Roe Protects the Full Range of Pregnant Women’s Rights

Rachel Roth

Will the Senate Judiciary Committee ask Sotomayor about her position on Roe's role in protecting all the rights of pregnant women?

Yesterday, National Advocates for Pregnant Women released a letter
to the United States Senate Judiciary Committee in order to draw attention to
the violation of women’s rights and the erosion of women’s personhood that
would surely follow if the Supreme Court ever overturned Roe v. Wade.  Along with the other 100-plus people who signed the
letter, I hope it will encourage members of the Judiciary Committee to engage
Judge Sonia Sotomayor in a broad discussion about reproductive rights and about
the status of pregnant women as full persons, which are increasingly under attack.

When Judge Sotomayor appears in front of the Committee this
July, senators across the political spectrum will likely try to ascertain her
views on Roe v. Wade.  But do they – and do people across the
country – appreciate the broader scope of that famous Supreme Court decision? Roe v. Wade stands for women’s
reproductive self-determination: for the right to have an abortion and the
right to have a baby.  Both dimensions of Roe‘s
promise are critical to women’s lives, yet most people are far more familiar
with one than the other.

Women’s Right to Abortion

Most of us know that Roe
v. Wade
recognized women’s constitutional right to an abortion.  In a case about the right to
use contraception decided one year before Roe,
the Court declared that if the right to privacy means anything, it is the right
"to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a
child."  The Court applied this logic to abortion, concluding that
women’s rights to liberty and privacy encompass the decision to terminate a
pregnancy. The Court understood "the
detriment that the State would impose upon the pregnant woman" if it denied her
the ability to make that decision.

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Elaborating on this detriment almost 20 years later in Planned Parenthood v. Casey, the Court
stated that each woman
who carries a pregnancy to term "is subject to anxieties, to physical
constraints, to pain that only she must bear." Just because women have always
borne these burdens is not enough of a reason for the state to insist that they
do so; a woman’s "suffering is too intimate and personal for the State to
insist, without more, upon its own vision of the woman’s role… The destiny of
the woman must be shaped to a large extent on her own conception of her
spiritual imperatives and her place in society."

The late Dr. George Tiller expressed this philosophy more
succinctly when he said that abortion is about women’s "hopes and dreams." For
most women in the United States, those hopes and dreams include raising
children. Because women want to decide how many children to have and when to
have them, many also end a pregnancy at some point in their lives.  At current rates, one in three women in the U.S. will have an abortion in her lifetime.

The Court held in Roe
v. Wade
that women’s rights are not absolute, and struck a compromise
between women’s rights to reproductive autonomy on the one hand and the state’s
interest in potential life on the other. Roe
did not establish a contest between women’s rights and "fetal rights;" rather,
it recognized a state interest in the
potential life of the fetus, because fetuses are not persons with rights or
interests of their own under the constitution.

Over time, the Court has given greater deference to state
interests in potential life, allowing more restrictions on women’s abortion
rights throughout pregnancy, but the Court has always been clear that the final
decision rests with women, and that a woman’s health and life always come
first; this is why women can have abortions after viability, when their health
or life is at stake.

Women’s Rights during Pregnancy

Some people misunderstand – or misrepresent – the compromise
the Court struck, and argue that after a woman’s pregnancy reaches the stage of
viability, the state can intervene not only to stop a woman from having an
abortion, but to dictate how she should live as well.

Based on this misreading of Roe, some judges have granted orders to force women to submit to
cesarean surgery or blood transfusions against their will. Prosecutors have
invented crimes of "fetal abuse" that have no basis in statutes, such as
"delivering drugs to a minor" through the umbilical cord, or equating
stillbirth with homicide. Even though these cases rarely stand up to the
scrutiny of appellate courts, there is always another prosecutor in another
jurisdiction willing to bring such charges against women.

Judges have also sentenced women to jail time to "protect"
their fetuses, despite the troubling conditions in jails and prisons, including
documented cases of women giving birth in their cells without any medical
attention.  Just this month, a
judge in Maine ordered a pregnant woman to remain in jail
because she is
HIV-positive, until her attorneys and a coalition of "friends of the court" persuaded
the judge that this not only violated the woman’s rights to fair treatment, but
would likely result in disruptions in the medical care that he claimed was his
reason for imprisoning her.

Ours is a culture where a pregnant woman’s every move is
increasingly scrutinized by family, friends, co-workers, and perfect strangers.
People feel free to pass judgment on what a pregnant woman eats, drinks, and
does: Is she gaining too much weight or not enough? Is that coffee
decaffeinated? Is that a glass of wine in her hand? Pregnant women themselves
may be confused by conflicting messages, even from within the scientific
community, about what they should do, for example, whether it is safe to eat
fish. As unwelcome as these judgments and uncertainties may be, they pale in
comparison to what happens when those in the government decide to wield their
power as state actors to monitor and punish a woman for her actions during
pregnancy.

The Confirmation Hearings as an Opportunity to Affirm
Women’s Rights

We know we can expect members of the Judiciary Committee to
ask questions about Roe v. Wade and
abortion rights in the confirmation hearings, and they should – Judge Sotomayor
does not have much of a record on these vital issues.

We also hope the Committee will ask Judge Sotomayor whether
she believes there is a point in pregnancy at which women lose their civil
rights, and if so, on what basis they lose them. This question is important,
because the actions of judges, prosecutors, and other state actors who would
deprive pregnant women of their rights rest on the assumption that pregnant
women are no longer persons. They rest on the assumption that when women become
pregnant, they somehow fall out of the category of "person" and into another category,
more reminiscent of the 19th century, where they can be erased
from the protections of the constitution. For example, when a judge sided with
hospital administrators who wanted to surgically remove Angela
Carder
‘s fetus at 26 weeks of pregnancy because she was dying of cancer,
those parties treated Carder literally as if she were no more than a vessel for
the fetus, not as a person with her own aspirations for her future child, who
maintained her rights to informed consent and bodily integrity.

Similarly,
when police, prosecutors, and judges seek to jail women for using drugs when
they are pregnant, they are deciding that the normal rules don’t apply – while
they would rarely if ever arrest a man and charge him with drug possession on
the basis of a positive drug test, they do arrest women on that basis, because
in their eyes, being pregnant means that women have forfeited their rights to
equal treatment and due process of law.

The Court’s decision in Roe
v. Wade
is not perfect. Feminists, as well as those who believe that
abortion should be illegal, have found fault with the decision; for instance,
feminists have critiqued the way that the Roe
decision relies on constitutional notions of privacy instead of equality. Yet
the meaning and significance of Roe
has been unmistakable: for 36 years, it has broadcast the message that women
have the right to make decisions about their bodies and their lives.

In practice, women cannot carry out their decisions without
access to reproductive health care, including safe abortion. Medical
professionals who provide abortion care are facing renewed risks of harassment
and violence. Dr. Tiller lost his life because of his commitment to ensuring
that women could control theirs. The Judiciary Committee, the entire Congress,
the Obama Administration, and the courts need to do more to protect the rights
and safety of women and medical providers.

Resources:

  • Timeline
    of Supreme Court decisions on contraception and abortion
  • Stories of
    women who have had abortions, and
    of physicians who provide abortions
  • Information
    and analysis
    of women’s status and the politics of fetal rights

News Health Systems

Complaint: Citing Catholic Rules, Doctor Turns Away Bleeding Woman With Dislodged IUD

Amy Littlefield

“It felt heartbreaking,” said Melanie Jones. “It felt like they were telling me that I had done something wrong, that I had made a mistake and therefore they were not going to help me; that they stigmatized me, saying that I was doing something wrong, when I’m not doing anything wrong. I’m doing something that’s well within my legal rights.”

Melanie Jones arrived for her doctor’s appointment bleeding and in pain. Jones, 28, who lives in the Chicago area, had slipped in her bathroom, and suspected the fall had dislodged her copper intrauterine device (IUD).

Her doctor confirmed the IUD was dislodged and had to be removed. But the doctor said she would be unable to remove the IUD, citing Catholic restrictions followed by Mercy Hospital and Medical Center and providers within its system.

“I think my first feeling was shock,” Jones told Rewire in an interview. “I thought that eventually they were going to recognize that my health was the top priority.”

The doctor left Jones to confer with colleagues, before returning to confirm that her “hands [were] tied,” according to two complaints filed by the ACLU of Illinois. Not only could she not help her, the doctor said, but no one in Jones’ health insurance network could remove the IUD, because all of them followed similar restrictions. Mercy, like many Catholic providers, follows directives issued by the U.S. Conference of Catholic Bishops that restrict access to an array of services, including abortion care, tubal ligations, and contraception.

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Some Catholic providers may get around the rules by purporting to prescribe hormonal contraception for acne or heavy periods, rather than for birth control, but in the case of copper IUDs, there is no such pretext available.

“She told Ms. Jones that that process [of switching networks] would take her a month, and that she should feel fortunate because sometimes switching networks takes up to six months or even a year,” the ACLU of Illinois wrote in a pair of complaints filed in late June.

Jones hadn’t even realized her health-care network was Catholic.

Mercy has about nine off-site locations in the Chicago area, including the Dearborn Station office Jones visited, said Eric Rhodes, senior vice president of administrative and professional services. It is part of Trinity Health, one of the largest Catholic health systems in the country.

The ACLU and ACLU of Michigan sued Trinity last year for its “repeated and systematic failure to provide women suffering pregnancy complications with appropriate emergency abortions as required by federal law.” The lawsuit was dismissed but the ACLU has asked for reconsideration.

In a written statement to Rewire, Mercy said, “Generally, our protocol in caring for a woman with a dislodged or troublesome IUD is to offer to remove it.”

Rhodes said Mercy was reviewing its education process on Catholic directives for physicians and residents.

“That act [of removing an IUD] in itself does not violate the directives,” Marty Folan, Mercy’s director of mission integration, told Rewire.

The number of acute care hospitals that are Catholic owned or affiliated has grown by 22 percent over the past 15 years, according to MergerWatch, with one in every six acute care hospital beds now in a Catholic owned or affiliated facility. Women in such hospitals have been turned away while miscarrying and denied tubal ligations.

“We think that people should be aware that they may face limitations on the kind of care they can receive when they go to the doctor based on religious restrictions,” said Lorie Chaiten, director of the women’s and reproductive rights project of the ACLU of Illinois, in a phone interview with Rewire. “It’s really important that the public understand that this is going on and it is going on in a widespread fashion so that people can take whatever steps they need to do to protect themselves.”

Jones left her doctor’s office, still in pain and bleeding. Her options were limited. She couldn’t afford a $1,000 trip to the emergency room, and an urgent care facility was out of the question since her Blue Cross Blue Shield of Illinois insurance policy would only cover treatment within her network—and she had just been told that her entire network followed Catholic restrictions.

Jones, on the advice of a friend, contacted the ACLU of Illinois. Attorneys there advised Jones to call her insurance company and demand they expedite her network change. After five hours of phone calls, Jones was able to see a doctor who removed her IUD, five days after her initial appointment and almost two weeks after she fell in the bathroom.

Before the IUD was removed, Jones suffered from cramps she compared to those she felt after the IUD was first placed, severe enough that she medicated herself to cope with the pain.

She experienced another feeling after being turned away: stigma.

“It felt heartbreaking,” Jones told Rewire. “It felt like they were telling me that I had done something wrong, that I had made a mistake and therefore they were not going to help me; that they stigmatized me, saying that I was doing something wrong, when I’m not doing anything wrong. I’m doing something that’s well within my legal rights.”

The ACLU of Illinois has filed two complaints in Jones’ case: one before the Illinois Department of Human Rights and another with the U.S. Department of Health and Human Services Office for Civil Rights under the anti-discrimination provision of the Affordable Care Act. Chaiten said it’s clear Jones was discriminated against because of her gender.

“We don’t know what Mercy’s policies are, but I would find it hard to believe that if there were a man who was suffering complications from a vasectomy and came to the emergency room, that they would turn him away,” Chaiten said. “This the equivalent of that, right, this is a woman who had an IUD, and because they couldn’t pretend the purpose of the IUD was something other than pregnancy prevention, they told her, ‘We can’t help you.’”

News Law and Policy

Pastors Fight Illinois’ Ban on ‘Gay Conversion Therapy’

Imani Gandy

Illinois is one of a handful of states that ban so-called gay conversion therapy. Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans.

A group of pastors filed a lawsuit last week arguing an Illinois law that bans mental health providers from engaging in so-called gay conversion therapy unconstitutionally infringes on rights to free speech and freedom of religion.

The Illinois legislature passed the Youth Mental Health Protection Act, which went into effect on January 1. The measure bans mental health providers from engaging in sexual orientation change efforts or so-called conversion therapy with a minor.

The pastors in their lawsuit argue the enactment of the law means they are “deprived of the right to further minister to those who seek their help.”

While the pastors do not qualify as mental health providers since they are neither licensed counselors nor social workers, the pastors allege that they may be liable for consumer fraud under Section 25 of the law, which states that “no person or entity” may advertise or otherwise offer “conversion therapy” services “in a manner that represents homosexuality as a mental disease, disorder, or illness.”

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The pastors’ lawsuit seeks an order from a federal court in Illinois exempting pastoral counseling from the law. The pastors believe that “the law should not apply to pastoral counseling which informs counselees that homosexuality conduct is a sin and disorder from God’s plan for humanity,” according to a press release issued by the pastors’ attorneys.

Illinois is one of a handful of states that ban gay “conversion therapy.” Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans. None have been struck down as unconstitutional. The Supreme Court this year declined to take up a case challenging New Jersey’s “gay conversion therapy” ban on First Amendment grounds.

The pastors say the Illinois law is different. The complaint alleges that the Illinois statute is broader than those like it in other states because the prohibitions in the law is not limited to licensed counselors, but also apply to “any person or entity in the conduct of any trade or commerce,” which they claim affects clergy.

The pastors allege that the law is not limited to counseling minors but “prohibits offering such counseling services to any person, regardless of age.”

Aside from demanding protection for their own rights, the group of pastors asked the court for an order “protecting the rights of counselees in their congregations and others to receive pastoral counseling and teaching on the matters of homosexuality.”

“We are most concerned about young people who are seeking the right to choose their own identity,” the pastors’ attorney, John W. Mauck, said in a statement.

“This is an essential human right. However, this law undermines the dignity and integrity of those who choose a different path for their lives than politicians and activists prefer,” he continued.

“Gay conversion therapy” bans have gained traction after Leelah Alcorn, a transgender teenager, committed suicide following her experience with so-called conversion therapy.

Before taking her own life, Alcorn posted on Reddit that her parents had refused her request to transition to a woman.

“The[y] would only let me see biased Christian therapists, who instead of listening to my feelings would try to change me into a straight male who loved God, and I would cry after every session because I felt like it was hopeless and there was no way I would ever become a girl,” she wrote of her experience with conversion therapy.

The American Psychological Association, along with a coalition of health advocacy groups including the American Academy of Pediatrics, the American Counseling Association, and the National Association of Social Workers, have condemned “gay conversion therapy” as potentially harmful to young people “because they present the view that the sexual orientation of lesbian, gay and bisexual youth is a mental illness or disorder, and they often frame the inability to change one’s sexual orientation as a personal and moral failure.”

The White House in 2015 took a stance against so-called conversion therapy for LGBTQ youth.

Attorneys for the State of Illinois have not yet responded to the pastors’ lawsuit.

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