King of Nepal Signs Historic Law Legalizing Abortion
On September 26, the King of Nepal signed a historic law that legalizes abortion on broad grounds. The law reverses 150 years of legal discrimination against women.
Abortion is now legal in Nepal upon the woman's request during the first 12 weeks of pregnancy, in cases of rape and incest during the first 18 weeks, or at any time in cases of fetal impairment and when a woman's life or health is in danger. The Nepali parliament passed the law on March 14.
"This is a monumental victory for Nepali women," said Melissa Upreti, the Center for Reproductive Rights' legal adviser for Asia. "After years of punishing women for exercising their basic human rights, this day marks a revolutionary shift in Nepalese policy," she added.
The parliament’s adoption of the new abortion law coincided with the release of a report by the Center for Reproductive Rights and the Forum for Women, Law and Development (FWLD) in Nepal in March. "Abortion in Nepal: Women Imprisoned," examines the human rights violations inherent to Nepal's former abortion ban, as well as those arising from enforcement of the ban. The report features stories of some of the women in prison, many of whom are serving lengthy sentences. Most of these sentences were imposed upon women who had no opportunity to hire lawyers or to defend themselves in court.
"The fate of the women currently imprisoned for abortion remains unclear," said Upreti. "Ensuring women's equality under the law requires the government to release the women carrying out sentences on abortion-related crimes."
The Center for Reproductive Rights and FWLD are continuing to advocate for the release of women currently serving prison sentences, including life terms, for violating the ban.
Upon the report's release in March, Nepal's Minister of Health Sarad Singh Bhandari committed to take action to secure the release of women imprisoned for violating the abortion ban.
In March 2001, Upreti and Laura Katzive, Center for Reproductive Rights legal adviser for global projects, undertook a fact-finding mission with Sapana Pradhan-Malla, president of FWLD, and other FWLD staff to study the effect of Nepal's abortion law on women's human rights. During that mission, they interviewed women convicted of abortion and infanticide, Nepali policymakers, judges, reproductive health providers, and health officials.
Despite the landmark reform of the abortion law, safe abortion services will remain out of reach for many women in Nepal, particularly rural and low-income women. The Bush administration's "global gag rule" will pose an added barrier to ensuring abortion access. It will prevent the many local reproductive health providers receiving U.S. family planning assistance from providing or advocating for any abortion-related services. These organizations also will not be able to provide counseling or referrals for women to obtain abortion services elsewhere.
Philippines Debates National Reproductive Health Law
A debate is raging in the Philippines over legislation that would require the federal government to outline a strategy to improve Filipinos’ access to reproductive health care, and review and repeal laws and policies that infringe on their sexual and reproductive rights.
The Reproductive Health Care Agenda Act, introduced last December, says, "the state shall ensure the universal access to reproductive health, services, information and education." The bill would establish a national committee composed of representatives from various government agencies to draft a national strategy on reproductive health care.
The bill is crucial for Filipino women’s health because it would force the federal government to fund programs for contraceptive services and information. President Gloria Macapagal-Arroyo’s administration has severely cut the government’s budget for contraceptive services, in favor of "natural" family planning methods, such as the rhythm method. Her government claims the cuts were made because of a lack of funds, but reports indicate the decision was made to appease conservatives.
The bill aims to help meet the reproductive health needs of more than two million married Filipino women who want to practice family planning but cannot due to a lack of access to these services. The country’s Department of Health estimates that only 28% of Filipino women of reproductive age use modern family planning methods, such as oral contraception. The bill’s advocates believe it will help improve access to prenatal care. According to the United Nations Population Fund, the maternal mortality rate in the Philippines is 172 deaths per 100,000 live births compared to 20 deaths per 100,000 live births in neighboring Malaysia.
The committee established by the bill would "review national laws and policies that infringe on the rights of all individuals and couples from access to their sexual and reproductive health and rights and take the necessary effort to amend and repeal such laws and policies." This includes laws and policies on abortion, contraception, adolescent reproductive rights, HIV/AIDS, rape and sexual violence, among other issues.
The bill states that the Philippine abortion law needs to be reformed to allow women to have abortions in "exceptional circumstances," which are not defined. The bill also calls for amending the Philippines’ abortion law, which subjects women who have abortions and those who aid them to a penalty of up to six years in prison.
Conservative lawmakers and the Catholic Church are staunchly opposing the Reproductive Health Care Act. Religious leaders have vowed to campaign against supporters of the bill in the 2004 election, according to reports in Asia Times. The Catholic Church has labeled the bill "pro-abortion, anti-family and antisocial."
"By providing access to services and information on the full range of contraceptive methods, the bill seeks to prevent unwanted pregnancies and reduce the need for abortion," said Clara Rita A. Padilla, a Filipino attorney and international legal fellow with the Center for Reproductive Law and Policy.
Currently, only three out of 24 senators have expressed support for the bill, and only 60 out of 230 members of the House of Representatives support it.
Filipinos do not currently have a definitive legal right to contraceptive information and services. As a result, local politics and conservative values have led to several bans on the distribution of contraception. In 1995, the governor of the province of Laguna ordered all the provincial family planning clinics to stop providing all contraceptive methods, such as oral pills, intrauterine devices, condoms and sterilization. It took seven years and a new administration before this ban was overturned. In the past two years, the mayors of Manila and Puerto Princesa have instituted policies similar to the Laguna ban.
Thailand Contemplates Comprehensive Reproductive Rights Law
In late August during a conference on women's health in Bangkok, Thai lawmakers and government officials took a major step toward developing a national reproductive rights law. If Thailand moves forward on this initiative and passes a comprehensive reproductive health law it will be the first country in the region to enact such legislation.
Thai lawmakers and government officials hope to draft the bill within the next year. It could be an opportunity to reform Thailand's abortion law, which currently allows the procedure only in cases of rape, incest and risk to the health of the pregnant woman. The government has failed to adequately define what conditions or circumstances would allow a woman to have a legal abortion under the health exception. As a result, women in Thailand are forced to turn to illegal and unsafe abortions.
A 1999 study conducted by the Family Planning and Population Division of Thailand's Department of Health found that 40% of women seeking emergency care following an induced abortion in 134 public hospitals suffered from complications such as excessive hemorrhaging or a perforated uterus. The study also found that teen pregnancies accounted for approximately 30% of all illegally induced abortions reported at these hospitals.
If lawmakers draft the bill quickly it can be attached to pending health-related legislation. Legal advisers from the Center for Reproductive Rights actively participated in the women's health conference in Bangkok and will likely submit comments on a draft version of the bill.
"If Thailand were to pass a comprehensive law on reproductive health and rights it could bolster efforts to pass similar laws throughout the region," said Julia Zajkowski, the Center for Reproductive Rights' consulting legal adviser for global projects, who attended the Bangkok conference with Melissa Upreti, legal adviser for Asia.
The bill could also include a section prohibiting marital rape and domestic violence.
European Union Approves Contraceptive Patch
In September, the European Commission approved the use of a hormone-releasing contraceptive patch for European Union member states.
The patch is manufactured by Janssen-Cilag under the name "Evra" and uses the same type of ovulation-suppressing hormones as those found in oral contraceptives. However, the patch is applied once a week over a three-week period, as opposed to the daily use of oral contraceptives. No patch is applied in the fourth week to allow for menstruation to occur naturally, according to Janssen-Cilag. The company expects to make the patch available by the second half of 2003.
Last November, the U.S. Food and Drug Administration approved the patch for sale in the U.S. It is manufactured by Ortho-McNeil pharmaceuticals under the name Ortho Evra. The Canadian government approved the patch in August.
Johnson & Johnson owns both Janssen-Cilag and Ortho-McNeil.
Florida Circuit Court Throws out Biased Information Law
On September 13, Judge Ronald Alvarez of the Fifteenth Circuit Court in Palm Beach County, Florida issued a permanent injunction against a state law denying abortion providers the right to determine what information is appropriate for their patients. The court held that the law violated the strong right to privacy contained in the Florida Constitution, as well as the due process rights of abortion providers.
The "Women's Right-to-Know Act" would have required abortion providers to tell women the risks of an abortion "that a reasonable patient would consider material," without defining who is a "reasonable patient" and without taking into account the particular woman's circumstances or health issues. For example, abortion providers would be forced to discuss the option of carrying a pregnancy to term with rape survivors or women who were pregnant with a fetus suffering from genetic-and often fatal-anomalies such as anencephaly. Doctors who failed to provide the state-mandated information to their patients would be subject to civil penalties under the law, which could include fines and loss of medical license.
The Women's Right-to-Know Act was signed into law in 1997, but it has never gone into effect because the same court initially enjoined the law and the Fourth District Court of Appeal upheld that injunction. The plaintiffs consist of several clinics and a physician who provide abortions. They have been represented from the outset by lead counsel Louis Silber of the West Palm Beach law firm of Silber & Valente and Marshall Osofsky of the law firm Moyle, Flanigan, Katz, Raymond and Sheehan, P.A. The Center for Reproductive Rights recently joined the case as co-counsel to plaintiffs.
"This decision stops yet another attempt to place onerous restrictions on abortion providers," said Bebe Anderson, a staff attorney with the Center for Reproductive Rights and co-counsel in Presidential Women's Center, et al., v. State of Florida, et al.
The State defendants may appeal the decision to the Fourth District Court of Appeal.
Federal Appeals Court Allows State to Review Patients' Abortion Records
On September 19, the U.S. Court of Appeals for the Fourth Circuit again rejected the Center for Reproductive Rights' challenge to the constitutionality of a 1996 South Carolina regulation that imposes inspection and licensing requirements on abortion providers.
The court ruled that one of the law's provisions that allows state health inspectors to review, remove and copy abortion patient medical records containing identifying information does not violate patients' right to informational privacy. That decision reversed a lower court ruling that determined the provision was illegal.
"This is a devastating blow to the constitutional rights of South Carolina citizens," said Bonnie Scott Jones, a Center for Reproductive Rights staff attorney and lead counsel for plaintiffs in Greenville Women's Clinic v. Bryant. "The identities and private medical histories of abortion patients can now be reviewed and kept on file by the South Carolina Department of Health."
The court also rejected the Center for Reproductive Rights' challenge that the law is unconstitutionally vague; violates the separation of church and state; and improperly delegates medical licensing authority to hospitals.
The law requires physicians who want to provide abortion services to obtain from a local hospital "admitting privileges" -- an agreement allowing them to admit their patients to the facility. Many hospitals require physicians to live or practice within a certain distance of the facility in order to obtain admitting privileges. Many abortion providers may not be able to meet these standards. Essentially the state is giving hospital administrators, some of whom preside over Catholic hospitals that forbid any affiliation with abortion providers, the authority to determine who can provide abortions in South Carolina.
A case in Pennsylvania sheds some light on the dangers posed by the South Carolina provision. Pennsylvania has a law requiring clinics that want to provide abortion services to secure admitting privileges at a hospital that is no more than a 30-minute drive away. A Planned Parenthood clinic in Lancaster, Pennsylvania that is seeking to provide abortions has been denied admitting privileges by all five hospitals that meet this requirement and has been unable to offer abortion services as a result. A lawsuit brought by the clinic is still making its way through the courts.
The South Carolina provision is sure to have similarly devastating consequences for women who need access to abortion services. Currently, more than 80% of South Carolina counties do not have an abortion provider.
The law also requires abortion providers to maintain professional affiliations with clergy who can provide their patients with counseling. This provision applies regardless of the beliefs of either the physician or the patient. The provision is a blatant example of a government forcing religion into private doctors' offices and clinics.
The regulation, known as Targeted Regulation of Abortion Providers (TRAP), was originally challenged by the Center for Reproductive Rights in 1996. The law was enjoined from enforcement until September 2001. At that time, South Carolina was permitted to enforce the regulation, but was blocked from reviewing or copying patient records with identifying information. That portion of the law remains enjoined at this time as plaintiffs pursue further appeals.
Abortion providers in South Carolina already comply with state and federal laws governing similar health care providers. TRAP regulations, like South Carolina's regulation in this case, segregate abortion from mainstream medicine, thereby restricting access for women, by imposing additional levels of government intrusion and oversight for this politically controversial procedure. These excessive and unnecessary government regulations ultimately harm women's health and inhibit their reproductive choices.
The Center for Reproductive Rights will appeal for a rehearing of the case before the full panel of Fourth Circuit judges.
Federal Appeals Court Finds Indiana Waiting Period Law Constitutional
On September 13, the U.S. Court of Appeals for the Seventh Circuit ruled that a 1995 Indiana law requiring women to make two trips, 18 hours apart, to an abortion provider before they can obtain the procedure, does not place an undue burden on a woman's right to choose. The 2-1 vote reverses U.S. District Court Judge David Hamilton's decision that the two-trip requirement was unconstitutional because it would likely prevent 10-13% of Indiana women from obtaining the procedure.
"These laws place unreasonable and unnecessary obstacles before women who are attempting to exercise their constitutional right to choose abortion," said Simon Heller, Of Counsel with the Center for Reproductive Rights and lead counsel in A Woman's Choice v. Newman. "Mandatory delay requirements serve no actual health purpose and prevent many women - particularly the poorest -- from obtaining abortions altogether."
The law forces women to travel to the abortion provider to hear state-mandated information about the procedure, then return 18 hours later to obtain the abortion. The two-trip requirement is particularly burdensome for women seeking second-trimester abortions. Indiana has only one clinic, located in Indianapolis, that performs abortions after the first trimester. If the law takes effect, women living far from that clinic will be forced to travel great distances twice to comply with the law.
Judge Hamilton preliminarily enjoined the law on the grounds that the two-trip requirement was likely to be unconstitutional and that the medical emergency definition was too narrow. However, the Indiana State Supreme Court found that the medical emergency definition could be read more broadly, thereby striking that issue from further consideration by the federal court.
The Center for Reproductive Rights will petition the U.S. Court of Appeals for the Seventh Circuit to rehear the challenge before the Court's full, eleven-member panel.
Judge Blocks Portions of Alabama Waiting Period Law
On September 30, a federal district court judge granted an injunction against an Alabama law requiring physicians to provide women seeking an abortion with state-mandated information at least 24 hours before performing the procedure. The Center for Reproductive Rights filed a challenge to the law, SB 333, on September 17.
Judge W. Harold Albritton issued the injunction. As a result, Alabama physicians do not have to distribute the state’s proposed materials to women before performing an abortion. Physicians would have been required to give the information to women seeking the procedure starting October 14. Judge Albritton has not yet made a final ruling on whether the state's materials are "objective," "non-judgmental" and based on "accurate scientific information" as required by the law. The Center for Reproductive Rights contends that the materials contain numerous inaccuracies and misleading information about abortion and treatments for conditions such as an ectopic pregnancy.
Judge Albritton also ruled that the medical emergency exception to the law must include consideration of a woman’s mental health. Without the injunction, physicians would be required to distribute the state-mandated information to all women seeking abortion, regardless of the adverse impact that information may have on the mental health of some women. For instance, rape or incest victims would be given information on a father's child support obligations. And women carrying fetuses with fatal anomalies would receive information on adoption services.
Judge Albritton also ruled that the law should not apply to women who are carrying ectopic pregnancies or fetuses with fatal genetic anomalies such as anencephaly.
"We are grateful the court recognized that women in Alabama should not be subjected to the false and misleading materials developed by the Department of Public Health," said Linda Rosenthal, a Center for Reproductive Rights staff attorney and lead counsel in Summit Medical Center of AL, et al. v. Don Siegelman, et al. "This is just the beginning, however, and we intend to continue to fight to see the entire law struck down."
The Center for Reproductive Rights is representing six Alabama health clinics and two physicians who are challenging the law.
However, the injunction does not provide complete relief for the women of Alabama, since the law, scheduled to go into effect on October 14, 2002, still requires women to make two-trips, 24-hours apart, to an abortion provider before they can have an abortion. The law needlessly requires women to travel long distances, take additional time off from work, arrange childcare, or even remain away from home overnight or pay for another round trip to the clinic.
Mandatory delays and biased information requirements are on the books in 23 states, including Alabama, but enforced in only 17. Mandatory delay requirements serve no actual health purpose and only force women to incur increased expenses, travel and medical risks to obtain an abortion.
The Center for Reproductive Rights will continue to challenge the law, claiming it violates basic constitutional guarantees, including the right to privacy, the right to liberty, and the right to make medical and family decisions free from unwarranted governmental intrusion.
Federal Court Allows Bush "Global Gag Rule"
On September 13, the U.S. Court of Appeals for the Second Circuit dismissed CRLP v. Bush, a case brought by the Center for Reproductive Rights against President George Bush for his "global gag rule" (GGR) policy.
The Circuit Court rejected the Center for Reproductive Rights' claim that the GGR violated the free speech rights of the Center for Reproductive Rights and its international human rights attorneys by impeding their ability to lobby for abortion law reform around the world. The court also ruled against the plaintiffs on their equal protection claim, held that the plaintiffs did not have standing to press their due process claim, and brushed off their claims based on customary international law.
The GGR forbids foreign non-governmental organizations that receive family planning funds from the U.S. Agency for International Development (USAID) from providing information or services relating to abortion, even with their own funds.
The court held that the case against the GGR was not legally distinguishable from a 1990 challenge by the Planned Parenthood Federation of America (PPFA) to a previous version of the gag rule. In the PPFA case, the Second Circuit ruled that any impact on U.S.-based advocates from the GGR was caused by the "independent choice" of foreign groups to accept USAID funds. In CRLP v. Bush, the court simply followed its decision in the PPFA case.
"The ‘global gag rule’ is government sanctioned censorship - plain and simple," said Priscilla Smith, Acting Director of the Center for Reproductive Rights Domestic Program. "The impact of this censorship is dramatic and immediate. It is tragic that the courts have not provided recourse for advocates fighting for the lives and health of millions of women worldwide."
The Center for Reproductive Rights is considering an appeal for a hearing before the full panel of the Second Circuit or, alternatively, the U.S. Supreme Court. CRLP v. Bush was filed in June 2001.
The Center for Reproductive Rights maintains that the GGR prevents themselves and like-minded organizations from communicating with activists in other countries, influencing governments, or assisting in abortion law reform because many of these groups work on critical reproductive health projects that rely upon U.S. funds.
The Reagan Administration originally adopted the gag rule in 1984 as the "Mexico City Policy." President Clinton reversed the policy in 1993. Current U.S. President George Bush reinstated the gag rule through an Executive Order that he signed shortly after assuming office in 2001. The Bush gag rule is the harshest version of the policy ever adopted.
California Law Requires Hospitals to Provide EC
In September, California became the second state to require that hospitals offer emergency contraception (EC) to sexual assault victims.
Under the law, which takes effect on January 1, health care providers must offer EC to women who have been sexually assaulted. Women who cannot afford the pills will receive them free of charge. The state of Washington is the only other U.S. state that requires hospitals to offer EC to sexual assault survivors.
On September 25, the U.S. House of Representatives voted 229 to 189 in favor of a bill that allows a broad range of health care entities to refuse to comply with existing federal, state, and local laws and regulations pertaining to abortion services.
The bill, the "Abortion Non-Discrimination Act" (H.R. 4691), would shield health care entities - including hospitals, health insurance plans and health maintenance organizations - from sanction for refusing to abide by local, state or federal regulations concerning abortion services, referrals, training, coverage or payment.
The bill was originally crafted by the U.S. Conference of Catholic Bishops and introduced by anti-choice Senator Judd Gregg (R-New Hampshire) and Representative Michael Bilirakis (R-Florida).
The term "discrimination" is not defined in the statute, and could be interpreted to apply broadly to any government action taken to enforce laws or regulations concerning abortion, including those required under state constitutions.
The bill would produce dramatic reversals of longstanding federal law. Among its potential effects, the bill would prohibit the federal government from enforcing its own requirement that clinics receiving Title X family planning funds refer women to abortion providers upon request. This referral is a crucial element of the counseling that Title X clinics are required to provide to pregnant women.
In addition, the bill would interfere with states' mandate to comply with the federal Hyde amendment, which requires that Medicaid clients have access to abortion services in cases of rape, incest or risk to the life of the mother. The proposed "Abortion Non-Discrimination Act" would allow states the legal authority to ignore federal law and to refuse to provide low-income women access to abortion under these circumstances.
The bill could also render unenforceable state laws that require health maintenance organizations (HMOs) that participate in Medicaid to provide referrals and coverage for abortion.
Finally, the bill could prevent states from requiring their own Medicaid programs to cover abortion services beyond the circumstances allowed under the Hyde Amendment. Twenty-one states currently provide coverage for all medically necessary abortions under their Medicaid programs. This bill would stop these states from enforcing their own laws and constitutional decisions in the area of abortion services for low-income women.
