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Reproductive Freedom News

March 2000
Volume IX
Number 3

Cover
The Provider Behind the Supreme Court Petition

Worldwide
Ending War against Women

In Person
Human Rights Lawyer Honored

In the States
Fetal Tissue Research Threatened

On the Docket
Michigan Abortion Ban Challenged
Florida Hearing for Medicaid Abortions
Louisiana Raids on Clinics Ended

The Provider Behind the Supreme Court Petition

On September 6, 1991, the lives of Dr. LeRoy Carhart and his family were forever changed. On that day, an arsonist set fire to their Nebraska farmhouse and forty-three-stall horse barn. Virtually everything his family owned and had worked for was destroyed except the clothes on their backs and the vehicles they were driving. Seventeen horses and a family cat and dog were killed. The note that arrived in the mail the next day compared the "murder" of the horses to the murder of children. In other words, this was Carhart's punishment for being an abortion provider.

In the aftermath of that terrible incident Carhart did not retreat. Instead he resolved to continue his practice and to increase the availability of safe and legal abortions for the women of his state. Furthermore, his commitment to women's choice has propelled him to center stage in the upcoming U.S. Supreme Court case, Stenberg v. Carhart, a challenge to one of a multitude of laws banning abortions that have passed under the deceptive guise of "partial-birth abortion" bans. To what extent Roe v. Wade will continue to protect the right to choose may very well depend upon the results of this case.

Carhart has never sought public attention. The 58-year-old physician spent twenty years as an officer in the U.S. Air Force providing medical and surgical services to servicemen and women. But early on in his career he discovered the lengths to which women will go to terminate an unwanted pregnancy. While working hospital rotations as a young medical student during the pre-Roe days, he saw countless women brought in near death from the effects of illegal, unsafe abortions. He says his primary reason for starting an abortion practice 10 years ago was simply "to make people healthy and help them achieve their life goals."

But Carhart was thrust into the limelight when he, represented by attorneys from the Center for Reproductive Rights, challenged Nebraska's 1998 "partial-birth abortion" statute. While proponents of the bill claimed it only banned a particular "late term" abortion procedure, Carhart recognized that the criminal statute actually applied to abortion procedures he performs for women in the first and second trimester of pregnancy. Under the terms of the statute, he could no longer provide the same medical care he has offered for the past decade without putting himself at risk of prosecution, imprisonment for up to 20 years and losing his medical license. "All for what I took an oath to do," says Carhart, "to provide the best and safest medicine for my patients."

The U.S. Court of Appeals for the Eighth Circuit confirmed his concerns. In a unanimous decision last September, the Eighth Circuit determined that the broadly written Nebraska ban was unconstitutional because it would prohibit some of the safest and most common abortion procedures used today during the second trimester of pregnancy.

Unfortunately Carhart's relief was shortlived. A month later, a sharply divided Seventh Circuit determined that similar bans in Wisconsin and Illinois were constitutional. After receiving numerous petitions to settle the dispute, the U.S. Supreme Court agreed to review the Nebraska case in April to determine the law's constitutionality.

Because Carhart is the only physician in Nebraska who provides both first and later second trimester abortions, women come from hundreds of miles (and sometimes neighboring states) to avail themselves of his health care services. Yet Nebraska state and local officials have repeatedly attempted to undermine women's access to abortion, and Carhart has found himself a frequent target of harassment by those opposed to women's choice.

After the arson attack on his home by what were apparently anti-choice extremists, Nebraska state fire marshals did a cursory evaluation and then ordered the entire remains of the blaze to be bulldozed into a pile, thus rendering any further investigation impossible. When Carhart and his family were forced to relocate to an apartment rental, protesters showed up and banged on neighbors' doors saying that a killer lived in the building. One or more of them broke into the Carhart apartment and scribbled anti-choice sentiment on the walls. The culprits were never found and Carhart continues to be harassed on a frequent basis.

That Carhart won't give in to these anti-choice zealots is a testament to his convictions regarding the necessity of his work. He says, "I will take my case before the Supreme Court in April because I believe that women and their doctors should not lose the right to make personal decisions about life and health. If I don't fight back, my patients and future generations could lose the right to obtain the best medical care available to them, and for purely political reasons. That's something no doctor should accept."

- Ann Farmer



Ending War against Women

Center for Reproductive Rights Sponsors Workshop on Violence Against Women in Situations of Armed Conflict during Beijing +5 Regional Conference.

During the recent armed conflict in Kosovo, sexual violence against women was used as a tactic of war, and women's sexual and reproductive rights were among the first rights to be violated. News stories described young women rounded up by Serbian soldiers for collective rapes. A mother was reportedly beaten to death when she tried to rescue her daughters. These were not rare or isolated occurrences. Sexual violence during war has historically been taken for granted. It is only recently, following the wars in Rwanda and the former Yugoslavia, that sexual violence during armed conflict has been viewed as a war crime and a violation of women's human rights.

This issue was of primary concern for the Economic Commission for Europe (ECE) when it met in January to reaffirm its commitment to the goals adopted at the 1995 Fourth World Conference on Women in Beijing. The ECE meeting was one of five regional conferences held in preparation for the five-year review of governments' performance in implementing the Beijing Declaration and Platform for Action, which will take place during the United Nations General Assembly Special Session in June. For their part, the Center for Reproductive Rights and the International Women's Health Coalition sponsored a workshop addressing women's sexual and reproductive rights in situations of armed conflict.

Panelists who attended the workshop shared experiences from the recent conflicts in Eastern Europe. Valentina Leskaj of the Albanian Family Planning Association, an organization that assisted Kosovo refugees, reported on the many women who experienced rape, witnessed atrocities or were forced to give birth in refugee settings. Martina Belic from the Croatian organization B.a.B.E. (Be Active, Be Emancip-ated) described an escalation in domestic violence and in the trafficking of women. Compounding these factors was decreased government funding for contraception, abortion and health education.

Panelists suggested that women's reproductive health and rights could be improved with greater mental and physical health services and stronger social support during wartime. They also recommended that peacekeeping personnel and others pay closer attention to who is perpetrating the violence against women so that prosecutions can take place after the conflict has ended. International relief workers should also work to build the capacity of local health personnel so that women's health needs can be met throughout the transition to peace.

-Jill Molloy

Lawyer Honored for Perilous Work

There is a saying that no good deed goes unpunished. That is certainly true in the case of Giulia Tamayo, a human rights lawyer who was attacked and robbed after uncovering a pattern of abuse in Peru's public health facilities. But in this instance, she also reaped a notable reward. In January, Amnesty International announced that Tamayo is one of the two winners of the annual Ginetta Sagan Fund Award, given in recognition of the recipients' "outstanding achievement, often in the face of personal danger, to help women and children who are victims of violence."

In 1996, Tamayo was commissioned by the Center for Reproductive Rights and its partner organization, the Latin American and Caribbean Committee for the Defense of Women's Rights (CLADEM), to pursue reports of mistreatment of low-income women and girls by health care providers in Peru. Tamayo's fact-finding mission took her into five regions of the country -- from the urban streets of Lima to the rural Andean and Amazon regions. Over fifty women recounted incidents of rape, sexual molestation, physical abuse and verbal harassment by health care workers. Their testimonies were compiled by the Center for Reproductive Rights and CLADEM into a published report and the award-winning video, Silence and Complicity, which was shown at The Hague and other international venues to pressure the Peruvian government into addressing the grievances.

One of the victims, Marina Machaca, testified that she was raped by a doctor during a routine health exam. The Center for Reproductive Rights and CLADEM brought her case before the Inter-American Commission on Human Rights last year and negotiated a settlement in which the Peruvian government offered Machaca reparations and rehabilitation. The officials also indicated that the government intends to adopt new policies in the country's public health care system to counter further abuse and discrimination. The parties expect to sign a final agreement shortly.

Tamayo's leading role in pressing for health care services free of abuse, as well as her recent investigations and published reports of a government-backed program involving involuntary sterilization in Peru, has often put her under immense political pressure. Not only government officials, but some reproductive health organizations and other groups have wanted her to back down. In March 1998, Tamayo was assaulted in the doorway of her home. She was physically struck and her documents were taken. Later that year, her home was burglarized. The vandals stole her documents, passport and computer, but left cash, jewelry and other valuables behind.

Amnesty International joined in a campaign to end the threatening attacks. Last fall, the Center for Reproductive Rights nominated Tamayo for the prestigious Ginetta Sagan Fund Award. The award carries a prize of $10,000 to further Tamayo's reproductive and human rights work in Peru, a country where abortion is highly restricted and rates of maternal mortality and unintended pregnancy are very high.

When contacted at her home in Lima, the 41-year-old lawyer responded that she was overwhelmed and inspired by the recognition. "But it is not only about me," says Tamayo. "The award is important because it brings more international awareness to the problems facing women here. We're not a country that is governed by rule of law, but by authoritarianism. There is a lot of fear and people think they will be protected if they keep silent. The award allows us to talk more about the rights we want."

This year's other Ginetta Sagan recipient was Hina Jilani, a Pakistani human rights lawyer whose work supporting women's right to divorce and to marry husbands of their own choosing has led to murder attempts on her life. The awards will be presented by Julianne Traylor, Chair of the Amnesty Board, during the annual general meeting of Amnesty International, held on Saturday March 11th in Providence, Rhode Island.

-Ann Farmer

The book Silence and Complicity can be ordered from our website or by calling 212-514-5534 ext. 204. Information on ordering the video documentary can also be found on our website.

Fetal Tissue Research Under Legislative Threat

ANTI-CHOICE EXTREMISTS SMEAR ABORTION PROVIDERS IN NEW CAMPAIGN TO SWAY PUBLIC OPINION

Baby Parts Marketing. The title is shocking. The accusations offensive. But read below the surface of this newly published booklet and you'll encounter a web of deception. Baby Parts Marketing is the latest media ploy by Life Dynamics Inc., a notorious anti-choice group that uses sensational and duplicitous tactics to rouse public opinion against abortion. In this case, the publication's inflammatory and unsubstantiated allegations that abortion providers are participating in a lucrative trade in aborted fetal body parts - and predicated on the now-discredited testimony of a "spy" named "Kelly" - appears to have impacted legislatures nationwide.

Three Republican congressmen, Tom Tancredo (CO), Joseph Pitts (PA) and Chris Smith (NJ), gained House approval on November 9 for a resolution to hold upcoming hearings "with respect to private companies involved in the trafficking of baby body parts for profit." And a legislative trend to attempt to quash medical research using fetal tissue is gaining momentum in state legislatures. Legislators in six states: Missouri, Washington, Oklahoma, Virginia, Mississippi and Nebraska have already introduced bans on fetal tissue research this term. Nebraska state Senator John Hilbert has also introduced a separate bill requiring medical school programs to report all research done on humans, including fetuses, to the state legislature.

If this legislation passes, researchers and the millions of Americans suffering from life-threatening diseases will experience the worst fallout. Fetal tissue has been used for more than half a century by researchers in the United States and abroad, and is widely acknowledged as an important research tool. It has aided advances in the use of amniocentesis and in the treatment of Alzheimer's, Huntington's disease, AIDS, strokes and spinal cord injuries, and has been a vital component in scientific advances for the treatment of other diseases, such as rubella and polio. Ironically, the Missouri legislature will find itself, during this term, simultaneously considering a ban on fetal tissue and a bill mandating Hepatitis A vaccines for restaurant and school cafeteria workers in response to recent outbreaks. Fetal tissue is a key ingredient in that vaccine.

But the issue of using fetal tissue and embryos for medical purposes has long been held hostage to politics. Last fall, the Center for Reproductive Rights, representing Parkinsons' patients and abortion providers, won its challenge to a 1975 Arizona law that prohibited medical research using fetal tissue or fluids resulting from an induced abortion. This victory is especially important in Arizona, where an estimated 20,000 to 40,000 residents are currently afflicted with Parkinson's disease and a number of medical studies indicate that fetal tissue transplants are, for some, their best hope for improvement. Congressional actions have also strictly limited federal funding for research involving tissue from aborted fetuses. In 1988, a moratorium was placed on fetal tissue research that was lifted five years later by Clinton in one of his first official acts as President. Current federal law permits the donation of aborted fetal tissue for federal research, but places strict limits on the process of tissue donation. For instance:

a) a woman can only be approached about donating tissue after she has made her decision to undergo an abortion, and with full disclosure of any physician's interest in the tissue;
b) the abortion procedure cannot be altered with regard to timing, method or procedure for the purposes of obtaining tissue;
c) the donation must be made without any restriction regarding the identity of the recipients of the tissue, nor is the woman informed of the identity of any such individuals;
d) no "valuable consideration" is allowed for the receipt or transfer of any human fetal tissue, although companies involved in the transportation, implantation, processing, preservation, quality control or storage of human fetal tissue are allowed to receive reasonable payments for their services.

Despite these legislative safeguards, Life Dynamics Inc. garnered media attention last year when it accused abortion providers and tissue acquisition companies of coercing women into having abortions in order to profit from the sale of aborted fetal tissue. LDI produced videotaped testimony from an alleged industry "spy," and circulated copies of the tape to the media and legislators.

"Kelly" appears on the video in the guise of a woman - she is adorned with a wig, her voice is altered and she speaks with her back to the camera. On tape, she makes a number of accusations, chief among them that, while working as a lab technician for fetal acquisition companies, she observed live, full-viability fetuses killed and overheard some women who were about to undergo abortions say they "wanted to change their minds," but were instead sedated in a "Nyquil nap," making it difficult to protest. That testimony has since been severely debunked.

First of all, it turns out that "Kelly" is a man - Lawrence Dean Alberty, Jr. - who has, in fact, since 1993, worked for several fetal tissue acquisition companies. In a January 20, 2000 sworn deposition, Alberty now states that he doesn't know if the videotape is "reliable or correct." He says, "Life Dynamics may have changed some of my answers" and "substituted another person in my place during portions of the videotape as it has been circulated."

Alberty admits he is "familiar with the state and federal laws that limit the ability to charge fees for tissue procurement," and says, "I have no personal knowledge of any instance in which an employer of mine charged any fees or received compensation for retrieving fetal tissue in violation of any of these laws." If there have been any instances of overcharging, those people should be held accountable under the terms and conditions of the NIH Revitalization Act which prohibits "valuable consideration" of fetal tissue.

Alberty also states that he knows of no instances where a doctor performed any particular type of abortion procedure solely for the purposes of obtaining fetal tissue, and says that in the only instance where he believed an aborted fetus might have been viable, he has no knowledge whether the abortion was performed to save the life or health of the woman. In the sole instance where he thinks he observed a woman change her mind midway during an abortion procedure, he has no knowledge of whether she changed her mind after the point at which the procedure could not be reversed for medical or other reasons.

Finally, Alberty concludes his sworn statement with an affirmation of his belief in women's right to choose abortion, stating, "I believe a woman should have the right to donate fetal tissue for medical research."

-Ann Farmer, with reporting by Jen Taylor

Laws Governing Transfer or Sale of Fetal Tissue

Federal Laws:

  • The National Organ Transplant Act, which was amended by Congress in 1988 to include fetal organs and tissues, prohibits the sale of fetal tissue for "valuable consideration" if the transfer affects interstate commerce, but permits "the reasonable payments associated with the removal, transportation, implantation, processing, preservation, quality control and storage of a human organ."
  • The NIH Revitalization Act lays out specific requirements to obtain the informed consent of the woman donor, the researcher, and the donee in federally funded research projects. This act also includes a penalty for violating the "valuable consideration" requirement: a fine of at least twice the amount of the "consideration" received and possible imprisonment of up to ten years.

(see http:www.nih.gov/grants/oprr/humansubjects/publiclaw103-43.htm)

State Laws:

  • The Uniform Anatomical Gift Act has been adopted in various forms by all 50 states and the District of Columbia and is the principal means by which states regulate the acquisition and use of human organs and tissues. Specific requirements are set forth in state law.

For more information on the history and activities of radical right legal organizations order the Center for Reproductive Rights publication, Tipping the Scales: The Christian Right's Legal Crusade Against Choice by calling 212-514-5534 ext 204.

On the Docket

Michigan's Abortion Ban is Challenged

Current Status: Five Michigan abortion clinics and a doctor filed a complaint in federal court on February 1, 2000 challenging the state's "Live Infant Protection Act," the state's recent attempt to ban virtually all abortions. The ban is scheduled to go into effect on March 10th, 2000.

Background: The ban was passed during Michigan's latest legislative session ending in December, 1999. The broad language of the "Live Infant Protection Act" would outlaw virtually all abortion methods performed throughout pregnancy - beginning as early as eight weeks. In addition, the extreme nature of the ban fails to contain any health exceptions to protect the woman and threatens doctors who violate the statute with life imprisonment and a $50,000 fine.

Plaintiffs in the case of Womancare of Southfield, P.C., et al v. Granholm (No. 00-705-85) are represented by Janet Crepps and Linda Rosenthal of the Center for Reproductive Rights, and local cooperating attorney Tracie Dominique Palmer of Detroit, Michigan.

Florida Hearing for Medicaid Funding of Abortions

Current Status: A hearing was held on February 16 in the First District Court of Appeals in Tallahassee, FL on behalf of Medicaid-eligible women, a number of the state's abortion providers and an organization that provides financial assistance for the procedure, to overturn a 1998 ruling that denied low-income women funding for medically necessary abortions.

Background: In March, 1993, five Medicaid-eligible women, eight abortion clinics, two doctors and a non-profit organization providing financial assistance to women who cannot afford abortions, filed a challenge to Florida's prohibition on funding medically necessary abortions for women on Medicaid. Due to legal procedural issues, including a change in venue, the case was heard in June, 1998. The plaintiffs claimed that the ban on Medicaid coverage for this procedure - except in the rare instance that the pregnancy is life-threatening or the result of rape or incest - violates the state constitution's guarantees to privacy, equal protection and equality under the Florida Constitution.

In October, 1998 the Second Judicial Circuit Court for Leon County denied the claims, even as thirteen other states have been required to fund medically necessary abortions for low-income women in the last five years.

The plaintiffs in the 1993 filing and the 1998 hearing were both represented by attorneys for the Center for Reproductive Rights. In the 1998 trial, Staff Attorney Bonnie Scott Jones presented the arguments. In this most recent case, Renee B. v State of Florida, (No. 99-1238), Jones also presented the appeal along with Larry Helm Spalding of the ACLU Foundation of Florida.

Louisiana Raids on Abortion Clinics Officially End

Current Status: While hailed as a victory by both sides, a year-long battle to stop the abuse of power by Louisiana anti-choice Governor Mike Foster ended in January 2000 with a settlement (announced in February) between state attorneys and abortion-rights supporters that requires Louisiana health officials to obtain clinic permission or an order from a judge before inspecting state abortion facilities.

Background: After his unexpected and abrupt Executive Orders of February 5th and 19th, 1999, when Governor Mike Foster declared a health emergency and demanded surprise inspections of the state's abortion clinics, abortion providers and their attorneys have challenged these actions in court. Claiming that the Governor's action was an abuse "of the power of his office to harass abortion providers and undermine women's right to choose abortion," lawyers for the plaintiffs - Priscilla Smith, Deputy Director of Litigation for the Center for Reproductive Rights, and New Orleans attorney William E. Rittenberg - first sought temporary, then permanent injunctions against this warrantless, non-consensual violation of constitutional protection from unreasonable searches and seizures.

On February 19, 1999, while the motion for a temporary restraining order was being considered, Governor Foster voluntarily agreed to refrain from inspections unless the state secured prior approval from federal district court.

On March 24, 1999, the federal court issued a preliminary injunction blocking the Governor's Executive Order and supplanting the state's voluntary agreement to temporarily halt inspections. On July 16, 1999 - the fourth time in two weeks that the Governor signed an unconstitutional law restricting abortion - Governor Foster, with support from the Louisiana legislature, signed into law a measure that suspends Fourth Amendment protection from unreasonable search and seizure at "any place" in the state, including abortion clinics and other health facilities. Lawyers for abortion providers immediately filed papers in federal court against the new law.

- Ellen Weiman

Contraceptive Coverage Is a Woman's RIGHT!

Does your employer provide you with a prescription drug plan that excludes coverage for contraceptives? If so, we want to talk to you about your right to equal coverage. The exclusion of coverage for prescription contraceptives forces women to spend approximately 70% more money out-of-pocket than men spend for health care. The Center for Reproductive Rights believes it is time to end this discrimination against women. If your employer-sponsored health care plan denies you contraceptive coverage while providing other forms of prescription drug coverage and you think this is unfair, write to us Attn: Contraceptive Coverage, Center for Reproductive Rights, 120 Wall Street, New York, NY 10005 or email us at info@reprorights.org.


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