News Politics

Kirsten Gillibrand’s Military Sexual Assault Bill Faces Filibuster Threat

Emily Crockett

Sen. Claire McCaskill has said she will filibuster her Democratic colleague's Military Justice Improvement Act, which would remove prosecution decisions for serious crimes like sexual assault from the military command.

Sen. Claire McCaskill (D-MO) has said she will filibuster her colleague Sen. Kirsten Gillibrand’s (D-NY) Military Justice Improvement Act (MJIA), which would remove prosecution decisions for serious crimes like sexual assault from the military command.

Military sexual assault bills from both McCaskill and Gillibrand are expected to receive a vote next week in the Senate, but the two Democratic women disagree strongly on whether stripping commanders of their prosecuting authority in these cases is the right approach. Gillibrand has said she backs McCaskill’s bill and would vote to start debating it, but McCaskill said Thursday that she would not do the same for Gillibrand’s.

“There’s a disagreement here,” McCaskill told reporters on Capitol Hill. “We do not believe that her bill will protect victims. We do not believe that it will result in more prosecutions. We do not believe it will increase reporting. And we believe there’s real workability problems in terms of how quickly these cases will be brought to court.”

McCaskill has spoken out against excessive Republican filibusters, but her office told the Huffington Post that there was no irony in McCaskill’s position because filibustering a deeply controversial piece of legislation is a separate issue from Republican abuses.

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Gillibrand maintains that victims have no faith in commanders’ willingness to help them, and that attackers are frequently someone in the chain of command.

“Trust in our system has been irrevocably broken due to the apparent bias and conflict of interest posed by a closed system where the boss holds all the cards,” Gillibrand said at a Thursday press conference advocating for the MJIA.

Sen. Barbara Boxer (D-CA) expressed dismay at the press conference that the MJIA might be shut out of floor debate.

“We shouldn’t have to get to 60,” said Boxer. “Justice should never be filibustered.”

Gillibrand has said she is confident she can get the 60 votes needed to break a filibuster.

Analysis Law and Policy

State-Level Attacks on Sexual and Reproductive Health and Rights Continue, But There’s Also Some Good News

Rachel Benson Gold & Elizabeth Nash

Despite the ongoing attention to restricting abortion, legislators in several states are looking to expand access to sexual and reproductive health services and education.

State legislatures came into session in January and quickly focused on a range of sexual and reproductive health and rights issues. By the end of the first quarter, legislators in 45 states had introduced 1,021 provisions. Of the 411 abortion restrictions that have been introduced so far this year, 17 have passed at least one chamber, and 21 have been enacted in five states (Florida, Indiana, Kentucky, South Dakota, and Utah).

This year’s legislative sessions are playing out on a crowded stage. The U.S. Supreme Court is considering a case involving a package of abortion restrictions in Texas; that decision, when handed down in June, could reshape the legal landscape for abortion at the state level. Moreover, just as state legislatures were hitting their stride in late March, the U.S. Food and Drug Administration revised the labeling for mifepristone, one of the two drugs used for medication abortion. That decision immediately put the issue back on the front burner by effectively counteracting policies restricting access to medication abortion in a handful of states. (Notably, the Arizona legislature moved within days to enact a measure limiting the impact of the FDA decision in the state.)

Progress on Several Fronts 

Despite the ongoing attention to restricting abortion, legislators in several states are looking to expand access to sexual and reproductive health services and education. By the end of the first quarter, legislators in 32 states had introduced 214 proactive measures; of these, 16 passed at least one legislative body, and two have been enacted. (This is nearly the same amount introduced in the year 2015, when 233 provisions were introduced.)

Although the proactive measures introduced this year span a wide range of sexual and reproductive health and rights issues, three approaches have received particular legislative attention:

  • Allowing a 12-month contraceptive supply. Legislators in 16 states have introduced measures to allow pharmacists to dispense a year’s supply of contraceptives at one time; these bills would also require health plans to reimburse for a year’s supply provided at once. (In addition, a bill pending in Maryland would cover a six-month supply.) Legislative chambers in three states (Hawaii, New York, and Washington) have approved measures. Similar measures are in effect in Oregon and the District of Columbia.
  • Easing contraceptive access through pharmacies. Legislators in 12 states have introduced measures to allow pharmacists to prescribe and dispense hormonal contraceptives. As of March 31, bills have been approved by at least one legislative chamber in Hawaii and Iowa and enacted in Washington. The measures in Hawaii and Iowa would require pharmacist training, patient counseling, and coverage by insurance; the Hawaii measure would apply only to adults, while the Iowa measure would apply to both minors and adults. The new Washington law directs the state’s Pharmacy Quality Assurance Commission to develop a notice that will be displayed at a pharmacy that prescribes and dispenses self-administered hormonal contraception. Under current state law, a pharmacy may prescribe and dispense these contraceptives under a collaborative practice agreement with an authorized prescriber. Oregon has a similar measure in effect. (California, the only other state with such a law, issued regulations in early April.)
  • Expanding education on sexual coercion. Measures are pending in 17 states to incorporate education on dating violence or sexual assault into the sex or health education provided in the state. A bill has been approved by one legislative chamber in both New Hampshire and New York. The measure approved by the New Hampshire Senate would require age-appropriate education on child sexual abuse and healthy relationships for students from kindergarten through grade 12. The measure approved by the New York Senate would mandate education on child sexual abuse for students from kindergarten through grade 8. And finally, in March, Virginia enacted a comprehensive new law requiring medically accurate and age-appropriate education on dating violence, sexual assault, healthy relationships, and the importance of consensual sexual activity for students from kindergarten through grade 12. Virginia will join 21 other states that require instruction on healthy relationships.

Ongoing Assault on Access to Sexual and Reproductive Health Services

Even as many legislators are working to expand access to services, others are continuing their now years-long assault on sexual and reproductive health services and rights. Restricting access to abortion continues to garner significant attention. However, last year’s release of a series of deceptively edited sting videos targeting Planned Parenthood has swept both the family planning safety net and biomedical research involving fetal tissue into the fray.

  • Abortion bans. Legislative attempts to ban abortion fall along a broad continuum, from measures that seek to ban all or most abortions to those aimed at abortions performed after the first trimester of pregnancy or those performed for specific reasons.
    • Banning all or most abortions. Legislators in nine states have introduced measures to ban all or most abortions in the state, generally by either granting legal “personhood” to a fetus at the moment of conception or prohibiting abortions at or after six weeks of pregnancy. Only one of these measures, a bill in Oklahoma that would put performing an abortion outside the bounds of professional conduct by a physician, has been approved by a legislative chamber.
    • Banning D&E abortions. Legislators in 13 states have introduced measures to ban the most common technique used in second-trimester abortions. Of these, a bill in West Virginia was enacted in March over the veto of Gov. Earl Ray Tomblin (D). A similar measure was approved by both houses of the Mississippi legislature and is being considered by a conference committee. (Kansas and Oklahoma enacted similar laws last year, but enforcement of both has been blocked by court action.)
    • Banning abortion at 20 weeks post-fertilization. South Dakota and Utah both enacted measures seeking to block abortions at 20 weeks during the first quarter of the year. The new South Dakota law explicitly bans abortions at 20 weeks post-fertilization (which is equivalent to 22 weeks after the woman’s last menstrual period). The Utah measure requires the use of anesthesia for the fetus when an abortion is performed at or after that point, something that providers would be extremely unlikely to do because of the increased risk to the woman’s health. In addition to these new measures, 12 other states ban abortion at 20 weeks post-fertilization.
  • Banning abortion for specific reasons. In March, Indiana enacted a sweeping measure banning abortions performed because of gender, race, national origin, ancestry, or fetal anomaly; no other state has adopted such a broad measure. The Oklahoma House approved a measure to ban abortion in the case of a fetal genetic anomaly; the state already bans abortion for purposes of sex selection. Currently, seven states ban abortion for the purpose of gender selection, including one state that also bans abortion based on race selection and one that also bans abortion due to fetal genetic anomaly.
  • Family planning funding restrictions. In the wake of the Planned Parenthood videos, several states have sought to limit funding to family planning health centers that provide or refer for abortion or that are affiliated with abortion providers. These efforts are taking different forms across states.
    • Medicaid. Measures to exclude abortion providers (e.g., Planned Parenthood affiliates) from participating in Medicaid have been introduced in five states, despite the clear position of the federal Centers for Medicare and Medicaid Services that such exclusions are not permitted under federal law. In March, Florida Gov. Rick Scott (R) signed a Medicaid restriction into law. By the end of the first quarter, measures had passed one chamber of the legislature in Arizona, Mississippi, and Missouri; a measure introduced in Washington has not been considered. (A related measure enacted in Wisconsin in February limits reimbursement for contraceptive drugs for Medicaid recipients.)

Similar attempts by six other states have been blocked by court action since 2010. These measures include laws adopted by Indiana and Arizona as well as administrative actions taken in Alabama, Arkansas, Louisiana, and Texas.

  • Other family planning funds. Legislators in 13 states have introduced measures to prevent state or federal funds that flow through state agencies from being distributed to organizations that provide, counsel, or refer for abortions; the measures would also deny funds to any organization affiliated with an entity engaging in these activities. Measures in three of these states have received significant legislative attention. In February, Wisconsin enacted a measure directing the state to apply for Title X funds (the state is not currently a grantee under the program); if the state’s application were approved, the measure would ban this funding from going to organizations that engage in abortion care-related activity. A measure that would deny funds to organizations engaged in abortion care-related activity passed the Kentucky Senate in February. A similar measure in Virginia, which would both prohibit an abortion provider from receiving funding and give priority to public entities (such as health centers operated by health departments) in the allocation of state family planning funds was vetoed by Gov. Terry McAuliffe (D) in March.
  • Related funds. In February, Ohio Gov. John Kasich (R) signed a measure barring abortion providers or their affiliates from receiving federal funds passing through the state treasury to support breast and cervical cancer screening; sex education; and efforts to prevent infertility, HIV in minority communities, violence against women, and infant mortality.
  • Fetal tissue research. The Planned Parenthood videos have also led to legislation in 28 states aimed at research involving fetal tissue. Measures have passed one legislative chamber in four states (Alabama, Iowa, Idaho, and Kentucky), and new laws have been enacted in four states (Arizona, Florida, Indiana, and South Dakota) in the first quarter alone. All four laws ban the donation of fetal tissue for purposes of research. These new laws are the first to ever ban the donation of fetal tissue. The Arizona law also bans research using fetal tissue, and the new South Dakota law strengthens the state’s existing ban by now considering fetal tissue research as a felony; four other states (Indiana, North Dakota, Ohio and Oklahoma) have similar provisions in effect.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.

News Law and Policy

Tennessee Woman Takes Plea Deal Under State’s Fetal Assault Law

Jessica Mason Pieklo

Advocates say the law effectively criminalizes an entire population: pregnant people.

A Tennessee woman who was one of the first to be charged under the state’s controversial fetal assault law accepted a plea deal that will keep her out of jail but on probation for almost a year.

Brittany Nicole Hudson pleaded guilty to child abuse, or simple assault, stemming from an incident in October 2014 where Hudson allegedly gave birth to a baby girl in a car on the side of a Blount County, Tennessee road. The Blount County Sheriff’s Office then opened an investigation and determined that Hudson had used illicit drugs during her pregnancy.

Tennessee lawmakers in April 2014 passed the first-of-its-kind fetal assault bill, which enables prosecutors to charge pregnant patients with assault for actions patients took while pregnant that cause “harm” to their fetus.

SB 1391 allows a person to be prosecuted for the illegal use of a narcotic while pregnant, if the baby is born addicted to or harmed by the narcotic drug, and the addiction or harm is a result of illegal use of a narcotic drug taken while pregnant.

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This bill allows women to be charged with aggravated assault, which carries a maximum penalty of 15 years in prison, if they have a pregnancy complication after illicit drug use.

Hudson was one of the first women to be charged under the fetal assault law, passed by Tennessee’s GOP-majority state legislature.

“It is very easy to mistake a plea deal that keeps someone from spending time behind bars with a victory,” Farah Diaz-Tello, senior staff attorney at the National Advocates for Pregnant Women, told Rewire in an email. “Ms. Hudson and her attorney made the choice that was best for her under the circumstances, but we need to read between the lines [and] look more closely at the circumstances—including the fact that she gave birth in a car on the side of the road—and … what probation really means.”

Hudson’s baby reportedly showed signs of being affected by drugs at birth, which prompted authorities to place the baby in the University of Tennessee Medical Center’s neonatal intensive care unit, where the child was weaned off opiates.

Tennessee passed its fetal assault law in response to what public health officials decried as a rash of births of babies born with neonatal abstinence syndrome [NAS], a temporary, treatable condition that can occur if a person takes opiates during pregnancy. As Diaz-Tello explained, the law effectively criminalizes an entire population: pregnant people.

“First of all, she [Hudson] pleaded guilty to something that is not a crime: Tennessee’s notoriously failed law makes giving birth to a baby with NAS simple assault, not child abuse,” said Diaz-Tello. “This tells me that she saw the odds so stacked against her that pleading guilty to a non-existent crime of ‘fetal child abuse’ and putting her name on a record of child abusers that will affect her employability and child custody for possibly decades seemed like the better choice than fighting the charge.”

Hudson received two sentences of 11 months and 29 days of supervised probation under the plea deal, according to reports. But Diaz-Tello said that even probation is a poor outcome for people who are facing a fetal assault charge.

“Then there is the fact that probation means 11 months and 29 days of living under the microscope of correctional control. Probation is not designed for people to be successful and whole, it is designed for them to be quasi-prisoners,” Diaz-Tello said. “I’m happy for every woman who manages to keep out of jail, but it’s cold comfort: health-care issues should never be under the jurisdiction of the criminal justice system in the first place.”

A woman who helped Hudson deliver her baby, Bailey McCay Propst, was reportedly also charged with child abuse and providing false information to police after the birth of the child. Officials eventually dropped the child abuse charge against Propst and she later pleaded guilty and was placed on probation for the charge of providing false information to a police officer.

The Tennessee law is set to expire July 1, 2016 unless lawmakers renew the measure.