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Reproductive Freedom News

July/August 2000
Volume IX
Number 7

Cover
Supreme Court Upholds Abortion Rights

Worldwide
What Does Beijing + 5 Equal?

Worldwide
Peruvian Case Submitted to Inter-American Commission on Human Rights

On the Docket

Arizona Medicaid and Florida PBA



"Today's victory is more than a victory for me, Lee Carhart. It is more than a victory for abortion providers. It is more than a victory for the millions of Americans who are pro-choice. This is a victory for all Americans who believe that the government must not be allowed to meddle in private medical decisions best left to women, their families and their doctors."
- June 28, 2000
Dr. Carhart
Photo: David Radler

Supreme Court Upholds Abortion Rights Decision Underscores "Partial-birth" Ruse

On June 28, 2000, the U.S. Supreme Court issued a 5-4 decision in Stenberg v. Carhart that struck down Nebraska's ban on so-called "partial-birth abortions." The decision affirmed what the Center for Reproductive Rights has been saying all along - that this abortion ban, and others like it, are extreme, deceptive and unconstitutional violations of Roe v. Wade, the landmark decision that guaranteed women the liberty to choose abortion 27 years ago.

"[T]hat the word 'liberty' in the Fourteenth Amendment includes a woman's right to make this difficult and extremely personal decision," wrote Justice John Paul Stevens in his concurring opinion, "makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty." In deciding that the Nebraska law was unconstitutional, the Court accepted the arguments presented by the Center for Reproductive Rights on behalf of Nebraska abortion provider Dr. LeRoy Carhart. Carhart sat in the courtroom as the Court announced that the law violated established constitutional principles because it lacks any exception to protect the health of the woman and because it creates an "undue burden" on a woman's right to choose abortion. In other words, the law places "a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus," wrote Justice Stephen Breyer, who delivered the majority opinion.

While proponents of the Nebraska statute had attempted to convince the Court that the law only covered a particular abortion procedure known as dilation and extraction (D&X;), Justice Breyer noted that "there is no language in the statute that supports it." The five-member majority, which included Justices Breyer, Ginsburg, O'Connor, Souter and Stevens agreed that the statute was written so broadly, it would affect dilation and evacuation (D&E;) procedures, the most commonly used method for performing constitutionally protected, previability abortions.

In addition, the Court weighed medical opinion submitted by the American College of Obstetricians and Gynecologists and other health experts when it wrote that, "the record shows that significant medical authority supports the proposition that in some circumstances, D&X; would be the safest procedure." Breyer added, "If so, then the absence of a health exception will place women at an unnecessary risk of tragic health consequences."

While much of the American public has been deceived into thinking that the Nebraska abortion law, and others like it, ban late-term abortions, nothing could be further from the truth. Under Roe v. Wade, states are allowed to ban abortions after the fetus is capable of living outside the woman (so long as exceptions are made to protect the woman's life and health), and virtually every state has such a law. This case was solely concerned with previability abortion procedures - in fact, it focused only on abortions performed during the first half of pregnancy.

Cutting through the rhetoric, Justice Ginsberg's concurring opinion stressed the "hostility" and actual intent of Nebraska's "partial-birth abortion" law by quoting Seventh Circuit Chief Judge Posner. His opinion in a similar case involving "partial-birth abortion" bans in Wisconsin and Illinois stated that, "State legislators seek to chip away at the private choice shielded by Roe v. Wade, even as modified by Casey."

While pro-choice organizations are elated by the decision they are also sounding a note of caution. "This is a wake up call to every woman in the country," says Janet Benshoof, president of the Center for Reproductive Rights. "While the Court's decision is a victory for women and confirms that we still have the right to abortion, it also demonstrates how fragile that right is - the sharply divided 5-4 decision was only one vote shy of overturning a woman's right to choose."

Benshoof says we should take special heed of the strong dissents, especially as Justice Kennedy appears to be backpedaling from his 1992 support of the right to choose in Casey. "In Kennedy's dissenting opinion," says Benshoof, "He states that he would overturn the central principle of Roe - protecting women's health throughout pregnancy - and allow states to make 'moral decisions' for women's medical care."

All four dissenters, which included Chief Justice Rehnquist and Justices Kennedy, Scalia and Thomas, indicated they would find that a woman's right to choose does not apply when the abortion procedure takes place (in any part) outside her uterus, though still in her vagina. "Thus, they accept Nebraska's argument that only abortion procedures within the womb are protected," says Benshoof, "even though hardly any abortions are completed within the uterus."

While Justice Sandra Day O'Connor supported the majority opinion, she also suggested that if Nebraska had narrowly written the ban to refer only to the D&X; procedure and provided a health exception, she might have supported it.

Although Roe appears to be holding on by a thread, this decision will have the immediate effect of rendering all similar statutes unconstitutional. Similar abortion bans have been passed in 31 states and been blocked or limited by judges in 18 of them. Several have been left hanging until the Court reached its decision (see state graph). Additionally, a federal "partial-birth abortion" ban that is expected to be vetoed by President Clinton is certainly unconstitutional because it does not contain a health exception.

- Ann Farmer

For a detailed, Sate-by-State Analysis of "Partial-birth Abortion" Bans, see our state analysis page.



What Does Beijing Plus Five Equal?

Two weeks before the international community gathered at the United Nations in early June to assess the progress women have made since the 1995 Fourth World Conference on Women (held in Beijing), the female condom was launched in Ghana. Rose Teteki Abbey, the pastor-in-charge at the Presbyterian Church of Ghana, who was in New York for the Beijing Plus Five (B+5) review session, says that when she told her niece how affordable the new contraceptive device is (approximately ten U.S. cents), her niece was amazed.

The condom helps protect women from HIV infection, which has been increasing at an alarming rate for women in Ghana, "and you can lubricate it with cooking oil, making it even more practical," says Rev. Teteki. "If women can get the hang of the female condom, it will really empower them. No longer will it be the man deciding if he wants to use a condom or not."

While the female condom may be one small contribution to the overall advancement of women's health and reproductive rights, the fact remains that it might not yet have been introduced in Ghana were it not for the 1995 Beijing Platform for Action. That 150-page historic document confirmed the centrality of reproductive rights in advancing the status of women worldwide and stated that women have the right to "decide freely and responsibly on matters related to their sexuality free of coercion, discrimination and violence."

The five-year review of Beijing was regarded by many women's rights advocates as an opportunity to advance that platform, and while there was some progress made, most notably, forced marriage and "honor" killings were addressed for the first time and stronger measures were endorsed to combat marital rape and sex trafficking, the full potential of the B+5 outcomes document (formally entitled, "Further actions and initiatives to implement the Beijing Platform for Action") was ultimately impaired by ultra-conservative views and did not progress substantially beyond an affirmation of the original platform.

Advances Since Beijing

Following the platform's 1995 recommendations, many countries began initiating new laws and policies addressing women's reproductive and sexual health needs. Brazil passed a law which prohibits forcing or requiring anyone to practice family planning as a means of demographic control. France approved the over-the-counter sale of emergency contraception. Egypt banned the traditional practice of female circumcision/female genital mutiliation. Japan approved the use of oral contraceptives. And Cambodia significantly liberalized its abortion law, permitting women to terminate pregnancies during the first 14 weeks without restriction as to reason.

But despite the litany of accomplishments, there is still enormous work to be done before women achieve a status that is equal to men's. As outlined in "Reproductive Rights 2000 Moving Forward," a report issued by the Center for Reproductive Rights during B+5, many countries lag behind in passing necessary laws or enacting the necessary programs to implement new policies. Contraceptive methods may be legal but still not available. In some parts of the world, women are becoming infected with HIV at higher rates than men, yet pervasive discrimination against women affects their ability to educate themselves and demand that their partners practice safer sex. Many women also have no recourse against early marriage, polygamy, discriminatory inheritance laws and domestic violence. Even in the United States, where women are entitled to previability abortions without any restrictions as to reason, laws are frequently passed to obstruct women's access to that right.

As the five-year review drew to a close, U.N. Secretary-General Kofi Annan urged delegates from the 180 participating nations to create a "forward-looking" document to further the Beijing platform. However, the optimism that prevailed five years ago was often absent as the overwhelming majority of representatives faced concerted opposition and delaying tactics by the Vatican and a small group of Islamic and Catholic countries, including Algeria, Iran, Libya, Nicaragua, Pakistan and Sudan in response to many progessive initiatives.
Reverend Teketi at the Beijing +5 Conference

The topic of women's reproductive capacity and sexuality elicited particularly contentious negotiations. Similar to the Beijing process, representatives from the conservative coalition became intent on blocking what they called radical language, such as "sexual orientation," a term which implicitly encompasses various forms of families, including single mothers, unmarried couples or gays and lesbians, and "sexual rights," which addresses women's right to bodily integrity.

Kathy Hall Martinez, deputy director of the Center for Reproductive Rights' international program, says "Women's equality and empowerment are meaningless when women lack the right to make autonomous decisions regarding reproduction and sexuality. For instance, the custom of 'wife inheritance' - which forces a woman to marry one of her deceased husband's close relatives - is still practiced in parts of sub-Saharan Africa."

Young Women Speak Out

Adolescents also bore the brunt of the conservative coalition, which attempted to block advances on adolescent sexual and reproductive rights despite the presence of scores of young women at the United Nations lobbying to the contrary.

"We, young people, have declared that our sexual and reproductive rights are the same rights as those for adults, because sexual and reproductive rights are human rights," said Nadia van der Linde, 24, from the Dutch Council on Youth and Population at a press conference that included young women advocates from all corners of the globe.

While the reproductive health needs of adolescents and young adults have been largely ignored by governments and societies, this faction is gaining a stronger voice in forums such as B+5. Young women are demanding a full range of reproductive and sexual rights including education on contraceptive usage to help combat the risks of sexually transmitted diseases and HIV infection, and safe, legal access to abortion. "In no circumstances should a woman who has sought an abortion be punished under any section of the law," said van der Linde on behalf of Youth for Women's Rights.

Similarly, at another B+5 event, eighteen-year-old, Unoma Madunaga, a member of Girls' Power Initiative in Nigeria, also insisted on girls' rights to safe abortions, and for clinics to be "girlfriendly, so we can share our problems and so we know whether and when to have sex." She says, "Girls are socialized to be passive and easy victims of teenage pregnancy, and that results in many girls dropping out of school or else having unsafe abortions, which are risky. I know many girls who have died from illegal abortions."

Her friend, Chrishana Onah, 18, also from Nigeria, angrily complained of discrimination by the government. She said that after a substantial increase in reported rapes in Calabar, government officials made radio broadcasts blaming girls for the way they dressed rather than addressing the rapists' criminal behavior. "Now they're saying girls don't have the right to dress the way they like - that we shouldn't wear anything above the knees, but that doesn't protect girls from rapists," says Onah.

The Final Outcome

The Center for Reproductive Rights was aligned with hundreds of nongovernmental organizations that pushed for, among other things, stronger planks on reproductive and sexual rights for adolescents and for women to have greater access to safe abortions in countries where it is legal. But as marathon negotiations dragged on until 5:59 a.m. on the last day, due to the conservative coalition's stubborn resistance on sexual and reproductive rights issues, paragraphs were dropped from the outcomes document in place of the original platform language. However, the original platform's crucial directive to review laws that penalize women for obtaining illegal abortions was unequivocally affirmed and all efforts to roll back the Beijing platform were staved off.

Martinez says, "The most extremist countries and NGOs will never succeed in turning back the clock. The vast majority of governments have heard women's voices telling them that this is unacceptable."

That includes the voice of Reverend Teteki who says, "I only know that the Platform for Action is sensible and that as a woman I'm not being treated fairly."

- Ann Farmer

Worldwide
Peruvian Case Submitted to Inter-American Commission on Human Rights

Current Status: On April 12, 2000, co-petitioners the Center for Reproductive Rights, the Center for Justice and International Law and three Latin American women's rights organizations submitted a reply brief to the Inter-American Commission on Human Rights alleging human rights abuses in Peru's health care system.

The three Latin American organizations, CLADEM (Latin American and Caribbean Committee for the Defense of Women's Rights), APRODEH (Association for Human Rights), and DEMUS (Office for the Defense of Women's Rights), filed the initial petition in 1999 following the death of a Peruvian woman from a rural area who underwent a sterilization procedure at a public health clinic.

The petition alleges violations of the woman's right to give informed consent to medical treatment, as well as the rights to life, health, privacy and non-discrimination under the American Convention on Human Rights and other international human rights treaties. Currently, we are awaiting further action by the Commission.

Background: Under the pressure of a national program that encouraged doctors to perform a certain number of sterilization procedures each year, public health officials repeatedly asked the victim to undergo a sterilization procedure. When she declined, they told her that by having more than five children she was in violation of a national limit on family size and was at risk for prosecution by the government. No such law exists in Peru, but the woman believed the health officials and on March 26, 1998 agreed to the sterilization procedure.

Almost immediately afterwards the woman experienced life-threatening complications. Her common-law husband repeatedly sought follow-up care for her at the health care center where she was sterilized, but they refused her treatment, saying that she would need to go to another facility. Unable to travel the long distance to this alternate facility, the woman died, leaving behind seven children.

In order to file a case with the Inter-American Commission on Human Rights, legal remedies at the national-level must first be exhausted. The woman's common-law husband filed criminal charges against the Chief of the Health Center in Peru on April 15, 1998.

After the Peruvian court dismissed the case, CLADEM, APRODEH, and DEMUS filed a complaint with the Inter-American Commission on Human Rights in June 1999, requesting an investigation. A response brief was filed by the Peruvian government on February 10, 2000 asking the Commission to dismiss the case and alleging that the petitioners had not exhausted national-level remedies.

Staff attorney Luisa Cabal is representing the Center for Reproductive Rights as a co-petitioner, with the assistance of fellowship attorney Carla Avni.

- Jill Molloy

On the Docket

Enforcement of Florida Abortion Ban Blocked

Arizona Medicaid Ruling Upheld

Enforcement of Florida Abortion Ban Blocked

Current Status: On July 5, 2000, the State of Florida agreed to a permanent injunction blocking the state's ban on so-called "partial-birth abortion" by filing a stipulation for entry of permanent injunction with the court. The court has not yet acted on the stipulation.

A preliminary injunction blocking enforcement of the law had been issued by U.S. District Court Judge Joan A. Lenard on June 7. In issuing the preliminary injunction, Judge Lenard explained that, "the Act's sweeping prohibition of at least five currently practiced abortion procedures places an undue burden and a substantial obstacle on a woman's right to choose to terminate her pregnancy...clearly prior to viability."

Background: Florida's abortion ban, similar to one found unconstitutional in 1998, was signed into law by Governor Jeb Bush on May 25. In challenging the ban, the Center for Reproductive Rights asserted that the language in the law is so broad that it would prohibit abortion early in pregnancy - beginning as early as 11 weeks of pregnancy - and subject doctors to criminal prosecution for providing the safest medical care. Additionally, the ban failed to contain adequate exceptions to protect women's life and health.

On June 28, 2000, the U.S. Supreme Court struck down a similar Nebraska abortion ban after finding it unconstitutional. In a 5-4 decision, the Court ruled that the ban would outlaw previability abortion procedures and jeopardize women's health, rights guaranteed to women under Roe v. Wade. In light of the Court's decision, the State conceded that the Florida ban is unconstitutional as well.

Plaintiffs in A Choice for Women v. Butterworth (case number 00-1820-CIV-LENARD/TURNOFF, U.S. District Court, Southern District of Florida) are represented by Janet Crepps and Suzanne Novak of the Center for Reproductive Rights, and local cooperating counsel Louis M. Silber of West Palm Beach and Charlene Carres of Tallahassee.


Arizona Medicaid Ruling Upheld

Current Status: In an order issued on May 19, 2000, Maricopa County Superior Court Judge Kenneth L. Fields ruled that Arizona's refusal to fund medically necessary abortions for low-income women is unconstitutional.

"This Court has not been convinced that the State's interest in promoting childbirth and protecting potential life is so compelling that it overrides needed medical treatment for women," wrote Judge Fields. "[The state] cannot require [poor women] to give up fundamental State constitutional rights in order to receive public funds for health care."

With this decision, low-income women in Arizona will no longer be denied care for medically necessary pregnancy termination. On June 26, the State moved to stay the court's order, a motion which was denied in an order issued the same day. The following day, an appeal and a motion to stay were filed with the State appellate court. The appellate court denied the stay on June 2. The case remains on appeal.

Background: In Arizona's Health Care Cost Containment System (Arizona's Medicaid-based program), women are routinely denied coverage for medically necessary pregnancy termination, except in the rare instance that the pregnancy is life-threatening or is the result of rape or incest.

The Center for Reproductive Rights filed a challenge to the discriminating funding ban in state court on August 16, 1999 on the grounds that such restrictions deprived low-income women of their state constitutional rights. The challenge was heard in Superior Court on March 6. Arizona is the fourteenth state to find such restrictions unconstitutional.

Plaintiffs in Simat Corp., d/b/a Abortion Services of Phoenix v. Hull (Maricopa County CV1999014614) are represented by Bebe Anderson and Suzanne Novak from the Center for Reproductive Rights, along with cooperating counsel Chris LaVoy and Mark Chernoff of LaVoy & Chernoff, P.C. in Phoenix.

- Jon Weiss


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