California’s Military Women Support Our Freedom. Shouldn’t We Support Theirs?

ACLU

Congress should act now to end a ban on private funding of abortion at military facilities. Our Armed Services women deserve more from their country.

Imagine you’re a soldier stationed overseas and discover you’re pregnant. If you want to have an abortion but are living in a country where it’s illegal, you might as well be living in pre-Roe v. Wade America. Why? Current federal law prohibits almost all abortion services at U.S. military hospitals, even if a woman pays for the procedure herself. So, like a woman in the 1950s, you can fly to another country to obtain safe, legal abortion care (if you can afford to travel and can arrange leave) or take your chances with an unsafe, illegal, local or self-induced abortion.

Here in California, we are sending thousands of women into military service and have the highest proportion of female veterans of any state — and these numbers are growing. We have among the strongest laws in the country protecting reproductive rights. But when California servicewomen are shipped out of state or overseas, they are deprived of the fundamental right to make pregnancy decisions.

The ban, which has no exception for pregnancies that jeopardize a woman’s health, poses grave risks for women stationed in countries where abortion is outlawed. Coupled with a tremendously high number of incidents of sexual assault in the military, a disturbing scenario emerges. A new analysis from the Guttmacher Institute documents that “the restrictions fall hardest on the most junior of enlisted ranks, who are also the most likely to have an unintended pregnancy.”

This ban on abortion at military facilities hasn’t always been in place. Prior to 1988, military women were allowed to use their own funds to obtain abortions on military bases overseas. Military officials had wisely recognized that at many overseas stations — or even isolated areas in the U.S. — safe and reliable civilian facilities that provide abortion care are not always available.

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An amendment to the pending National Defense Authorization bill would repeal the dangerous ban on privately funded abortion care and allow U.S servicewomen to use their own money to obtain abortion services at U.S. military facilities. Congress will likely pass the bill sometime in the fall. Since the House version doesn’t include a repeal of the ban, it’s important to reach out to representatives to urge them to support reproductive health care for our soldiers.

California congresswoman Jane Harman has said that military women are more likely to be raped by a fellow soldier than killed by enemy fire in Iraq. Several studies indicate that as many as a third of military women report rape or attempted rape during their military service. Department of Defense research reveals 3,230 reported sexual assaults in 2009, up 11 percent from the previous year. Servicewomen and veterans indicate that, due to incredibly low reporting rates, the actual number of sexual assaults of military women is much higher. DOD’s own statistics confirm low reporting rates.

Although the ban on abortion at military facilities includes an exception for rape and incest, it is meaningless when women in the military don’t feel that they can report sexual assault, especially if that assault is by commanders or fellow soldiers.I recently met with a young veteran who told me that when she reported being raped to her commander, his response was “What is it with you women? You’re the third this week.”

Journalist Kathryn Joyce reported the story of a 26-year-old Marine named Amy* who was stationed in Fallujah when she realized she was pregnant as a result of rape. Amy didn’t report the rape, fearing backlash from her male comrades. The abortion ban meant there was no other way to end her pregnancy. She attempted to self-abort using a cleaning rod from her rifle.

Lifting the ban would return the Department of Defense to the policy that existed for many years: women soldiers facing unintended pregnancies could obtain safe abortion care from doctors willing to provide it. It’s such a cruel irony that America’s young women who volunteer to protect our constitutional rights are denied theirs.

Congress should act now to end the ban on private funding of abortion at military facilities. Our Armed Services women deserve more from their country.

*pseudonym

Analysis Law and Policy

Justice Kennedy’s Silence Speaks Volumes About His Apparent Feelings on Women’s Autonomy

Imani Gandy

Justice Anthony Kennedy’s obsession with human dignity has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

Last week’s decision in Whole Woman’s Health v. Hellerstedt was remarkable not just for what it did say—that two provisions in Texas’s omnibus anti-abortion law were unconstitutional—but for what it didn’t say, and who didn’t say it.

In the lead-up to the decision, many court watchers were deeply concerned that Justice Anthony Kennedy would side with the conservative wing of the court, and that his word about targeted restrictions of abortion providers would signal the death knell of reproductive rights. Although Kennedy came down on the winning side, his notable silence on the “dignity” of those affected by the law still speaks volumes about his apparent feelings on women’s autonomy. That’s because Kennedy’s obsession with human dignity, and where along the fault line of that human dignity various rights fall, has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

His opinion on marriage equality in Obergefell v. Hodges, along with his prior opinions striking down sodomy laws in Lawrence v. Texas and the Defense of Marriage Act in United States v. Windsor, assured us that he recognizes the fundamental human rights and dignity of LGBTQ persons.

On the other hand, as my colleague Jessica Mason Pieklo noted, his concern in Schuette v. Coalition to Defend Affirmative Action about the dignity of the state, specifically the ballot initiative process, assured us that he is willing to sweep aside the dignity of those affected by Michigan’s affirmative action ban in favor of the “‘dignity’ of a ballot process steeped in racism.”

Meanwhile, in his majority opinion in June’s Fisher v. University of Texas, Kennedy upheld the constitutionality of the University of Texas’ affirmative action program, noting that it remained a challenge to this country’s education system “to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

It is apparent that where Kennedy is concerned, dignity is the alpha and the omega. But when it came to one of the most important reproductive rights cases in decades, he was silent.

This is not entirely surprising: For Kennedy, the dignity granted to pregnant women, as evidenced by his opinions in Planned Parenthood v. Casey and Gonzales v. Carhart, has been steeped in gender-normative claptrap about abortion being a unique choice that has grave consequences for women, abortion providers’ souls, and the dignity of the fetus. And in Whole Woman’s Health, when Kennedy was given another chance to demonstrate to us that he does recognize the dignity of women as women, he froze.

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He didn’t write the majority opinion. He didn’t write a concurring opinion. He permitted Justice Stephen Breyer to base the most important articulation of abortion rights in decades on data. There was not so much as a callback to Kennedy’s flowery articulation of dignity in Casey, where he wrote that “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” are matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” (While Casey was a plurality opinion, various Court historians have pointed out that Kennedy himself wrote the above-quoted language.)

Of course, that dignity outlined in Casey is grounded in gender paternalism: Abortion, Kennedy continued, “is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedures for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted.” Later, in Gonzales, Kennedy said that the Partial-Birth Abortion Ban “expresses respect for the dignity of human life,” with nothing about the dignity of the women affected by the ban.

And this time around, Kennedy’s silence in Whole Woman’s Health may have had to do with the facts of the case: Texas claimed that the provisions advanced public health and safety, and Whole Woman’s Health’s attorneys set about proving that claim to be false. Whole Woman’s Health was the sort of data-driven decision that did not strictly need excessive language about personal dignity and autonomy. As Breyer wrote, it was a simple matter of Texas advancing a reason for passing the restrictions without offering any proof: “We have found nothing in Texas’ record evidence that shows that, compared to prior law, the new law advanced Texas’ legitimate interest in protecting women’s health.”

In Justice Ruth Bader Ginsburg’s two-page concurrence, she succinctly put it, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements.”

“Targeted Regulation of Abortion Providers laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection,” she continued, hammering the point home.

So by silently signing on to the majority opinion, Kennedy may simply have been expressing that he wasn’t going to fall for the State of Texas’ efforts to undermine Casey’s undue burden standard through a mixture of half-truths about advancing public health and weak evidence supporting that claim.

Still, Kennedy had a perfect opportunity to complete the circle on his dignity jurisprudence and take it to its logical conclusion: that women, like everyone else, are individuals worthy of their own autonomy and rights. But he didn’t—whether due to his Catholic faith, a deep aversion to abortion in general, or because, as David S. Cohen aptly put it, “[i]n Justice Kennedy’s gendered world, a woman needs … state protection because a true mother—an ideal mother—would not kill her child.”

As I wrote last year in the wake of Kennedy’s majority opinion in Obergefell, “according to [Kennedy’s] perverse simulacrum of dignity, abortion rights usurp the dignity of motherhood (which is the only dignity that matters when it comes to women) insofar as it prevents women from fulfilling their rightful roles as mothers and caregivers. Women have an innate need to nurture, so the argument goes, and abortion undermines that right.”

This version of dignity fits neatly into Kennedy’s “gendered world.” But falls short when compared to jurists internationally,  who have pointed out that dignity plays a central role in reproductive rights jurisprudence.

In Casey itself, for example, retired Justice John Paul Stevens—who, perhaps not coincidentally, attended the announcement of the Whole Woman’s Health decision at the Supreme Court—wrote that whether or not to terminate a pregnancy is a “matter of conscience,” and that “[t]he authority to make such traumatic and yet empowering decisions is an element of basic human dignity.”

And in a 1988 landmark decision from the Supreme Court of Canada, Justice Bertha Wilson indicated in her concurring opinion that “respect for human dignity” was key to the discussion of access to abortion because “the right to make fundamental personal decision without interference from the state” was central to human dignity and any reading of the Canadian Charter of Rights and Freedoms 1982, which is essentially Canada’s Bill of Rights.

The case was R. v. Morgentaler, in which the Supreme Court of Canada found that a provision in the criminal code that required abortions to be performed only at an accredited hospital with the proper certification of approval from the hospital’s therapeutic abortion committee violated the Canadian Constitution. (Therapeutic abortion committees were almost always comprised of men who would decide whether an abortion fit within the exception to the criminal offense of performing an abortion.)

In other countries, too, “human dignity” has been a key component in discussion about abortion rights. The German Federal Constitutional Court explicitly recognized that access to abortion was required by “the human dignity of the pregnant woman, her… right to life and physical integrity, and her right of personality.” The Supreme Court of Brazil relied on the notion of human dignity to explain that requiring a person to carry an anencephalic fetus to term caused “violence to human dignity.” The Colombian Constitutional Court relied upon concerns about human dignity to strike down abortion prohibition in instances where the pregnancy is the result of rape, involves a nonviable fetus, or a threat to the woman’s life or health.

Certainly, abortion rights are still severely restricted in some of the above-mentioned countries, and elsewhere throughout the world. Nevertheless, there is strong national and international precedent for locating abortion rights in the square of human dignity.

And where else would they be located? If dignity is all about permitting people to make decisions of fundamental personal importance, and it turns out, as it did with Texas, that politicians have thrown “women’s health and safety” smoke pellets to obscure the true purpose of laws like HB 2—to ban abortion entirely—where’s the dignity in that?

Perhaps I’m being too grumpy. Perhaps I should just take the win—and it is an important win that will shape abortion rights for a generation—and shut my trap. But I want more from Kennedy. I want him to demonstrate that he’s not a hopelessly patriarchal figure who has icky feelings when it comes to abortion. I want him to recognize that some women have abortions and it’s not the worst decision they’ve ever made or the worst thing that ever happened to him. I want him to recognize that women are people who deserve dignity irrespective of their choices regarding whether and when to become a mother. And, ultimately, I want him to write about a woman’s right to choose using the same flowery language that he uses to discuss LGBTQ rights and the dignity of LGBTQ people.  He could have done so here.

Forcing the closure of clinics based on empty promises of advancing public health is an affront to the basic dignity of women. Not only do such lies—and they are lies, as evidenced by the myriad anti-choice Texan politicians who have come right out and said that passing HB 2 was about closing clinics and making abortion inaccessible—operate to deprive women of the dignity to choose whether to carry a pregnancy to term, they also presume that the American public is too stupid to truly grasp what’s going on.

And that is quintessentially undignified.

Commentary Politics

A Telling Response: Trump’s Mistreatment of Women Evokes Yawn from GOP Leadership

Jodi Jacobson

Republican leaders have been largely dismissive of Donald Trump's misogynistic track record—which speaks volumes about the party's own treatment of women.

This weekend, the New York Times published the results of interviews with more than 50 people, many of whom attested to the fact that in both private and public life, presumptive Republican presidential nominee Donald Trump made “unwelcome romantic advances” toward women and exhibited “unsettling workplace conduct over decades.” Translation: He objectified, sexually harassed, and made unwelcome comments and advances toward women with whom he worked, whom he met in social settings, or who participated in his reality show empire. He even, according to one person quoted in the Times, sought assurance that his own daughter was “hot.” Yet GOP leadership has been largely dismissive of Trump’s track record—which speaks volumes about the party’s own feelings on women.

While important in its detail, the Times story is anything but surprising. Trump is a historical treasure trove of misogynistic behavior and has talked about it openly. In an interview with Esquire, for example, Trump stated: “You know, it doesn’t really matter what [the media] write as long as you’ve got a young and beautiful piece of ass.” He has frequently made derogatory comments about the looks of female politicians, journalists, actresses, and executives: He’s claimed that “flat-chested” women can’t be beautiful and mused about the potential breast size of his infant daughter. He’s suggested that sexual assault in the military is “expected” because men and women are working together and that the thought of someone pumping breast milk is “disgusting.”

Forgive me if I am not shocked that reports indicate he’s no feminist. Female voters know this: Even conservative news outlet National Review fretted about the fact that both Trump and former presidential aspirant Sen. Ted Cruz (R-TX) are both highly unpopular among female voters, noting that “seven out of ten women (67 percent) have an unfavorable view of Trump, and only 26 percent view him favorably… and [some] polls have his unfavorability ratings among women even higher, at 74 percent.”

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In interviews this weekend, the Times‘ report elicited what was effectively a yawn from Reince Priebus, chair of the Republican National Committee, the guy charged with leading the GOP both in terms of the party’s platform and in helping its candidates across the country get elected. On Sunday, Fox News‘s Chris Wallace asked Priebus whether the reports of Trump’s mistreatment of women bothered him. Priebus responded by asserting that “people just don’t care” about all these stories, although when pressed, he suggested that Trump would have to answer to his own statements.

But that dodges the question. Priebus is the head of the party and also needs to take responsibility for his nominee’s behavior, as does the party itself. He did not say, “I deplore the remarks Trump has made during the campaign,” or, “as a party, we need to reflect deeply on why our candidates and policies are so deeply unpopular among a group that makes up more than half the U.S. population.”

Priebus said none of that. He just shooed the issues away. The fact he did not even attempt to address the substance of the Times article is the most telling news of all.

The real problem is that it’s the GOP leadership that just doesn’t care. This morning, the Guardian reported that “After a week of make-up meetings with Donald Trump, Republican party leaders have arrived at a new strategy to accommodate their presumptive presidential nominee: ignore his problematic attitude to women, his tax issues and his fluctuating positions on trade, immigration, foreign relations and a host of other topics, and instead embrace the will of Republican voters.”

The reality is that Trump’s “problematic attitude toward women” is not an isolated problem. For the GOP leadership, it is not a problem at all, but the product of their fundamental policies and positions. The GOP has been waging war on women’s fundamental rights for nearly two decades; it’s just gotten more brash and unapologetic about the attitudes underlying the party’s policies. The GOP is full of candidates who think pregnancy resulting from rape is a blessing; who minimize and stigmatize the role of access to contraception and abortion in public health and personal medical outcomes; who demonize and marginalize single mothers; and who won’t pay for basic services to help the poor. The GOP platform is built on policies that seek to deny women access to reproductive and sexual health care, including but not limited to abortion, thereby also denying them the right to self-determination and bodily autonomy. So the fact that both the party leaders and the media spun themselves into a tizzy when Trump suggested he would imprison women who had abortions was all theater. That is GOP policy.

The GOP majority in Congress and in state legislatures continues to deny low-wage workers—the majority of whom are women—living wages, labor protections, and paid family leave. At the state level, Republican governors and legislators have obliterated funding for education, child care, aid to single-parent families, aid to children with disabilities, and basic health-care services. And Trump is far from unique in this election cycle among GOP presidential candidates: Republicans in the running from Ted Cruz on down have used women as objects when it is convenient, with Cruz going so far as to parade his two young daughters on the campaign trail in bright pink dresses, seemingly to underscore their “innocence” and to stoke fear of transgender persons seeking access to the most basic facilities, though many of those are young girls themselves.

It’s not only Donald Trump’s mistreatment of women. It’s that the GOP’s platform is based on sheer misogyny, and the leadership has to ignore it or they’d have to rethink their entire platform and start from scratch.