Nepali Women’s Interim Protection

Ramona Vijeyarasa

The government of Nepal recently became the first in the region to recognize women's fundamental right to reproductive health in its Interim Constitution. Will reproductive rights make the final cut?

The opportunities
to place reproductive rights squarely into a country’s constitution are rare — and when they come up, they should
be exploited to their full advantage.

Constitutional guarantees provide
women judicial protection, so that when women’s reproductive rights are violated, whether through preventable
maternal deaths, being denied access to reproductive health care or discriminatory
treatment when seeking reproductive health services, women have standing under domestic law to challenge the violation. Reproductive rights
protections in constitutions also influence political decision-making
and legislative priorities, in turn leading to budgetary allocations
and practical protections for women’s reproductive rights.

In January
2007, the Government of Nepal adopted the Interim
Constitution
which
incorporates health as a fundamental right of the people, recognizing
that "every woman shall have the right to reproductive health and
other reproductive matters"
as a fundamental right.
This recognition marked the first
time
that a government
in the region had explicitly recognized women’s reproductive rights
as fundamental rights in a national constitution.

The reforms
reflected a culmination of efforts of a range of advocacy groups, including
the Nepal-based Forum
for Women, Law, and Development

and the Legal
Aid and Consultancy Center
,
as well as the New York-based Center
for Reproductive Rights (CRR)
.
In fact, in a letter to the Interim Drafting Committee in July 2006,
CRR suggested that Nepal emulate some of the most progressive aspects
of the South African Constitution with regards to reproductive rights. (The South Africa Constitution guarantees the right of access to
health care, explicitly including reproductive health care and protections against direct and indirect discrimination on the basis
of a range of grounds, including sex, gender, pregnancy or sexual
orientation.) CRR also highlighted to the Drafting Committee Nepal’s maternal mortality
rate, one of the highest in the world at 830
per 100,000
births
in 2005. In their view, the constitutional clause needed to recognize
the right to make decisions about reproduction, the right of access
to health care services as fundamental rights, and prohibit direct and indirect discrimination on grounds that include sex, gender,
pregnancy, marital status, age and culture.

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While the
goal of explicitly protecting reproductive rights in the Interim Constitution
has been achieved, the responsibility for the new Constitution is in
the hands of a new Constituent
Assembly
, a 601-member
body elected in April 2008, more than one-third of whom are women. The
redrafting should be finalized by May
2010
.
In the meantime, advocates continue to push to maintain the rights-protective
provisions that exist in the Interim version. We can only hope that
Nepal does not see a repetition of the Constitutional reform process
in Timor-Leste. In August 2001, prior
to the constituent elections, a collaboration of women’s groups
developed a charter of women’s rights, which stated that, "[t]he State must provide reproductive health
care for women." While the new Constitution included some aspects
of the charter, the reproductive rights language was not included. Instead, the Constitution only guaranteed the right
to health in more general terms.

The fact
that reproductive rights as fundamental rights have been included in
the Interim Constitution, and may be kept in the final draft, is only
a starting point. Criticism has been directed at the Interim Constitution’s
provisions for their lack of substance. A report released by the Center for Human
Rights and Global Justice (CHRGJ)

in 2008, on Dalit rights in Nepal, recommends that the new Constitution include the reproductive rights guarantees found in the Convention on
the Elimination of All Forms of Discrimination Against Women (CEDAW)
and the International Covenant on Economic, Social and Cultural Rights
(ICESCR). Specifically, CHRGJ has pushed for the Constitutional guarantees
to be elaborated upon and include: the right to access a full range of high
quality and affordable health care, including sexual and reproductive
services; equitable distribution of all health facilities, goods and
services (including access to "essential medicines"); the right
to control fertility; and the right to obtain family planning information, counseling,
and services without discrimination.

The need for
ongoing lobbying of the new Constituent Assembly members to protect women’s
health and rights in the new constitution is reflected in the work of WOREC Nepal and
Women’s Reproductive Rights Program/CAED
. The group jointly organized a four day Review and Orientation Workshop, followed
by a National Consultation, in May 2008 at Kharipati, Bhaktapur, timed
to coincide with International Women’s Health Rights Day on the 28th of May. The occasion was used to advocate for more specific guarantees
of a range of reproductive rights protections, including maternity leave,
prevention of anemia amongst pregnant women, improved financial and
physical resources, improved access to family planning programs amongst
the poor and people of oppressed or disadvantaged classes, as well as
increased discussion of the reproductive rights of men.

The specific
situation of Nepal’s history of conflict and its impact on reproductive
health was also discussed, including alarming maternal mortality rates,
bereavement resulting from the death and disappearance of children,
and sexual violence.

As political,
judicial, administrative and other reforms are undertaken during any
post-conflict period, it is important that social and economic reforms,
such as reproductive rights and reproductive health, are not left off
the table. Post-conflict constitution-making presents a fertile opportunity
to advocate, guarantee and normalize reproductive rights.

News Human Rights

What’s Driving Women’s Skyrocketing Incarceration Rates?

Michelle D. Anderson

Eighty-two percent of the women in jails nationwide find themselves there for nonviolent offenses, including property, drug, and public order offenses.

Local court and law enforcement systems in small counties throughout the United States are increasingly using jails to warehouse underserved Black and Latina women.

The Vera Institute of Justice, a national policy and research organization, and the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge initiative, released a study last week showing that the number of women in jails based in communities with 250,000 residents or fewer in 2014 had grown 31-fold since 1970, when most county jails lacked a single woman resident.

By comparison, the number of women in jails nationwide had jumped 14-fold since 1970. Historically, jails were designed to hold people not yet convicted of a crime or people serving terms of one year or less, but they are increasingly housing poor women who can’t afford bail.

Eighty-two percent of the women in jails nationwide find themselves there for nonviolent offenses, including property, drug, and public order offenses.

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Overlooked: Women and Jails in an Era of Reform,” calls attention to jail incarceration rates for women in small counties, where rates increased from 79 per 100,000 women to 140 per 100,000 women, compared to large counties, where rates dropped from 76 to 71 per 100,000 women.

The near 50-page report further highlights that families of color, who are already disproportionately affected by economic injustice, poor access to health care, and lack of access to affordable housing, were most negatively affected by the epidemic.

An overwhelming percentage of women in jail, the study showed, were more likely to be survivors of violence and trauma, and have alarming rates of mental illness and substance use problems.

“Overlooked” concluded that jails should be used a last resort to manage women deemed dangerous to others or considered a flight risk.

Elizabeth Swavola, a co-author of “Overlooked” and a senior program associate at the Vera Institute, told Rewire that smaller regions tend to lack resources to address underlying societal factors that often lead women into the jail system.

County officials often draft budgets mainly dedicated to running local jails and law enforcement and can’t or don’t allocate funds for behavioral, employment, and educational programs that could strengthen underserved women and their families.

“Smaller counties become dependent on the jail to deal with the issues,” Swavola said, adding that current trends among women deserves far more inquiry than it has received.

Fred Patrick, director of the Center on Sentencing and Corrections at the Vera Institute, said in “Overlooked” that the study underscored the need for more data that could contribute to “evidence-based analysis and policymaking.”

“Overlooked” relies on several studies and reports, including a previous Vera Institute study on jail misuse, FBI statistics, and Rewire’s investigation on incarcerated women, which examined addiction, parental rights, and reproductive issues.

“Overlooked” authors highlight the “unique” challenges and disadvantages women face in jails.

Women-specific issues include strained access to menstrual hygiene products, abortion care, and contraceptive care, postpartum separation, and shackling, which can harm the pregnant person and fetus by applying “dangerous levels of pressure, and restriction of circulation and fetal movement.”

And while women are more likely to fare better in pre-trail proceedings and receive low bail amounts, the study authors said they are more likely to leave the jail system in worse condition because they are more economically disadvantaged.

The report noted that 60 percent of women housed in jails lacked full-time employment prior to their arrest compared to 40 percent of men. Nearly half of all single Black and Latina women have zero or negative net wealth, “Overlooked” authors said.

This means that costs associated with their arrest and release—such as nonrefundable fees charged by bail bond companies and electronic monitoring fees incurred by women released on pretrial supervision—coupled with cash bail, can devastate women and their families, trapping them in jail or even leading them back to correctional institutions following their release.

For example, the authors noted that 36 percent of women detained in a pretrial unit in Massachusetts in 2012 were there because they could not afford bail amounts of less than $500.

The “Overlooked” report highlighted that women in jails are more likely to be mothers, usually leading single-parent households and ultimately facing serious threats to their parental rights.

“That stress affects the entire family and community,” Swavola said.

Citing a Corrections Today study focused on Cook County, Illinois, the authors said incarcerated women with children in foster care were less likely to be reunited with their children than non-incarcerated women with children in foster care.

The sexual abuse and mental health issues faced by women in jails often contribute to further trauma, the authors noted, because women are subjected to body searches and supervision from male prison employees.

“Their experience hurts their prospects of recovering from that,” Swavola said.

And the way survivors might respond to perceived sexual threats—by fighting or attempting to escape—can lead to punishment, especially when jail leaders cannot detect or properly respond to trauma, Swavola and her peers said.

The authors recommend jurisdictions develop gender-responsive policies and other solutions that can help keep women out of jails.

In New York City, police take people arrested for certain non-felony offenses to a precinct, where they receive a desk appearance ticket, or DAT, along with instructions “to appear in court at a later date rather than remaining in custody.”

Andrea James, founder of Families for Justice As Healing and a leader within the National Council For Incarcerated and Formerly Incarcerated Women and Girls, said in an interview with Rewire that solutions must go beyond allowing women to escape police custody and return home to communities that are often fragmented, unhealthy, and dangerous.

Underserved women, James said, need access to healing, transformative environments. She cited as an example the Brookview House, which helps women overcome addiction, untreated trauma, and homelessness.

James, who has advocated against the criminalization of drug use and prostitution, as well as the injustices faced by those in poverty, said the problem of jail misuse could benefit from the insight of real experts on the issue: women and girls who have been incarcerated.

These women and youth, she said, could help researchers better understand the “experiences that brought them to the bunk.”

News Law and Policy

Federal Judge Guts Florida GOP’s Omnibus Anti-Choice Law

Teddy Wilson

"For many people, Planned Parenthood is the only place they can turn to,” said Barbara Zdravecky, president and CEO of the Planned Parenthood of Southwest and Central Florida. “We may be the only place they can go in their community, or the only place that offers the screening or birth control method they need. No one should have their basic health care taken away."

A federal judge on Thursday permanently blocked two provisions of a Florida omnibus anti-choice law that banned Planned Parenthood from receiving state funds and required annual inspections of all clinics that provide abortion services, reported the Associated Press.

U.S. District Judge Robert Hinkle issued an order in June to delay implementation of the law.

“The Supreme Court has repeatedly said that a government cannot prohibit indirectly—by withholding otherwise-available public funds—conduct that the government could not constitutionally prohibit directly,” Hinkle wrote in the 25-page ruling.  

Thursday’s decision came after Republican Gov. Rick Scott’s administration decided not to pursue further legal action to defend the law, and filed a joint motion to end the litigation.

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Hinkle issued a three page decision making the injunction permanent.

HB 1411, sponsored by Rep. Colleen Burton (R-Lakeland), was passed by the Republican-controlled state legislature in March.

The judge’s ruling nixed provisions in the law that banned state funding of abortion care and required yearly clinic inspections. Other provisions of the law that remain in effect include additional reporting requirements for abortion providers, redefining “third trimester,” and revising the care of fetal remains.

The GOP-backed anti-choice law has already had a damaging effect in Palm Beach County, where Planned Parenthood was forced to end a program that focused on teen dropout prevention.

Barbara Zdravecky, president and CEO of the Planned Parenthood of Southwest and Central Florida, said in a statement that the ruling was a “victory for thousands of Floridians” who rely on the organization for reproductive health care.

“For many people, Planned Parenthood is the only place they can turn to,” Zdravecky said. “We may be the only place they can go in their community, or the only place that offers the screening or birth control method they need. No one should have their basic health care taken away.”

A spokesperson for Scott told Reuters that the administration is “reviewing” the decision.

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