Beyond Privacy, Toward Equality

Priscilla Huang

As Election Day draws near, let's vote for a government that goes beyond keeping laws off our bodies. Instead, let's vote for a government that can create laws to keep our bodies and communities safe and healthy.

If you have taken public transportation
in New York City lately, you have probably seen the ads that say "Abortion
Changes You
" and "Women Deserve Better."  As a reproductive justice
advocate, I instantly recoil at the taglines.  These campaigns
are the latest attempts by the anti-choice movement to advance a "pro-woman,
pro-life" message – a message that insinuates that abortion is something
always regretted and always something to be avoided at any cost. 
Feminists for Life goes so far as to declare that "abortion is
a reflection that our society has failed to meet the needs of women"
and that women are "driven to abortion."  It is the same
paternalistic attitude that I found so outrageous in Justice Anthony Kennedy’s opinion
in Carhart.

It seems clear that these "pro-woman,
pro-life" campaigns have usurped images and ideas that were once
in the domain of the reproductive rights and justice movements. Young
women of color are featured in both campaigns, and it takes only a small
leap of my imagination to change the taglines to "Immigrants Deserve
Better" or "Affirmative Action Changes You."  Though the
tactics have shifted from fringe pictorials of the macabre to poignant
woman-centric portraits, the goal remains the same: eliminate a woman’s
right to choose an abortion.  Unlike the campaigns of the past
however, the more recent anti-choice ads also function to chip away
at the underpinning of our reproductive rights law by giving the state
a new interest in "protecting" women from abortion. 

The Supreme Court declared in Roe v. Wade that the right to privacy under the Due
Process Clause of the 14th Amendment was "broad enough
to encompass a woman’s decision whether or not to terminate her pregnancy." But the Court did not declare the right to privacy to be an absolute
right, and said that a woman’s privacy right "must be considered
against important state interests in regulation."  Thus, Roe
has become vulnerable to anti-choice arguments that are based on the
belief that the state should regulate women’s decisions about abortion
because the state knows what is good for women.  Instead of advancing
notions of gender equality over the years, our reproductive rights jurisprudence
has become increasingly paternalistic.  

Would this have happened if the Justices
had decided Roe v. Wade on equal protection grounds instead?
I think not. 

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The Declaration of Independence proclaims that, "all Men are created equal,
that they are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty, and the Pursuit of Happiness."
Yet the ideal of equal rights for all individuals was contradicted by
the existence of slavery and the denial of rights to some people because
of their race or gender.  In fact, the word "equality," did
not appear in the Constitution until passage of the three Reconstruction-Era
amendments: the 13th, 14th and 15th
Amendments.  The  14th
Amendment
in particular declares
that no state may deny "to any person within its jurisdiction the
equal protection of the laws."  Federal courts have also applied
equal protection limitations to the federal government through their
interpretation of the due process clause of the 5th Amendment. 
In short, the equal protection clause ensures that neither federal nor
state governments may classify people in ways that violate their liberties
or rights under the U.S. Constitution. 

What is significant to me about the 14th
Amendment equal protection clause is that it applies to "any person"
(emphasis mine). The text does not specify "man," "woman," or
"citizen" is subject to the equal protection of the laws. Applied
to the reproductive rights context, this means that advancing reproductive
rights and justice is fundamentally about achieving equality for
all people
.  We cannot subordinate one group’s struggle over
another.  Had Roe v. Wade been decided on equal protection grounds,
our fight for reproductive rights would extend beyond stopping government
intrusion. It would be focused on dismantling all barriers to access
and
ensuring that all individuals are entitled to meaningful access
to health care.  

The ideal of equality forces us to think
beyond the individual and to carefully consider how inequality can impact
a group’s ability to thrive based on a number of variables including
race, class, gender identity and citizenship status. Hence, we cannot
look at issues in isolation or through a singular classification. 
It is for this reason that many reproductive justice advocates are also
involved in the struggle for comprehensive immigration
reform
, prison abolition and health care reform.  In all of these movements, men and women
are making demands on the government for better protections and conditions
for those who are most impacted by inequality.  

Principles of equality also encourage
us to look long-term and dream about the type of country we want. 
Perhaps it would have helped us avoid repeat ballot initiatives like
California’s Prop 4 and the South Dakota’s Measure 11, where short-sighted approaches for fending
off the initiatives resulted in the opposition tightening their strategies
and more effectively honing their messages.  

Making the government responsible for
securing equal protection is not a paternalistic function. Rather, it
would reframe reproductive rights as fundamental to achieving gender
equality, and would pave the way to developing a doctrine of affirmative
rights that can be integrated with human rights. As Election Day draws
near, let’s vote for a government that goes beyond keeping laws off
our bodies.  Instead, let’s vote for a government that can create
laws to keep our bodies and communities safe and healthy.

News Politics

Missouri ‘Witch Hunt Hearings’ Modeled on Anti-Choice Congressional Crusade

Christine Grimaldi

Missouri state Rep. Stacey Newman (D) said the Missouri General Assembly's "witch hunt hearings" were "closely modeled" on those in the U.S. Congress. Specifically, she drew parallels between Republicans' special investigative bodies—the U.S. House of Representatives’ Select Investigative Panel on Infant Lives and the Missouri Senate’s Committee on the Sanctity of Life.

Congressional Republicans are responsible for perpetuating widely discredited and often inflammatory allegations about fetal tissue and abortion care practices for a year and counting. Their actions may have charted the course for at least one Republican-controlled state legislature to advance an anti-choice agenda based on a fabricated market in aborted “baby body parts.”

“They say that a lot in Missouri,” state Rep. Stacey Newman (D) told Rewire in an interview at the Democratic National Convention last month.

Newman is a longtime abortion rights advocate who proposed legislation that would subject firearms purchases to the same types of restrictions, including mandatory waiting periods, as abortion care. Her district includes the University of Missouri, which ended a 26-year relationship with Planned Parenthood as anti-choice state lawmakers ramped up their inquiries in the legislature.

Newman said the Missouri General Assembly’s “witch hunt hearings” were “closely modeled” on those in the U.S. Congress. Specifically, she drew parallels between Republicans’ special investigative bodies—the U.S. House of Representatives’ Select Investigative Panel on Infant Lives and the Missouri Senate’s Committee on the Sanctity of Life. Both formed last year in response to videos from the anti-choice front group the Center for Medical Progress (CMP) accusing Planned Parenthood of profiting from fetal tissue donations. Both released reports last month condemning the reproductive health-care provider even though Missouri’s attorney general, among officials in 13 states to date, and three congressional investigations all previously found no evidence of wrongdoing.

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Missouri state Sen. Kurt Schaefer (R), the chair of the committee, and his colleagues alleged that the report potentially contradicted the attorney general’s findings. Schaefer’s refusal to confront evidence to the contrary aligned with how Newman described his leadership of the committee.

“It was based on what was going on in Congress, but then Kurt Schaefer took it a step further,” Newman said.

As Schaefer waged an ultimately unsuccessful campaign in the Missouri Republican attorney general primary, the once moderate Republican “felt he needed to jump on the extreme [anti-choice] bandwagon,” she said.

Schaefer in April sought to punish the head of Planned Parenthood’s St. Louis affiliate with fines and jail time for protecting patient documents he had subpoenaed. The state senate suspended contempt proceedings against Mary Kogut, the CEO of Planned Parenthood of St. Louis Region and Southwest Missouri, reaching an agreement before the end of the month, according to news reports.

Newman speculated that Schaefer’s threats thwarted an omnibus abortion bill (HB 1953, SB 644) from proceeding before the end of the 2016 legislative session in May, despite Republican majorities in the Missouri house and senate.

“I think it was part of the compromise that they came up with Planned Parenthood, when they realized their backs [were] against the wall, because she was not, obviously, going to illegally turn over medical records.” Newman said of her Republican colleagues.

Republicans on the select panel in Washington have frequently made similar complaints, and threats, in their pursuit of subpoenas.

Rep. Marsha Blackburn (R-TN), the chair of the select panel, in May pledged “to pursue all means necessary” to obtain documents from the tissue procurement company targeted in the CMP videos. In June, she told a conservative crowd at the faith-based Road to Majority conference that she planned to start contempt of Congress proceedings after little cooperation from “middle men” and their suppliers—“big abortion.” By July, Blackburn seemingly walked back that pledge in front of reporters at a press conference where she unveiled the select panel’s interim report.

The investigations share another common denominator: a lack of transparency about how much money they have cost taxpayers.

“The excuse that’s come back from leadership, both [in the] House and the Senate, is that not everybody has turned in their expense reports,” Newman said. Republicans have used “every stalling tactic” to rebuff inquires from her and reporters in the state, she said.

Congressional Republicans with varying degrees of oversight over the select panel—Blackburn, House Speaker Paul Ryan (WI), and House Energy and Commerce Committee Chair Fred Upton (MI)—all declined to answer Rewire’s funding questions. Rewire confirmed with a high-ranking GOP aide that Republicans budgeted $1.2 million for the investigation through the end of the year.

Blackburn is expected to resume the panel’s activities after Congress returns from recess in early September. Schaeffer and his fellow Republicans on the committee indicated in their report that an investigation could continue in the 2017 legislative session, which begins in January.

Commentary Contraception

Hillary Clinton Played a Critical Role in Making Emergency Contraception More Accessible

Susan Wood

Today, women are able to access emergency contraception, a safe, second-chance option for preventing unintended pregnancy in a timely manner without a prescription. Clinton helped make this happen, and I can tell the story from having watched it unfold.

In the midst of election-year talk and debates about political controversies, we often forget examples of candidates’ past leadership. But we must not overlook the ways in which Hillary Clinton demonstrated her commitment to women’s health before she became the Democratic presidential nominee. In early 2008, I wrote the following article for Rewirewhich has been lightly edited—from my perspective as a former official at the U.S. Food and Drug Administration (FDA) about the critical role that Clinton, then a senator, had played in making the emergency contraception method Plan B available over the counter. She demanded that reproductive health benefits and the best available science drive decisions at the FDA, not politics. She challenged the Bush administration and pushed the Democratic-controlled Senate to protect the FDA’s decision making from political interference in order to help women get access to EC.

Since that time, Plan B and other emergency contraception pills have become fully over the counter with no age or ID requirements. Despite all the controversy, women at risk of unintended pregnancy finally can get timely access to another method of contraception if they need it—such as in cases of condom failure or sexual assault. By 2010, according to National Center for Health Statistics data, 11 percent of all sexually experienced women ages 15 to 44 had ever used EC, compared with only 4 percent in 2002. Indeed, nearly one-quarter of all women ages 20 to 24 had used emergency contraception by 2010.

As I stated in 2008, “All those who benefited from this decision should know it may not have happened were it not for Hillary Clinton.”

Now, there are new emergency contraceptive pills (Ella) available by prescription, women have access to insurance coverage of contraception without cost-sharing, and there is progress in making some regular contraceptive pills available over the counter, without prescription. Yet extreme calls for defunding Planned Parenthood, the costs and lack of coverage of over-the-counter EC, and refusals by some pharmacies to stock emergency contraception clearly demonstrate that politicization of science and limits to our access to contraception remain a serious problem.

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Today, women are able to access emergency contraception, a safe, second chance option for preventing unintended pregnancy in a timely manner without a prescription. Sen. Hillary Clinton (D-NY) helped make this happen, and I can tell the story from having watched it unfold.

Although stories about reproductive health and politicization of science have made headlines recently, stories of how these problems are solved are less often told. On August 31, 2005 I resigned my position as assistant commissioner for women’s health at the Food and Drug Administration (FDA) because the agency was not allowed to make its decisions based on the science or in the best interests of the public’s health. While my resignation was widely covered by the media, it would have been a hollow gesture were there not leaders in Congress who stepped in and demanded more accountability from the FDA.

I have been working to improve health care for women and families in the United States for nearly 20 years. In 2000, I became the director of women’s health for the FDA. I was rather quietly doing my job when the debate began in 2003 over whether or not emergency contraception should be provided over the counter (OTC). As a scientist, I knew the facts showed that this medication, which can be used after a rape or other emergency situations, prevents an unwanted pregnancy. It does not cause an abortion, but can help prevent the need for one. But it only works if used within 72 hours, and sooner is even better. Since it is completely safe, and many women find it impossible to get a doctor’s appointment within two to three days, making emergency contraception available to women without a prescription was simply the right thing to do. As an FDA employee, I knew it should have been a routine approval within the agency.

Plan B emergency contraception is just like birth control pills—it is not the “abortion pill,” RU-486, and most people in the United States don’t think access to safe and effective contraception is controversial. Sadly, in Congress and in the White House, there are many people who do oppose birth control. And although this may surprise you, this false “controversy” not only has affected emergency contraception, but also caused the recent dramatic increase in the cost of birth control pills on college campuses, and limited family planning services across the country.  The reality is that having more options for contraception helps each of us make our own decisions in planning our families and preventing unwanted pregnancies. This is something we can all agree on.

Meanwhile, inside the walls of the FDA in 2003 and 2004, the Bush administration continued to throw roadblocks at efforts to approve emergency contraception over the counter. When this struggle became public, I was struck by the leadership that Hillary Clinton displayed. She used the tools of a U.S. senator and fought ardently to preserve the FDA’s independent scientific decision-making authority. Many other senators and congressmen agreed, but she was the one who took the lead, saying she simply wanted the FDA to be able to make decisions based on its public health mission and on the medical evidence.

When it became clear that FDA scientists would continue to be overruled for non-scientific reasons, I resigned in protest in late 2005. I was interviewed by news media for months and traveled around the country hoping that many would stand up and demand that FDA do its job properly. But, although it can help, all the media in the world can’t make Congress or a president do the right thing.

Sen. Clinton made the difference. The FDA suddenly announced it would approve emergency contraception for use without a prescription for women ages 18 and older—one day before FDA officials were to face a determined Sen. Clinton and her colleague Sen. Murray (D-WA) at a Senate hearing in 2006. No one was more surprised than I was. All those who benefited from this decision should know it may not have happened were it not for Hillary Clinton.

Sometimes these success stories get lost in the “horse-race stories” about political campaigns and the exposes of taxpayer-funded bridges to nowhere, and who said what to whom. This story of emergency contraception at the FDA is just one story of many. Sen. Clinton saw a problem that affected people’s lives. She then stood up to the challenge and worked to solve it.

The challenges we face in health care, our economy, global climate change, and issues of war and peace, need to be tackled with experience, skills and the commitment to using the best available science and evidence to make the best possible policy.  This will benefit us all.

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