The Center for Reproductive Rights presents an exhibit exploring women's right to choose through the eyes of political cartoonists and feminist artists, and includes photographs that capture some of the most important turning points for women in this century.
At the Ceres gallery
212-226-4725,
584-88 Broadway, Suite 306, New York City,
Feb. 1-26, Tuesdays-Saturdays 12-6 p.m.
Admission Free.
"Some of these women were never offered drug treatment. Instead they were shackled and hauled off to jail while still bleeding from childbirth."
-Priscilla Smith, Center for Reproductive Rights Deputy Director of Litigation
On December 1st, the Center for Reproductive Rights asked the U.S. Supreme Court to review a case brought by ten women whose urine was unconsensually and warrantlessly searched for evidence of cocaine while they received prenatal care at a public hospital in Charleston, South Carolina.
"The question before the Supreme Court is whether pregnant women have lesser constitutional rights than other Americans and, as a result, can be searched for evidence of a crime in their private doctor's offices," says Priscilla Smith, Deputy Director of Litigation at the Center for Reproductive Rights. Earlier this year, Smith argued before the U.S. Court of Appeals for the Fourth Circuit that the hospital's search policy violated the Fourth Amendment, which protects all Americans from unreasonable searches.
Under established law, the government must obtain a warrant based on probable cause before searching an individual for evidence to be used in an arrest and prosecution. A limited exception exists where there is a "special need" other than law enforcement for the search and the results are not used for criminal prosecutions. For example, where drug testing is done solely in the context of employment to ensure public safety or where the person searched has reduced constitutional protections than other Americans because of a prior criminal conviction. Although neither situation exists in this case, the Fourth Circuit applied the "special needs" exception here, becoming the first court in the nation to uphold such a policy of warrantless searches conducted to gather evidence of a crime.
In October 1989, the Medical University of South Carolina initiated a new policy of running non-consensual drug tests on a targeted group of women - pregnant women with "inadequate" prenatal care or a history of drug or alcohol abuse - who came to the hospital for obstetrical care. The program was developed and implemented jointly with the City of Charleston Police Department and the local prosecutor's office, and was applied only at the one hospital in Charleston where the patient population was predominately African-American and low-income. Positive test results for cocaine use were disclosed to the prosecutor's office and the police, and a copy of the patient's discharge summary containing such confidential information as incidence of sexually transmitted diseases, sterilization procedures and HIV status was disclosed to police officers.
Until at least January 1990, women who tested positive for cocaine at the time they gave birth were not given the opportunity to seek treatment but were simply arrested. Even after the policy was revised to give women the opportunity to get treatment, the drug treatment services available were inadequate. At least one woman was arrested for failing to enter a two-week residential drug treatment program that had no child care, despite having no one to care for her two young sons.
In its decision, the appellate court found that the "search policy" challenged in this case was constitutional because the government could articulate a public health and safety rationale for its actions. But, as the petitioners argue, nearly every application of the criminal law serves some health or safety purpose.
"The Fourth Circuit's radical extension of the 'special needs' exception threatens the vitality of the Fourth Amendment," says Smith, "It would relegate pregnant women in their doctors' offices to a status comparable to a convicted felon on probation."
Although the prosecutors claimed the challenged policy was designed to protect the life of fetuses, groups such as the American Medical Association, the American Academy of Pediatrics and the March of Dimes consistently oppose using such methods to address the problem of substance abuse during pregnancy. They assert that threatening women with arrest and jail time deters them from seeking critical prenatal and postnatal care and drug treatment and could thereby actually harm their health and the health of their children. Given how the women who were subjected to this policy were treated, it is easy to see how women could be deterred from seeking prenatal care:
- Lori Griffin was admitted to the MUSC suffering from premature labor pains. Three days later, she was told she could go home to her children. Instead, she was taken to jail. Unable to make bail, she spent the next three weeks in the prison sick bay. During her two days of labor and delivery, she was shackled to the hospital bed.
- Ellen Knight received prenatal care at MUSC before the policy was implemented and was never offered drug treatment. After she gave birth to a child who tested positive for cocaine - and while she was dressed only in her hospital night gown and still bleeding from childbirth - she was arrested.
- Sandra Powell was arrested the morning after giving birth. As she was being removed from her bed and shackled, she pled for sanitary pads to absorb the post-partum bleeding that had already soaked four pads during the night. Refused pads, she was forced to sit in a holding cell for 5 hours in only a hospital gown.
After these cases were brought to light, the National Institute of Health placed the hospital on "probation," finding that it violated federal law on "experimentation" on human subjects. In 1994, the hospital dismantled its program as part of a settlement with the Civil Rights Division of the Department of Health and Human Services.
- Ann Farmer
Cartoonists are Highlighted in 'Celebrate Choice' Forum
About ten years ago, whenever editorial cartoonist Joel Pett created a pro-choice cartoon he would insert a coat hanger into the picture - as a stiff reminder of the dangers that lurk when abortion is illegal. One day he got a fax from the pastor of a local church threatening to boycott his newspaper, the Lexington Herald-Leader, if he continued to do it. Pett was not intimidated.
The next day, as he was lampooning a different subject, he subtly included a coat hanger. The following day he drew a man replacing his broken TV antenna with a hanger. A boycott ignited. Undeterred, Pett next drew President Bush breaking into a locked car using a coat hanger. At that point his editor told him "no more coat hangers." So instead, Pett drew a cartoon with a clothes closet, only the clothes were hanging mid-air - there were no visible coat hangers. He adds, "they wouldn't run it."
Pett's staunchly pro-choice cartoons have been a humorous and biting addition to at least a dozen issues of Reproductive Freedom News (RFN). Some of them can be seen in an upcoming public education forum presented by the Center for Reproductive Rights. Celebrate Choice: Reproductive Freedom through Art, Politics and the Law will run February 1-26 at the Ceres Gallery in New York City. The exhibit will feature feminist artists' paintings, a time-line of the century's turning points for women, and a visual history of the strides and setbacks following Roe v. Wade as illustrated by the work of 17 editorial cartoonists featured in past RFNs, including Pulitzer Prize winners Tony Auth and Signe Wilkinson.
While Wilkinson has been known to bridle when singled out as a "female" cartoonist, she does believe that some editorial ideas come more naturally to women. "I'm perfectly willing to say I've never had to have an abortion," says Wilkinson, "but there were times when I thought I might be pregnant when I didn't want to be." The angst Wilkinson experienced at those times is incisively portrayed in her cartoon of a woman suffering through three days and nights of sleepless contemplation before choosing to have an abortion. The character is then further burdened by a male judge who tells her to "come back in 24 hours after you've thought it over." "It really frosts me when it's the men making the [abortion] decisions," says Wilkinson.
Cartoonist Tony Auth also finds his pro-choice views fueled by personal experience. He came of age during the era of the Vietnam War and women's rights, and says he knew many women who "had to go through that agonizing period" before deciding to have an abortion. "It seemed to me there was no need for government to put obstacles in their path." While raised a Catholic, his outrage at the anti-choice tactics of the Church has left him wading through occasional spates of hate mail - especially the time he depicted a bishop brandishing an "abortion dogma" hatchet. But ruffling feathers is all part of the business, as Wilkinson can attest. She recalls that one day after taking a swipe at the religious right, "a guy came in and prayed for me."
- Ann Farmer
Supreme Court Justices to Receive a Flurry of Petitions on "Partial-Birth Abortion" Bans
"Quite simply, the State's arguments for reviewing the Nebraska 'partial-birth abortion' ban statute are meritless, and the State can find no refuge in the facts of this case."
-Simon Heller, Center for Reproductive Rights Director of Litigation
Parties on both sides of the "partial-birth abortion" issue are busy filing petitions to the U.S. Supreme Court, asking the Court either to affirm a woman's right to choose or to erode that constitutional right. Because when the U.S. Court of Appeals for the Seventh and Eighth Circuits recently issued contradictory opinions on the constitutionality of five virtually identical "partial-birth abortion" bans, they established salient grounds for a U.S. Supreme Court review.
The Center for Reproductive Rights, Planned Parenthood Federation of America and the American Civil Liberties Union have all announced they will ask the Court to consider the Seventh Circuit decision, which found the abortion bans in Illinois and Wisconsin constitutional. The first clear sign of the Court's willingness to consider such a case appeared on November 30, when Supreme Court Justice John Paul Stevens issued a written order preventing the Seventh Circuit decision from taking effect pending review by the High Court. If the Court declines to hear that case, the stay would expire and the Illinois and Wisconsin bans would take effect.
Meanwhile Nebraska lost no time in asking the Court to review the unanimous Eighth Circuit decision from September that found a Nebraska PBA ban unconstitutional. In separate decisions, the Eighth Circuit found similar bans in Arkansas and Iowa unconstitutional. However, neither Arkansas nor Iowa has yet indicated whether it will petition the Court.
In its November 12 Supreme Court petition, Nebraska seeks, in effect, to overturn Roe v. Wade. Throughout its petition Nebraska fails to summarize the factual findings of this case. Nowhere does it contest that the phrase "partial-birth abortion" is not a medical term. Instead it consistently ignores the lower courts' finding that this term covers more than just a specific procedure, including one of the safest pre-viability abortion methods available in Nebraska.
In an attempt to sway the Court's emotions, the State asks rhetorically whether a "living human being delivered from its mother's body up to its head" is a person under the Constitution. As the Center for Reproductive Rights points out, the law in question cannot - by any stretch of the imagination - be narrowed to this situation. Indeed, the Eighth Circuit had found the law was so vague it could apply to virtually all abortions.
The State then equates the "partially born" with former African American slaves and Native Americans, and asks that the "partially born" be given the full protection of the Constitution without offering any legal precedent for such a monumental decision.
All this leads to what Nebraska really desires: as stated in the petition, Nebraska wants the Court to turn over the issue of abortion to the whims of the legislative majority, free from the Constitutional oversight of the courts.
The Center for Reproductive Rights filed its response to Nebraska's petition on December 16. It urged the Court to reject the questions presented by Nebraska, arguing that none of the state's grounds for review have merit. However, acknowledging the split between the Eighth and Seventh Circuit decisions, it asked that the High Court deal with the truly important questions raised by these laws.
First, the Center for Reproductive Rights stated, the Court must reaffirm the continuing vitality of Roe by upholding the Eighth Circuit's finding that the bans on "partial-birth abortion" are unconstitutional. Second, it must reaffirm settled law that courts cannot simply rewrite unconstitutional statutes in an effort to save them, as happened when a deeply divided Seventh Circuit zealously rewrote the Wisconsin abortion statute in a failed attempt to make it constitutionally viable. It is the duty of the legislatures to write constitutional laws. When they fail to do so, courts must strike them down.
- Ann Farmer
