Last week, European Union Justice Minister Viviane Reding proposed requiring 40 percent female representation on all European Union (EU) public company boards by 2020 (state-owned companies must meet the requirement by 2018). This is a strong-arm tactic to address gender disparity on corporate boards, which is common worldwide: European corporate boards have roughly 12 percent women, and globally women make up about 10 percent of corporate board members. If the European Commission approves Reding’s proposal, the EU will join the ranks of Norway, India and several other governments that already have similar quotas for women’s representation on corporate boards.
The United States is not among these governments; in fact, Reding’s proposal is proof of the stark disparity in policy aggressiveness on gender parity issues in the United States versus other countries. In the United States, there are no policies in place with teeth to actually increase women’s leadership in business–and there aren’t really any policy proposals in the pipeline, either.
Even though women’s representation on corporate boards hovers at barely 16 percent in the United States, it is unlikely that government-mandated gender parity quotas could ever be politically palatable here. More importantly, it is unclear whether government-mandated quotas are a sound policy solution for increasing women’s influence and changing how institutions act. European countries have shown some detrimental results from the quotas they have instituted, as documented by the World Bank’s recent report “Gender Quotas and Female Leadership.” The report found that some male leaders of corporate firms respond strategically to government quotas in order to dilute their impact, and that some countries with quotas have been slow to achieve compliance. Quotas have long been unappealing to many Americans, even, for example, in the context of college admissions–U.S. feminists know that pushing for gender quotas could be politically disastrous.
Instead, groups like the 30 Percent Coalition, an advocacy organization that hopes to achieve 30 percent women’s representation on U.S. corporate boards by 2015, push for voluntary gender parity through appealing to the American capitalist. They focus on persuading corporate leadership as well as policymakers that more women on boards is good business. They talk about the economic and cultural value of increasing the number of women on corporate boards to at least 30 percent, as well as the ability of companies to attract and retain talent if they diversify, as exemplified by a letter the 30 Percent Coalition recently sent to 41 companies in the S&P 500 that do not have any women on their boards. The advocacy language is necessarily focused on what is best for the company and its shareholders–not as much on justice and basic fairness.
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The problem is, even this pro-business strategy in the United States is moving the needle at a snail’s pace. Corporations have been slow to react on their own–famously Facebook finally appointed one woman to its board earlier this year, Sheryl Sandberg, the same women who serves as the company’s Chief Operating Officer. Some companies claim they cannot find enough qualified women directors, but Charlotte Laurent-Ottomane, Project Manager of the 30 Percent Coalition, says there is no shortage of women who could serve. GMI Ratings have created a database of potential board candidates, known as the Diverse Director Datasource, to try to address the qualified candidate question.
While some political leaders have embraced the gender parity cause and signed on to the 30 Percent Coalition’s letter to corporations, the only actual federal policy with respect to corporate governance diversity can be found in Securities and Exchange Commission (SEC) regulations. In 2010, the SEC adopted a new regulation requiring boards to disclose their diversity efforts.
This regulation does not actually require diversity. It only requires that public companies disclose what, if any, efforts have been taken toward achieving diversity. (And we thought “with all deliberate speed” was ineffectual.)
“The SEC regulation created excitement at the time it was adopted,” said Laurent-Ottomane. “But did it make a difference? No, it did not.”
Even the disclosure requirement is not policed, according to Laurent-Ottomane. And the regulation calls only for “diversity” and not gender diversity specifically. The 30 Percent Coalition and other groups lobbied the SEC to adopt the regulation, but Laurent-Ottomane now feels it has not accomplished anything.
“Our goal is to hit 30 percent women on corporate boards by 2015,” Laurent-Ottomane said. “But since companies are not required to do this, it’s going to be a hard target to hit.”
The 30 percent target is rooted in theories about critical mass (not to be confused with the cycling event). “Critical mass” refers to appointing enough women to a board of directors (or any leadership body) so as to impact the culture and substantive decisions of that board. Assuming a board comprised of about ten members, just one female board member may not necessarily make a difference, but two is better than one, and three is significantly better than two.
According to the 30 Percent Coalition’s research, hitting 30 percent female representation on boards affects governance in several ways. The content of boardroom discussion is more likely to include the perspectives of the multiple stakeholders that are affected by company performance, including employees, customers, and the community at large. A recent study about the substantive difference in opinion among female versus male economists underscores the importance of gender diversity in decision making bodies.
More women also tend to make the boardroom open and collaborative, which helps management hear the board’s concerns. In the sectors that have been most resistant to including women in board leadership like oil and gas, advocates push hard on the idea that companies who fail to appoint more women to their boards fail to see all the risks in their decision making.
Again, the advocacy language is focused on what is best for the company–rather than basic equity principles and the economic justice impact of diversifying corporate leadership. It’s a languid, frustrating route to gender parity–but so far, that’s the American way.
As I was reading The Diversity Advantage: Fixing Gender Inequality In the Workplace, I saw my nontraditional life and needs represented by the policies the author advocates for and realized these are fights I need to be more involved in, for reasons beyond rounding out my reproductive justice advocacy.
I’m not married, I’ve never given birth, and I work for myself—three things I don’t plan to change. Given that, I’m a seemingly unlikely person to advocate for paid family leave and policies that keep women from ending up sidelined into the “mommy track.” As I was reading Ruchika Tulshyan’s new book The Diversity Advantage: Fixing Gender Inequality in the Workplace, however, I saw my nontraditional life and needs represented by the policies the author pushes and realized these are fights I need to be more involved in, for reasons beyond rounding out my reproductive justice advocacy.
I’m fighting for myself.
Tulshyan—a writer with degrees from Columbia’s Graduate School of Journalism and the London School of Economics and Political Science—has covered diversity and leadership in business all over the world. So, her approach is focused on outlining for upper management and business owners why intentional diversity and traditionally “woman-oriented” policies like parental leave are actually good for their bottom line.
By the time I’d consumed Chapter 3—“Give Your Employees Flexibility Without Shame”—and Chapter 4—“Reversing the Mommy Track”—I’d realized that all the anti-woman, anti-family, and anti-diversity standards embedded in our current brand of capitalism here in the United States are also inherently ableist, leave zero room for nontraditional dating lives, punish anyone with a uterus who’s of childbearing age, and trickle down to how organizations and contractors treat freelancers. Just because I don’t have a standard job or family doesn’t mean I am not affected by the values of corporate culture.
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Until the new standard becomes respecting employees’ actual lives and providing what they need to live them, I will continue to struggle with negotiating for time off from contracts, calling in sick to myself and those who contract with me, and worrying about aging parents and a sibling-by-choice whose health care will likely fall on me.
And that was just what hit me while I was reading.
I started paying more attention to my own life and stories in the news about pay discrimination, the challenges of balancing work and life, the frequency of employers ignoring the needs of people with nontraditional families. I went back and re-read The Diversity Advantage with new eyes.
The first thing that stood out was how the flexibility originally designed to comply with maternity and family leave would help those of us in the workforce with chronic medical conditions. To keep flex time from being used against those who need or choose to use it, Tulshyan suggests employers implement what she calls “flexibility without shame.” In doing so, policies of all kinds about flex time, working from home, and number of days in a workweek end up benefiting people of all genders and circumstances.
“[W]e have the ability to perform a multitude of tasks with just a portable laptop and steady Internet connection,” Tulshyan explains. “‘Going to work’ could have been largely transformed by the type of technology that exists today. The keyword here is ‘could.’ Unfortunately even many workplaces that offer flexible work policies in theory still penalize employees who are not always in the office.”
As someone with a mental health profile (dysthymia, anxiety, attention deficit disorder, and possible post-traumatic stress disorder diagnosed so far) that requires me to take medication, assess and revise treatment plans, and spend regular business hours at the doctor, a “regular” job is off the table and even my editors and other clients have to be flexible and patient. I have learned to build flex time into my schedule (though, admittedly I don’t always do this successfully). A change in work culture’s expectations would allow me to thrive more fully even as a self-employed person.
The kinds of challenges “returning” parents face are also issues for people with chronic disorders or with family members they care for.
Western Europe countries offer mothers an average of 40.5 paid weeks of leave and Finland allows over three years per child—but having a job waiting for you when you get back isn’t the only guarantee working parents need.
“Even in countries with very generous paid maternity leave—all of the Scandinavian countries, for example—there’s research to show that women suffer in other ways: They lose out on pay, leadership opportunities and even access to professional networks,” writes Tulshyan. Any activity or required leave that causes a break in active engagement in a field will create similar lags in advancement and missed chances on projects and leads.
Even though the numerous studies and interviews with executives in The Diversity Advantage show that “being able to engage employees fully part time can be much better than engaging them distractedly full time,” anyone who can’t be on board continually is often seen as a less valuable employee or an expendable contractor. Increasingly, though, millennials especially are expecting flexibility. They don’t accept the standard resistance and restrictions on advancement that often come with asking to work flexibly—even in offices and companies that supposedly offer that benefit.
A survey by telecommuting and freelance jobs site FlexJobs found that flexible work arrangements are even better for organizations than the employees. As Tulshyan notes:
82% responded that they would be more loyal to their organizations if they had flexible work options. There are consequences if companies don’t catch on: 39% have turned down a promotion or job or quit over lack of flexibility.
Women in particular have historically been and continue to be affected disproportionately by—and have become less willing to tolerate—a hostile, patriarchal work culture. According to Tulshyan’s research, even though we outpace men in pursuing upper-level degrees, the U.S. female workforce participation has dropped to 69 percent. She explains that if companies want to attract and retain women who increasingly must “balance multiple significant roles,” they’re going to need firm policies that incentivize talent to apply for open positions and stick around.
The only way to effectively implement even baseline paid maternity leave is to make flexibility “a standardized norm,” according to the research and interviews Tulshyan did around the globe. Having incrementally better maternity leave isn’t enough because it creates an inherently unequal situation where those who utilize the leave are punished simply by being absent.
“The key is to have an environment where flexible work arrangements are considered both gender-neutral and an institutionalized part of the culture,” Tulshyan writes, citing executives who continually hear that employees feel judged when they make use of flex-time policies. Those same executives and others charged with human resource development continue to be frustrated because they know the cost-benefit analysis would come out in their favor if their companies took the time to ensure policies were punishment-free.
“Time and again,” she writes, “leaders I’ve interviewed for this book have mentioned the short-term costs of implementing a dedicated flexibility program—money, time, efforts to change culture—as a tradeoff worth making for the long-term benefits of an engaged, loyal and high-performing employee base.”
I certainly know I’m more loyal to the contracts that treat me fairly—it’s a simple math equation for me. I am not in a position to ignore when I’m not paid an appropriate sum or when paying me in a reasonable timeframe is clearly not a priority; when I don’t get paid, I don’t eat.
The attitudes of corporate and “standard” workplace culture roll down to me and even more so to people in service industry and retail jobs. I know from experience, having worked extended periods in both retail and bars/restaurants. Until “skilled” workers are treated well, those of us who freelance and those who work in “unskilled” labor will continue to struggle for fair treatment. Fighting for a higher minimum wage and fair scheduling à la Fight for $15 is a worthwhile endeavor that can trickle up; we should also be fighting for the flexibility and equity policies that trickle down.
That means pushing our candidates and lobbying our legislators, because this country is embarrassingly behind in supporting women, families, parents of any kind, and especially nontraditional families—such as those that include non-primary parents, or shared elder care responsibilities, or anyone who can’t or doesn’t feel the need to be legally bound to their partner(s).
From The Diversity Advantage:
In the U.S., where the majority of the organizations I interviewed for this book are headquartered, paid leave statistics are abysmal. America is the only industrialized country that doesn’t have a government mandate to provide workers with any paid leave. The existing Family and Medical Leave Act of 1993 gives only about half of all workers 12 weeks of unpaid leave for birth or medical conditions. In this regard, the U.S. trails far behind nations like Pakistan (12 weeks paid at 100% of salary) and Sundan (eight weeks fully paid).
It gets worse.
In case you haven’t had to look into it or assume that as a supposed international leader on human rights the United States would at least be doing the bare minimum, this country has no paid maternity leave mandated by federal law. And a frustrating few qualify for guaranteed unpaid leave. Your job is protected when you go on your unpaid leave—but only if you’re a full-time employee who has worked at the company for more than a year and only if the company has more than 50 employees. That leaves a disastrous number of workers out in the cold.
Some states have taken it upon themselves to tackle providing paid leave—a necessary provision of a successful governmental policy to ensure small businesses don’t incur budget-busting costs. This partnership model is used by countries all over the world.
As is the case with so many policies and programs that benefit individual workers, paid parental leave is also good for companies of all sizes. Tulshyan quotes the National Partnership for Women & Families on the subject:
In California, which has had a state paid leave program for more than a decade, 83% of workers in ‘lower-quality’ jobs who used the program returned to their previous employer — a 10-point improvement compared to workers who did not use the program.
The good news about our lack of federal law, according to experts Tulshyan interviewed, is that we have a chance to do paid parental leave correctly:
“Because they are so late to the game, I think the U.S. has a unique opportunity to innovate and lead the way on policies to do with working parents,” said Anna Steffeney, a former IT executive and founder of LeaveLogic, a startup that helps companies implement maternity leave benefits.
Essentially, not only can we lobby our legislators for well-crafted law on the subject, but businesses are not beholden to existing shoddy law, so they are free to implement well-constructed policy changes now.
Tulshyan isn’t waiting for Congress and statehouses to get it together; she’s busy explaining to corporations why paid parental leave is good for business.
“To retain and advance the best employees, especially women,” she writes, “organizations must accommodate workers who are—or want to be—parents.”
Here again, I see myself.
I’m polyamorous—which means, ideally, I have more than one romantic partner to whom I’m committed on some level, though not monogamous with. Unlike most of the poly community, however, I describe myself as “solo” because I don’t thrive with an “anchor” partner—the husband/live-in person with whom daily life and logistics are intertwined. Frankly, I don’t want to live with anyone, and my emotional labor intake and output are really well-balanced with the close friends and partners I have; there simply isn’t a need or space for the traditional life partner most people want and need.
While this means I won’t have what most would consider children of “my own”—which is more than fine because I have intentionally been a non-parent for a decade now—I have discovered I’m open to being a non-primary parent in the context of a close partnership. Poly families are not constrained by a standard structure and it’s commonplace for tight-knit groups of three or four (or more!) to either live together (probably not in my case) or close by and share the duties of caring for children, siblings, aging family members, and other loved ones during times of stress or sickness.
That all may sound lovely or weird or overly ambitious depending on your background, but legally speaking it is a great big mess. I don’t have close immediate family and never plan to get married, which means I’ll never have immediate family. My parents pop in and out of my life at the whim of my mother, which means I will likely be charged with their care. But they are the only people on behalf for whom I have any legal right to take family leave. Just because I’m not married and have no blood siblings doesn’t mean I don’t have anyone who relies on me and whom I would want to care for.
Several of the recommendations Tulshyan makes under her subhead, “The Case for Adequate Paid Maternity Leave,” would help more than just mothers.
“Working mothers could cumulatively save $14 billion if companies offered a global return-to-work policy that allows them to work just four days a week, at full pay, for the first six months after they return to work,” writes Tulshyan. And why not extend that—which you’d have to under the gender-neutral, flexibility-without-shame standards—to people pursuing new treatment plans for medical conditions or taking their turn at home with the children they co-parent so a partner can go out of town to care for a sick parent?
The stats Tulshyan quotes from an op-ed at the Wall Street Journal by Google executive Susan Wojcicki (currently CEO of YouTube) would certainly only improve with policies that benefit people like me.
“When Google increased its paid maternity leave to 18 weeks, the rate at which new mothers left the company dropped by half,” Wojcicki wrote. “It’s much better for Google’s bottom line—to avoid costly turnover, and to retain the valued expertise, skills and perspective of our employees who are mothers. … Best of all, mothers come back to the workforce with new insights. I know from experience that being a mother gave me a broader sense of purpose, more compassion and a better ability to prioritize and get things done efficiently.”
The same would be true for those with other kinds of life experiences. The more diverse your organizational structure and staffing gets, the better your company becomes at catering to a diverse clientele or market.
Here, again, millennials especially are intolerant of organizations without built-in flexibility. In fact, not offering this benefit is increasingly costing companies young talent. I identify completely with the reasoning millennials cite. “[Forty-eight percent] of millennials would avail of paid parental leave when they had children, more than any other previous generation,” writes Tulshyan. “Even if they aren’t planning to ever have children—or any time soon—knowing that they’re working for an inclusive environment that values families is important.”
These values are even more important for someone who does freelance and contract work because I’m already seen as expendable and/or interchangeable too much of the time. I can get “off-ramped” simply because I’m of childbearing age—whether or not I actually want children. Most prospective clients won’t ask; they’ll just go with the male application or proposal so they don’t have to worry about it. But if we had a work culture that neutralized this tendency, I wouldn’t have to screen so hard or be so specific in contract language to ensure any time off—sick time of my own or potential family leave—won’t end or void my contract or lead to it not being renewed.
Tulshyan concludes her chapter on reversing the “mommy track” by turning a current losing situation into a win-win:
[I]t’s devastating that a working mother’s career options and her child’s care can be determined by how progressive her employer is on this issue. … This is an opportunity for employers to differentiate themselves and innovate early to find solutions. It’s good for women, but it’s also great for business.
The most optimistic and far-reaching existing policy about flexibility and paid family leave in The Diversity Advantage is also the simplest, and the one I think should be the new standard. It comes from global technology company SAP’s “best practices policy” and would cover all the imagined and yet to be conceived life challenges:
All employees with a permanent contract, regardless of age or career stage, are eligible for the program for extended absences such as: parental leave for all genders; sabbatical; caring for a relative; sickness.
What a concept: respecting all aspects of the lives of employees, no matter their circumstances. Sign me up!
The next year promises to be an eventful one on the legal front—though we feel like we say that every December. After all, 2015 brought challenges to the Pregnancy Discrimination Act; a case on whether not hiring an employee because she wears a hijab is employment discrimination; the historic and successful challenge to same-sex marriage bans; the failed challenge to federal subsidies in the Affordable Care Act; and a failed attempt to gut the Fair Housing Act. Meanwhile, 2014 was the year the Roberts Court gave the green light to governments embracing prayer at civic functions; it also struck most abortion clinic buffer zones as unconstitutional in McCullen v. Coakley. And who could forget Hobby Lobby v. Burwell,the case in which the Roberts Court created a constitutional corporate right to object to contraception coverage?
Even so, 2016 is stillshaping up to be an important year for reproductive rights and justice. Some cases on the list to watch—like yet another challenge to the birth control benefit in the Affordable Care Act—we anticipated. Other cases, like the trial in Colorado of Robert Lewis Dear Jr., who is accused of launching a siege at a Planned Parenthood health-care center in Colorado Springs that killed three, injured nine, and terrorized many others, we wish were not here at all. But given the violent rhetoric targeting abortion doctors, providers, and patients that increased over the course of 2015, we can’t say we were surprised to put it there.
The Roberts Court
Whole Woman’s Health v. Cole
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Whole Woman’s Health v. Cole is the Roberts Court’s first substantive dive back into abortion-rights law since Gonzales v. Carhart, which banned so-called partial-birth abortions in 2006. But unlike Gonzales, which focused on the constitutionality of a procedure-specific abortion ban, Whole Woman’s Health v. Cole takes on the porous “undue burden” standard of 1992’s Planned Parenthood v. Casey decision by tackling just how rigorously courts should apply that standard when reviewing abortion restrictions that purport to advance patient health and safety. That makes Whole Woman’s Health v. Cole the Court case with the most potential to affect abortion rights in nearly 25 years.
Little Sisters and the Rest of the Nonprofit Contraception Cases
Another Roberts Court term brings another challenge to some portion of the Affordable Care Act. This time, the Court returns to the ACA’s birth control benefit and the question of whether the government’s process for allowing religiously affiliated nonprofits to opt out from providing health insurance plans that offer contraception is too burdensome under the federal Religious Freedom Restoration Act (RFRA). The Court consolidated seven cases filed by hospitals, nursing homes, and other kinds of businesses that are religiously run and affiliated; all object to filling out the opt-out form. The cases represent not just a test to the administration’s opt-out provision for the birth control benefit, but the strength of the majority decision in Hobby Lobby v. Burwell, which relied on the accommodation process now before the Court to rule that for-profit businesses should have a similar opt-out option available. A ruling that would allow these nonprofits to be exempted from the coverage would have enormous implications, as 10 percent of larger nonprofits have asked the Obama administration for an accommodation to the rule already.
Friedrichs v. California Teachers Association
The Roberts Court has not been kind to workers’ rights generally, making it harder for employees harassed by supervisors to sue and drastically reducing employees’ abilities to raise class-action lawsuits. This term is no exception with Friedrichs v. California Teachers Association, a case that takes on the way public employee unions are funded. Currently, if a union represents a group of workers, that company’s entire workforce, or at least a defined portion of it, pays a fee designed to compensate the union for its bargaining activities. The argument supporting these fees is that the union’s actions benefit the entire workforce—not just union members—and the fee is nominal in the face of the influence of management and corporate owners. But anti-union interests argue those fees violate the First Amendment. Should the Roberts Court agree, the result would severely limit unions’ abilities to raise money for their operations and to effectively bargain on behalf of their members. Women and people of color, who make up the majority of public employee union membership, would feel the most severe effects in this scenario.
Evenwel v. Abbott
Evenwel is the latest in a series of “representation” cases dreamed up by Edward Blum, director of the Project on Fair Representation—which was behind Shelby County v. Holder, the 2013 case that gutted the Voting Rights Act. Blum is also responsible for Fisher v. University of Texas, the case challenging the admissions policy at the University of Texas on the grounds that it discriminates against white students. Evenwel challenges “one person, one vote”; though it concerns the drawing of state senate districts in Texas, the case has potential national implications. Under the 14th Amendment, states are allocated seats in the House of Representatives by “counting the whole number of persons in each state.” States follow this process when determining their own statewide districts, carving up districts based on U.S. Census Bureau population data and irrespective of the total number of registered voters in each. The plaintiffs in Evenwel argue that by counting children, documented and undocumented immigrants, many prisoners, and other non-voters, Texas denies “eligible voters their fundamental right to an equal vote.” If they win, legislative districts would become older, whiter, more rural, and more conservative. Political power would shift from urban areas to rural areas. Our elected officials would be even older and whiter than they already are. In other words, the gains made by the civil rights era in diversifying our elected bodies would be rolled back, the same way Shelby County v. Holder rolled back the voting participation gains made by the the Voting Rights Act.
Fisher v. University of Texas
Race-based affirmative actions are again before the Roberts Court in Fisher v. University of Texas. Abigail Fisher applied to UT for admission into the undergraduate class of 2012. When UT rejected her application, she sued the university, alleging that it discriminated against her because she is white, even though of the 47 equally or “less” qualified students who were admitted over Fisher, 42 were white—only five were Black or Latino. Her case has made it up to the Roberts Court once before. The justices punted on the ultimate question of whether or not the University of Texas’ plan violated the Constitution, instead sending the case back to the conservative Fifth Circuit. After the Fifth Circuit ruled in favor of the University’s admission plan, again, conservatives ran the case back up to the Roberts Court.
During oral arguments, it became apparent that the conservative wing of the court is prepared to decimate affirmative action. Justice Scalia wondered whether admitting Black students into schools that might be too hard for them was doing them a disservice. Justice Roberts appeared frustrated that affirmative action still exists at all, and wondered what unique perspective a student of color brings to a physics class and whether diversity serves any purpose in that context. Given the Roberts Court’s palpable hostility toward any acknowledgement that race continues to be a decisive factor in the oppression of people of color in the United States, proponents of affirmative action are right to be concerned about the fate of race-conscious admissions policies at colleges and universities.
Courts of Appeals
Purvi Patel Conviction for Feticide
Purvi Patel is an Indian-American woman who in July 2013 entered an emergency room in South Bend, Indiana, while suffering heavy vaginal bleeding. She initially denied to doctors that she had been pregnant, but eventually acknowledged she had miscarried. Patel told hospital staff the fetus was stillborn and that she had placed it in a bag in a dumpster. Doctors then alerted the police, who questioned her and searched her cell phone—all while she was in the hospital and under the influence of pain medication. During the search of her cell phone, police saw a series of text messages, which prosecutors later claimed made the case Patel had attempted an illegal abortion by ordering abortion-inducting medications and taking them. Police charged Patel with felony feticide and neglect of a dependent. The feticide charge presumed the fetus was stillborn, while the neglect of a dependent charge presumed a live birth. Despite this apparent conflict, a jury convicted Patel on both counts. Patel, who has no criminal record, was ordered to serve 20 years in prison. Attorneys have appealed her case, arguing there was no evidence she took any abortion-inducing medication. Attorneys for the State of Indiana have doubled down on Patel’s prosecution and defended their case, arguing as if it is good public health policy to radically restrict contraception and abortion access in the state and then criminally prosecute women whose pregnancies end in anything other than a successful live birth.
Second-Trimester Abortions in Kansas
In 2015, Kansas became the first state to pass a ban on the most commonly used method of ending pregnancy in the second trimester, setting the stage for the next big legal showdown over specific abortion procedures. SB 95 bans dilation and evacuation (D and E) abortions—what anti-choicers like to call “dismemberment abortions”—and is based on legislation drafted by the radically anti-choice National Right to Life Committee. Oklahoma passed a similar version just one day after Kansas did, and copycat legislation has been introduced in both Missouri and South Carolina. Shortly before it was set to take effect in Kansas, reproductive rights advocates sued to block it. But instead of challenging the measure in federal court like most abortion-related challenges, advocates sued in state court, arguing the law violates Sections 1 and 2 of the Kansas Bill of Rights, which they say provide due process guaranteeing the government cannot infringe on personal liberties.
Because due process rights have been used at the federal level to protect the right to an abortion, pro-choice advocates argue the same should be the case under the Kansas Constitution. In December, the entire panel of judges on the Kansas Court of Appeals heard arguments as to whether a temporary order currently blocking the ban should be affirmed as the legal challenge proceeds. Regardless of how the court ultimately rules on the temporary order, the Kansas case is an important one to watch because it is in state court. Almost all of our abortion rights law comes from federal court challenges, but those have become increasingly hostile thanks to decades of conservative judicial appointments. State courts could, therefore, prove to be those rights’ final protectors.
Catholic Hospitals’ Refusal of Services
In 2010, a then-18 weeks pregnant Tamesha Means showed up at Mercy Health Partners in Muskegon, Michigan, in the middle of having a miscarriage. Mercy Health, a Catholic-sponsored facility, sent Means home twice, saying there was nothing it could do for her. It wasn’t until Means, a mother of three, returned to Mercy Health a third time—this time suffering from a significant infection as her miscarriage persisted untreated—that the hospital decided to treat her by offering her some aspirin for her fever. As Mercy Hospital was preparing to discharge Means once more, she started to deliver. The hospital decided at that point to admit Means and to treat her condition. Means eventually delivered a baby, who died within hours of birth.
Means sued Mercy Health, arguing that its adherence to the “Ethical and Religious Directives“—which, among other regulations, prohibit a pre-viability pregnancy termination—resulted in medical malpractice in her case. The lower court dismissed Means’ claims, ruling it did not have the power to interpret Catholic doctrine directly. Means appealed, and her case is currently before the Sixth Circuit Court of Appeals. Meanwhile, hospitals in California and Michigan face allegations similarto those in the Means case: that adherence to the directives has resulted in malpractice when treating reproductive health-care conditions. So far, courts have not taken this question of whether or not Catholic doctrine can override the medical community’s standard of care. But it is a fight they won’t be able to stay out of long, since one in nine hospital beds in this country are at a Catholic or Catholic-sponsored facility, and they appear to be turning away women in need at a pretty rapid pace.
The Legal Battle Over the Planned Parenthood Tapes
Perhaps the biggest controversy to emerge from 2015 is the video smear campaign waged against Planned Parenthood by David Daleiden and his anti-choice front group, the Center for Medical Progress (CMP). Daleiden’s months-long sting operation, which saw him infiltrate under false pretenses private meetings held by the National Abortion Federation (NAF), resulted in the release of video footage purporting to show that Planned Parenthood is in the grisly business of harvesting fetal “body parts” and profiting from their sale. This, despite the fact that there’s nothing illegal about fetal tissue donation programs and Planned Parenthood has been repeatedly cleared of wrongdoing by several state and federal investigations. Within weeks of the release of the first video, the NAF sued Daleiden and CMP in federal court. The court granted NAF’s request for an order blocking the further release of any video footage recorded at NAF’s private events. It also ordered CMP and Daleiden to turn over to NAF the names of Daleiden’s associates, accomplices, and funders. The information they gave is under protective order, but should the court decide to make that list public, we’ll find out which Republican operatives and politicians, if any, Daleiden worked with to perpetrate this deception.
Anti-Abortion Terrorism in Colorado Springs
Robert Lewis Dear Jr. is accused of opening fire at a Planned Parenthood reproductive health-care facility in late November, killing three people and injuring nine, in Colorado Springs, Colorado. He has been charged in state court with 179 felony counts, including first-degree murder. If convicted, Dear could face the death penalty. Federal prosecutors are also investigating Dear for possible violations of federal law, including the Federal Access to Clinic Entrances (FACE) Act, the federal statute that makes it a felony to target for harassment abortion clinics, doctors, patients, and staff. Dear’s charges came after a summer of escalating violent anti-choice rhetoric following the CMP’s release of its deceptively edited footage. Conservatives insist their claims about “Planned Parenthood selling baby parts” had nothing to do with the Colorado Springs shooting, despite Dear reportedly telling officers “no more baby parts” when he was arrested and calling himself a “warrior for the babies” in court. Just how much influence did conservative anti-choice rhetoric and politicking influence Dear? We’ll find out during his trial in 2016.
Anna Yocca’s Trial for Attempted Self-Induced Abortion
Police arrested Anna Yocca, a 31-year-old woman from Murfreesboro, Tennessee, in December after she allegedly tried to end her pregnancy using a coat hanger at home in her bathtub. During the attempt, Yocca began bleeding heavily and her boyfriend rushed her to the hospital, where doctors delivered a 1.5-pound baby boy. Yocca, who was approximately 24 weeks pregnant when she attempted to terminate her pregnancy, allegedly made “disturbing” statements to hospital staff, including admitting that she tried to self-abort. Her statements led a Rutherford County grand jury to indict her for attempted murder and imprison her in the Rutherford County Adult Detention Center. Should she be convicted, she faces life in prison.
The return of coat-hanger abortions is an alarming indicator of the repressive reproductive rights environment in Tennessee and around the country. Although prominent abortion opponents have claimed they are not interested in prosecuting women who try to self-induce an abortion, the increasing number of women—who include Jennie Lynn McCormack, Jennifer Ann Whalen, and the aforementioned Purvi Patel—who have been thrown in jail for allegedly doing so tells a different story. Prosecutors charged Yocca under the state’s general homicide statute, which opens the constitutional question of whether or not general homicide laws in Tennessee can be used to prosecute women who self-induce an abortion or who otherwise have a failed pregnancy outcome.
In other words, Anna Yocca is a test case for anti-choice prosecutors who want to find a legal hook to charge women who abort with murder.
There’s always something else on the horizon when it comes to reproductive autonomy. We didn’t even include the many other legal challenges to the wave of anti-choice laws passed in 2015, or the explosion of “religious liberties” claims in response to marriage equality and the expanding protection of rights for transgender people. But don’t worry, folks. It may be shaping up to be one helluva year for reproductive rights and justice in the courts, but we’ve got you covered.