he headed up the top of the news program with the news that pregnancies among girls ages 10-14 were on the decline, which he attributed to "abstinence programs and birth control," a fairly ambiguous and tentative statement. Some have suggested that his ties to pharmaceutical companies are too tight, and that he supported Gardasil while the jury was out on its safety.
But when Gupta was consulted about emergency contraception's then potential over-the-counter sale, he confirmed that Plan B was a "high dose birth control pill" and said that there wasn't much controversy from the mainstream anti-choice community because "they think it actually acts before - actually prevents the insemination part of this and the creation of life," thus quashing any claims that emergency contraception causes abortion.
What a Bold Surgeon General Can Do
The public most commonly
knows the surgeon general as the person responsible for putting warnings
on cigarette packages. Yet the surgeon general really serves as
a public health advocate in a broad sense; his or her job is to relate
accurate scientific and medical information to the public to improve
public health. Sticking to that job description, however, might land
a surgeon general in trouble. President Ronald Reagan's surgeon general,
C. Everett Koop, learned that lesson the hard way.
Koop discovered that much of the information put forth by anti-choice groups claiming abortion had negative psychological implications for women wasn't backed up by science. He then released a statement that "the available scientific evidence about the psychological sequelae of abortion simply cannot support either the preconceived notions of those pro-life or those pro-choice." His position, viewed by many as an open rebuke to the religious right, cost him the position of Secretary of Health and Human Services under President George H.W. Bush.
Dr. Jocelyn Elders, the surgeon
general under President Bill Clinton and only the second women to ever
hold the position, only served for 18 months. She resigned after a statement
she made before the United Nations about masturbation; she said it is
"part of human sexuality, and perhaps it should be taught." Today
Elders realizes that many of the challenges she faced have remained
the same. (The full transcript is available here.)
Part of the job of surgeon
general for her, as it would be for Gupta, was to sell health care
reform to the public. "You have to remember that we were trying to
get through the Clinton health plan at the same time," she said. And in this respect, she thinks Gupta would excel: "I
think Dr. Gupta has been out there working very hard trying to communicate
with the American people. I think he would be an excellent communicator."
Elders had a very different public perception when she was appointed than Gupta does. "Everybody knew when I came to Washington that I was interested in reducing teenage pregnancy, that I was very into reproductive health," she said. She doesn't know where Gupta stands on reproductive health, but "he has 6,000 public health people who will be working for him who are the best in the world."
Still, Elders expects that many of the reproductive battles ahead will be on the list of battles she faced: combating thfe spread of HIV/AIDS, advocating for fully funding Title X to ensure comprehensive family planning, and calling for public funding of abortion for women on Medicaid. "I think we need to get over our ideas about how condoms will break. We know condoms will break, but the vows of abstinence break far more frequently than latex condoms," Elders said. Gupta, if confirmed, might do well to remember that.
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