Preserving Freedom and Liberty in a Time of Terror

By Janet Benshoof

With one act, terrorists did more than kill thousands of people, alter the lives of millions, and strike fear in the hearts of Americans. They also threatened the values of freedom and liberty that have flourished in this nation over the past 225 years, even in times of great adversity. The anchors of American democracy -- individual rights to speech, self-determination, and religion -- are under attack by those opposed to an open, secular civil society.

The Center for Reproductive Rights staff is renewing our commitment to ensure that women's liberties and equality - critical marks of a free civilization - remain strong in this uncertain time. When the rule of law, universal values, and equality are eroded, then repression of women, extremist ideologies, and other forms of hatred find a climate in which they can breed.

Our mission is as critical today as it was before September 11. Women, girls, and their families should be confident that the Center for Reproductive Rights is continuing to protect, strengthen, and build on the foundation of women's reproductive rights we have in this country and around the world.

History teaches that in times of war, fundamental rights come under attack from within as well as outside. There is a national instinct to unite behind the president during times of adversity. But a newly invigorated patriotism should not mean that America sacrifices the very values it so desperately wants to protect. The dark side of American history is that there is no shortage of misguided responses to fear, from detaining Japanese-Americans during World War II to imposing civil and criminal penalties on individuals believed to be associated with the Communist Party.

The Center for Reproductive Rights will continue to protect women's reproductive rights through the U.S. legal system. We will work to ensure that America honors its commitments to the universal values contained in international human rights treaties it has signed. We believe it is critical for the U.S. to repeal the Global Gag Rule, which violates the right of free speech, a fundamental American freedom. And we will urge the U.S. Congress to continue its support for important reproductive health programs funded by Title X and USAID. These programs vastly improve the quality of women's lives, and enable women to become full participants in political life in the U.S. and in nations around the world.

At a time like this, we must not suspend our work but become even more vigilant in our efforts to protect American values. Constructive criticism, advocacy, and legal challenges are a critical part of our democratic system of government. We must work to protect liberties and to improve our nation's policies through democratic institutions and debate. Continued engagement shows that we need not resort to violence to resolve differences of opinion about the direction society must take to realize the rights of all human beings.

Vigilance to protect the values of our democracy will bring opposition, as it always does, but with new force. Anti-choice activists Jerry Falwell and Pat Robertson launched the first salvo against groups that support women's reproductive rights and civil liberties in the wake of the attack, seeking to place blame for this terrorist act on those of us who support women's right to choose abortion.

Liberty and freedom are the foundation from which a better future for women, girls, and their families will rise. We at the Center for Reproductive Rights intend to continue to help build it.

Women's Access to Early Abortion Pill Blocked by Abortion Politics

September 28 marked the one-year anniversary of the U.S. Food and Drug Administration's (FDA) approval of the early abortion pill mifepristone widely known as RU-486.

The drug's approval was followed by hundreds of abortion laws that restrict surgical and medical abortions. These laws prevent physicians from providing this service to their patients even though state and federal efforts to further restrict the use of mifepristone specifically have not been successful.

"Abortion politics have bogged down the public health goal of making this safe, early option for pregnancy termination more widely available for women," says Janet Benshoof, president of the Center for Reproductive Rights."It is our goal to remove the crippling criminal laws that interfere with women's access to this basic medical care."

The Center for Reproductive Rights challenged a Michigan law that was the first direct legislative ban in the nation against the use of mifepristone. As a result of the Center for Reproductive Rights' lawsuit, Michigan reversed its ban on medical abortion this past March. A settlement reached between the Center for Reproductive Rights and the state resolved most of the challenges to Michigan's mandatory delay for abortion law, which had been modified to prohibit state-mandated abortion literature from describing any procedure that uses a drug that has not been specifically FDA-approved for use in an abortion. Misoprostol, FDA-approved as ulcer medication and used "off-label," is necessary to successfully complete an abortion using mifepristone.

At least 17 states have considered legislation to restrict mifepristone in the 2001 legislative session.

This includes bills that clarify the definition of abortion to include mifepristone, exclude medical abortion from public funding for low-income women, and go as far as making it a felony to prescribe or to dispense mifepristone. In February 2001, anti-choice politicians in Congress introduced a bill, which would impose restrictions on the use of mifepristone, such as severely limiting the pool of providers. "In attempting to impose further restrictions on mifepristone, anti-choice legislators are challenging the integrity of medical practice as well as the FDA's decision-making process," says Benshoof.

Secretary of the Department of Health and Human Services, Tommy Thompson, has backed off his threat to investigate mifepristone, but has not ruled out future action against the drug.

Briefly: Statistics on availability of mifepristone

Only 6% of gynecologists and 1% of general practice physicians say they have offered mifepristone since its approval. Gynecologists who provide surgical abortions are more likely to have provided mifepristone (12%).

The National Abortion Federation (NAF)-- the professional association of abortion providers -- says that approximately 50% of its members offer mifepristone. The Planned Parenthood Federation of America reports that about half of its affiliates offer the drug. Not-for-profit clinics, such as those affiliated with NAF and Planned Parenthood, account for 70% of mifepristone sales. The remaining 30% of sales come from private practice physicians and independent clinics, according to mifepristone distributor Danco Laboratories.

Physicians in 45 of the 50 states and the District of Columbia offer mifepristone to their patients.

Forty percent of gynecologists and 37% of general practice physicians say they do not offer mifepristone because they "personally oppose" medical abortion. Among these doctors, 51% of gynecologists and 33% of general practice physicians say they refer patients seeking the drug to other providers.

Mifepristone Under Attack by Ohio State Lawmakers

Nearly a year after the anniversary of mifepristone's approval by the Federal Drug Administration, Ohio lawmakers entered a bill into the state's House of Representatives in mid-September that would limit use of the drug to cases where the life, health or mental health of the pregnant woman was at stake.

The bill would thereby place greater restrictions on the use of mifepristone than exist for surgical abortion in Ohio. According to the bill, introduced by a bipartisan group of lawmakers led by Rep. Tom Brinkman (R), mifepristone can only be "given, sold, dispensed, administered, otherwise provided, or prescribed" by a physician who "has determined, in good faith and in the exercise of reasonable medical judgement" that the "life or physical health" of the pregnant woman is in danger.

"The state legislators are doing everything in their power to limit a woman's access to medical abortion and her right to choose to terminate a pregnancy," said Karen Raschke, staff attorney for state programs at the Center for Reproductive Rights.

A woman can also obtain the drug from a physician if she has a "document that states [a] psychiatrist has conducted a professional assessment of the pregnant woman's mental and emotional condition, and as a result, has determined that the abortion for which [mifepristone] is given, sold, dispensed, administered, otherwise provided or prescribed is necessary to protect the mental health of the pregnant woman."

The physician providing the drug must "satisfy all the criteria established by federal law" for the dispensation of mifepristone and could be charged with a fourth degree felony. In addition, the physician could be subject to review by the "regulatory or licensing board or agency that has the administrative authority to suspend or revoke the offender's professional license," if he or she is found to be in violation of the law.

IN THE STATES

South Carolina Judge Issues Mixed Ruling on Abortion Rights

United States District Judge Henry Herlong Jr. ruled in early September against the Center for Reproductive Rights' claim that a South Carolina abortion law is vague in its licensing requirements for physicians who perform abortions was legal.

As result the targeted regulation of abortion providers law, blocked since, took effect. One victory in the decision for the Center for Reproductive Rights was that Judge Herlong Jr. ruled that the state could not have access to medical records of patients containing any identifying information in support of the Center for Reproductive Rights' position. The Court held that South Carolina failed to establish a compelling reason to inspect such documents.

"We are pleased that the Court has recognized that the State cannot simply enter a doctor's office and read and copy patients' medical records," says Bonnie Scott Jones, a staff attorney with the Center for Reproductive Rights and lead counsel in the case. "But this victory is overshadowed by the law being in effect--a law that discriminates against abortion providers and hinders women's access to safe medical care."

Judge Herlong, Jr. ruled against the providers on their vagueness, improper delegation of licensing authority, and establishment clause claims.

The Center for Reproductive Rights' vagueness claim challenged numerous ambiguous sections of the regulation, including a provision that prohibited physicians from doing anything contrary to any "best practice" subsequently delineated by the health department.

The doctors also challenged a requirement that they have admitting privileges at a local hospital; this provision gives hospitals the power to prevent a physician from obtaining a license to perform abortions.

The providers' establishment clause claim sought to invalidate a requirement that physicians maintain professional affiliations with clergy persons who would provide their patients with counseling. "This mandate places religion where it does not belong-in private doctors' offices and clinics that have no religious affiliation at all," says Scott Jones.

The Regulation was initially blocked in 1996. In February 1999, a federal district court struck down the Regulation. The U.S. Court of Appeals for the Fourth Circuit reversed the decision on August 15, 2000. In June 2001, Judge Herlong Jr. dismissed the case without considering the merits. The Center for Reproductive Rights filed an appeal with the Fourth Circuit Appellate Court, which in turn sent the case back to Judge Herlong Jr. resulting in this decision.

The Center for Reproductive Rights worked with local cooperating attorney Randall Hiller to represent the plaintiffs in Greenville Women's Clinic v. Bryant. Plaintiffs include Greenville Women's Clinic and William Lynn, M.D.

Ohio Strikes Down Abortion Ban Based on U.S. Supreme Court Decision

Ohio's ban on abortion which included a criminal penalty punishable up to eight years in prison for doctors, was struck down in September as an unconstitutional violation of a woman's right to choose.

The Court based its ruling on the case the U.S. Supreme Court decision in Stenberg v. Carhart issued last summer. The Center for Reproductive Rights won the Carhart case in a 5-4 ruling by the Supreme Court Unlike the Carhart case, Ohio's ban included a health exception that the Court found inadequate, leading to its decision to strike down the law.

"Ohio failed in its attempt to slip in a health exception that did not comport with the Carhart decision," said Janet Crepps, Staff Attorney for the Center for Reproductive Rights and of counsel in the case. "By doing so, the state risked endangering women's health, and their constitutional rights, by depriving them of a safe medical procedure," added Crepps.

Citing the Carhart decision, United States District Court Judge Walter Rice struck down Ohio's ban, which had been blocked since August 2000. Ohio's health exception would only permit the procedure if the woman suffers from a medically diagnosed condition that complicates her pregnancy. Judge Rice stated in the decision, "[The law] does not allow the 'partial birth procedure' to be performed when it is simply safer than alternative methods of abortion, and that is what Carhart requires."

In 1997, Ohio enacted a similarly worded version of the banned abortion law that was also found unconstitutional. In 2000, the state legislature passed this statute, which was immediately blocked.

Plaintiffs in the case Women's Medical Professional Corporation v. Taft include the Women's Medical Professional Corporation and are represented by Alphonse A. Gerhardstein and Jennifer Branch of Lanfman, Rauh & Gerhardstein in Cincinnati with Crepps and Linda Rosenthal of the Center for Reproductive Rights acting of counsel.

Anti-Abortion Breast Cancer Scare Tactic Trial Postponed

Center for Reproductive Rights staff attorneys Janet Crepps and Linda Rosenthal along with Anya Lakner, a domestic program assistant, had descended upon Fargo, North Dakota to argue in federal court against the claim of an anti-choice zealot suing a North Dakota abortion clinic under the state's false advertising law.

The plaintiff, who was never a patient of clinic, acted as self-ordained "sidewalk counselor" and attempted to scare women away from seeking abortion services by distributing his own pamphlets that linked abortion and breast cancer, while discrediting a pamphlet produced by the clinic.

However, in the wake of the attacks on the World Trade Center and the Pentagon, the trial was postponed.

"Neither of the nation's leading cancer organizations - the National Cancer Institute and the American Cancer Society - has concluded that there is an established link between breast cancer and abortion," says Linda Rosenthal, a Center for Reproductive Rights staff attorney and counsel in the case. "This is a tactic to scare women into not exercising their constitutional right to an abortion and to portray anti-choice zealots as caring about women when all they want is to end abortion at any cost."

This case was initially filed in December 1999 to stop the Red River Women's Clinic from distributing its own leaflets on abortion. In crafting its brochure, the clinic relied on scientific data provided by the National Cancer Institute (NCI) and the National Abortion Federation. The plaintiff had never even seen the clinic's literature prior to filing the case and has yet to review a copy of the clinic's current brochure, two years after instigating the lawsuit.

Contraceptive Equity Moves Forward

Texas recently joined the growing list of states that bar health insurance providers from discriminating against women by making them pay for birth control pills, diaphragms and other approved methods of contraception.

Texas became the seventeenth stateto pass a contraceptive equity law.

Contraceptive equity talk has even hit Wall Street. The New York Observer reported that the Independent Association of Publishers' Employees requested that the Dow Jones Company, which publishes the Wall Street Journal, cover prescriptive birth control in its health plan.

A Kaiser Family Foundation survey last year found that 60% to 87% of companies offer some sort of contraceptive coverage, an increase from 1997, when coverage ranged from 35% among small companies to 68% among large ones.

Beyond state and corporate action is the movement of unions in the arena of contraceptive equity. The International Brotherhood of Teamsters, representing 1.4 million truck drivers, passed a resolution in June to call for national contract negotiators with parcel delivery services, car haulers and freight delivery services to seek equitable health care coverage that includes reproductive health products, exams and services.

Success does not come without some failure. As many as 30 contraceptive equity proposals died in legislatures this year, according to Karen Raschke, staff attorney for state programs at the Center for Reproductive Rights.

WORLDWIDE

HIV/AIDS Pandemic Prompts Change by Some African Nations on Women’s Reproductive Health

The HIV/AIDS pandemic has ravaged many African countries, but it has also proven as a catalyst for some governments in recent years to adopt progressive reproductive health policies to protect women from the disease.

This was one of the principle findings of the Center for Reproductive Rights' new "Women of the World (WOW): Laws and Policies Affecting Their Reproductive Lives: Anglophone Africa," report. The report identifies progress and setbacks in women’s reproductive health in Ethiopia, Ghana, Kenya, Nigeria, South Africa, Tanzania, and Zimbabwe. It is a culmination of two years of research to update the Center for Reproductive Rights' groundbreaking WOW study of these seven countries that was published in 1997.

"Many of these governments have adopted policies that are intended to improve women’s reproductive health and rights, but we have yet to see many laws enacted or the budget allocations to support these policies," says Tzili Mor, Center for Reproductive Rights international fellow and co-author of the report.

All seven countries have supported promoting the use of the female condom for women to protect themselves against sexually transmitted infections, such as HIV/AIDS. However, some countries still have created both formal and informal barriers to the distribution of contraceptives. In Kenya, it is prohibited to distribute contraceptives in schools. The majority of providers in Tanzania impose age and parity requirements on women seeking contraceptives. In Zimbabwe, adolescents under the age of 16 years of age must obtain parental consent to access contraceptives.

There are stark differences in the access to family planning for people in rural versus urban areas. In South Africa, only half of women have access to family planning services, partly due to restricted clinic hours in rural areas.

Many of these governments have realized harmful traditional practices such as forced and early marriage and female genital mutilation pose health risks for women. Tanzania outlawed the practice of female genital mutilation (FGM) as cruelty to children, subject to 5 to 15 years imprisonment. Nigeria proposed a law that would protect women and girls against circumcision. At least six Nigerian states have banned the practice, but with varying definitions and penalties.

Not all government action in this region in response to the AIDS pandemic has been positive for women. Some nations have tried to protect women from infection by mandating that individuals must notify their partners if they are infected with HIV. Zimbabwe law states that if a partner does not notify anyone "with critical reason to know," specifically partners and caregivers, of their HIV status then a health worker or other agencies will notify the family. The consequence of the disclosure of a woman’s HIV status to their partner has often led to partner violence, stigma, desertion and expulsion from communities, according to the report.

Another regional trend has been support for the liberalization of abortion and the provision of care for abortion complications in wake of high rates of maternal mortality being linked to botched abortions. This movement is partially being challenged by conservative forces, such as South African groups challenging the constitutionality of the country’s Termination of Pregnancy Act, and Nigerian groups that have rallied against liberalizing abortion laws.

Women in these countries have also seen some positive movement on their representation in government. South Africa’s legislature leads, with about 30% of women representatives in lower and upper houses. Women representatives compose 22% of Tanzania’s parliament. However, Women in Kenya and Nigeria account for less than 4% of the representatives in their legislatures.

The report is broken up by individual countries and incorporates analysis of regional trends.

Chilean Health Officials Support EC Distribution Despite High Court Ruling

The Chilean Health Ministry has defied a ruling by the Supreme Court of Chile in early September that banned the distribution of emergency contraception (EC) in the staunchly Catholic nation.

Despite this, the Health Ministry decided to uphold the Institute of Public Health's approval of the distribution of the German drug maker Grunenthal's brand of EC almost immediately after the country's Supreme Court banned a different company from dispensing their product.

"In a country where abortion is already illegal, the court's action denies women an essential reproductive health tool, potentially adding to the number of unsafe illegal abortions in Chile," said Luisa Cabal, staff attorney for Latin American and Caribbean region of the Center for Reproductive Rights' international program.

Anti-abortionists in Chile charge that EC is a form of abortion. However, the international public health community, led by the World Health Organization, affirms that the beginning of pregnancy starts with implantation of the fertilized egg in the uterine wall. EC cannot affect pregnancy once implantation has occurred. Emergency contraceptives can prevent pregnancy if taken within 72 hours of having unprotected sex. At the same time, Chile allows the use of IUDs, which can also prevent a fertilized egg's implantation.

Over-the-Counter is Cheap for Public and Private Insurers

A study published in September by the American Journal of Public Health found that allowing women to access emergency contraception (EC) without a prescription could save private insurance companies between $119 to $179 and government providers between $32 and $57 per woman, depending on the drug used.

The study looked at the cost of requiring women to access EC from a physician or clinic compared to the cost of allowing women to directly access the Yuzpe regimen of EC, which contains a combination of estrogen and progestin.

The study was conducted in 1997 in state of Washington, the only state in the country that allows EC to be dispensed without a doctor's prescription.

Researchers found that 4.9% of women who did not receive EC from a pharmacy became pregnant compared to 1.8% of women who accessed EC through a pharmacy. The study found that allowing over-the-counter access to EC resulted in savings of $158 per woman for private insurers and savings of $48 per woman for public insurance programs.

The study authors stated that the design of the study posed some limitations. Progestin-only EC pills were not available during the pilot project, and new studies have shown that the effectiveness of the Yuzpe regimen is lower than previously thought.

The researchers used new findings on the Yuzpe method's effectiveness and found that the savings would amount to $119 per woman for private insurers and $32 per woman for public coverage. However, if the more effective progestin-only EC were used, the cost savings of over-the-counter access to EC would be $179 per woman for private plans and $57 per woman for public coverage.

Mothers Still Dying at Alarming Rates During

The United Nations Children's Fund recently reported that while the last ten years has brought a wave of jargon from world leaders about the need to decrease maternal mortality rates, little if any progress has been made.

Source: UN Photo

In 1990, at the UN's Children's Summit the international community hoped to halve maternal mortality rates over the following 10 years.

While the world's ambitions were great, the reality provides a frightening testament to failed efforts. In 2000, there were 400 maternal deaths for every 100,000 live births, and 515,000 women continue to die each year from pregnancy and childbirth. Sub-Saharan Africa continues to lead the world in maternal mortality rates with one in 13 women likely to die from pregnancy and child-birth related complications, says the UN agency. In South Asia, that figure was one in 54 women; in the Middle East and Northern Africa, one in 55 women; and in Latin America and the Caribbean, one in 157 women.

The contrast between women in rich and poor nations is stark. Women in industrialized nations have a one in 4,085 chance of dying during pregnancy and childbirth, compared to a one in 16 chance for women in the "least developed" countries.

Worldwide, a woman has a one in 75 chance of dying during pregnancy or childbirth.

Most women are left with little if any medical supervision during childbirth. In 2000, trained attendants were present at only 29% of births in South Asia and 37% of births in sub-Saharan Africa. However, the report notes that in 53 countries where maternal mortality is "generally less severe," there has been a "small increase" in the percentage of births that are attended by skilled personnel. Worldwide, trained individuals attended 56% of all births.

Family planning services showed some progress. The report states that contraceptive prevalence has increased by 10% worldwide and doubled in the "least developed" countries. However, the report notes that only 23% of married women in sub-Saharan Africa use contraceptives, and access to reproductive health education remains lacking with adolescents giving birth to 15 million infants each year.

Child Custody Protection Act Will Punish Adolescents

Before the terrorists attacks on New York City and Washington, D.C., anti-choice law makers were planning Congressional subcommittee hearings for an initiative that would make it a crime for anyone besides a parent to assist a minor in crossing certain state lines for the purpose of obtaining an abortion. The initiative is known as the Child Custody Protection Act (CCPA).

"This bill does not protect children: it endangers young women seeking abortions by forcing those who can neither involve their parents nor face a judge to take matters into their own hands," says Rosemary Dempsey, Director of the Washington, DC Office of the Center for Reproductive Rights. "Many young women will travel alone or even risk an unsafe abortion rather than confront their parents disapproval or anger."

The bill was scheduled to be marked-up on September 11 by the Sub-Committee on the Constitution of the House Judiciary Committee and for full Committee on September 13. Both were canceled due to the attacks.

The Center for Reproductive Rights opposes CCPA as an unconstitutional violation of the right to choose. Its provisions create an undue burden on a young woman's right to obtain an abortion. The bill provides no health exception as mandated by the Supreme Court beginning with Roe v. Wade and reaffirmed by last year's decision in Stenberg v. Carhart.

The bill is not a federal version of the forced parental involvement laws in effect in some states. Rather, it would force a minor to comply with her own state's law in addition to any requirements in the state in which she sought an abortion, or risk prosecution of anyone who accompanied her. Minors traveling alone do not face a penalty.

In order to be sure that a non-parent traveling with her will be safe from prosecution, a young woman would have to assess the law in the state in which she will be having the procedure as well as her own state law, comparing both of these with CCPA. This "transference" of one state's laws onto activities to be performed in a second state is unprecedented.

"Parent" is defined narrowly in the bill, ignoring the fact that other adults may play a parental role in minor's lives. Grandparents, clergy, teachers, coaches and counselors would risk prosecution if this bill becomes law. Studies have shown that a majority of young women talk to their parents about an unwanted pregnancy. Those who do not may have a legitimate fear of violence or other problems.

The Center for Reproductive Rights has published a new briefing paper and fact sheet that demonstrate why CCPA is unconstitutional and dangerous to young women. Analyses of the unprecedented effect of this law on the 50 states and the District of Columbia are also laid out in detail in our materials.

New Publications

These are the new publications from the last month:

• The Bush Global Gag Rule: A Violation of International Human Rights and the US Constitution (PDF).

• Abortion action kit in french - Rendre l'avortement sûr, légal et accessible.

• Holy See briefing paper in Spanish - La Iglesia Católica en las Naciones Unidas: un obstáculo para los derechos sexuales y reproductivos de las mujeres (PDF).