Commentary Sexual Health

Can Mississippi Curb Teen Pregnancy and Statutory Rape by Collecting Cord Blood?

Martha Kempner

Mississippi has the highest rate of teen birth in the country, but instead of implementing proven prevention strategies—like good sex education and access to contraception—the governor has decided he will curb this epidemic by collecting umbilical cord blood and using the DNA as evidence of statutory rape.

A new law set to go into effect July 1 in Mississippi will require doctors and midwives to collect the umbilical cord blood of babies whose mothers are 16 or younger and whose fathers are either over 21 or unknown. The blood will then go into storage in case it is ever needed for a statutory rape case. The purported goal of the law is to prevent teen pregnancies by reducing those caused by older men raping younger girls. The logic of it, however—that cord blood can act as both evidence and a deterrent—seems sketchy at best, and many experts in the state think it has a good chance of backfiring.

In signing the law, Republican Gov. Phil Bryant said, “As governor, I am serious about confronting and reducing teen pregnancy in Mississippi. Unfortunately, part of this epidemic is driven by sexual offenders who prey on young girls. This measure provides law enforcement with another tool to help identify these men and bring them to justice.”

Mississippi certainly has a teen pregnancy problem. In fact, it ranks sixth out of all states and the District of Columbia for teen pregnancy rates and has the highest teen birth rate in the country. In 2010, the teen birth rate in Mississippi was 55 per 1,000 young women ages 15 to 19, compared to 34.2 per 1,000 young women nationally. The birth rate in Mississippi dropped 36 percent between its high in 1991 and 2010, but it still lags behind the national  45 percent drop in teen births during the same ten-year period.

It is not clear, however, that older men preying on girls 16 and younger make up a significant part of this epidemic, as the governor contends. In 2010, there were 6,188 births to women under 20 in Mississippi. Of those, just 111 were to girls under 15. Another 1,959 were to girls age 15, 16, and 17. Given that the 17-years-olds would be excluded from this law, we are likely talking about less than 1,000 births to young women under 16 in the state. Of course, we have no way of knowing what proportion of these involved men over 21, but the likelihood is that most of the fathers are also teenagers. Research has shown, for example, that the majority of girls (65 percent) have a first male partner who is within one or two years of her own age. So at most this law addresses a fraction of the cases of teen births in Mississippi each year.

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Moreover, in order to work as a deterrent in these cases, the law assumes that a 21-year-old man who is having sex with a young teenage girl (despite the fact that it is illegal) and not using contraception (despite the fact that she might get pregnant) will change his behavior based on what might happen to him ten months down the line when she gives birth to his child and his DNA is collected. A bit of a stretch, no?

Many advocates in the state worry that the law might instead act as a deterrent in other, more troublesome ways. For instance, it may prevent pregnant young women from seeking prenatal care and even from delivering in a hospital setting in order to protect the father of her child. One person I talked to noted that abortion opponents in the state have also started to worry about the law, wondering if young women will be more likely to terminate pregnancies rather than give birth again in an effort to save their boyfriends from prosecution. (One reason that Mississippi has such a high teen birth rate is that very few girls who become pregnant choose abortion. The teen abortion rate in the state is 11 per 1,000 pregnancies to girls 15 to 19, compared with 19 nationwide.)

Even if none of these things come to pass, the real tragedy of this law is that the governor has made it his top teen pregnancy prevention priority, when there are so many other things that could be done in his state that would have a real chance of helping curb the epidemic. As Jamie Holcomb Bardwell, director of programs at the Women’s Fund of Mississippi, which opposes this law, told Rewire, “Why don’t we invest in good evidence-based comprehensive sex education, access to good preventive health care, and contraception, and why don’t we help parents have conversations with their kids about pregnancy and older partners?”

All good ideas, but they do not seem to interest the governor, a former sheriff’s deputy and the one-time co-chairman of the state’s “personhood” effort. Though Mississippi law now allows school systems to provide abstinence-plus education, Bryant has gone on record supporting a stricter abstinence-only approach. He is also the man who once famously said, “The problem is teenagers do not care enough about using [contraception]”—which suggests he is unlikely to support efforts to make birth control more available to teens. Programs to support teen parents are also improbable given what he said to a roomful of teens in December: “If you want to fail in life, if you want to end up being on Medicaid—[Children’s Health Insurance Program (CHIP)] and Medicaid and food stamps the rest of your life—if you never want to have a career, then all you’ve got to do is drop high school and have a baby. And I can almost assure you that’s what’s going to happen to you.”

So we are left with this law, which will do nothing to prevent teen pregnancy and raises numerous ethical, legal, and financial issues. Lynn Paltrow, executive director of National Advocates for Pregnant Women, told the Daily Beast, “If they’re collecting cord blood, it could be used just as easily against pregnant women. She’s at much at risk of prosecution as the person who impregnated her.” She explained that two women in Mississippi are being prosecuted for murder because their babies were stillborn and drugs were found in their systems at the time. Paltrow worries that the cord blood could be used against mothers if their babies suffer medical problems after birth.

Rewire Senior Legal Analyst Jessica Mason Pieklo said she questions the constitutionality of the law. “The law compels young mothers to give up their privacy rights upon giving birth unless she identifies paternity to the state’s satisfaction. It also totally disregards the fact that the search involves the genetic material of the child as well,” she said. “That child is not a crime victim but cannot opt-out in any effective fashion from the search. That means children of young mothers in Mississippi can never opt out of state-mandated DNA collection.”

Others are concerned that the state is more interested in scouting for possible cases of statutory rape than prosecuting the cases of rape that have actually been reported. Bardwell questioned whether rape kits were currently being processed in a timely manner and whether the new law will just add to an already overburdened crime lab.

There are also other practical issues to be considered. The law does not make it clear who is paying for the collection and storage, and who would be responsible for prosecuting fathers. NPR reported that prosecutors would first have to determine which county conception took place in before they could file any charges.

This law was sold as a way to protect vulnerable women from predators and to prevent teen pregnancy and birth, yet it does neither. Bardwell points out that if the state really wants to protect women it could strengthen its domestic violence laws, make health care more available, and prosecute existing rape cases. I would add that if the state really wants to prevent teen pregnancy it could provide real sex education, make contraception accessible to teens, and address the issues of poverty and hopelessness among teens who are really at the core of this epidemic.

News Law and Policy

Judge Blocks Mississippi ‘Religious Freedom’ Law, Calling it Discriminatory

Nicole Knight Shine

"But HB 1523 does not honor that tradition of religion freedom, nor does it respect the equal dignity of all of Mississippi’s citizens. It must be enjoined," U.S. District Judge Carlton W. Reeves wrote.

A U.S. District Judge temporarily blocked a sweeping and controversial Mississippi “religious freedom” law late Thursday, calling the legislation “arbitrary discrimination against lesbian, gay, transgender, and unmarried persons.”

“The State has put its thumb on the scale to favor some religious beliefs over others,” U.S. District Judge Carlton W. Reeves wrote in a 60-page decision issued hours before HB 1523 was set to go into effect.

Reeves ruled that the bill violated the First and 14th Amendments by allowing individuals, religious organizations, and some government employees with “sincerely held religious beliefs” to deny services to, as Reeves wrote, “lesbian, gay, transgender, and unmarried persons,” potentially gutting certain privileges and legal protections—such as those stemming from the 2015 Supreme Court decision legalizing same-sex marriage.

The bill was authored by Mississippi House Speaker Philip Gunn (R-Hinds), who had called the high court’s legalization of marriage equality “in direct conflict with God’s design for marriage as set forth in the Bible,” as the Washington Post reported.

“Religious freedom was one of the building blocks of this great nation, and after the nation was torn apart, the guarantee of equal protection under law was used to stitch it back together,” Reeves wrote in his decision.”But HB 1523 does not honor that tradition of religion freedom, nor does it respect the equal dignity of all of Mississippi’s citizens. It must be enjoined.”

The legislation, known as the Protecting Freedom of Conscience from Government Discrimination Act, was signed into law by Republican Gov. Phil Bryant in April, after clearing the Republican-controlled House and Senate.

The measure enshrined three religiously held tenets: that gender is determined at birth, that marriage is between a man and a woman, and that sex is “properly reserved” for heterosexual marriage. It determined that housing, employment, and adoption decisions could be made based on those religious beliefs.

A swift national and state-level outcry followed the passage of HB 1523, with 80 CEOs, among others, calling for its repeal as “bad for our employees and bad for business,” according to the court documents. The law had been challenged in Barber v. Bryant and Campaign for Southern Equality v. Bryant.

The state has not said whether it will appeal Reeves’ ruling. If the state does not appeal, the temporary order becomes permanent after another hearing.

“I am grateful that the court has blocked this divisive law,” said Rev. Susan Hrostowski, an Episcopal priest and a plaintiff in the Campaign for Southern Equality case. “As a member of the LGBT community and as minister of the Gospel, I am thankful that justice prevailed.”

The injunction Thursday follows a ruling earlier this week by Reeves, a 2010 Obama appointee, which blocked a provision in HB 1523 allowing circuit clerks to deny marriage licenses to same-sex couples, as the Washington Post reported. Twenty months prior, Reeves had struck down the state’s statutory and constitutional bans on same-sex marriage.

News Human Rights

Lawsuit: Religious Groups Are Denying Abortion Care to Teen Refugees

Nicole Knight Shine

The suit accuses the federal government of paying millions to religious grantees that refuse to provide unaccompanied minors with legally required reproductive health services.

Two years ago, 17-year-old Rosa was raped as she fled north from her home country in Central America to the United States. Placed in a Catholic shelter in Florida, the teen learned she was pregnant, and told shelter officials that if she couldn’t end the pregnancy, she’d kill herself. She was hospitalized for suicidal thoughts. Upon her release, the facility in which she’d been originally placed rejected her because of her desire for an abortion, according to a federal lawsuit filed Friday. So did another. Both, reads the lawsuit, were federal contractors paid to care for unaccompanied minors like Rosa.

Rosa’s story is one in a series sketched out in a 16-page complaint brought by the American Civil Liberties Union (ACLU) against the U.S. Department of Health and Human Services (HHS). The suit accuses the federal government of paying millions to religious grantees—including nearly $20 million over two years to the U.S. Conference of Catholic Bishops (USCCB)—that refuse to provide unaccompanied minors with legally required reproductive health services, including contraception and abortion. The grantees are paid by the federal Office of Refugee Resettlement (ORR) to house and care for young refugees.

The lawsuit, brought in U.S. District Court in San Francisco, amounts to a fresh test of the degree to which Catholic organizations and other faith-based groups can claim exemptions from federal laws and regulations on religious grounds.

“Religious liberties do not include the ability to impose your beliefs on a vulnerable population and deny them legal health care,” said Jennifer Chou, attorney with the ACLU of Northern California, in a phone interview with Rewire. “The government is delegating responsibility … to these religiously affiliated organizations who are then not acting in the best interest of these young people.”

Mark Weber, a spokesperson for the HHS, which includes the ORR, told Rewire via email that the agency cannot comment on pending litigation.

Escaping turmoil and abuse in their home countries, young refugees—predominantly from Central America—are fleeing to the United States, with 33,726 arriving in 2015, down from 57,496 the year before. About one-third are girls. As many as eight in ten girls and women who cross the border are sexually assaulted; it is unknown how many arrive in need of abortion care.

The federal ORR places unaccompanied minors with organizations that are paid to offer temporary shelter and a range of services, including reproductive health care, while the youths’ applications for asylum are pending. But documents the ACLU obtained indicate that some groups are withholding that health care on religious grounds and rejecting youths who request abortion care.

The 1997 “Flores agreement” and ORR’s contracts with grantees, which the ACLU cites in its lawsuit, require referrals to “medical care providers who offer pregnant [unaccompanied immigrant minors] the opportunity to be provided information and counseling regarding prenatal care and delivery; infant care, foster care, or adoption; and pregnancy termination.”

In 2016, the federal government awarded 56 grants to 30 organizations to provide care to unaccompanied minors, including 11 that the ACLU claims impose religious restrictions on reproductive health care.

In one case, ORR officials struggled to find accommodations for 14-year-old Maria, who wanted to end her pregnancy, according to the complaint. An ORR official wrote, according to a document the ACLU obtained, that the agency would have liked to transfer Maria to Florida to be near family, but “both of the shelters in Florida are faith-based and will not take the child to have this procedure,” meaning an abortion.

In another, the complaint reads, 16-year-old Zoe was placed with Youth for Tomorrow, a faith-based shelter in Virginia, where she learned she was pregnant. She asked for abortion counseling, which was delayed nearly two weeks, the complaint says. Learning of her decision to end the pregnancy, Youth for Tomorrow asked to transfer Zoe elsewhere because of its abortion prohibition, even though Zoe said she was happy at the shelter.

For vulnerable youths, such transfers represent a form of “secondary trauma,” according to the ACLU’s Chou.

“These women have already endured so much,” she told Rewire. “The process of transferring these youths from shelter to shelter tears them away from their only existing support system in the U.S.”

Federal officials, according to the complaint, were aware that the religious grantees would withhold abortion referrals. In one case, the Archdiocese of Galveston-Houston was awarded more than $8 million between 2013 and 2016, although it stated in its grant application that rape survivors wouldn’t be offered abortion care, but instead permitted to “process the trauma of the rape while also exploring the decision of whether to keep the baby or plan an adoption.”

The lawsuit also claims that a contract with the U.S. Conference of Catholic Bishops included language requiring unaccompanied minors who were pregnant to be given information and counseling about pregnancy termination, but the ORR removed that language after the USCCB complained.

The USCCB did not respond to Rewire‘s request for comment. But in a letter last year to the ORR, the USCCB and five religious groups, including some ORR grantees, wrote they could not facilitate health-care services for unaccompanied minors that run contrary to their beliefs.

The lawsuit is the second the ACLU has filed recently against the federal government over religious privileges.

Last month, the ACLU filed a Freedom of Information Act suit demanding that the federal Centers for Medicare & Medicaid Services release complaints against federally funded Catholic hospitals, where patients have reported being denied emergency medical care in violation of federal law.

In 2009, the ACLU also sued the federal government for allowing USCCB to impose religious restrictions on a taxpayer-funded reproductive health program for trafficking survivors. In 2012, a district court ruled in the ACLU’s favor, and the government appealed. The First Circuit Court of Appeal later dismissed the case as “moot” because the government did not renew USCCB’s contract.