As each of us examines who will be our next president, a mere 447 days from today, I hope we will raise our voices loud enough to bring sunshine into the process. Transparency in government might not be a hot, pressing topic, but it ought to be–especially when the lack of it puts the global health and rights of women at risk.
A Presidential veto looms over the Foreign Operations Appropriations Bill, in large part because the President objects to the section of the bill that is meant to bring much-needed transparency to our government.
According to President Bush's Statement on Administrative Policy, the President objects to "burdensome reporting requirements in the Foreign Operations Appropriations Bill with regard to Executive decisions to withhold funding from organizations that support or participate in coercive abortion or involuntary sterilization programs."
This directly refers to the language the Administration has used to withhold funding from UNFPA, the United Nation's Population Fund, for the past 6 years and recent Congressional attempts to put the spotlight on the Administration's actions. UNFPA operates in over 140 countries around the world and is the largest international source of assistance for women.
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I guess it would be burdensome for this Administration to explain why they are withholding funds from UNFPA, especially after the State Department under Secretary Colin Powell itself stated that UNFPA is not engaging in coercive abortions or sterilization programs.
After six years of denying these funds, it makes sense that Congress is asking the Administration to shed some light on their justification.
The Administration might actually have to admit that they don't have any concrete reason for withholding these funds.
The Administration might have to admit they are playing politics with the lives of women around the world.
The probability of this threat is tragic, especially now, when there is a clear and unequivocal imperative for the United States to lead international efforts to support the health and dignity of women around the world just as we did in 1969, when we helped to establish UNFPA. Congress has shown its willingness to allocate funds for UNFPA, but it is ultimately the responsibility of the President to lead. Unfortunately, we haven't seen the leadership we need in over six years.
I believe it's burdensome that every minute a woman dies in childbirth. And for every woman who dies, 20 more experience serious complications such as obstetric fistula. More than 200 million women worldwide want, but don't have, access to safe, modern contraception. Each day, 14,000 people are newly infected with HIV, and increasingly, those infected are young, married women. We need to put an end to these preventable tragic deaths. No amount of paperwork in the world is more burdensome than saving a life.
That's why it's indefensible for the Administration take the easy way out and avoid explaining why funding approved by Congress is repeatedly withheld from UNFPA. Adding insult to injury, there is an eerie silence around this issue – very few people are questioning the administration.
In the second part of Rewire’s “Living in the Shadow of Counterterrorism” series, we look at how Muslim families, particularly women, are forced to confront state violence on a daily basis—from living with the stigma of terrorism, to repairing their broken homes, to navigating what they say is a brutal and biased prison system.
This is the second article in Rewire’s “Living in the Shadow of Counterterrorism” series. You can read the other pieces in the series here.
When Virginia native Mariam Abu-Ali was 14 years old, her life abruptly turned upside down. It was 2003, two years after the September 11 attacks and well into an era of counterterrorism tactics that were systematically hollowing out Muslim residents’ civil liberties and constitutional protections in the United States. But the Abu-Ali family never imagined they would be caught up in the dragnet.
Mariam’s then-22-year-old brother, Ahmed Omar, had been studying in Medina, Saudi Arabia, when he was arrested in connection with a series of May 2003 terrorist attacks in Riyadh.
In an interview with Rewire, Mariam says her brother, who was born in Texas, was held in solitary confinement in a Saudi jail for nearly two years without ever being charged with a crime. During that time, Mariam tells Rewire over the phone, there is strong evidence that he was tortured. Although defense expert Dr. Allen Keller, director of the Program for Survivors of Torture at the Bellevue/NYU Hospital, examined Ahmed and testified at his U.S. trial to the evidence of torture, an appeals court eventually ruled that Ahmed’s statements to Saudi interrogators were “voluntary.”
When, after months of legal pressure from his family, he was finally returned to the United States, a court for the Eastern District of Virginia charged him with multiple counts, including conspiring with an Al-Qaeda cell in Medina to carry out terrorist attacks on U.S. soil. Following a trial that permitted the admission of what Mariam called “a coerced confession,” he was eventually sentenced to 30 years in prison, and later re-sentenced to life.
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Yet as legal experts like Elaine Cassel, author of The War on Civil Liberties: How Bush and Ashcroft Dismantled the Bill of Rights, have pointed out, “Nowhere in the indictment [was] Abu-Ali tied to any terrorist event or action”—either in the United States or in Saudi Arabia.
Instead, his case fell under the shadowy material support statutes that have governed much of the United States’ counterterrorism operation in the years since 9/11, under the USA Patriot Act of 2001. This set of laws allows the U.S. government to preemptively prosecute individuals for engaging in terrorism based on their perceived predisposition toward violence, rather than their actions. Over the past 15 years, hundreds of Muslims have disappeared in a warren of these convoluted laws; they are currently locked up in high-security prisons around the country.
A constellation of families, scholars, activists, and civil rights organizations have long challenged the effects of material support charges, as well as the unfair trials and the lengthy and harsh prison sentences that tend to follow them. Over the past few years, they have come together in a campaign called No Separate Justice, an attempt to unite far-flung groups and individuals who are working to dismantle what they say is a parallel and unjust legal system for Muslim residents in post-9/11 America.
Women like Mariam Abu-Ali have been at the forefront of the movement—along with Zurata Duka and Shahina Parveen, whose stories Rewire has previously reported on—advocating on behalf of their loved ones.
In the second part of Rewire’s “Living in the Shadow of Counterterrorism” series, we look at how families, particularly women, are forced to confront state violence on a daily basis—from living with the stigma of terrorism, to repairing their broken homes, to navigating what they say is a brutal and biased prison system.
“Dangerous” Minds, Draconian Measures
Mariam Abu-Ali says her brother’s case represents many of the civil rights violations that have marred the decade and a half since 9/11, a sentiment that is echoed in the final opinion on Ahmed Omar’s case penned by the U.S. Court of Appeals for the Fourth Circuit.
In its unanimous decision to uphold the guilty verdict on nine terrorism-related counts against Ahmed in 2008, the three-judge bench wrote:
Persons of good will may disagree over the precise extent to which the formal criminal justice process must be utilized when those suspected of participation in terrorist cells and networks are involved … the criminal justice system is not without those attributes of adaptation that will permit it to function in the post-9/11 world.
While the opinion does not explicitly state what these “attributes of adaptation” are, studies on counterterrorism indicate they could refer to any number of legal practices that have become normalized since September 11. In particular, they could refer to the use of material support statutes, which have played a significant role in the prosecution of Muslim Americans like Ahmed Omar.
As FBI Assistant Director Gary Bald testified to the Senate Committee on the Judiciary in 2004:
It would be difficult to overstate the importance of the material support statutes to our ongoing counterterrorism efforts. The statutes are sufficiently broad to include terrorist financers and supporters who provide a variety of resources to terrorist networks. The statutes provide the investigative predicate which allows intervention at the earliest possible stage of terrorist planning to identify and arrest terrorists and supporters before a terrorist attack occurs. [Emphasis added.]
In short, material support statutes have enabled federal authorities to prosecute people based on suspicion of what they might do in the future rather than any overt criminal act. The statutes primarily refer to “support” for terrorist networks as weapons, arms training, or direct funding. Prosecutors, courts, and juries, however, have interpreted the laws much more broadly to encompass the sharing of religious or political texts online, casual conversations between friends, or charitable donations to organizations in areas controlled by terrorist groups.
In many instances, material support charges have amounted to nothing more than thought crimes, in which law-abiding Muslim residents have been penalized simply for expressing their religious and political views.
According to a 2014 report by Human Rights Watch, material support cases rose sharply in the decade following the September 11 attacks. Prior to 9/11, just six individuals had been charged under these laws in the United States. In the decade following, 168 of 917 domestic terrorism convictions analyzed by HRW fell under such statutes, accounting for 18 percent of all terrorism-related convictions in that time period.
Even a cursory look at some of these cases is sufficient to grasp the breadth of these laws, which have pushed deep into Muslim communities, tearing through many layers of social fabric along the way.
In 2012, the New York Times published an op-ed by Yale professor Andrew March on the case of Tarek Mehanna, a Pittsburgh-born doctor and community leader who was sentenced to 17 and a half years in prison because his opinions about Islam, expressed online, were deemed a form of material support for terrorist causes.
March wrote in the Times:
As a political scientist specializing in Islamic law and war, I frequently read, store, share and translate texts and videos by jihadi groups. As a political philosopher, I debate the ethics of killing. As a citizen, I express views, thoughts and emotions about killing to other citizens. As a human being, I sometimes feel joy (I am ashamed to admit) at the suffering of some humans and anger at the suffering of others. At Mr. Mehanna’s trial, I saw how those same actions can constitute federal crimes.
March’s op-ed illustrates a frightening truth about material support statutes: They allow for the preemptive prosecution of individuals who have not yet committed a crime but whom the government deems capable of possibly committing a crime in the future.
Other cases, such as the Holy Land Five, demonstrate a pattern in which material support laws have essentially criminalized charitable giving. The case involved the founders of the Holy Land Foundation, a Muslim charity that provided humanitarian aid to the needy, including women and children in Palestine. Though the government concluded that the Holy Land Foundation never directly aided a terrorist organization, it nonetheless prosecuted five of its members for funneling aid through charitable committees into areas controlled by Hamas, a designated Palestinian terrorist group, thereby violating material support statutes. Journalists called the verdict an attack on Islam itself, particularly the practice of zakat, which mandates that Muslims allocate a portion of their wealth or earnings for charitable causes.
From its very inception, the No Separate Justice (NSJ) campaign has fought this flawed notion, with mothers and sisters of the accused becoming the movement’s most prominent spokespeople. NSJ initially coalesced around the case of a Muslim American named Fahad Hashmi.
Hashmi had been working toward a master’s degree in international relations at London Metropolitan University when he was arrested at Heathrow Airport in 2006. In 2007 he became the first U.S. citizen to be extradited following the loosening of restrictions around the process after 9/11, according to an article by Jeanne Theoharis, a political science professor at Brooklyn College and co-founder of the NSJ campaign, who taught Hashmi as an undergraduate.
He was initially held in pretrial solitary confinement at the Metropolitan Correction Center (MCC) in downtown Manhattan. MCC’s notoriety was cemented in a 2010 New York Timesarticle that quoted a former Guantanamo detainee, who was also held at the MCC, as saying the Cuban military prison was “more pleasant” and “more relaxed” than the federal detention facility in New York City.
Hashmi was also subjected to special administrative measures, government restrictions on a terror suspect’s communications that amount to a gag order on the case and their conditions of confinement. Advocates say these were drastic measures relative to the charges against him: Hashmi’s only crime, according to Theoharis’ article, was allowing an acquaintance to spend a night in his apartment, an acquaintance who would later deliver a suitcase of raincoats and waterproof socks to Al Qaeda members. This same acquaintance would later become a cooperating witness for the government in exchange for a more lenient sentence, and testify against Hashmi in a trial that ended with a guilty verdict and a 15-year sentence.
Stunned by Hashmi’s conditions of confinement, a group called Theaters Against War linked arms with Educators for Civil Liberties and the Muslim Justice Initiative to host weekly vigils outside the MCC in 2009. These gatherings, which continue to this day, form the nucleus of the NSJ movement.
“We wanted to build a coalition so people from different backgrounds could bring their institutional expertise and moral conscience into the same arena as family members, and create a space where people could express outrage at what was happening,” Sally Eberhardt, one of NSJ’s earliest organizers, tells Rewire.
At first, larger civil liberties groups kept their distance, possibly because “this isn’t exactly the most funder-friendly issue in the world,” Eberhardt suggests. But advocates persisted, holding candlelight protests even on the bitterest winter nights, singing songs and chanting poems in the shadow of the detention center. Those intimate gatherings formed the basis of what is now a national movement, encompassing multiple organizations and dozens of families.
Two outspoken leaders are the Sadequee sisters, Bangladeshi Americans who have been among the strongest advocates of prisoners’ rights and the most public critics of the government’s targeting of Muslim men—including their brother, Shifa.
From the Streets to the Prayer Rug: Pushing Back Against State Violence
Ehsanul “Shifa” Sadequee was born in Virginia and grew up in Atlanta, Georgia, the youngest of four siblings in a Bangladeshi-American family. According to his sisters, he was a curious and exceptionally kind child, who by his early teens had grown into a devout and diligent religious scholar.
In 2005, when he was just 18 years old, Shifa traveled to Bangladesh. In April 2006 he got married, but 12 days after his wedding, Bangladeshi authorities took and detained him, apparently at the behest of the U.S. government, for allegedly making false statements to the FBI at John F. Kennedy Airport on his way to Bangladesh the previous year.
Shifa’s sister Sonali, who is based in Atlanta, tells Rewire that this initial charge and arrest, which the High Court Division of the Supreme Court of Bangladesh later deemed a violation of international laws, was a terrifying process for the entire family. For days after Shifa was taken they had no news of his whereabouts. Fears that he would somehow wind up in Guantanamo, ensnared in the web of the “war on terror,” gnawed at the edges of their minds but the family pushed these aside, telling themselves that because Shifa had done nothing wrong, they had nothing to fear. With the phone ringing off the hook and the television on 24/7, they gleaned what scraps of information they could from CNN news reports.
It transpired that upon his arrest in Bangladesh, Shifa was stripped naked, wrapped in plastic, and flown via Alaska to New York, Sonali says, where he spent over three months at the Metropolitan Detention Center (MDC) in Brooklyn before being transferred to the federal penitentiary in Atlanta, Georgia. Shifa spent more than three years in pretrial solitary confinement before ever being formally charged with a crime, his sister said.
Once Shifa was inside the criminal justice system, Sonali explains, federal authorities quickly dropped the initial charges against him and began to build a case around allegations of material support.
At the heart of the case was Shifa’s renown as an Islamic scholar with a larger-than-life online persona—he had studied classical Arabic and the history of religion as a student in Canada and was a gifted translator, often sharing interpretations of Islamic or political texts on the internet. The Sadequee family says Shifa’s trial was riddled with shortcomings, including the use of previously classified evidence and the selection of jurors who admitted to having anti-Muslim bias—which Human Rights Watch says is a common problem. In addition, the prosecution used Shifa’s ideology as a brush with which to paint him as a fearsome radical, on the verge of carrying out a violent attack on U.S. soil.
Although Shifa, according to Sonali, never engaged in any actions beyond practicing free speech, he was found guilty on four terrorism counts in 2009 and, at the age of 23, sentenced to 17 years in federal prison. He represented himself at the trial, making him one of the first Muslim youth to do so in a national security case, according to his sisters.
Both Sonali and Sharmin Sadequee, who is based in New York, have been mobilizing on his behalf for over a decade. After years of shielding themselves from the backlash of isolation and Islamophobia that invariably accompanies charges of terrorism, the young women have turned their advocacy into an art form.
In an interview with Rewire, Sonali explains that when her brother was arrested, the women in her family developed an organic division of labor that allowed them to form a united front against the horror and uncertainty that had descended on their lives.
“I was already plugged into the social justice community in Atlanta, so I saw my role as tapping into that support network, bringing resources to my family to make sure we all understood the human rights issues involved, ensuring we had the skills to confront the media, which was bombarding us at the time,” she says. Her sister, meanwhile, dealt with the prisons, navigating bureaucratic visitation rules and ensuring Shifa had what he needed on the inside.
“Sharmin and my mother also reached out to the Muslim community, to mosques and other groups,” Sonali continues. “And the rest of the time, my mother was on the prayer rug. I don’t know how many hours she spent kneeling and praying.”
They built a website that is always fresh with the latest news about Shifa’s case and serves as a hub for their activism—they recently announced a letter-writing campaign to mark Ramadan, inviting more than 1,000 followers of a Justice for Shifa Facebook group to send greeting cards to Muslim prisoners. Countless hours are eaten up attending rallies, speaking on panels, or sitting with reporters, patiently unpacking the messy details of Shifa’s case.
The irony is that while the Sadequee sisters make a powerful team, they are constantly called upon to do what they say is the hardest thing of all: relive a time in their lives they would rather forget.
“I don’t like to do these interviews,” Sonali says bluntly. “I don’t enjoy them at all—but I recognize they have to be done. Only by sharing what happened to us, by talking about it, will others learn from it.”
They say they have been trying to create collective responses to state violence resulting from the “war on terror,” and hope to combat the government’s tactics of fear and isolation by building community power and resiliency. But this is easier said than done: Not only must the Sadequees contend with the lingering stigma of Shifa’s trial, but they also, until very recently, had to deal with the trauma of visiting their brother in a prison unit that has been described by former detainees as “Little Gitmo.”
CMUs: “A Religious and Political Quarantine”
Between 2009 and 2015, Shifa was imprisoned in the Communications Management Unit (CMU) at the federal detention center in Terre Haute, Indiana, a segregated portion of the prison comprised almost exclusively of Muslim men that has been the subject of a legal battle since 2010.
This past March, the Center for Constitutional Rights (CCR) urged the Court of Appeals for the District of Columbia to reinstate a lawsuit the group first filed six years ago challenging CMUs, which the Bureau of Prisons (BOP) quietly ushered into existence under the Bush administration—the first in 2006 in Indiana, and the second in 2008 in Marion, Illinois.
Conditions in these units, which house 60 to 70 prisoners combined, are harsh, according to the CCR: Although inmates are not held in isolation, they are banned from having any physical contact with family members during visits, and their calls are restricted to two per week, each for 15 minutes. By contrast, other BOP inmates are allowed 300 minutes worth of calls every month.
CCR claims the CMUs violate prisoners’ procedural due process rights, and argue that placement in these units is both arbitrary and retaliatory, with Muslim prisoners vastly overrepresented.
“Between 2006 and 2014, about 170 individuals filtered through these units and 101 of them—about 60 percent—were Muslims, even though Muslims only constitute 6 percent of the general federal prison population,” CCR Senior Staff Attorney Rachel Meeropol tells Rewire in a phone interview.
CCR reported in 2010 that in Marion, 72 percent of current CMU prisoners were Muslim, a 1,200 percent overrepresentation, while two-thirds of the CMU population in Terra Haute was Muslim, 1,000 percent higher than the national average of Muslim prisoners in federal facilities.
“We are challenging the lack of procedural protections before prisoners are placed in the CMU and also alleging that placement is in retaliation for protected political and religious speech,” Meeropol says, pointing out that inmates in the CMU are seldom given reasons for why they were moved into the units, and are routinely denied opportunities to earn their release into general population.
“CMUs are essentially a religious and political quarantine, the same kind of segregation that has supposedly been outlawed in this country,” she added.
In response to multiple requests for comment about these allegations, Justin Long with the Office of Public Affairs at the Information, Policy and Public Affairs Division for the BOP said in an email to Rewire, “The Bureau of Prisons cannot comment on matters currently in litigation,” and directed Rewire to the Bureau’s web page on CMUs.
In addition to being hard on inmates, Meeropol says CMUs are also “debilitating” for families, especially those with young children who cannot communicate with their fathers through letters, and often cannot understand why they are forced to speak to them through glass, using phones that are monitored by prison staff.
“Several mothers have told me that they’ve stopped bringing their children on visits because it was just too devastating,” Meeropol says.
The Collective Trauma of “Supermax” Prisons and Solitary Confinement
The alternative, some might say, is even worse. All over the country, Muslim prisoners are serving decades-long sentences in solitary confinement, which the United Nations has recognized as a form of torture. Advocates and relatives of terror suspects, or those incarcerated on terrorism charges, have long cried foul over these conditions of confinement, which they say is a form of collective punishment on entire families.
Zurata Duka, whose three sons, Dritan, Shain, and Eljvir were arrested in a manufactured terror plot by the government in 2007, is well aware of the toll of solitary confinement. Her sons have spent dozens of years between them in complete isolation, including long stints at the maximum-security facility in Florence, Colorado.
“My sons are strong—they never let us see them cry, even when their daughters are crying on the other side of the glass,” she says to Rewire. “But once my son Dritan told me he nearly lost his mind in isolation.”
Before his arrest, Zurata tells Rewire, Dritan had been very close with his youngest daughter. Every night he would put her to sleep, stroking her hair and singing lullabies. In those early days after he was taken away, the little girl would lie awake at night, calling out for her father. Unbeknownst to the family, thousands of miles away, Dritan was experiencing something similar.
“He told me, ‘Mom, I don’t know what happened. For three days I just lay there, stroking my pillow, thinking it was [his daughter]. I didn’t know who I was and I don’t know how I came back,’” Zurata recalls him saying.
His daughter was so desperate to see him that one day she penned a note to the president. It read: “Dear Mr. Obama. Today is my birthday. I am five years old. Please, if you can, bring my father back just for one day, so I can hug and kiss him, and then, if you want, you can take him back again.” Zurata says she mailed the letter to the White House. She never heard back.
Almost every family has a similar story. According to Mariam Abu-Ali, conditions of confinement often come up at annual gatherings of affected families, which she organizes in her role as director of the Prisoners and Families Committee at the National Coalition to Protect Civil Freedoms.
“About 90 percent of the attendees are women,” she says in a phone interview with Rewire, “and they bring a lot of pain and anxiety into the room. But I’d say the meetings are cathartic,” she adds. “It’s the place where we build bonds with the only people who know what we’re going through.”
Several women who’ve attended the conference in the past tell Rewire they are powerful spaces, offering families a rare chance to speak openly about their lives without fear of being misunderstood, judged, or pitied. It is also a moment for families, particularly women, to share in the collective nature of their trauma, especially the pain of incarceration.
In the 13 years that her brother has served, Mariam says she has come to the painful realization that prisons don’t just lock up individuals—they are a form of bondage on the entire family.
Because Ahmed Omar is imprisoned 1,600 miles from the family’s home in Virginia, in one of the BOP’s maximum-security facilities in Colorado, they only see him once or twice a year. Visits are limited to three family members at a time, meaning Mariam has not seen Ahmed in two years. He reserves his two monthly phone calls for his parents, so she can only hope to talk to him when she visits them. Even these calls are a source of enormous frustration. As she wrote in a recent op-ed:
My mom has spent every Tuesday and Thursday of the last decade, at home, sitting by the phone, patiently waiting for a call that sometimes did not come. And when the call does come, what can one even discuss in 15 minutes? Do you ask him how he’s doing? How can you even ask him how he’s feeling? Do you discuss his prison conditions? His legal case? How do you break the news to him when his aunt or grandfather has passed away?
“What you have to understand is that my brother’s case wasn’t just one devastating ‘moment’ in our lives—it’s a lifelong struggle,” Mariam tells Rewire. “This is not something you ever get used to, or accept. It’s about learning new ways of coping every single day, like living with a chronic illness.”
Each day brings fresh challenges, and tough decisions. For instance, Mariam used to maintain a website, manage a Facebook page, and post daily updates on a Twitter account all relating to her brother’s case. One day she felt she just couldn’t do it anymore.
“At a point you have to ask yourself—do I work full time and provide for my family or do I advocate full time on behalf of my loved one?” she asks. “This work, it’s emotionally draining, it’s a daily struggle and it doesn’t necessarily get easier with time.”
CORRECTION: An earlier version of this article misidentified the officials whom Shifa Sadequee had been accused of making false statements to. It was FBI officers, not immigration officials.
A brief filed on behalf of individuals affected by efforts to block the contraception benefit in the Affordable Care Act details what's at stake should the Supreme Court rule against the Obama administration's religious accommodation.
The case against the Affordable Care Act’s (ACA) birth control benefit, Zubik v. Burwell, is the fourth challenge to the ACA the Supreme Court has heard so far. But for the first time, individuals who depend on the insurance protections in conservatives’ cross-hairs will be able to have their stories heard by the Court directly, during oral arguments in late March. Their testimonies make it clear that stripping the benefit would make accessing care even more precarious—especially for students who become pregnant and find themselves without any accommodations at their institutions.
Zubik is actually a group of cases, each challenging the accommodation available for those religiously affiliated employers who want to opt out of providing their workers insurance coverage for birth control.
Americans United for the Separation of Church and State (AU), a nonprofit legal advocacy organization, successfully intervened as a third party in the contraception challenges on behalf of a University of Notre Dame student in January 2014. The organization recently filed a brief to the Roberts Court on behalf of 240 students, faculty, and staff at religiously affiliated universities—the first of its kind to cite the personal stories of those whose benefits are in danger.
“The voices of affected women have been conspicuously absent from most of the lawsuits seeking to block contraceptive coverage,” said AU’s Senior Litigation Counsel Gregory M. Lipper in a statement following the filing of the brief. “As our brief makes clear, women will suffer concrete and profound harms if religious objectors succeed in blocking their access to vital healthcare.”
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The religiously affiliated institutions challenging the contraception benefit argue that the task of filling out the form to opt out of providing coverage themselves “triggers” or “facilitates” the ability of their employees to get coverage elsewhere. This self-certification process, they claim, makes them “complicit” in the “sin” of facilitating contraception access, in violation of their religious beliefs. But according to the attorneys representing affected students and faculty, the plaintiffs are really arguing for the Court to rule that their religious rights trump the nondiscrimination guarantee built into the contraception benefit.
In other words, the plaintiffs are looking for the Court to grant them the right to exercise their religious beliefs in such a way as to actively and directly harm the rights of third parties like the students, faculty, and employees represented in the amicus brief.
“Whatever views petitioners or others may hold about contraception, they have no right to veto the government’s provision of benefits and thereby to strip these students, faculty, and staff of access to coverage for critical preventive care,” the brief states. “This Court has never before recognized a free-exercise right, under RFRA or otherwise, to so thoroughly undermine the rights of third parties. It should not do so now.”
The brief details the specific challenges already faced by students, employees, and faculty members at religiously affiliated institutions in accessing contraception coverage without discrimination and explains how a ruling against the contraception accommodation would exacerbate those challenges. This is especially true, it says, for students who face unplanned pregnancies. Insurance coverage for abortion services is almost nonexistent. But for those students who decide to continue their pregnancies, the brief says, religious institutions have a long history of refusing to accommodate single, pregnant students.
“Although Title IX of the Education Amendments of 1972 … protects access to educational opportunities for women who are pregnant or have children, compliance is uneven,” the brief states. “Schools often allow professors to set policies for their classes; and some professors refuse to accommodate students who miss deadlines because of pregnancy-related absences.”
“Universities may compound these problems by failing to offer health services and suitable housing for students who are pregnant or have children.”
The brief continues:
And in the last three years, the U.S. Department of Education’s Office for Civil Rights has resolved complaints alleging that colleges have denied pregnant students financial aid, required pregnant students to restart their degree programs after returning from maternity leave, and forced pregnant students to resign or face expulsion.
The combined effect of reduced access to contraception and noncompliance with Title IX’s protections may be especially severe for women at religiously affiliated colleges and universities. That is because Title IX exempts from its requirements “any educational institution which is controlled by a religious organization if the [requirements’] application * * * would not be consistent with the religious tenets of such organization.”
Eligible institutions have received waivers allowing them to expel unmarried students who become pregnant.
That’s right. As AU’s brief makes clear, religious institutions are arguing for the right to deny contraception access to all students, then kick the unmarried ones out of school should they become pregnant.
That’s why AU’s brief and intervention in these cases on behalf of affected students, employees, and faculty is so important. Reproductive rights jurisprudence is dripping with examples of attorneys and judges speaking for patients rather than to patients. Like the personal abortion stories shared in amicus briefs with the Supreme Court in Whole Woman’s Health v. Hellerstedt, hearing directly from those with the most to lose in these cases pushes against hyper-intellectualized narratives that leave real people out of the conversation. Federal judges—almost always men—agonize in opinions about the “difficult choices” women face in terminating a pregnancy. They wax poetic about nonexistent “abortion regret syndrome” and invoke the loftiest of rhetoric to explain why the courts and conservative lawmakers are better equipped to make reproductive health-care choices than women, who just can’t be trusted to negotiate these questions on their own.
Religious conservatives have tried to copy-and-paste those examples from abortion rights cases into the contraception challenges. Instead of pearl-clutching over “potential fetal life,” the religious objectors in these cases are stoking fears of the Obama administration forcing birth control on nuns. But as AU’s brief makes clear, in both the abortion and contraception cases, it really does boil down to the question of trusting women to make medical decisions that are best for them.
“In short, even a single unintended pregnancy may hinder or derail a woman’s opportunity to get an education, advance professionally, and have a career,” the brief states. “While many women will decide to make those sacrifices, contraceptive coverage enables them to decide for themselves whether and when to take on the added burdens.”
But like the never-ending conservative war on abortion rights, the contraception challenges make clear that conservatives will never trust women, as AU puts it, “to decide for themselves whether and when to take on the added burdens” of an unplanned pregnancy. If they did, these institutions would support pregnant and parenting students.
“By allowing women to control the timing and frequency of their pregnancies, reliable contraception has revolutionized women’s ability to make long-term plans about school, work, and marriage, allowing them to achieve personal, educational, and professional goals,” AU’s brief notes.
This truth—that reliable contraception makes women independent of our patriarchal institutions—is at the crux of conservatives’ fears and at the heart of their legal challenges to the ACA.