HIV Testing and Reproductive Choice – How Did The Rights-Based Approach Play Out?

Maria de Bruyn

Any reflections on the XVI International Conference on AIDS are necessarily subjective, as each person reporting attended different sessions, had different goals and talked to different people at different times. Nevertheless, taking the various perspectives into account can give us a more comprehensive view of what transpired in Toronto.

Advocates for women’s and rights issues can rightly take pride in having focused at least some attention on topics that were relatively neglected, such as female-controlled (at least to some extent!) barrier methods (female condoms, microbicides, diaphragms and cervical caps) and violence against women.

Any reflections on the XVI International Conference on AIDS are necessarily subjective, as each person reporting attended different sessions, had different goals and talked to different people at different times. Nevertheless, taking the various perspectives into account can give us a more comprehensive view of what transpired in Toronto.

Advocates for women’s and rights issues can rightly take pride in having focused at least some attention on topics that were relatively neglected, such as female-controlled (at least to some extent!) barrier methods (female condoms, microbicides, diaphragms and cervical caps) and violence against women.

One hot topic that was debated in formal and informal sessions was the current push by national and international agencies to have as many people tested for HIV as possible. Most people agree that knowing one’s HIV status can have many benefits, not the least of which is enabling a person to seek appropriate treatment in a timely manner (assuming that affordable treatment is available within a reasonable distance from their place of residence, of course). What concerns those who question the speed with which testing initiatives are being expanded is whether this public-health measure will be based on respect for individual human rights.

Some worry that routine offers of HIV tests by health-care providers may easily turn into routine imposition of HIV tests for patients who are not knowledgeable or confident enough to ask about the benefits and risks associated with tests. (And just think about it – how often have you asked your physician all the questions you had about a medical exam, procedure or prescription? Have you never felt just a little intimidated or reluctant to challenge or question what your doctor says? I know that it’s happened to me and my well-to-do, highly educated, empowered female friends; women raised to be subordinate will have even more problems with this.)

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

The growing shortage of health-care workers in many areas means that health systems don’t have adequate staffing levels to ensure that patients can give informed consent or receive counseling. Inadequate infrastructure can mean that confidentiality is not ensured as no separate spaces are available where people can receive test results in privacy. Or people’s confidentiality is breached later when they can only access antiretroviral therapy (ART) at offices labeled “AIDS Services,” “ART for adults” and “ART for children.” When women are asked to take HIV tests during labor and delivery, they will often be in a ward with others – how can protocols ensure that their consent is informed and private? And how well can they consider benefits and risks at such a time?

At two different sessions on testing and counseling, speakers highlighted the increased numbers of people tested through Botswana’s provider-initiated testing system. However, it was only in response to an audience member’s question that one scientist admitted they were only now starting to consider evaluations that might also assess client satisfaction, access to ART and possible negative impacts subsequent to testing.

The ATHENA Network and International Community of Women Living with HIV/AIDS (ICW), with assistance from the Center for Health and Gender Equity (CHANGE), organized a press conference to highlight the need to examine testing from a gender perspective. For example, the experiences of ICW members point to the fact that “Testing services often do not address the stigma, discrimination and related violence, and loss of livelihood that many women face if their status becomes known. This makes seeking treatment and care a devastating prospect for many.”

The questions raised about the push for testing were good and necessary. What we need to hear about as soon as possible, however, is how the challenges to human rights-based testing and counseling are being tackled. Just a few examples (there are more!). Many physicians are coming to Africa from other countries to help deal with the health-care worker shortage (e.g., from Cuba). How well can doctors who don’t speak local languages ensure that people are able to give informed consent for a test? A study coordinated by Ipas on meeting HIV-positive women’s health needs recommends that women living with HIV be paid as counselors, instead of having them supplement health services as volunteers. Health-care workers in Argentina confirmed that HIV-positive counselors can offer superior services – how many testing programs are taking this approach? How do testing protocols take into account follow-up of people who tested positive (e.g., in accessing ART if needed or in providing treatment and support for mothers and children)?

Regarding reproductive choice: in 1992, when ICW was founded, the network published 12 statements on what was needed to improve the situation of women living with HIV/AIDS; one of those statements was: “The right to be respected and supported in our choices about reproduction, including the right to have, or not to have, children.” In the 2002 Barcelona Bill of Rights, ICW and other organizations stated that a fundamental right for women and girls around the world is “to sexual and reproductive health services, including access to safe abortion without coercion.” So is reproductive choice receiving attention at the AIDS conference?

Some state that it was scarcely addressed; that is certainly true, for example, in comparison to prevention of perinatal transmission. But a few small steps forward have been made if we consider that the topic was virtually ignored in the past. About 20 poster and CD-ROM abstracts included the topic of pregnancy termination or integration/linking of HIV/STI and abortion services; several called for access to safe abortion services or noted how current laws create obstacles for women.

Of course, many people will not read the abstracts and did not see the posters. So was the topic visible otherwise? The T-shirts given away to participants in the Women’s March and Rally (the first to be officially endorsed by an AIDS conference) featured the Barcelona Bill of Rights, including access to safe abortion. Buttons distributed by the ATHENA Network and Blueprint Coalition asked for “sexual rights, reproductive choice and healthy motherhood.” And in an opening plenary speech on the first day of the conference, Louise Binder highlighted the need for women to have access to safe abortion for all indications permitted by law. Now we need to ensure that the 2008 International AIDS Conference includes at least one oral abstract, round-table or panel discussion session on reproductive choice with discussion of issues such as antenatal care for women who choose to become pregnant after knowing their status, access to safe abortion and integration/linkage of postabortion care services into HIV/AIDS information and services, coercive abortion/sterilization as human rights violations, and the possibility of adoption for HIV-positive parents.

One final observation: Louise’s plenary was the final one on 14 August and previous speakers had exceeded their allotted time. This resulted in many delegates leaving the session to go to the next one; considerable numbers of women also left the room before hearing the presentation on women and HIV/AIDS. When her presentation went a bit long, the chair of the session (a woman!) cut off her microphone. To her credit, however, Louise stood her ground, refused to budge and was supported by remaining delegates so that eventually her microphone was turned back on and she could finish. The most insulting thing about this was the chair’s admonition that Louise had to conclude because the next session was about to start and included “important people – Bill Clinton and Bill Gates.” Now what does that say to us about women having a fully recognized and meaningful place at the table??

Some references:

ATHENA Network:

ICW press release on testing: study:

Roundups Politics

Campaign Week in Review: Clinton and Sanders Tweet Against Anti-Choice Measure

Ally Boguhn

The candidates used social media to call on Florida Gov. Rick Scott to veto anti-choice legislation.

Clinton and Sanders Tweet Criticisms of Anti-Choice Legislation

Presidential candidates Hillary Clinton and Sen. Bernie Sanders (D-VT) took to Twitter this week to speak out against anti-choice legislation and to urge Florida Gov. Rick Scott (R) to veto legislation targeting reproductive rights. 

In a series of tweets signed “-H,” indicating that they come from the candidate herself, Clinton wrote that “States like Ohio, Utah, and Florida that attack Planned Parenthood are attacking women’s health, and they’re part of a dangerous trend.” The Democratic presidential candidate noted that if “efforts to roll back women’s rights seem relentless, you’re right: States have enacted 282 abortion restrictions since 2010.”

Clinton called on Scott to “do the right thing and protect a woman’s right to make her own health decisions,” referring to an opportunity to veto anti-choice legislation passed Wednesday by the Florida’s GOP-majority state senate. The measure would force doctors who offer abortion care to have admitting privileges at local hospitals and ban abortion clinics from receiving state funding for cancer screenings, HIV testing, and other forms of preventative care.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

The medical community has called admitting privileges laws medically unnecessary. Anti-choice legislators and activists characterize these laws as safety measures for pregnant people, though an anti-choice leader outside the Supreme Court this month said that admitting privilege laws are designed to destroy abortion care access.

Meanwhile, Sanders’ campaign in a Wednesday tweet flatly called on Scott to “veto this bill. Don’t play politics with abortion.”

“This is not about abortion services,” Barbara Zdravecky, CEO of Planned Parenthood of Southwest and Central Florida, said of the bill, according to the Orlando Sentinel. “This is about contraception, STD diagnosis and treatment, cancer screening, pap smears. They’re taking that all away.”

Trump: ‘”I Think Islam Hates Us”

Donald Trump doubled down on the comments he made about Islam earlier this week during Thursday night’s Republican presidential debate, charging that Americans should be wary of Muslim “hatred” of the United States.

“I think Islam hates us. There’s something thereit’s a tremendous hatred,” Trump said Wednesday, speaking with CNN’s Anderson Cooper. When pressed by Cooper to clarify whether that hatred was “in Islam itself,” Trump replied that, “you’re gonna have to figure that out, OK?”

CNN debate moderator Jake Tapper again pressed the issue with the leading Republican candidate, asking if his comments referred to “all 1.6 billion Muslims.”

“I mean a lot of them,” Trump replied.“There’s something going on that maybe you don’t know about, maybe a lot of other people don’t know about, but there’s tremendous hatred. And I will stick with exactly what I said to Anderson Cooper.”

Trump returned to the topic after Sen. Marco Rubio (R-FL) criticized his comments, asserting once again that “there is a tremendous hate” in Islam.

“There is tremendous hate. Where large portions of a group of people, Islam, large portions want to use very, very harsh means,” Trump said.  “Let me go a step further. Women are treated horribly. You know that. You do know that. Women are treated horribly, and other things are happening that are very, very bad. … The question was asked, what do you think? I said, there is hatred. Now it would be very easy for me to say something differently. And everybody would say, oh, isn’t that wonderful.”

Trump’s assertion comes months after he called for a “total and complete shutdown of Muslims entering the United States” in the aftermath of attacks in Paris and San Bernardino, California. Trump justified his stance by similarly claiming that there is a “great hatred towards Americans by large segments of the Muslim population.”

What Else We’re Reading

Mother Jones analyzes the Democratic presidential candidates’ positions on abortion rights later in pregnancy, finding that although Sanders is against restrictions on abortion access, Clinton’s position isn’t as clear.

Meet Lucia Quiej: The Guatemalan immigrant mother who questioned Democrats about family reunification during Wednesday night’s debate.

The Washington Post profiles Donald Trump’s sister, the “tough, respected federal judge Ted Cruz called a ‘radical pro-abortion extremist.’”

Bernie Sanders lent his support to destigmatizing breastfeeding this week. After a photo showing a Sanders supporter breastfeeding at a campaign rally gained attention, the Sanders campaign tweeted that “As a society, we should never stigmatize women for breastfeeding in public.” The woman in the photo wrote on Facebook that after the rally, “Bernie and Jane O’Meara Sanders both thanked me for doing what mothers do and taking care of my daughter when she needed her mom, even if that meant nursing in public!”

Commentary Law and Policy

Is One-Sixth a ‘Large Fraction’ When It Comes to Our Constitutional Rights?

David S. Cohen & Jeffrey B. Bingenheimer

When the Supreme Court hears oral arguments Wednesday in Whole Woman’s Health v. Hellerstedt, the most important abortion case before the Supreme Court in more than two decades, the resolution of the case may just come down to how the justices regard that fraction.

Read more of our coverage of ​Whole Woman’s Health v. Hellerstedt​ here.

This article is based on a new study published in the University of Pennsylvania Law Review Online

If we told you that one-sixth of pregnancies in the United States would result in the death of the pregnant person, would you consider that number a large fraction?

How about if one-sixth of your life savings were wiped away in a banking error? Would you think one-sixth was a large fraction then?

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

When the Supreme Court hears oral arguments Wednesday in Whole Woman’s Health v. Hellerstedt, the most important abortion case before the Supreme Court in more than two decades, the resolution of the case may just come down to how the justices regard that fraction.

At issue in the case is a Texas law that, among other provisions, would require doctors who perform abortions to have admitting privileges at local hospitals and require abortion clinics to meet the exacting requirements of ambulatory surgical centers. If the law is allowed to go into effect, advocates say, all but nine or ten of the state’s abortion clinics will close. About 900,000 Texas women of reproductive age would have to travel more than 150 miles each way in order to reach one of those remaining clinics. With about 5.4 million women of reproductive age in the state, that would mean one-sixth of Texas’ women would face a serious obstacle in obtaining an abortion.

Why does it matter what fraction of women are affected? In a line of cases starting with Planned Parenthood v. Casey in 1992, the Supreme Court and other federal courts have ruled that an abortion restriction will be found unconstitutional if it constitutes an “undue burden” on a woman’s right to choose. The Court explained further that an undue burden exists when the law is a substantial obstacle for a “large fraction” of people who are subject to that restriction.

Casey involved a Pennsylvania law that would have required married women to notify their husbands before they got an abortion. The Court reasoned that this provision only really affected women who were not in trusting relationships with their husbands. Based on the evidence before the Court, many of those women were in abusive relationships—so for an unspecified large fraction of them, requiring them to tell their husbands would be a substantial obstacle. Thus, this part of the law was struck down as unconstitutional.

In Whole Woman’s Health, however, the Fifth Circuit Court of Appeals upheld the law, concluding that one-sixth is “nowhere near” a large fraction; in a separate case, the same court ruled that a restriction that does not fall on the “vast majority” of women can never be a large fraction. Whether the Supreme Court agrees with the Fifth Circuit on this issue could very well determine the outcome of Whole Woman’s Health.

So is one-sixth a large fraction? We considered this question in a new study we published in the University of Pennsylvania Law Review. In it, we argue that the Fifth Circuit ignored the common understanding of one-sixth and the concept “large fraction.” The Supreme Court needs to take this study’s findings into consideration.

In our study, we distributed an online questionnaire (which you can take at the link) to potential respondents through Amazon’s Mechanical Turk system. The questionnaire included a few questions about respondents’ demographic characteristics and political orientation. Of primary interest, however, were 12 scenarios that we asked respondents to read. Each scenario featured the fraction one-sixth, and after each, we asked respondents, “In this scenario, do you consider one-sixth to be a large fraction?” Respondents could answer “yes” or “no.” We randomized the order in which the scenarios were presented.

We ended up with a sample of 504 individuals. The sample was heterogeneous: 76 percent of participants self-identified as white, 9 percent Asian or Pacific Islander, 7 percent African-American, 3 percent Hispanic or Latino, and 5 percent mixed-race or other. Fifty-seven percent of respondents were male. They ranged in age from 18 to 76 years, with almost 70 percent being between 25 and 44 years old. What did we find?

First, it is easy to invent hypothetical scenarios in which the vast majority of people will describe one-sixth as a large fraction. When presented with a scenario in which one-sixth of tablets in a bottle of Tylenol were laced with the poison cyanide, 91 percent of respondents reported that one-sixth was a large fraction. When the scenario involved your boss requiring you to donate one-sixth of your take-home pay to her daughter’s elite private school, 93.5 percent of respondents did so.

Second, we found that changing key elements of otherwise similar scenarios can result in large differences in the proportion of respondents who described one-sixth as a large fraction. For example, we presented two scenarios, each of which involved a local business with 100 employees working at its main office. In one scenario, we said that the employees normally arrive on time, but that one day, one-sixth of them arrived to work late. In the alternate scenario, we said that one-sixth of employees of that business were killed one day in separate individual car accidents. When the scenario involved employees being late, only 28 percent of respondents described one-sixth as a large fraction; when it involved employees being killed in car accidents, fully 92 percent did so. Clearly, whether one-sixth is a large fraction depends heavily upon the baseline expectation in the scenario in which it is presented.

We also presented two politically charged scenarios, and examined how respondents’ tendency to describe one-sixth as a large fraction in these scenarios depended upon their own political orientation. One scenario mirrored closely the law at issue in Whole Woman’s Health: A state enacts a law that forces abortion clinics to close, and as a result, one-sixth of women of reproductive age would have to travel 150 miles or more to get to a clinic that remained open. A companion scenario involved a state law that forced gun stores to close, leaving one-sixth of the state’s adult residents 150 miles or more away from a gun store that remained open. Overall, 76 percent of respondents agreed that one-sixth was a large fraction in the abortion clinic scenario, whereas 52 percent did so in the gun store scenario.

What was most interesting, however, was how these responses varied according to respondents’ political orientation. We asked respondents to place themselves along a five-point scale, from very conservative to very liberal. In the abortion clinic scenario, 88 percent of people who described themselves as very liberal, compared to 48 percent of people who described themselves as very conservative, agreed that one-sixth was a large fraction. The pattern was reversed in the gun store example: 38 percent of people who said they were very liberal, versus 62 percent who said they were very conservative, described one-sixth as a large fraction in that scenario. 

Screen Shot 2016-02-29 at 9.58.52 AM

These results would not be surprising to a linguist. The adjective “large” has no absolute meaning, and becomes meaningful only in relation to a comparison group or baseline set of expectations. The basketball player Manute Bol is a large person, compared to other people, or even other NBA players. But a redwood tree of the same size would be considered small, and a planet the size of Manute Bol would be … not a planet at all.

What does all of this mean for Whole Woman’s Health? The Court has never specified what exactly a “large fraction” is under the Casey test, so the everyday English understanding of the phrase matters. With that in mind, the Fifth Circuit’s claims—that only a “vast majority” can count as a “large fraction” and that one-sixth “nowhere near” qualifies—is clearly at odds with common usage.

As our questions about political orientation indicate, the Supreme Court justices should be particularly careful to not to use superficial arguments to provide intellectual cover for their own moral beliefs or political views about abortion.

In its consideration of the case, the Court must provide a more sophisticated analysis that recognizes not only that one-sixth clearly can be a large fraction in some scenarios, but also that the determination has much to do with assumed expectations and values. In particular, if the justices value a woman’s constitutional right to choose to have an abortion, then one-sixth should be seen as a large fraction—because our baseline expectation should be that few people have their constitutional rights denied.