February
2001
Volume X
Number 2
Cartoon published with permission by Ann
Telnaes.
|
|
Reproductive Freedom News
 Cover
Story:
The Global Gag
Rule is Un-American and Anti-American
In the States
Defending the Rights
of Young Women
Benshoof in Brief
Roe Birthday Message
Activist Corner
New Research Tool
On the Docket
AZ
Fetal Tissue Ban Unconstitutional
TX Medicaid Ban
Unconstitutional
The Global Gag Rule is Un-American and
Anti-American
The "global gag
rule" not only strangles the free speech rights of foreign
organizations, it seals the lips of Americans as well.
When U.S. Representative Nita Lowey (D-NY) stepped into the
congressional ring last year to protest the global gag rule, she made an
impassioned speech for democracy: "The gag rule says to our NGO partners
abroad that we do not need to care about their rights," said Lowey during
a House debate, "that freedom of speech, the very foundation of the
American democracy, matters here, but it does not matter abroad; that our
commitment to free speech and freedom of association, fixtures of our
Constitution, end at our borders."
What Lowey failed to mention is that the gag rule also steps on the
free speech rights of Americans. That is something the Center for
Reproductive Law and Policy (CRLP) is learning the hard way. As advocates
for the legal protection of reproductive rights worldwide, including
abortion, we are discovering that when our foreign partner organizations
cannot talk about the "a" word, neither, in many
associative instances, can we.
Last year, approximately 430 foreign organizations in over 50 countries
"agreed" to stop performing abortions or speaking about abortion law
reform in order to qualify for family planning funds from the U.S. Agency
for International Development (USAID). Under the USAID guidelines, these
groups cannot even use private funds to advocate for or perform
legal abortions.
While some have called the decisions of these foreign non-governmental
organizations (NGOs) to accept U.S. funds as "voluntary," Supreme Court
Justice Ruth Bader Ginsberg has written that she "would not so
characterize the hard decision confronting NGOs operating in communities
of poverty so dire and conditions for women so low that we cannot
comprehend their situation."
Not only that, over 80,000 women around the world die from unsafe,
illegal abortions every year. Hundreds of thousands more suffer injuries
or complications from unsafe abortions. CRLP is one of many U.S.-based
organizations that work arm-in-arm with foreign NGO's to help save women's
lives and promote basic human rights - such as ensuring a woman's right to
a full range of safe and legal family planning options. But under the
global gag rule, we can't fulfill that public service mission.
For instance, when groups are discouraged from working with us for fear
that it may impact their future USAID funding, it makes it difficult for
us to conduct the necessary research to assess the impact that abortion
laws have on women's health. We also cannot effectively contribute to the
abortion debate in a country where many crucial "partner" organizations
are prohibited from engaging in public debate on this topic. As well, the
gag rule creates a "chilling" climate around abortion. It appears to
uphold or sanction the existing taboos surrounding abortion and its impact
on women's health and autonomy.
Paradoxically, the United States government, in its Medicaid program,
requires every state to fund abortions for eligible women under the
life, rape and incest exceptions to the Hyde Amendment. Similarly, the
United States Foreign Assistance Act is interpreted to permit the U.S.
government to fund abortions for women overseas who fall under the life,
rape and incest exceptions.
Family planning organizations had hoped that last year's global gag
rule would be a one-shot deal, as brokered by ultra-conservatives in the
U.S. Congress while negotiating the fiscal year 2000 foreign operations
bill. But those hopes are fading. While the fiscal year 2001 foreign
operations appropriations bill passed in October without gag rule
language, it is likely that President-elect Bush will
reinstate the gag rule through executive order. Judging by his cabinet
selections, which include several anti-choice candidates, many pundits are
predicting that reinstating the gag rule could be one of Bush's first acts
in office.
- Ann Farmer
Global Gag Rule Timeline
1984: The Mexico City policy, introduced by the Reagan
Administration, prohibits any organization from receiving U.S. population
assistance funds if, with their own funds and in accordance with the laws
of their countries, they "perform" or "actively promote abortion as a
method of family planning."
1993: Clinton abolishes the Mexico City policy by executive
order.
1999: Republican Congress re-enacts the gag rule policy through
a one-year appropriations act.
2000: Congress and President Clinton agree to abolish the global
gag rule.
CRLP works with women's legal and health organizations in
numerous gagged countries including Albania, Bolivia, Brazil, El Salvador,
Ethiopia, Ghana, Guatemala, Jamaica, Kenya, Nigeria, Peru, Romania,
Russia, South Africa, Tanzania and Zimbabwe. Here are three examples of
the effect of the global gag rule on our work:
- In Bolivia, where maternal mortality from illegal abortions is very
high, we have provided Spanish language, legal advocacy materials to
approximately 15 Bolivian women's reproductive rights and health NGOs
that were trying to reform Bolivia's restrictive abortion law. But last
year, as a direct result of the U.S. gag rule, four of those
organizations dropped out of this public campaign to save women's lives.
- We organized a workshop in El Salvador last November where we
launched our report on the effects of the new criminal abortion law
passed there in 1998. With leading women's rights advocates, we
discussed ways to reform the law to ensure that women whose lives are
threatened by pregnancy can have an abortion. We are concerned that some
critical organizations (that would otherwise want to) won't get involved
with this reform effort for fear of jeopardizing future USAID funding,
even though CRLP's efforts are supported with funds from private U.S.
philanthropies.
- During 2000, we worked with Russian NGOs on informing the Russian
government and general public about the health effects of a proposed
restrictive abortion law in Russia. We are concerned that some of the
Russian NGOs critical to the success of this effort may feel compelled
to bow out of future such efforts to avoid any negative impact on their
USAID funding.
Defending the Rights of Young
Women
"Teenagers should have the same constitutional right to safe and
legal abortion services as adults, yet they more often bear the brunt of
restrictions on the right to choose, and their outcry is less likely to be
heard."
- Attorney Jody Ratner was awarded a fellowship by the National
Association for Public Interest Law to spearhead a special, two-year CRLP
project to mitigate the impact of forced parental involvement laws on
young women's access to abortion services.
Teens in a Squeeze They Face Harsher Abortion Restrictions Than
Adults
Parental involvement laws require that one or both parents be notified
or give consent before a pregnant minor can obtain an abortion. On its
face, having parents involved in the health care decisions of their
children and promoting communication between parents and teenagers sounds
like a good idea. In reality, these laws often prove harmful to young
women.
Research shows that the majority of teens voluntarily involve at least
one parent when they are pregnant. The ones that don't often have a good
reason not to - they may be victims of incest or face a genuine threat of
domestic violence, for instance. Or they may fear being told to leave
home, or being coerced into an early, unwanted marriage. Requiring a teen
to ask her parents for permission to get an abortion is unlikely to
generate family communication where none or little exists.
Proponents of these restrictions point to alternative provisions for
those teens who are unable to involve their parents in their decision
making. For example, most of the 42 states that have adopted parental
involvement laws have included a judicial bypass mechanism that allows a
teen to ask a judge for permission to get an abortion without having to
tell her parents. She must demonstrate to the judge that she is mature
enough to make her own decision, or the judge can decide that, regardless
of her maturity, an abortion is in her best interests.
However, says CRLP attorney Jody Ratner, "this bypass alternative is
difficult and intimidating for many young women, some of whom cannot
negotiate the burdensome process."
Ratner recently joined CRLP as a fellowship attorney awarded by the
National Association for Public Interest Law, to spearhead a CRLP project
focused on mitigating the impact of forced parental involvement on young
women's access to abortion services. During the next two years, Ratner
will challenge the validity of existing parental involvement statutes and
work to prevent the imposition of new requirements. Another goal is to
improve the operation of existing judicial bypass procedures.
Having to go before a judge in a court hearing to discuss such an
intimate matter would be traumatic for most anyone. For many teens, the
thought of it arouses sheer terror. "After all," says Ratner, "this is one
of her most important life decisions and a complete stranger is being
handed the reins to make it."
While some judges do make thoughtful decisions, others have been known
to chastise or belittle young women for engaging in sexual relations,
telling them to "keep their legs crossed," for instance. Some anti-choice
judges have interjected their personal beliefs into the hearing - asking
the young woman if she knows she is taking the life of an "unborn child"
or suggesting that she consult with a member of the clergy. Some
anti-choice judges simply deny all requests that come their way.
Even before she makes an appearance before the judge, a teen faces many
obstacles. In order to successfully navigate the court system, she needs
to get the assistance of an attorney. Where attorneys are available to
handle these matters on a pro bono basis, the young woman must figure out
how, when and where to meet the attorney without raising the suspicion of
her parents. Reaching an attorney on the telephone may be difficult
because teens do not want to phone from home and may not be able to
provide a phone number for a return call.
Getting to the courthouse is another problem for many teens. Most
courthouse operating hours coincide with school hours, so making an
appearance may necessitate that a teen skip school or seek permission from
a school counselor or principal. Some school districts make it a practice
to inform parents of any absence. Once at the courthouse, a teen risks
running into a neighbor or a family friend who might report back to her
parents.
All this takes time. Delays of at least a few and sometimes several
weeks can be engendered by the bypass system. For a teen - especially one
who has avoided making a decision or simply not realized that her missed
period was an indication of pregnancy - it all adds up. And while abortion
is an extremely safe procedure, the medical risks and expenses increase
with time.
Because of these factors, many teens will go to great lengths to avoid
seeking a judicial bypass. Some teens will hitchhike to another state
where they do not need parental involvement for an abortion, thus risking
their health. Or they may choose more covert means to terminate a
pregnancy, such as resorting to an unsafe, illegal abortion or
self-inducing one.
On the other hand, there is considerable federal and state policy and
law that supports minors' right and ability to determine their health
care. Most lawmakers have resisted creating similar parental involvement
laws affecting areas of minors' reproductive health care other than
abortion. For instance, 27 states and the District of Columbia have laws
and policies that specifically authorize a pregnant minor to obtain
prenatal care and delivery services without parental consent or
notification. And the health risks involved in childbirth are considerably
greater than those for terminating a pregnancy.
Minors face more restrictions on their right to choose abortion than
any other group of women. State legislators have been swayed by arguments
made by anti-abortion activists that minors need to be protected from
themselves and from abortion providers. In addition, state and federal
courts have limited our ability to help minors by lowering the standard by
which they review a state's asserted interest. Even the United States
Congress may reconsider this year a bill making it a federal criminal
offense for any person, other than a parent, to accompany a minor across
state lines to obtain an abortion if she has not met the parental
involvement requirements in her home state.
-Ann Farmer
For further information on this project, e-mail CRLP at info@crlp.org (subject line: NAPIL
project.)
Thirty-two states are currently enforcing parental involvement laws.
Most of the laws apply to women under 18 and include exceptions for
medical emergencies. Some require that teens undergo a 24 or 48 hour delay
after parental notification or consent before proceeding with the
abortion.
See our factsheet for
information on laws in each state.
The Child Custody Protection Act is Unconstitutional
A bill entitled the Child Custody Protection Act, which passed in the
House in 1999 but died in the Senate, could be reintroduced this year. The
legislation as written would make it a crime for any person, other than a
parent, to knowingly transport a woman under the age of 18 across a state
line to obtain an abortion if she has not met the requirements for
parental notification or consent in her state of residence. Violators of
this measure face civil and criminal liability, including imprisonment for
up to one year, fines of up to $100,000, or both. It would also allow
parents to bring civil suits against anyone assisting the young woman.
Prosecution may be avoided if the abortion is necessary to save the life
of the minor because of a physical disorder, physical injury or physical
illness.
This proposed legislation is unconstitutional because it would:
- burden young women's access to abortion.
- endanger young women by failing to provide a health exception.
- violate principles of federalism.
- usurp the Equal Protection Clauses of the Fifth and Fourteenth
Amendments.
- hinder the right to travel recognized under the Privileges and
Immunities Clause.
- compromise the First Amendment right to associate.
Message from CRLP President Janet
Benshoof
Janet Benshoof with Harry Blackmun, former Supreme Court
Justice and author of Roe decision.
Roe v. Wade turned twenty-eight on January 22nd, and that is
great news. Still, I can't help wondering, and worrying, - especially
after seeing what's taking place in Washington, D.C. - if Roe will
make it to twenty-nine.
There is no question that the next four years will be contentious ones
for the upholders of this landmark Supreme Court decision that recognized
a woman's right to choose abortion. First of all, while President George
W. Bush successfully suppressed his anti-choice views throughout the
campaign, they are strikingly clear now. Several of his key cabinet
selections (positions that may have been determined by the time you read
this), are indisputably anti-choice. The Congress maintains an anti-choice
majority. And it is expected that several Supreme Court justices may leave
the bench during this term. Their replacements, and Roe's future,
will be largely determined by this conservative leadership.
The person I see as posing the biggest threat to Roe's future is
Bush's current choice for attorney general - former Missouri Senator John
Ashcroft. While Missouri voters managed to deflect Ashcroft's re-election
hopes, Bush has breathed new life into this ultra-conservative's political
agenda. And we know what that is. Here is a man that declared in a 1998
letter to the conservative publication "Human Event" that if he could pass
but one law, "I would fully recognize the constitutional right to life of
every unborn child and ban every abortion except for those medically
necessary to save the life of the mother." Need I say more?
Yes, we all need to say more, a lot more, and very loudly. It is
inappropriate for the nation's top law officer to be opposed to the rights
of half the nation's population. It's like letting the fox guard the
chicken house.
John Ashcroft has been one of the major architects of the campaign to
eliminate women's reproductive rights in the United States since
Roe was decided. During his tenure as both attorney general and
governor of Missouri, the state became ground zero in the national battles
to eliminate Roe's protections. In 1976, Danforth v.
Missouri, the abortion rights of minors were severely curtailed. In
Planned Parenthood v. Ashcroft of 1983, he was joined by the
Reagan-appointed U.S. solicitor general, who argued to overturn Roe for
the first time.
Roe was cracked wide open by the 1989 case, Webster v. Reproductive
Health Services, a challenge to legislation that Ashcroft championed
as governor mandating that life begins at conception, and eliminating
abortion services at public hospitals. In a 5-4 decision, three Supreme
Court Justices urged reconsideration of Roe and Justice Scalia
suggested that the Court overrule Roe outright. The Court's
Webster decision exposed Roe as vulnerable to challenge, and
during the next year, three outright bans on abortion were passed and
hundreds of restrictions on abortion were introduced in state legislatures
across the nation.
Most Americans, the majority of whom are pro-choice, reject Ashcroft's
vision. Americans value our Constitution which promises liberty and
justice for all, including women. Our nation champions the rights of
individuals to make decisions about their bodies and lives freely, without
government intervention. Our nation respects religious and philosophical
differences and keeps matters of church and state separate.
Can we trust this man to abandon his life's work of championing the
unborn to defend the laws protecting women's right to choose abortion or
use contraception? Can we trust him to uphold the Freedom of Access to
Clinic Entrances Act, a federal law to prosecute those who attack and
threaten reproductive health clinics?
I think not. As long as Roe v. Wade remains the law of the land,
our nation's chief lawyer must vigorously protect and defend it with a
devotion and passion that John Ashcroft simply does not possess.
So I say with trepidation, and glee, happy birthday, Roe. And many
more.
Activist Corner
Nothing But the Facts:
Charting a Reproductive Rights Course on the
Internet
What
happened when a man in India petitioned for divorce on the grounds of
cruelty because his wife had an abortion without his consent? What was the
result of the U.S. case in which a couple tried to recover damages for the
expense of rearing a healthy baby who was born as the result of a
negligently performed vasectomy? The answers to these questions and more
can be found by putting CRLP's internet guide to work for you. This new
publication, Researching Reproductive Rights on the Web, is an
effective tool for any researcher or advocate working to advance women's
reproductive rights worldwide.
The first half of the guide is devoted to websites that offer solid
background information on women's human rights. In addition to legal
sites, this web guide leads researchers through a host of public health,
medical and population-related sites. One useful address for finding
primary legal sources, as well as scholarly commentary and advocacy
materials, is the Women's Human Rights Resources website, hosted by the
University of Toronto at (http://www.law-lib.utoronto.ca/diana). And
because news articles can provide a useful launching point for research,
the guide lists a number of news sources, such as African News Online
(http://www.africanews.org), which contains a database of news reports
from over 40 African news organizations.
The second half of the guide helps researchers get down to the
nitty-gritty by revealing some of the best places to locate legal texts
and policy documents on reproductive rights issues. For instance,
information on the questions posed at the beginning of this article can be
found by searching the database on The Annual Review of Population Law
website at (http://www.law.harvard.edu/Programs/annual_review). Another
notable site is the UN Treaty Bodies Database
(http://www.unhchr.ch/tbs/doc.nsf) which allows researchers to review all
of the documents produced by the UN bodies charged with monitoring human
rights around the world - an essential tool for tracking the development
of human rights norms.
Although the guide is geared toward international research, it does
include useful U.S. resources as well. Cornell's Legal Information
Institute (http://www.law.cornell.edu/), for example, is noted for its
links to U.S. federal and state legal materials.
CRLP's website is also an excellent resource for reproductive rights
information. At our site you can access many of our publications, such as the
newest Women of the World reports on Francophone Africa and East Central Europe, as
well as our fact sheets, briefing papers and previous RFN articles. You
will also find court
documents from all of our recent cases to reach the Supreme Court.
Send orders for CRLP's guide Researching Reproductive Rights on the Web
to publications@crlp.org or
call (917) 637-3600. The cost is $5 plus shipping.
- Jill Molloy
CRLP's "The World's Abortion Laws 2000" Poster Is Now Available.
This 25 x 22 inch world map features detailed information on the
abortion laws of over 190 countries. The easy-to-read, full-color
poster is available in English, Spanish and French. Order over the
internet, or by calling or faxing us at (917) 637-3600 (tel); (917)
637-3666 (fax). The cost is $4 plus shipping.
Arizona Fetal Tissue Ban
Unconstitutional
Current Status: In a decision that will aid medical
research and treatment, an Arizona statute banning the use of fetal tissue
from induced abortions for medical purposes was ruled unconstitutional
December 29, 2000 by the U.S. Court of Appeals for the Ninth Circuit. Two
of the appellate judges agreed with the District Court's earlier finding
that the vagueness of the statute left doctors and researchers unable to
discern if they were complying with the law. The other appellate judge
found that the statute unconstitutionally interfered with reproductive
decision-making.
Background: The Arizona fetal tissue ban was enacted in 1983.
CRLP challenged the statute in 1996, representing Arizona residents with
Parkinson's disease and health care providers. CRLP charged that the law
was vague, infringed on the right to obtain medical treatment by chilling
the development of promising treatments of infertility and diseases
including Parkinson's, and interferes with women's right to make personal
decisions regarding childbirth.
For decades, politicians have blocked the medical usage of fetal
tissue, despite promising uses to treat diseases such as Parkinson's.
President Clinton issued an Executive Order in 1993, lifting a five-year
moratorium on both fetal tissue research by federal agencies and federal
funding of private research. And recent guidelines issued by the National
Institute of Health allow the use of federal funds for research using stem
cells derived from fetal tissue. However, Arizona continued to block the
use of fetal tissue, despite the relatively large number of persons with
Parkinson's disease residing in that state.
Plaintiffs in Forbes v. Napolitano (No. 99-17372, see
http://www.ce9.uscourts.gov/) include three persons suffering from
Parkinson's disease, two doctors who treat Parkinson's patients, a doctor
specializing in treatment of infertility, and two Planned Parenthood
affiliates. They are represented by Bebe Anderson of CRLP and cooperating
attorney Michael Owen Miller of Tucson, Arizona.
Texas' Medicaid Ban Found
Unconstitutional
Current Status: The Court of Appeals for the Third District of
Texas ruled on December 7, 2000 that the Texas ban on Medicaid coverage
for low-income women's abortions is unconstitutional. Citing the Texas
Equal Rights Amendment (ERA) as a basis for its decision, the Court said
that when the state chooses to provide medically necessary services to
indigent persons, it must not discriminate on the basis of gender,
including pregnancy. The state is expected to appeal the decision.
Background: When CRLP first challenged the Texas Medicaid policy
for providing funding for childbearing but not for medically necessary
abortions, our claim was denied by the District Court of Travis County in
March 1998. Now that the Court of Appeals for the Third District of Texas
has reversed that lower court decision, sixteen out of twenty-one state
courts that have considered near-bans on abortion funding like Texas's
have determined that states must provide coverage for all medically
necessary abortions. If the ruling is not challenged, approximately 1.4
million women of childbearing age in Texas will be eligible for Medicaid
funding if they choose to terminate a pregnancy.
Plaintiffs in Low-Income Women of Texas v. Raiford (No.
03-98-00209-CV) include three physicians who provide reproductive health
services, including abortion, the Fairmount Center (Dallas), Reproductive
Services (Austin), and Routh Street Women's Clinic (Dallas). They are
represented by Bonnie Scott Jones of CRLP, and local cooperating attorney
Catherine A. Mauzy.
-Suzanne Grossman
|
Hot
Topics 
