North Dakota Congressman Rick Berg’s 2007 vote to make an abortion a crime with it a life sentence hasn’t become a key campaign talking point. To Berg, however, that makes sense. According to him, most of state’s residents would agree with him on that vote.
Berg’s campaign had a different take on why Heitkamp hasn’t jumped on the issue.
Spokesman Chris Van Guilder said Heitkamp’s liberal views “are opposite of those held by the majority of North Dakotans, and she continues to make every effort to avoid those ties here in North Dakota.”
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He criticized Heitkamp for campaigning with what he called “radical pro-abortion groups” Planned Parenthood and EMILY’s List, the latter of which is dedicated to electing pro-choice Democratic women.
Mark Jendrysik, a political science professor at the University of North Dakota, said “there’s no particular advantage” for Heitkamp, a former attorney general, to bring up abortion in a conservative state with well-organized anti-abortion forces.
“You’re not going to get much traction, I think, screaming pro-choice,” he said.
The state of North Dakota has become one of the more hostile when it comes to a woman’s right to choose, and only one clinic is left providing abortions.
However, an attempt to pass a bill that would have granted fertilized eggs legal rights was bypassed in the Senate last year despite overwhelming support in the House, underscoring that perhaps some state legislators, concerned about their own re-election prospects, may have felt that such a stringent abortion ban could have them facing blow back from their constituents.
In both the Netflix series and real life, overcrowding has serious ramifications for those behind bars. But the issue isn't limited to privately run institutions; public prisons have been overflowing in many states for years.
“I’ve been in Litchfield for a while now,” says Piper Chapman (actress Taylor Schilling) in the latest season of Orange Is the New Black, “and I’ve started to feel unsafe lately.”
Season four of OITNBhas taken on prison overcrowding. Viewers may recall that, in the last season, the fictional Litchfield Penitentiary was taken over by a corporation, transforming it from an already underfunded state prison to a private facility whose sole purpose is the bottom line. That means each woman inside Litchfield has become a commodity—and the more commodities locked inside, the more profit the corporation receives.
In both the Netflix series and real life, overcrowding has serious ramifications for those behind bars. But the issue isn’t limited to privately run institutions; public prisons have been overflowing in many states for years.
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In the latest season of OITNB, viewers see some of the potential consequences of prison overcrowding: It is accompanied by increased threats of violence and abuse, as people, packed like sardines, step on each other, jostle each other, and can’t get away from each other. Supplies, such as soap, sanitary napkins, and toilet paper, are never in abundance in a prison setting; they become even more scarce as the number of people clamoring for them soar. Even food, which prisons are required to provide in the form of regular meals, becomes in short supply.
A scarcity of resources isn’t the only problem in Litchfield. Again and again, we see long lines for the bathrooms and showers. When the prison installs “porta potties” in the yard, there are long lines for those as well. “Too many people in here, everybody getting on each other’s nerves,” remarks Poussey Washington (Samira Wiley), another of the show’s long-term characters. Conflicts emerge as women struggle to navigate daily living in a narrow room with multiple other women. Some of these may seem small, like the nightly snoring of a new bunkmate keeping another one awake all night. But these seemingly inconsequential issues lead to larger ones, such as sleep deprivation. In the show, women resort to comic measures; but these conflicts, especially in a closed and cramped environment, can quickly erupt into violence.
This is the case in Litchfield as well. Conflicts quickly turn into threats or actual attacks. While prison socializing has always been racially segregated, some of it now becomes racialized and racist. Some of the new white women, noting that they are in the minority among the large numbers of Latina and Black women being shuttled in, are unwittingly pushed by Piper to form a white power group. They hurl racist epithets at the women of color and, when they spot a lone Dominican woman on the stairs, move together to attack her.
Prison staff perpetuate the violence, using their authority to do so. They begin their own version of “stop and frisk” in the prison’s hallways, targeting the growing Latina population. While the body searches in and of themselves are humiliating, the (male) guards also take advantage of the additional security measure to grope and further abuse the women. They even force women into fighting, which they then bet on—a nod to the actual allegations of guard-instigated gladiator fights in California’s prisons and the San Francisco County Jail.
Although not everything in OITNB is realistic, the problems the show portrays in this respect reflect the frequent results of overcrowding—and some of its causes. As OITNB notes repeatedly throughout the season, private prisons receive money per person, so it’s in the company’s interest to lock up as many people as possible.
In 2014, for example, private prison contractor GEO Group contracted with the California Department of Corrections and Rehabilitation (CDCR) to open and operate a women’s prison north of Bakersfield, California. Under the terms of the contract, California pays GEO Group $94.50 per person per day for the first 260 women sent to that prison. The contract also includes an opportunity for the company to expand its prison by another 260 beds—although, if it does that, the state only pays $86.95 per person per day. But even at that lower rate, doubling the occupancy increases the private prison’s overall four-year revenue from roughly $38 million to $66 million. (As of June 8, 2016, that prison held 223 people.)
California, for instance, is one of the most egregious examples of such legislation leading to prison overcrowding. Years of extreme overcrowding ultimately led to Brown v. Plata, a class-action lawsuit charging that the state’s severely crowded prisons prevented it from providing adequate medical and mental health care, thus violating the Eighth Amendment’s prohibition on cruel and unusual punishment. In 2011, the U.S. Supreme Court agreed and ordered California to decrease its state prison population from 180 to 137.5 percent capacity.
To do so, the CDCR took several actions: It began shipping thousands of men to private prisons in Arizona, Mississippi, and Oklahoma. In addition, it converted Valley State Prison for Women, one of its three women’s prisons, into a men’s prison, and transferred the approximately 1,000 women there from Valley State Prison for Women to two other prisons—the Central California Women’s Facility (CCWF) and the California Institution for Women (CIW). It also opened the 523-bed Folsom Women’s Facility in January 2013.
Even before the influx of women from Valley State Prison, though, the numbers of people packed into CIW had led to reports of violence from inside. In 2012, Jane, who has been incarcerated at CIW for several years, wrote in a letter that was later reprinted in Tenacious, “When eight women of widely disparate ages, social backgrounds, ethnicities and interests share a 246-square foot cell, there are bound to be conflicts, and there is little tolerance for any behaviors that are different.” She recounted a woman named Anna who spoke little English and was mentally ill.
“Little Anna has spent the last several weeks being alternately beaten up by her cellmates, who don’t understand her behaviors, or drugged into a drooling stupor in the Specialty Care Unit,” Jane wrote. According to Jane, housing staff ignored the violence. When Anna tried to complain to a higher-ranking staff member, Jane said that correctional officers, “angry at her inability to follow directions, threw her to the floor, cuffed her hands behind her back and twisted her arms until she screamed in pain.”
Two years later, after women from Valley State Prison were moved to CIW, Jane wrote in a second letter published in Tenacious, “What this overcrowding has created in terms of living conditions is continued horrendous health care and failed mental health care.”
The situation seems to have persisted. As noted earlier, women have also reported a pervading sense of hopelessness, exacerbated in part by the inability to access mental health care. CIW has a suicide rate that reportedly is eight times the national rate for women behind bars. In 2015, it had two suicides and 35 attempts. As of June 16, 2016, there have been two successful suicides and nine attempts. “A lot of us are only hanging on by hope alone. In a hopeless place, most don’t make it,” one woman told Rewire one month before her friend’s suicide this past April.
In many men’s prisons, overcrowding is even more severe. Valley State Prison, now a men’s prison, is currently at 172 percent capacity. The vast majority of the state’s other male prisons operate at over 100 percent capacity.
But it’s not just California that suffers from prison overcrowding. Oklahoma, which has especially harsh sentencing laws—particularly for drug offenses—has the country’s highest rate of incarceration for women. And the number of those behind bars continues to rise: In 2014, the state imprisoned 2,979 women, a 9.3 percent increase from the 2,702 women imprisoned the year before.
Mary Fish has been incarcerated at Oklahoma’s Mabel Bassett Correctional Center (MBCC) for the past 15 years. She told Rewire that prison administrators recently added 40 more beds to each unit, increasing its capacity from 1,055 to 1,291. (As of June 13, 1,250 women were incarcerated at MBCC.) This has led to competition, even for state-guaranteed items like cafeteria food (especially fresh fruit, which is infrequent in many prisons). “This overcrowding is all about who can get up there and bull dog [sic] their way to the front of the line,” she wrote in a letter to Rewire. She said that two days earlier, the prison’s cafeteria was serving bananas with lunch. But, even though each woman only received one banana, by the time she reached the window, all of the bananas were gone.
“It really gives new meaning to overcrowded,” Fish reflected. “Bodies rubbing in passing, kind of space-less, boundary-less environment. I’ve never had so much human contact in the 15 years I’ve been incarcerated.”
The state’s medium-security women’s prison, the Eddie Warrior Correctional Center (capacity 988) currently holds 1,010 women. “There are huge overcrowded dorms crammed with bunk beds and steel lockers,” wrote “Gillian” in a letter to Rewire, later printed in Tenacious, shortly after being transferred from MBCC to Eddie Warrior. “The population is young, transient and the majority are disrespectful. They have no clue how to live successfully in a crowded communal environment. The dorms are filthy, loud and chaotic for the most part. There is no peace.”
The situations in Oklahoma and California are only two examples of how state prison overcrowding affects those locked up inside. Institutions in other states, including Alabama, North Dakota, and Nebraska, have also long been overcrowded.
On OITNB, the private corporation in charge plans to bring even more women to Litchfield to increase revenue. But in real life, as state budgets grow leaner and prison justice advocates continue to press for change, local legislators are beginning to rethink their incarceration policies. In California, a recently proposed ballot measure would change parole requirements and allow for early release for those with nonviolent convictions if they enroll in prison education programs or earn good behavior credits. If the ballot garners at least 585,407 voter signatures, it will be added to the state’s November ballot.
In Oklahoma, meanwhile, where the state now spends $500 million a year on incarceration, former Republican house speaker and leader of the coalition Oklahomans for Criminal Justice Reform Kris Steele is pushing for two ballot measures—one that allows reclassifying offenses like drug possession from felonies to misdemeanors, and another that sets up a new fund that would redirect the money spent on incarceration for low-level offenses back to community programs focused on rehabilitation and treating the root causes of crime.
Still, these changes have been slow in coming. In the meantime, individuals continue to be sent to prison, even if it means more bunk beds and less space to move (not to mention the devastation caused by breaking up families). “Last week, Oklahoma County brought a whole big RV-looking bus to deliver a bunch of women here to [Assessment and Reception],” Fish, at MBCC, noted in a May 2016 letter to Rewire.
The following week, she told Rewire, “They keep crowding us. There’s no room to even walk on the sidewalks.” Fish regularly reads the local newspapers in the hopes of learning about pending legislation to ease overcrowding and allow for early release. Though the senate recently passed four bills that may reduce the number of people being sent to prison, she feels that the new laws won’t help those currently trapped inside. “It’s getting pretty awful, and it looks like no bills passed to help us so there’s NO END IN SIGHT.”
The decision on Wednesday by the U.S. Court of Appeals for the Eighth Circuit permanently blocking North Dakota’s so-called heartbeat ban, a law that would ban abortion as early as six weeks post-fertilization, is a win. The North Dakota law is the most extreme anti-abortion ban in the country and attorneys defending it had urged the federal appeals court to use this case as an opportunity to overturn Roe v. Wade and deem that fetal viability begins at conception. The Eighth Circuit didn’t, and for that, reproductive rights advocates should celebrate.
But as the rest of the decision makes clear, the only reason the Eighth Circuit didn’t overturn the lower court’s injunction blocking the law was because, thanks to the power of judicial precedent, it didn’t have the power to. Federal appeals courts generally can’t overturn Supreme Court precedent, but they can use their decisions to call on the Court to do so. And Wednesday’s decision is the second from the Eighth Circuit to do just that: urge the Supreme Court to overturn Roe v. Wade and re-empower states to ban abortions outright.
Gov. Jack Dalrymple signed HB 1456 into law in March 2013. HB 1456 bans abortions as soon as a fetal heartbeat can be detected. The law contains a very narrow exception for when the life or health of the patient is in danger, and subjects any provider who violates it to a felony.
Reproductive rights advocates filed a lawsuit challenging HB 1456 in June 2013 on behalf of the Red River Women’s Clinic, the state’s sole abortion provider. A federal district court judge temporarily blocked the ban in July 2013 and then permanently blocked the law in April 2014, noting “the United States Supreme Court has spoken and has unequivocally said no state may deprive a woman of the choice to terminate her pregnancy at a point prior to viability.”
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That the Supreme Court has spoken “unequivocally” that no state can ban abortion prior to viability did not stop attorneys from North Dakota from arguing to the Eighth Circuit that their state should be allowed to ban abortion whenever lawmakers feel like it—in this case, as soon as a fetal heartbeat is detected. To support that argument, attorneys for the state produced medical evidence in the form of affidavits from anti-choice doctors who state that thanks to advances in medical technology like in vitro fertilization, in which zygotes “live” outside a uterus prior to implantation, fetal viability should begin at conception.
That anti-choice lawmakers and attorneys general in North Dakota are willing to manipulate biomedical science to further their political agenda of banning abortion, while confusing medical terminologies for marking pregnancies like “fertilization” with religious terminology such as “conception,” is a proposition that should concern the public health community writ large. That the federal appeals courts in some jurisdictions are willing to go along with those lawmakers should be downright alarming.
“Although controlling Supreme Court precedent dictates the outcome in this case, good reasons exist for the Court to reevaluate its jurisprudence,” wrote the Eighth Circuit in Wednesday’s decision. “To begin, the Court’s viability standard has proven unsatisfactory because it gives too little consideration to the ‘substantial state interest in potential life throughout pregnancy,'” said the court. In this, it was citing Planned Parenthood v. Casey. In 1992’s Casey, the Court departed from Roe to rule states can impose restrictions on abortions prior to viability, so long as those restrictions ultimately leave the decision to terminate a pregnancy pre-viability in the hands of the patient. In justifying the encroachment, the Court in Casey relied on the “state’s interest” in fetal life and the ability of lawmakers to pass laws that show a preference for continued pregnancy over abortion. Still, it ultimately set viability as the point at which no law may take the ultimate decision to terminate a pregnancy away from a patient.
On Wednesday, the Eighth Circuit relied on Casey for its conclusion that states need more power to regulate pregnancies—and even ban abortions pre-viability—while also critiquing Casey’s re-affirmation of fetal viability as a point the Supreme Court must re-evaluate. “By deeming viability ‘the point at which the balance of interests tips,’ the Court has tied a state’s interest in unborn children to developments in obstetrics, not to developments in the unborn,” Eighth Circuit continued. “This leads to troubling consequences for states seeking to protect unborn children.”
These two sentences are critically important in the context of the campaign against Planned Parenthood right now. For as problematic as Roe and Casey both are in terms of not clearly and firmly articulating a patient’s right to terminate pregnancies as they need, they do fundamentally underscore that science, especially obstetrics, should drive any state regulation of pregnancy. In other words, the decisions set a distinctive point obstetrically at which the state’s interest should never override the interest of the pregnant patient. This limit on state power to regulate pregnancies is unacceptable to the anti-choice movement and to the judges on the Eighth Circuit.
Like the anti-choice lawmakers and political operatives driving the Planned Parenthood attacks, the conservative judges on the Eighth Circuit have an ideological opposition, fundamentally, to science, as demonstrated by their critique, especially with regard to obstetrics, of its ability to limit state power. For the judges on the Eight Circuit, the state has unlimited power to regulate pregnancy because Casey identified the state interest to do so as “significant.” But according to the Eighth Circuit, the promise of Casey has not been realized, because by re-affirming viability as the limiting point on state power to regulate pregnancy, the Roberts Court, and Justice Anthony Kennedy in particular, unfairly tied states’ hands in using medical advancements to “protect” the unborn.
“Here, the North Dakota legislature has determined that the critical point for asserting its interest in potential life is the point at which an unborn child possesses a detectable heartbeat,” the opinion continued. “To substitute its own preference to that of the legislature in this area is not the proper role of a court.”
Like the Fifth Circuit before it in its decisions supporting HB 2, the Eighth Circuit understands its role to be one of rubber-stamping anti-abortion legislation under the guise of judicial restraint and not substituting its judgment for the legislatures. In other words, the court feels its job is not to actually analyze and rule on the constitutionality of abortion restrictions, but to defer to anti-choice lawmakers’ determinations of what is and is not constitutional.
But here’s the kicker. “By taking this decision away from the states, the [Supreme]Court has also removed the states’ ability to account for ‘advances in medical and scientific technology [that] have greatly expanded our knowledge of prenatal life,’” wrote the court.
This is a particularly audacious argument to make in the face of the ongoing and heavily orchestrated smear campaign against Planned Parenthood’s biomedical research. The advances in medical and scientific technology that have “greatly expanded our knowledge of prenatal life”—so that infants born at 23 weeks can sometimes survive, for example—are possible thanks to fetal research like the kind under attack in the anti-Planned Parenthood campaign happening now. If it wasn’t clear that the anti-choice community will happily try and defund Planned Parenthood, and then use the science Planned Parenthood helps support to further its own ends of re-criminalizing abortion, Wednesday’s decision lays that out in clear fashion.
The Eighth Circuit’s decision cites both advances in IVF technology as well as medical journals tracking survival rates of those born around 22 weeks’ pregnancy as grounds for empowering states to assert their interests in protecting “unborn life” and banning abortion outright. In other words, they use advances in medicine as a grounds for denying pregnant patients medical care. If that is not using science as a political football I don’t know what is.
Attorneys for the State of North Dakota have the option of asking the entire Eighth Circuit to review the decision, though it is not at all certain the appeals court will grant that request. The case was heard at the same time as a challenge to a similarly restrictive law out of Arkansas. The Eighth Circuit also upheld the injunction in the Arkansas case and the entire panel of judges recently refused to rehear the Arkansas case. Or, attorneys could take both opinions from the Eighth circuit, and their calls to revisit Roe, to the Roberts Court for consideration.
In the meantime the only abortion clinic in North Dakota can continue to provide safe, legal abortion care as the political storms continue. There will be fresh attacks on abortion rights, both in North Dakota and nationally. We know that to be true. And now we also know there’s at least one federal appeals court willing to get in on the attacks on patients and their access to health care. We don’t know whether that’s enough to prod the Roberts Court to jump in, or if, for now at least, Roe and Casey still provide some level of protection for abortion rights that patients and providers can rely on.