Justice Doesn’t Just Happen: Feminist Activists Were Essential to EC Ruling

Sheila Bapat

What did it really take for a Reagan-appointed federal judge to make one of the most critical reproductive justice rulings of the year, possibly the decade?

Correction, April 24, 5:55 pm: A version of this article incorrectly noted that NWL organizer Erin Mahoney is based in Gainesville, Florida. She is based in New York City.

On April 4, Judge Edward R. Korman ruled in Tummino v. Hamburg that levonorgestrel-based emergency contraception (EC) must be made available over-the-counter to girls, women, and their partners of all ages. Immediately, news of the decision made its way through mainstream media outlets, which often characterized it as being a rebuke of the Obama administration by a middle-of-the-road judge.

For example, Politico noted the many years that the Center for Reproductive Rights (CRR) wrangled with the Food and Drug Administration (FDA) in court over making EC available over-the-counter, though it focused primarily on the high-level political impact at the Department of Health and Human Services (HHS). But what did it really take for a Reagan-appointed federal judge to make one of the most critical reproductive justice rulings of the year, and possibly the decade? While Korman’s evaluation of the FDA’s and plaintiffs’ arguments has, over the years, been essential to this victory, the case emerged in the first place because women’s rights activists have remained vigilant about EC accessibility since 2003.

“This decision is a victory of the feminist movement,” Erin Mahoney, a National Women’s Liberation (NWL) organizer in New York City, told Rewire. Along with several other women, Mahoney was a plaintiff in Tummino. “It is a testament to movement politics, which influenced policy under both Bush and Obama. If we’re not building a movement, we won’t get anything from a Democrat or a Republican.”

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NWL’s EC activism spanned a decade, beginning in earnest during the Bush years, far before HHS Secretary Kathleen Sebelius issued her controversial 2011 decision denying over-the-counter EC access for girls under age 17. The FDA approved EC in 1999, and political battles over the drug have raged ever since. The Bush Administration fought against making the drug available, first by requiring prescriptions and then by refusing to make the drug over-the-counter for women under age 18. Then the Obama administration, in what appears to be bone-throwing to social conservatives, fell in step with the Bush administration’s position.

As soon as political forces weighed in on the drug, feminists from NWL, a group with roots in 1960s and 70s feminist organizing, began pushing back. Over the years, the group exposed the problems with the FDA’s policy by writing articles, staging sit-ins at the FDA headquarters, and handing out free emergency contraception to individuals on the street (in clear violation of the FDA’s policy).

According to Mahoney, NWL’s activism helped persuade the Bush administration to drop its prescription requirement for women age 18 and older in 2006. Mahoney and her NWL colleagues mobilized women throughout the country to testify at FDA hearings about why the drug is crucial for women and girls to prevent pregnancy. (Mahoney and other NWL organizers were also arrested in 2005 by the Department of Homeland Security for participating in a sit-in that blocked the entrance to the FDA building.)

Though FDA leadership has seemed unmoved by NWL and other groups’ sentiments over the years, NWL believes these public comment opportunities created greater space for scientists to support changing the FDA’s policy.

“I think speaking out at the panel hearings had an impact, as the scientific experts who heard our testimony voted in favor of our position,” Mahoney said. “It was always political appointees at the top of the FDA who were disagreeing.”

Perhaps most important, Mahoney and her colleagues’ activism led them to serve as plaintiffs in the case against the FDA. Mahoney, Annie Tummino, and several other women “were initially approached because they were handing out the pills to any woman who needed them in defiance of the prescription requirement and were also leading publicly a campaign using an uncompromising position for full over-the-counter access with no restrictions,” Andrea Costello, an attorney at the Partnership for Civil Justice Fund, told Rewire. Along with CRR, Costello has worked on the case since 2005.

With the help of these plaintiffs, CRR first filed a suit in 2005 to win over-the-counter access for women age 17 and older. They were ultimately successful in 2009—as in the recent ruling, in the Eastern District of New York with Judge Korman writing the opinion. CRR also petitioned for over-the-counter access for women of all ages, resulting in tedious litigation that ultimately led to the April 4 victory.

As Jaclyn Friedman noted recently in the American Prospect,“Exhausted just reading about [all this work]? Then you can imagine how the activists, scientists, and lawyers who’ve fought this battle for so long must feel. This new ruling is an enormous victory for them and for us, and a testament to their tenacious efforts.”

Daily mainstream news coverage of impact litigation feeds a perception that rulings result from unbiased judges who wear long robes and contemplate inside airtight chambers that are impermeable to social movements. But the tale of this EC victory recalls the saying “justice doesn’t just happen.” Organizers make it happen, and the best organizers help define what justice means.

News Contraception

Native American Women Will Finally Have Improved Access to Emergency Contraception

Martha Kempner

The need for emergency contraception among women who rely on the Indian Health Service is clear. Some Native American women are in rural areas where the next-closest pharmacy may be hundreds of miles away, and they may not have transportation.

The Indian Health Service (IHS) released a long overdue policy last week that will make over-the-counter emergency contraception more accessible for Native American women of all ages.

The policy comes more than two years after the U.S. Food and Drug Administration (FDA) lifted age restrictions on certain emergency contraceptive pills and more than six months after a group of U.S. senators called on the Department of Health and Human Services (HHS) to develop a policy that would ensure access for women who rely on IHS.

A 2014 survey by the Native American Women’s Health Education Resource Center found that access to emergency contraception (EC) varied widely at 69 IHS centers. Some Native American women are in rural areas where the next-closest pharmacy may be hundreds of miles away, and they may not have transportation.

EC is a high dose of the hormones found in birth control pills that can prevent pregnancy by inhibiting ovulation. EC can work if taken up to five days after unprotected sex, but the sooner it is taken, the more effective it can be. That’s why immediate access is important. It is also why advocates for access to this method of birth control fought for almost a decade to make it available without a prescription.

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In July 2009, the FDA approved one of the available versions of EC—marketed as Plan B One-Step— for over-the-counter sale, but limited the sale to women 17 and older. Younger women still needed a prescription.

The FDA in April 2013 lowered the age restriction to 15. A few months later, however, the FDA agreed to comply with a district court ruling and declared that Plan B One-Step would be available without a prescription for “all women of reproductive potential,” regardless of age.

A group of lawmakers led by Sen. Barbara Boxer (D-CA) asked HHS in March for a policy that would ensure that pharmacies run by IHS would follow the new guidelines and make EC easily available, as Rewire reported.

Though HHS promised it was working on the policy in 2013, it released nothing until this week. When Boxer and colleagues readdressed the issue earlier this year, Boxer had conducted a survey of 20 IHS pharmacies and found that some did not offer EC at all, some continued to require a prescription, and others only allowed women of certain ages to access the pills.

The need for EC among women who rely on IHS is clear. As the ACLU has noted, Native Americans face rates of sexual assault that are more than twice as high as other women in this country: One out of three Native American women will be raped during her lifetime. Access to EC is vital for rape survivors.

The policy was finally released last week and is fairly simple. It states, “It is IHS policy the Plan B One-Step emergency contraception pill is easily available through the IHS facilities’ pharmacy, Emergency Department (ED), and in health clinics that are equipped with secure medication storage areas.”

The challenge now is to make sure it is widely implemented.

“The updated policy IHS released today is a long overdue and important step toward ensuring that Native American women have equal access to emergency contraceptive care,” Georgeanne Usova, legislative counsel for the ACLU, said in a statement. “The policy must now be rigorously enforced so that every woman who relies on IHS for her health care can walk into an IHS pharmacy and obtain the services she needs and is legally entitled to.”

Commentary Law and Policy

Losing My Lege: Texas Doesn’t Have To Be This Way

Andrea Grimes

Texas could be a place where freedom and personal responsibility take precedence over hatred and fear. But only if moderate conservative lawmakers will start disagreeing publicly with their peers.

Losing My Lege is a weekly column about the goings-on in and around the Austin capitol building during the 84th Texas legislature. 

It doesn’t have to be this way.

Texas, I mean. Texas doesn’t have to be this way: hateful, cruel, bigoted.

That’s all I could think after a press conference at the state capitol Tuesday morning, wherein Democratic lawmakers joined civil rights groups and a prominent—and notably not-Democrat—business leader to decry anti-LGBTQ legislation proposed by some of the state’s most stringently conservative lawmakers.

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The focus of this particular press conference was HB 4105, just one of a number of anti-LGBT freedom bills filed this session. This proposed legislation is at once resigned and defensive: even as it assumes that legal same-sex marriage is coming in Texas, like it has for most of the rest of the country, it seeks to persuade county clerks from complying with any court ruling or legislation that would make it so.

HB 4105 would basically pay county clerks to discriminate against gay and lesbian Texans: It stipulates that if clerks issue a marriage license to same-gender Texas couples, they’ll have to forfeit $30 of each marriage licensing fee to the state’s general revenue fund. Licensing fees from heterosexual couples would be remanded back to the clerk’s office for their use.

In the course of the press conference, much was made of HB 4105’s potential for quashing business interests and growth in Texas. Indeed, Texas Association of Business CEO Bill Hammond was on hand to rail against the negative economic impact this kind of state-sanctioned discrimination could have on the state, citing the recent backlash against Indiana’s “religious freedom” law that would empower businesses to further discriminate against LGBTQ people.

If that’s a compelling argument to folks who would otherwise count themselves opposed to treating LGBTQ Texans like human beings, then I suppose some folks need to make it. If the only way we can get people to care about not actively oppressing our fellow Texans is to make a fiscal plea, perhaps the ends justify the means.

I won’t rehash those arguments here. I think you can probably work out for yourselves what they are: basically, the kind of respectability politics that value LGBTQ Texans only when, and if, they behave like good consumers and upholders of capitalism, and offer economic value to people who’d like to profit off their needs and wants. Instead, I want to talk about a comment that state Sen. Rodney Ellis (D-Houston) made in the course of the press conference, wherein he asserted that some of his Republican colleagues “privately” agreed with him that these LGBTQ bills are bad for Texas.

But, he said, that “doesn’t mean they’ll vote with me.”

I have long held that there are very few right-wing “true believers” in the state capitol, by which I mean lawmakers who genuinely and with their whole hearts believe that being gay or lesbian or queer or transgender is a sin, or who really and truly think that abortion is murder. Mostly, what I see is political posturing meant to shore up support among the ultra-conservative right-wing primary voter base, combined with lazy—or perhaps wholly self-interested—line-towing the rest of the time.

Take Rep. Jodie Laubenberg (R-Flower Mound), who floated HB 2, Texas’ omnibus anti-abortion law, during the 2013 legislative session. She was so thoroughly inept at answering the most basic questions about the bill that her party basically told her to shut up and smile while Texas Democrats ran roughshod over her supposed rationalizations for the legislation. This year, we have Rep. Jeff Leach (R-Plano), who bloviated about a budget amendment that’s supposed to keep Planned Parenthood from providing sex education to Texas schools, even as it demonstrably does no such thing.

And I do not believe state Sen. Jane Nelson (R-Grapevine), for example, is truly so foolish, or so deeply religious, that she thinks reproductive health care in Texas has done anything close to “advancing” under her party’s leadership. She’s simply too smart to believe something so patently asinine, so clearly wrong. Which is not to say that she isn’t clever enough to know when it’s time to keep quiet about it.

So, look: I have spilled a good deal of virtual ink over the last couple of years calling on Texas Democrats—whether they be lawmakers, voters, or activists—to be bolder and more defiant in the face of the right wing’s relentless attacks on civil rights and, especially, reproductive autonomy.

But now, today, during this legislative session? It is this legislature’s reasonable, moderate conservatives who need to be bold and brave.

Because if there are GOP lawmakers who will only agree that anti-LGBTQ legislation is harmful if they’re behind closed doors, and I take Sen. Ellis at his word on that, it can only mean one thing: Texas doesn’t have to be this way.

Texas doesn’t have to be a place where transgender or gender non-conforming people must fear using a public restroom, where bounties are put on their heads just for leaving their doorsteps, or where gay and lesbian couples who love each other can’t enjoy the same marital benefits as heterosexual couples. It doesn’t have to be a place where bigots can refuse service to their neighbors just because of their gender identity or sexual orientation.

Texas could be a place where freedom and personal responsibility—words I hear all the time on the floors of the Texas house and senate—take precedence over hatred and fear. Where we value and trust Texans to do what’s right for themselves and their families, without the heavy handed interference of state lawmakers who can’t see past the next primary.

But only if these conservative lawmakers will stop agreeing “privately” with progressives and start disagreeing publicly with peers seeking only to build careers on legacies of oppression and discrimination. Houston Republican Rep. Sarah Davis comes to mind, here—she’s taken a public stance against her colleagues who want to cut access to breast and cervical cancer screenings just so they can stick their tongues out at Planned Parenthood. Should it be remarkable that a Texas Republican stood for accessible health care, and that she didn’t fall prey to the tired claims of anti-choice lawmakers who’ll throw Texans with cancer under the nearest bus just to gather up a few votes come November? No, but it is. And the only way it’s going to stop being remarkable is if more members of the Texas GOP follow Davis’ lead.

Because a private agreement that the state shouldn’t pay county clerks to discriminate against gay and lesbian Texans, for example, doesn’t do anything for that couple on the courthouse steps who are turned away by a county clerk who has to decide between retaining the funds that will keep her office’s doors open and obeying the law. It’s just a cowardly, mealy mouthed admission that GOP lawmakers are willing to compromise their personal morals and ethics in order—they think—to keep an office at the capitol.

Certainly Texas’ ultra-right primary voters are a formidable voting block in a state with abysmal voter turn-out, but they’re not invincible. And they’ll be even less formidable if these “privately” reasonable conservative lawmakers stop cowing to the demands of a handful of people they apparently disagree with, whose interests run counter to everything that could make Texas a better, stronger, more welcoming state.

Does it hurt the hearts of these “privately” progressive GOP lawmakers to cast votes against their own beliefs even a little bit? If so, and I hope it does, I have to demand that they do better. Because a “yes” vote on the record is a “yes” vote on the record, and it puts any “privately” conflicted lawmaker in the same pool as outright bigots like state Sen. Donna Campbell (R-New Braunfels) and state Rep. Molly White (R-Belton) or Rep. Jonathan Stickland (R-Bedford), the “former fetus.”

I can’t believe that this is the kind of legacy any lawmaker with a conscience would want to leave behind: that when it came down to the decision, in the moment, they opted to throw in their lot with some of Texas’ most notoriously hateful, and willfully ignorant, right-wing lawmakers.

Surely, surely, it is better to be remembered for being on the right side of Texas’ political history, than to be remembered for going to any immoral lengths to be included in the history books at all.