Commentary Law and Policy

Open Letter to the Kansas Office of the Repealer

Julie Burkhart

Governor Brownback  has established the Office of the Repealer to help rid Kansas of “unreasonable, unduly burdensome, duplicative, onerous or conflicting laws.” My organization was able to think of just a few recent laws that are extremely unreasonable, duplicative, and overly burdensome to hard-working women and families.

The wave of anti-choice legislation that has passed across the nation over the last several years has been particularly impactful in Kansas, where my organization, Trust Women, is fighting to provide access to comprehensive maternal and reproductive care. In a pretty incredible display of disconnect, Governor Brownback, whose government has established some of the most stringent anti-abortion laws in the nation, has established the Office of the Repealer to help rid the state of “unreasonable, unduly burdensome, duplicative, onerous or conflicting laws.”

My organization was able to think of just a few recent laws that are extremely unreasonable, overly burdensome to hard-working women and families, duplicative of already existing oppressive state or federal legislation, and in serious conflict with women’s ability to control their reproductive choices. This office has an opportunity to turn back the tide of anti-choice legislation set forth, not by the people of Kansas, but by our misguided elective representatives, who seem unable to trust women to make the best decisions for themselves and their families.

We encourage every state government that has passed similar, coordinated attacks on women’s reproductive health care to do the same.

To the Office of the Repealer,

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According to the state of Kansas, your office has been given the task of sorting through “unreasonable and burdensome laws,” in the interest of repealing as many as is needed to ensure that your citizens live peacefully and without undue government interference. We were told we should contact you in the event that we “believe that an unreasonable, unduly burdensome, duplicative, onerous or conflicting law, regulation or other governing instrument, detrimental to the economic well-being of Kansas, exists.” We do, in fact, believe that just such a burden has been levied on the women of the state, and we have a list of laws we would like to see repealed, effective immediately. We submit for your consideration:

65-6708, 65-6709 – “Woman’s Right to Know” Act, which subjects women who seek an abortion to an unnecessary waiting period and requires physicians to offer to show them a sonogram of the fetus, as well as to listen to the fetal heartbeat.

Since the recession, an estimated 73% of women having abortions are already raising children. This means more than half of the women seeking to terminate a pregnancy are already mothers. These women are well aware of what a sonogram looks like. There is no need to subject them to burdensome, time-consuming, not to mention costly measures designed to shame and guilt them. More than a “right” to information they do not want and did not ask for, women have a right to undergo a legal medical procedure without state morality police telling them what is right and wrong. In addition, the law requires the state to supply, for free, medically dubious literature for physicians to offer to their patients. Surely the state’s limited resources could be put to better use.

HB 2218 – 22 Week Ban on Abortion

This bill illegally undermined the Supreme Court Decision Roe v Wade by making abortions illegal in the state of Kansas at 22 weeks, with no exception for severe fetal abnormalities. This is extremely burdensome for women who find out late in the pregnancy that the fetus has no heart, or brain, and will not survive outside the womb, thus forcing them to carry a non-viable child to term and undergo the trauma of giving birth to a child that is already dead – forcing them to serve as living tombs, a circumstance that undoubtedly causes psychological as well as physical trauma. This law also places an extraordinary economic burden on the citizens of Kansas in several ways. First, these women will require medical care that would not be required if they were to be allowed to terminate the pregnancy. Second, because the law is unconstitutional given the Roe decision, the state will be called upon to defend it, and precious state resources, including both time and money, will be sucked up in an unnecessary legal battle, fighting to defend an indefensible law that places an enormous burden on the women of Kansas.

HB 2035 – Omnibus Abortion Restriction Bill

This Omnibus Abortion Restriction Bill is repetitive and unnecessary, creating double parental consent laws for minors. Studies indicate that the majority or minors who seek termination of pregnancy services do talk to at least one parent. This intrusion only pushes minors who feel that they cannot talk with both parents to discontinue communication with those family members with whom they feel safe. Why put our minors at risk? In addition, parts of the law open providers up to litigation, putting an unnecessary burden on the medical profession as well as the state courts.

H Sub SB 36 – Targeted Regulations against Abortion Providers

These laws are the epitome of unnecessary and burdensome, holding clinics where abortions are performed to more stringent regulations than some hospitals and ambulatory surgical centers in the same state. Abortions performed during the first trimester are significantly less likely to have complications than actually giving birth. The law briefly shut down (until there was an injunction filed) two of the three facilities where the women of Kansas go to receive abortion care. The ramifications of shutting down clinics puts the burden right back on women, requiring many patients to travel hundreds of miles and take additional time off from work. These laws require women to choose between feeding their families, keeping their job, and undergoing a legal medical procedure. The cost to women’s health and lives will become a burden on the state.

HB 2075 – Abortion Coverage Insurance Ban

Finally, the state has gone too far in interfering with what private insurers can and cannot cover for their patients. Nothing could be more intrusive than telling private companies what they can offer their customers. For a state government that has repeatedly refused to regulate corporations in order to best serve the interests of its citizens to then turn around and put burdensome, unnecessary, intrusive regulations on women’s health care is unconscionable.

We believe overturning these laws and regulations is well within the scope of your charge, and we hope you will do so immediately, for the sake of the health of every woman in the state of Kansas.

Trust Women

For more information on regional access to reproductive care in the Midwest and South, follow us on Twitter @TrustWomen.

Analysis Human Rights

El Salvador Bill Would Put Those Found Guilty of Abortion Behind Bars for 30 to 50 Years

Kathy Bougher

Under El Salvador’s current law, when women are accused of abortion, prosecutors can—but do not always—increase the charges to aggravated homicide, thereby increasing their prison sentence. This new bill, advocates say, would heighten the likelihood that those charged with abortion will spend decades behind bars.

Abortion has been illegal under all circumstances in El Salvador since 1997, with a penalty of two to eight years in prison. Now, the right-wing ARENA Party has introduced a bill that would increase that penalty to a prison sentence of 30 to 50 years—the same as aggravated homicide.

The bill also lengthens the prison time for physicians who perform abortions to 30 to 50 years and establishes jail terms—of one to three years and six months to two years, respectively—for persons who sell or publicize abortion-causing substances.

The bill’s major sponsor, Rep. Ricardo Andrés Velásquez Parker, explained in a television interview on July 11 that this was simply an administrative matter and “shouldn’t need any further discussion.”

Since the Salvadoran Constitution recognizes “the human being from the moment of conception,” he said, it “is necessary to align the Criminal Code with this principle, and substitute the current penalty for abortion, which is two to eight years in prison, with that of aggravated homicide.”

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The bill has yet to be discussed in the Salvadoran legislature; if it were to pass, it would still have to go to the president for his signature. It could also be referred to committee, and potentially left to die.

Under El Salvador’s current law, when women are accused of abortion, prosecutors can—but do not always—increase the charges to aggravated homicide, thereby increasing their prison sentence. This new bill, advocates say, would worsen the criminalization of women, continue to take away options, and heighten the likelihood that those charged with abortion will spend decades behind bars.

In recent years, local feminist groups have drawn attention to “Las 17 and More,” a group of Salvadoran women who have been incarcerated with prison terms of up to 40 years after obstetrical emergencies. In 2014, the Agrupación Ciudadana por la Despenalización del Aborto (Citizen Group for the Decriminalization of Abortion) submitted requests for pardons for 17 of the women. Each case wound its way through the legislature and other branches of government; in the end, only one woman received a pardon. Earlier this year, however, a May 2016 court decision overturned the conviction of another one of the women, Maria Teresa Rivera, vacating her 40-year sentence.

Velásquez Parker noted in his July 11 interview that he had not reviewed any of those cases. To do so was not “within his purview” and those cases have been “subjective and philosophical,” he claimed. “I am dealing with Salvadoran constitutional law.”

During a protest outside of the legislature last Thursday, Morena Herrera, president of the Agrupación, addressed Velásquez Parker directly, saying that his bill demonstrated an ignorance of the realities faced by women and girls in El Salvador and demanding its revocation.

“How is it possible that you do not know that last week the United Nations presented a report that shows that in our country a girl or an adolescent gives birth every 20 minutes? You should be obligated to know this. You get paid to know about this,” Herrera told him. Herrera was referring to the United Nations Population Fund and the Salvadoran Ministry of Health’s report, “Map of Pregnancies Among Girls and Adolescents in El Salvador 2015,” which also revealed that 30 percent of all births in the country were by girls ages 10 to 19.

“You say that you know nothing about women unjustly incarcerated, yet we presented to this legislature a group of requests for pardons. With what you earn, you as legislators were obligated to read and know about those,” Herrera continued, speaking about Las 17. “We are not going to discuss this proposal that you have. It is undiscussable. We demand that the ARENA party withdraw this proposed legislation.”

As part of its campaign of resistance to the proposed law, the Agrupación produced and distributed numerous videos with messages such as “They Don’t Represent Me,” which shows the names and faces of the 21 legislators who signed on to the ARENA proposal. Another video, subtitled in English, asks, “30 to 50 Years in Prison?

International groups have also joined in resisting the bill. In a pronouncement shared with legislators, the Agrupación, and the public, the Latin American and Caribbean Committee for the Defense of the Rights of Women (CLADEM) reminded the Salvadoran government of it international commitments and obligations:

[The] United Nations has recognized on repeated occasions that the total criminalization of abortion is a form of torture, that abortion is a human right when carried out with certain assumptions, and it also recommends completely decriminalizing abortion in our region.

The United Nations Committee on Economic, Social, and Cultural Rights reiterated to the Salvadoran government its concern about the persistence of the total prohibition on abortion … [and] expressly requested that it revise its legislation.

The Committee established in March 2016 that the criminalization of abortion and any obstacles to access to abortion are discriminatory and constitute violations of women’s right to health. Given that El Salvador has ratified [the International Covenant on Economic, Social and Cultural Rights], the country has an obligation to comply with its provisions.

Amnesty International, meanwhile, described the proposal as “scandalous.” Erika Guevara-Rosas, Amnesty International’s Americas director, emphasized in a statement on the organization’s website, “Parliamentarians in El Salvador are playing a very dangerous game with the lives of millions of women. Banning life-saving abortions in all circumstances is atrocious but seeking to raise jail terms for women who seek an abortion or those who provide support is simply despicable.”

“Instead of continuing to criminalize women, authorities in El Salvador must repeal the outdated anti-abortion law once and for all,” Guevara-Rosas continued.

In the United States, Rep. Norma J. Torres (D-CA) and Rep. Debbie Wasserman Schultz (D-FL) issued a press release on July 19 condemning the proposal in El Salvador. Rep. Torres wrote, “It is terrifying to consider that, if this law passed, a Salvadoran woman who has a miscarriage could go to prison for decades or a woman who is raped and decides to undergo an abortion could be jailed for longer than the man who raped her.”

ARENA’s bill follows a campaign from May orchestrated by the right-wing Fundación Sí a la Vida (Right to Life Foundation) of El Salvador, “El Derecho a la Vida No Se Debate,” or “The Right to Life Is Not Up for Debate,” featuring misleading photos of fetuses and promoting adoption as an alternative to abortion.

The Agrupacion countered with a series of ads and vignettes that have also been applied to the fight against the bill, “The Health and Life of Women Are Well Worth a Debate.”

bien vale un debate-la salud de las mujeres

Mariana Moisa, media coordinator for the Agrupación, told Rewire that the widespread reaction to Velásquez Parker’s proposal indicates some shift in public perception around reproductive rights in the country.

“The public image around abortion is changing. These kinds of ideas and proposals don’t go through the system as easily as they once did. It used to be that a person in power made a couple of phone calls and poof—it was taken care of. Now, people see that Velásquez Parker’s insistence that his proposal doesn’t need any debate is undemocratic. People know that women are in prison because of these laws, and the public is asking more questions,” Moisa said.

At this point, it’s not certain whether ARENA, in coalition with other parties, has the votes to pass the bill, but it is clearly within the realm of possibility. As Sara Garcia, coordinator of the Agrupación, told Rewire, “We know this misogynist proposal has generated serious anger and indignation, and we are working with other groups to pressure the legislature. More and more groups are participating with declarations, images, and videos and a clear call to withdraw the proposal. Stopping this proposed law is what is most important at this point. Then we also have to expose what happens in El Salvador with the criminalization of women.”

Even though there has been extensive exposure of what activists see as the grave problems with such a law, Garcia said, “The risk is still very real that it could pass.”

Roundups Law and Policy

Gavel Drop: Republicans Can’t Help But Play Politics With the Judiciary

Jessica Mason Pieklo & Imani Gandy

Republicans have a good grip on the courts and are fighting hard to keep it that way.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

Linda Greenhouse has another don’t-miss column in the New York Times on how the GOP outsourced the judicial nomination process to the National Rifle Association.

Meanwhile, Dahlia Lithwick has this smart piece on how we know the U.S. Supreme Court is the biggest election issue this year: The Republicans refuse to talk about it.

The American Academy of Pediatrics is urging doctors to fill in the blanks left by “abstinence-centric” sex education and talk to their young patients about issues including sexual consent and gender identity.

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Good news from Alaska, where the state’s supreme court struck down its parental notification law.

Bad news from Virginia, though, where the supreme court struck down Democratic Gov. Terry McAuliffe’s executive order restoring voting rights to more than 200,000 felons.

Wisconsin Gov. Scott Walker (R) will leave behind one of the most politicized state supreme courts in modern history.

Turns out all those health gadgets and apps leave their users vulnerable to inadvertently disclosing private health data.

Julie Rovner breaks down the strategies anti-choice advocates are considering after their Supreme Court loss in Whole Woman’s Health v. Hellerstedt.   

Finally, Becca Andrews at Mother Jones writes that Texas intends to keep passing abortion restrictions based on junk science, despite its loss in Whole Woman’s Health.