Global Gag Rule Sensationalizes Abortion

Carolina Austria

The media in the Philippines continue to portray abortion as a population control measure, not understanding that reproductive health care is a right. But U.S. policies like the global gag rule, which sensationalize abortion, aren't helping.

This is the final installment of the Reproductive Health 2007 Roundup on the Philippines. This time we turn to the "ideological battles" that were (and continue to be) waged through words and popular media, especially in the context of the struggle to "legitimize" RH claims in law and policy. While similar contests are also taking place on the international level, given that US Politics has long played a major role on the character of US foreign policy on sexual and reproductive rights, of close interest to the Philippines is the prospect of US Elections in 2008.

A War of Wor(l)ds: The Politics of Reproductive Health

"The theoretical links between reproductive health, gender and sexuality constitute a complex and unstable fabric." Sonia Correa (2005)

Sexual and reproductive rights activist Sonia Correa notes that historically, "reproductive health" emerged as an "umbrella" term after the 1994 International Conference on Population and Development (ICPD) in Cairo and the 1995 World Conference of Women in Beijing, within which "radical" notions of reproductive rights and sexual health, as well as issues related to sexual rights, were initially subsumed.

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However, the legitimization of the term "reproductive health" eventually led to its use in ways that responded to the needs of different interest groups and actors, which no longer necessarily incorporated the frameworks of gender equality and socially transformative agendas.

The Media's Discussion of Reproductive Health

In 2007 in the Philippines, much of the popular debate around reproductive health in the country was still happening on the basic level of legitimation and recognition. Popular media was engaged on all sides of the discussion but media was rarely a source of enlightenment.

Even as a handful of local reporters and columnists in major newspapers like Rina Jimenez David, Michael Tan, and Dr. Alberto Romualdez were leading the discussion of "reproductive health" as rights, many in media continued to frame the debate simplistically as a case of "Catholic Church versus the Population Control forces."

Reporters continued to label "RH advocates" as population control forces and align the RH bill with population control policy, harking back to the days of the Marcos dictatorship when policy around population was backed by a demographic imperative in the Constitution. In turn, it had the tendency to portray the Catholic hierarchy's position as an opposition to a supposed push for draconian State policy.

In truth, neither population control nor the Catholic hierarchy's conservative anti-reproductive health positions respected the right of persons to decide on their reproductive well being. Likewise, the 1987 Constitution as well as subsequent commitments made by the Philippines to the ICPD and the Beijing Platform demonstrated a clear departure from a population control framework. Unfortunately, many in media still missed out on this distinction and save for the better informed journalists, and the popular discussion of the issue continued to be framed along these terms.

RH advocates fought back, of course, with a measure of success in not only updating allies within media on the rights-based character of claims for reproductive health services, but also in addressing the most difficult but pressing issues like clandestine abortions. Reproductive Health Networks like Philmade and Media Advocates for Reproductive Health (MAHRE), have made headway in many areas, especially among local media networks.

In a previous blog I noted how MAHRE and Likhaan, a local women's NGO advocating for sexual and reproductive rights, recently turned things around by zooming in on the rising trend of abortions in the Visayas region in the Philippines. MAHRE and Likhaan even got sympathetic write-ups in two editorial/opinion pieces (see another here) in local media, demonstrating the way forward to compassionate and sensible discussions on what was always perceived as a divisive issue.

Meanwhile, dominant media continued to rely on "abortion clinic raids" as sensational news staples. Unlike their local counterparts in media which were already beginning to take a more sober and informed approach to tackling the issue of abortion, popular, self-styled "crusading" journalists on TV reported on abortion clinic crackdowns without delving into the complexities of the issue or even bothering to ask why despite the more than hundred year old prohibition, studies continue to peg abortions in the Philippines at 473,000 cases annually.

The Global Gag Rule Contributes to Sensational Treatment of Abortion

Indeed, policy against abortion is also clearly at the heart of the "Republican/Democratic" ideological divide in the US. There, the existence of policies like the foreign assistance policy on reproductive health, the global gag rule, which requires that groups receiving funds for family planning pledge not to discuss abortion in any of their programs or materials, and AIDS prevention and treatment standards prioritizing abstinence, have always solely depended on a Republican presidency.

Notably, this conditionality represents a curious programmatic imposition on local advocacy and essentially places limits to "information and expression" since legally speaking, the conduct of abortion is always subject to local law anyway. In the Philippines, abortion (save for a debated exception to save the life of the mother), remains illegal. The "global gag rule" serves purpose parallel to that of the sensational "abortion clinic raid" by keeping the issue in its current place: surrounded by stigma and well outside the realm of public discussion and deliberation.

Yet the links between the US and the Philippines (specifically on matters of reproductive health and policy) go well beyond the issue of abortion or the global gag rule. The Philippines, as a long time recipient of USAID funding on matters of population, health and, in recent history, "health sector reform," is also facing a crisis in health care availability. Coupled with the mass migration of health professionals, the crisis is not only one of access to health care but availability itself. While originally pitched in the eighties as "structural and systems based" reform, "health sector reform (HSR)" is has become the literal byword for undertaking (further) privatization of health care in the country. The USAID has had a keen interest in facilitating "HSR" in the Philippines where a number of technical assistance projects emphasize the privatization of public hospitals. Indeed, while the final outcome of US Presidential elections in 2008 will surely have an impact on local (as well as worldwide) politics around reproductive health, a great deal still depends on how local advocates are able to face both opportunities and challenges that emerge from it.

Next week: News on the Court of Appeals Petition filed by women in Manila to invalidate the ban on contraceptives in the City's local health services, instituted since 2000.

News Politics

Clinton Campaign Announces Tim Kaine as Pick for Vice President

Ally Boguhn

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

The Clinton campaign announced Friday that Sen. Tim Kaine (R-VA) has been selected to join Hillary Clinton’s ticket as her vice presidential candidate.

“I’m thrilled to announce my running mate, @TimKaine, a man who’s devoted his life to fighting for others,” said Clinton in a tweet.

“.@TimKaine is a relentless optimist who believes no problem is unsolvable if you put in the work to solve it,” she added.

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

Kaine signed two letters this week calling for the regulations on banks to be eased, according to a Wednesday report published by the Huffington Post, thereby ”setting himself up as a figure willing to do battle with the progressive wing of the party.”

Charles Chamberlain, executive director of the progressive political action committee Democracy for America, told the New York Times that Kaine’s selection “could be disastrous for our efforts to defeat Donald Trump in the fall” given the senator’s apparent support of the Trans-Pacific Partnership (TPP). Just before Clinton’s campaign made the official announcement that Kaine had been selected, the senator praised the TPP during an interview with the Intercept, though he signaled he had ultimately not decided how he would vote on the matter.

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Kaine’s record on reproductive rights has also generated controversy as news began to circulate that he was being considered to join Clinton’s ticket. Though Kaine recently argued in favor of providing Planned Parenthood with access to funding to fight the Zika virus and signed on as a co-sponsor of the Women’s Health Protection Act—which would prohibit states and the federal government from enacting restrictions on abortion that aren’t applied to comparable medical services—he has also been vocal about his personal opposition to abortion.

In a June interview on NBC’s Meet the Press, Kaine told host Chuck Todd he was “personally” opposed to abortion. He went on, however, to affirm that he still believed “not just as a matter of politics, but even as a matter of morality, that matters about reproduction and intimacy and relationships and contraception are in the personal realm. They’re moral decisions for individuals to make for themselves. And the last thing we need is government intruding into those personal decisions.”

As Rewire has previously reported, though Kaine may have a 100 percent rating for his time in the Senate from Planned Parenthood Action Fund, the campaign website for his 2005 run for governor of Virginia promised he would “work in good faith to reduce abortions” by enforcing Virginia’s “restrictions on abortion and passing an enforceable ban on partial birth abortion that protects the life and health of the mother.”

As governor, Kaine did support some existing restrictions on abortion, including Virginia’s parental consent law and a so-called informed consent law. He also signed a 2009 measure that created “Choose Life” license plates in the state, and gave a percentage of the proceeds to a crisis pregnancy network.

Regardless of Clinton’s vice president pick, the “center of gravity in the Democratic Party has shifted in a bold, populist, progressive direction,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, in an emailed statement. “It’s now more important than ever that Hillary Clinton run an aggressive campaign on core economic ideas like expanding Social Security, debt-free college, Wall Street reform, and yes, stopping the TPP. It’s the best way to unite the Democratic Party, and stop Republicans from winning over swing voters on bread-and-butter issues.”

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.