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September 2000
Volume IX
Number 9

  Reproductive Freedom News

Cover
A Crisis of Confidence: Supreme Court to Decide if Pregnant Women Were Unlawfully Searched

Worldwide
Interview with Nahid Toubia and Anika Rahman on FC/FGM

At Home & Abroad
Bag the Gag Rule

On the Hill
Fall Legislative Alert

In the Courts
Anti-Choice Politicians Try to Evict Carhart

On the Docket

Two Louisiana Lawsuits Filed

"Partial-Birth Abortion" Bans Struck Down

S.C. TRAP Law Upheld and more

"In America this language is unconstitutional. Around the world, it's unconscionable. The gag rule is enough to make us gag."-Rep. Carolyn Maloney
(D-NY)
Click here for the full story.




Cover

A Crisis of Confidence Supreme Court to Decide if Pregnant Women Were Unlawfully Searched

Eleven years ago, a targeted group of women seeking prenatal health care services at a Charleston, South Carolina hospital had their urine searched - without their consent or a warrant - for evidence of cocaine. Positive test results were disclosed to law enforcement officials as part of a new policy developed in conjunction with the Medical University of South Carolina, a public hospital that serves predominately low-income patients, and local prosecutors and the police. Also given to the police was a copy of the patient's discharge summary, which contained such confidential information as incidence of sexually transmitted diseases, sterilization procedures and HIV status.

This fall, ten of the women who had been subject to this search policy are bringing their case against the hospital and city officials to the U.S. Supreme Court. According to CRLP deputy director of litigation Priscilla Smith, who will argue this case, "The question for the Justices is whether pregnant women have lesser constitutional rights than other Americans and, as a result, can be searched for evidence of a crime in their private doctor's offices."

The hospital's search policy, which began in 1989, targeted women for testing if they had, among other things, "inadequate" prenatal care or a history of drug or alcohol abuse. Several of the women were arrested right out of their hospital beds shortly after delivering their babies. Ellen Knight was dressed only in her hospital nightgown and still bleeding from childbirthwhen she was arrested. Sandra Powell was arrested the morning after giving birth and forced to sit in a holding cell for five hours without any sanitary pads to absorb her post-partum bleeding. Lori Griffin was shackled to a hospital bed for two days while she underwent labor and delivery.

Initially, none of the women arrested were offered drug treatment as an alternative to arrest. Later on, the policy was revised to give women the opportunity to get treatment, but even those services were inadequate. One woman, who had no one to care for her two young children, was arrested for not immediately entering an inpatient drug treatment program. Ultimately, 30 women were arrested under the policy; 29 were African-American.

Under established law, the government must obtain a warrant based on probable cause before searching an individual for evidence to be used in an arrest and prosecution. A limited exception applies when there is a "special need" other than law enforcement for the search and the results are not used for criminal prosecutions. One example of a "special needs" exception is when drug testing is done solely in the context of employment to ensure public safety. Another is when the person searched has reduced constitutional protections because of a prior criminal conviction. As noted by the American Civil Liberties Union, one of dozens of organizations that filed amicus briefs in support of the petitioners' position, "Unlike prisoners, probationers and detainees, pregnant women have not sacrificed their right to privacy."

A number of medical and public health organizations, including the American Medical Association, filed amicus briefs to raise other concerns about the policy. "By eroding patients' faith in the confidentiality of their medical care, the drug-testing plan discourages pregnant mothers from seeking adequate care...," states the AMA in its brief. "[And it] eliminates a window of opportunity for the physician to encourage sufficient postnatal care as well."

"Rather than producing healthy babies and healthy pregnancies," says Smith, "the search policy actually increased the risk of pregnancy by pitting doctors against their patients, driving women away from prenatal care and discouraging open communication between physicians and their patients."

According to one petitioner, as a result of the search policy, "I will never trust a doctor again." Another says, "I don't trust the system anymore ... from now on I'll be right particular of whom I go to for medical care."

- Ann Farmer
letters@crlp.org


Worldwide

Interview with Nahid Toubia and Anika Rahman on FC/FGM

Female Circumcision/Female Genital Mutilation (FC/FGM) is the collective name given to several different traditional practices that involve the cutting of female genitals. Although several justifications exist for the continuation of the practice, it appears to be linked primarily to a desire to subordinate women and to control their sexuality. While the procedures vary according to such factors as ethnic groups and geographic regions, the World Health Organization has grouped them in four categories:

  • Type I: Clitoridectomy - Removal of the prepuce with or without excision of part or all of the clitoris;
  • Type II: Excision - Removal of the prepuce and clitoris together with partial or total excision of the labia minora;
  • Type III: Infibulation - Removal of part or all of the external genitalia and stitching/narrowing of the vaginal opening;
  • Type IV: Unclassified - All other procedures that involve partial or total removal of the female external genitalia and/or injury to the female genital organs for cultural or any other non-therapeutic reasons.

Currently, FC/FGM is practiced in 28 countries in the sub-Saharan and northeastern regions of Africa. Reports also indicate that FC/FGM is practiced within immigrant communities in a number of industrialized countries.

New Publication on Female Genital Mutilation

The lives of millions of girls and women worldwide have been touched by the harmful practice of female circumcision/female genital mutilation (FC/FGM). As part of a growing movement to stop this human rights violation, numerous United Nations bodies and conferences have called on governments to outlaw FC/FGM. And non-governmental organizations, such as CRLP and RAINBO, work together to monitor government responses.

Authors Anika Rahman, CRLP's International Program Director, and Nahid Toubia, Director of RAINBO, discuss their recent book collaboration, Female Genital Mutilation: A Guide to Laws and Policies Worldwide, published by Zed Books (U.K.).

To Order: USA - St. Martin's Press 800-221-7945 Outside USA - Zed Books 44.20.7837.4014

Interviews with Nahid Toubia and Anika Rahman, Co-Authors of Female Genital Mutilation: A Guide to Laws and Policies Worldwide

What did you hope to accomplish by writing this book?

Anika Rahman: We saw that there were a lot of countries around the world taking a legal approach to FC/FGM, something that had not happened before. And we were concerned about the use of such laws. For example, we were afraid that some industrialized countries might take an approach that discriminates against immigrants. Similarly, in Africa, in countries where FC/FGM is practiced by minorities, there might be an excessive focus on those minorities. We were also concerned that people wouldn't view FC/FGM in the overall context of women's rights but would view it simply as an isolated issue.

Why have you chosen to approach FC/FGM primarily as a human rights violation, rather than as a threat to women's health?

> Nahid Toubia: At RAINBO the health and human rights aspects go hand in hand. For instance, by working on it solely as a health issue it loses a very important point. If the girl experiences no health complications and the procedure went very smoothly, we still have to face the fact that a major human rights violation has occurred. A person, a girl, has had a very sensitive part of her genitalia permanently removed and she has had no real power to stop it.

A.R.: Viewing it as a rights issue links it to its core problem, that is the status of women. What I mean is, men do not go through anything similar, like the amputation of the penis, because they happen to be in positions of power, and none of them wants their penis amputated. And so I think that actually seeing it in a rights framework is getting to the core of the solution, as well as the problem.

Why do parents seek to have their daughters undergo FC/FGM?

N.T.: Because parents have to live as social beings and to conform with the social norms of their environment. We all do a lot to be accepted in our societies. The more dependant we are on that society for our survival, the more we are willing to compromise to that society's rules.

A.R.: The reasons vary from country to country. But in almost all situations it's a right of passage and a socially proscribed way of growing up.

If FGM is about controlling women, why are other women and mothers perpetuating the practice?

A.R.: Women perpetuate patriarchy. For hundreds of years, most women in most parts of the world have accepted their second class status.

What is the role of international actors, including UN bodies and NGOs, in working to stop the practice of FC/FGM?

N.T.: The role of international actors is major at this point because they have the funds and the political power to influence government policy and to help NGOs technically and financially. But they are also limited. Social change can only happen from within and no outsider, not even other NGOs from a neighboring community, can affect change in a social environment where they are the outsiders.

How do formal laws and policies help eliminate a traditional practice, such as FC/FGM?

A.R.: My response is that the law sets the standard and tells you what is morally right and wrong. Secondly, when you do have individual girls who have been circumcised and they want some redress, or their parents might want redress, you have to give them a tool by which to get it.

N.T.: I cannot emphasise enough that the only way FGM will be abandoned is through fundamental social change. Laws and policies are a factor in the dynamic of social change. You inform people of the harmful effects of FGM. You appeal to their concern for their daughters. And in the push and pull of change versus status quo, the law becomes a pushing force. It gives support to those who want to change, especially those less powerful in society.

What effect have these laws had so far?

N.T.: It is very difficult to measure. First of all, the laws have only been around for a very short period of time. Secondly, we have not yet invested in that research. So anything we say now is impressionistic and anecdotal. The effect will vary tremendously depending on the social and political context in which a law was passed. If a law was passed in a country where there has been a lot of activism to prepare the ground it may have a very different effect than where the issue was barely mentioned before people were hit by a law.

A.R.: It is difficult to assess but our hope is that these laws will empower women and girls and not increase their vulnerability. Our recommendation is that the laws should be geared toward practitioners and not toward the girl child or the parents. But towards the parents what you could do is impose a civil penalty, maybe a low criminal penalty like community service.

Have you met women for whom these laws banning FC/FGM have made a difference in their lives?

N.T.: We were once contacted by a mother in the U.S. who did not want to circumcise her daughter. But her husband, a merchant, was under a lot of pressure from his business colleagues to have it done. We advised her on how to use the legal argument with her husband and then, in turn, how he could use it. In effect, he had to balance possible ostracism by his community against being on the wrong side of the U.S. law. Hopefully it saved the girl. And in Egypt I have witnessed circumcisers, particularly doctors, who decided that the risk of losing their license or being put in jail was not worth the lucrative returns of the circumcision procedure.

A.R.: The world has heard the stories of women who have been helped by the increased global recognition that FC/FGM violates human rights. For example, one woman for whom this made a big difference is Fauziya Kasinga, who was the first women to get political asylum in the United States on the grounds that she was fleeing FGM in her native country of Togo.

- Suzanne Grossman
letters@crlp.org

New Advocacy Tool! The "Abortion Action Tool Kit" explains how to make abortion safe, legal and accessible in the framework of: Human Rights Public Health Legal Issues Laws Worldwide Adolescents Religious Perspectives Available on our website in English, Spanish and Russian and in print in English and Spanish.

At Home and Abroad

Bag the Gag Rule

Poll Indicates Most Americans Think Global Gag Rule is Wrong

A recently released study conducted by the Rand Corporation, a California think tank, and the D.C.-based Centre for Development and Population Activities indicates that conservative and liberal Americans alike overwhelmingly support foreign assistance to international family-planning programs. Furthermore, the 1998 poll shows that 92% of Americans believe that couples have the right to determine the timing and size of their family, and a slight majority of Americans support government funding of legal overseas abortion services. Yet Members of the House of Representatives recently voted for the second year in a row to restrict foreign family planning organizations that receive federal money from using their own non-U.S. funds to provide abortion services overseas.

This restriction, known as the global gag rule, prohibits most foreign NGOs that accept funding from the U.S. Agency for International Development (USAID) from using their own money to

Foreign family planning organizations are flabbergasted that the United States Congress - the supposed bastion of the right to free speech - is applying such a double standard; in essence, telling foreign NGOs that the democratic principles and privileges enjoyed by U.S. citizens end at U.S. borders.

"This relegates us to the role of second-class citizens ... and constitutes an offense to the fundamental rights of women," protested Susana Galdos Silva, co-director of the Peruvian non-governmental organization, Movimiento Manuela Ramos, in a letter to President Clinton that criticized the restriction. "We understand that the U.S. Government has every prerogative to determine the manner in which a recipient organization uses USAID funds," wrote Silva. "However we wholly question the ability of any government or foreign agency to place conditions on our own funds and autonomy."

Similarly, the International Planned Parenthood Federation, which serves some 12 million people in over 180 countries, also wrote to Clinton. Director-General Ingar Brueggemann reported that her colleagues are having trouble understanding that "while the United States works hard through its foreign policy and assistance programs to encourage democratic participation of all citizens, the development of a functioning civil society and improved opportunities and health conditions for all, at the same time this legislation undermines those very objectives and effectively denies access to desperately needed support to millions of women worldwide."

According to the Alan Guttmacher Institute, globally, nearly four in 10 pregnancies are unplanned, and about two in 10 end in abortion. Since many women live in countries where safe abortion services are either illegal or unavailable, what results, says the World Health Organization, is an estimated 78,000 deaths yearly due to illegal, unsafe abortions. As Rep. James Greenwood (R-PA) made clear during the recent House floor debate over the gag rule language, the gag restriction only serves to exacerbate the problem.

"Women have sought abortions legally and illegally all over this world for as long as we can remember. They do so under the most desperate circumstances," Greenwood explained. "In Bolivia not too long ago, it was not only illegal to seek an abortion, it was illegal to seek family planning services. And when they did a survey of their hospitals in Bolivia, they found that 50% of the beds were occupied by women suffering from botched illegal abortions. That is what this language does."

While the U.S. has been a supporter of international family planning and population assistance since the 1960s, the Foreign Assistance Act was amended in 1973 to prohibit the use of federal overseas funding "for the performance of abortions as a method of family planning." However, that provision, which became known as the Helms Amendment, did not presume to tell foreign NGOs how to use their own non-USAID funds.

But in 1984, the Reagan administration started doing just that by imposing, for the first time, a gag rule on recipients of USAID funds. It became known as the "Mexico City policy" because it was announced during a U.N. population conference held there. The policy prohibited USAID funding (either directly or indirectly) of any foreign NGOs that used their own non-USAID money to perform or actively promote abortion, terms that were interpreted quite broadly. Because it lasted for close to ten years, the policy heavily impacted the landscape of reproductive health organizations and services that we see today, causing many groups to eliminate abortion advocacy from their agenda.

One of Clinton's first presidential acts after taking office in 1993 was to abolish the Mexico City policy. However, two years later, anti-choice legislators led by Rep. Chris Smith (R-NJ) began pushing for similar gag legislation. And last fall they succeeded by attaching gag rule language to the FY 2000 appropriations bill, in exchange for a concession on United States payment of U.N. arrears. President Clinton was able to waive the gag rule restrictions for a paltry $15 million (approximately 4%) of the $385 million that Congress appropriated for international family planning funds. But implementing the waiver automatically triggered a penalty, reducing the total family planning funds to $372.5 million, the lowest level in four years and considerably lower than the record high of $541.6 million in 1995.

Although it was expected to be a one-time deal, the same global gag language showed up again in the FY 2001 House foreign operations appropriations bill. This bill passed the House in July in a vote of 221 to 206. While family planning proponents face an uphill battle, organizations like the Center for Reproductive Law and Policy are lobbying lawmakers to strike the gag rule language from the final appropriations bill that will reach Clinton's desk this fall, as well as to increase family planning funding levels.

CRLP's Washington D.C. Director of Policy and Government Relations, Rosemary Dempsey, says, "The global gag rule has been the major focus of our international lobbying efforts on Capital Hill, because we recognize that women around the world - many who are struggling for survival - do not have a voice in Washington. We are that voice. And we're telling the President and Congress that if they stand for the global gag rule they don't stand for reproductive rights."

If Congress does pass gag rule legislation for the second year in a row, Clinton has indicated a likely veto. And he is supported by a veto-proof majority of legislators including Rep. Louise Slaughter (D-NY), who stated during the same floor debate, "I have been appalled time and time again by the audacity of anti-choice legislators to restrict women's reproductive options in the United States and worldwide. This annual rite of, 'we will show the women who is boss,' legislation has allowed millions of women to die in the Third World."

"How can we have more knowledge if we don't discuss abortion?" says Galdos, whose Peruvian women's rights organization relies on USAID funds for a major project that provides desperately needed reproductive health care information for rural and impoverished Peruvian women. According to Galdos, some research indicates that 50% of maternal deaths in Peru - where abortion is illegal unless the woman's life is endangered - are caused by unsafe, illegal abortions, especially in rural areas where women often have eight to ten children. But after certifying to comply with the gag rule, this group cannot engage in public discussions or lobby the government for less stringent abortion laws. "When we can't discuss the main issues of women's reproductive lives, nothing can change," says Galdos.

"All of us working in this field are committed to reducing the number of abortions," wrote Brueggemann in her letter to Clinton when she explained why the International Planned Parenthood Federation chose to not comply with the gag rule restrictions. "No measure or initiative is more effective in accomplishing this than the provision of family planning information or services. The fact is that where we are not enabled to provide access to a safe abortion, those women will seek out an unsafe one, paying for it, often with their health and sometimes with their life."

- Julia Ernst and Ann Farmer
letters@crlp.org

USAID Funding Impact Analysis The Administration and many Members of Congress are attempting to increase FY 2001 USAID family planning funding to $541.6 million. This $169.1 million increase over last year could result in:

  • 4.3 million fewer unintended pregnancies;
  • 15,000 fewer maternal deaths;
  • 92,000 fewer infant deaths;
  • 500,000 fewer miscarriages;
  • 1.5 million fewer unintended births; and
  • 2.2 million fewer abortions.

(Source: Population Action International/AGI)

For more information, see our factsheet "The New Global Gag Rule: A Violation of Democratic Principles and International Human Rights."

Also check out our newly organized Worldwide department to find out more about reproductive rights issues and advocacy around the world.

On the Hill

Legislative Alert for Fall Congressional Session

As Congress returns from its summer recess, a number of anti-choice and anti-women measures are likely to come up. Here's a look at some of the bills that CRLP's Federal Program in Washington, D.C. is keeping an eye on:

CRLP's Legislative Priorities:

"Partial-Birth Abortion" Ban Act, HR 3660 & S 1692 Despite the Supreme Court's clear decision that these laws are unconstitutional, anti-choice lawmakers on Capitol Hill seem determined to once again make a political point and force this federal bill through the final stages of the legislative process.

Conference members are meeting to work out the differences between the "partial-birth abortion" bills that the House and Senate passed earlier this session. The bills are identical apart from one crucial difference: the Senate bill contains a vote on the "sense of the Congress that (1) Roe v. Wade was an appropriate decision and secures an important constitutional right; and (2) such decision should not be overturned."

The House version of the bill does not contain such a vote, therefore the conferees must meet to try to reach agreement on the bill. If the conferees are unable to reach agreement, the legislation dies. If agreement is reached, a conference report will be prepared describing the committee members recommendations for changes. Both the House and the Senate must then approve the conference report.

If both chambers approve the conference report, the bill will be sent to the President, who has said he will veto the bill as he has twice before. Both chambers will then have to try to override the president's veto, by a two-thirds majority in each. The chamber which originated the legislation (in this case the Senate) will vote first to override the veto. On the bill's original passage in 1996 and 1998, the Senate did not have enough votes to override the president's veto. The Senate tally of 63-34 on passage of the bill in October, 1999 demonstrates that they will not have the needed votes this time either.

The Born Alive Infant Protection Act, HR 4292 Introduced in the House and currently pending at the Committee level, this bill seeks to redefine the terms "person," "human being," "child," and "individual" to include "every infant member... who is born alive at any stage of development." The legal implications of this bill are unclear, in part because the proposed definition would apply throughout the United States Code. In collaboration with other pro-choice organizations, CRLP attorneys fear that this is yet another anti-choice initiative to open a public debate on "infanticide."

Late-Term Abortion Restriction Acts, HR 4153 (not introduced this session in the Senate) During previous debates on the so-called "partial-birth abortion" ban act, pro-choice members of both the House and Senate introduced bills that would restrict or ban the performance of certain 'late-term abortions' in an attempt to offer alternative bills. In light of the Carhart decision, CRLP has provided both chambers with analyses demonstrating the unconstitutionality of the bills and is hoping to encourage the members who sponsored these bills to withdraw them before either chamber has an opportunity to address them.

Global Health Act, HR 3826 & S 2387 This ambitious measure would provide an extra $1 billion to improve global health, including funding for reproductive health and family planning programs. While the bill's future in a conservative, anti-family planning Congress looks bleak, it has proven an excellent rallying point and educational tool for those who support International Family Planning and Women's Reproductive Rights.

Bills Pending on the Senate Calendar:

Child Custody Protection Act, HR 1218 & S 661 This bill makes it a crime for any person, other than a parent, to transport a woman under the age of 18 across a state line to obtain an abortion if she has not met the requirements for parental notification or consent in her state of residence.

Unborn Victims of Violence Act, HR 2436 & S 1623 This bill would impose criminal penalties on a person who injures or kills a "child who is in utero" during the commission of a federal offense.

Anti-CEDAW Resolution, S RES 306 & 307 This resolution, authored by Foreign Relations Committee Chairman Senator Jesse Helms, R-NC, encourages the United States to never pass the Convention on the Elimination of all forms of Discrimination Against Women. Appropriations:

Each year, the distribution of federal monies to government agencies and programs is expended by Congress through a collection of spending bills known as appropriations. These must be passed before the start of the new fiscal year in order to complete the budget. Last year's fight over U.N. dues payment in exchange for the administration's acquiescence to the "global gag rule" marked the end of a year-long battle to finish this process. In comparison, members have made quite a bit of progress on this year's appropriations cycle. Still, only two of the thirteen appropriations have been completed. Among those yet to be completed, CRLP will work on the following anti-choice amendments that are perennially attached to these bills:

Commerce / State / Justice: CRLP has already supported an amendment to repeal the ban on abortions for women in federal prison in the House bill, and will do so again if this issue arises in the Senate. We will also be pushing for increases in funding for abortion clinic security and for the Legal Services Corporation.

District of Columbia: The D.C. Council recently took a brave step forward and mandated the inclusion of contraceptive coverage by all local employers who cover prescription drugs, without conditioning such coverage to any sort of a "conscience clause." Congress, however, holds the District's purse strings, and inclusion of a conscience clause through the spending bill is nearly certain. In the last days before recess, members were working out a compromise solution, insisting that the D.C. Council add its own conscience language before the measure can take effect. The bill also historically contains a prohibition on local money for abortion services for low-income women.

Treasury / Postal: Women insured under the Federal Employee's Health Benefit Plan are restricted from choosing health plans which offer abortion services. We will continue to challenge this unconstitutional restriction. While federally employed women, in 1998, won the battle for inclusion of contraceptive coverage, so-called "conscience clauses" and efforts to remove the coverage continue to threaten the enforcement of those rights.

Department of Agriculture: This bill is prone to anti-mifepristone language, as the Food and Drug Administration is funded through this bill. While the bill made it successfully through the House without the amendment this year, we will watch to make sure that is not included during floor debate in the Senate.

Foreign Operations: Foreign Ops has already passed in both Houses and its differences are now to be worked out in Conference. While the Senate version has an "anti-global gag rule" provision, the House bill contains the GGR language despite the best efforts of pro-international family planning representatives.

The House bill maintains the same funding level for USAID as last year (though the "gag rule waiver" took out its bite this year), while the Senate version increases the expenditure an extra $40 million. The United Nations Population Fund (UNFPA) would receive the same amount of funding in either bill, an amount 40% less than international family planning groups' target. CRLP and our coalition partners will continue to lobby conferees to retain the higher Senate funding level for USAID and for approval of the "anti-global gag" language.

Departments of Labor, Health and Human Services: This bill, which has passed in both Houses, determines funding levels for both Title X programs (family planning programs) and abstinence-only education. The two versions of the bill vary in their funding levels. Pro-family planning groups will be lobbying the Conference committee for higher Title X funding levels and for lower funding levels for abstinence-only education.

Senator Bob Smith, R-NH, attempted to ban federal purchase of fetal tissue for research during floor debate, however he withdrew that amendment in favor of a measure requiring a study of federally funded research employing such tissue.

- Susan Valentine and Monica Hobbs
letters@crlp.org

In the Courts

When at the High Court They Did Not Succeed ...



Anti-choice advocates try and try again.

Although abortion provider, Dr. LeRoy Carhart, has just won one of the most significant abortion rights cases to ever go before the U.S. Supreme Court, anti-choice advocates are still determined to obstruct his medical practice. Once again, they're going about it underhandedly.

Several anti-choice foes, including Nebraska state Senator Paul Hartnett, have purchased the building in Bellevue, Nebraska that houses Carhart's reproductive health clinic, as well as the surrounding property, with the intention of evicting him.

"I think we're going to beat Carhart anyway," Hartnett was quoted as saying in a July World-Herald news story, shortly after the Supreme Court struck down Nebraska's so-called "partial-birth abortion" ban. With the support of CRLP litigators, Carhart had challenged the Nebraska statute after realizing that it banned virtually all abortion procedures and prevented him from providing the best possible care for his patients.

Unable to infringe on Carhart's constitutional rights, anti-choice advocates are now trying to force him out of business through another common back door approach: terminating his clinic lease. Throughout the U.S., abortion opponents have managed to close down clinics, sometimes by pressuring or threatening landlords or by making such a nuisance of themselves that the owners claim they must terminate a clinic's lease for the sake of other nearby businesses.

For instance, the WomenCare Center in Melbourne, Florida learned in June that its lease would not be renewed. While the owners would not discuss the matter, other tenants and a property manager indicated that the incessant, harassing ploys of anti-choice protestors were keeping shoppers away.

But there's a new twist to Carhart's situation. Vicki Saporta, executive director of the National Abortion Federation, says, "We have never seen a case like this one, where a group has purchased a property just to evict a clinic. And the fact that a state senator put together this group, to do what he couldn't do as a legislator, is particularly reprehensible."

The three-buyer partnership (Bert Murphy L.L.C.) also includes Bellevue real estate developer, Bill Rotert, and Ken Wessling, the owner of an autobody shop adjacent to Carhart's clinic. All three are avowed abortion opponents. In fact, Wessling has allowed anti-choice demonstrators to stage protests from the prime vantage of his adjacent property.

Last spring the three men pooled their assets and paid $325,000 for the clinic property, the surrounding parking lots and another adjacent property. Under the terms of the current lease, they figured they could terminate Carhart's clinic lease in six months, and take over the parking lot even sooner. But Carhart quickly sought and obtained a temporary injunction from Sarpy County Judge Larry Fugit. Carhart argues that he should have been granted a "right of first refusal" by the original owner, who sold the property for $31,000 less than its assessed value. As a result, Carhart is suing the original owner and Bert Murphy L.L.C.

Carhart's lawsuit reads: "Bert Murphy L.L.C. intends to interfere ... for reasons not motivated by their interest neither in the subject real estate, nor as property owners or prospective property owners. They intend to harass, impede and interfere with (Carhart's) medical practice."

The mayor of Bellevue has also jumped into the fray. Showing utter disregard for Carhart's right to operate a legal business and ignoring the critical need for abortion providers in Nebraska, Mayor Jerry Ryan has reportedly said that getting Carhart to leave town "would be one of my greatest accomplishments."

Whereas Mayor Ryan sees nothing wrong with flouting his responsibility to certain of his constituents, Sioux Falls Mayor Gary Hanson chose to handle a similar situation evenhandedly. This year, when a Planned Parenthood clinic relocated in that South Dakota town, Hanson immediately received calls from anti-choice advocates protesting the location. But Hanson refused to allow city government interference, saying, "You can't tell them, 'You can't have this property.' That wouldn't be proper for us, whether we like or dislike the business."

Carhart has weathered years of clinic protests, an arson attack and, most recently, a protracted legal battle that ended in a Supreme Court victory. After all that, Carhart has no intentions of turning his back on the women of his state.

"I will fight this to the end," says 58-year-old Carhart. "This clinic serves both my abortion practice and my family practice, and we have no intention of giving up this building to the detriment of any of my patients." His case is set for a hearing on August 28, 2000.

- Ann Farmer
letters@crlp.org

On the Docket

Louisiana Inmate Files Suit after Denied an Abortion

Current Status: CRLP filed a lawsuit in federal court on July 5, 2000, on behalf of a Louisiana woman who was forced to carry a pregnancy to term as a result of a prison policy that makes it difficult, if not impossible, for incarcerated women to obtain abortions. Victoria W. (a pseudonym) was unable to fulfill the prison's requirement that she obtain a court order to be released for an abortion.

Background: When Victoria W. first entered the Terrebone Parish Criminal Justice Complex (TPCJC) on July 28, 1999, she learned she was pregnant and immediately notified prison personnel that she wished to terminate the pregnancy. She was told that she could not be released for an abortion unless she hired an attorney and received a court order authorizing the procedure. Though she attempted to take the necessary steps indicated by the prison, she was unable to obtain the court order and was released from prison 25 weeks pregnant and no longer able to have an abortion in Louisiana. She gave the baby up for adoption in January.

Representing Victoria W. in Victoria W. v. Larpenter, et al. (No. 00-1960) are Linda Rosenthal and Julie Rikelman of CRLP, and William Rittenberg, an attorney with the firm of Rittenberg & Samuel in New Orleans.

Lawsuit Filed Against Louisiana "Choose Life" License Plates

Current Status: CRLP filed a lawsuit in federal court on July 31, 2000, challenging a Louisiana statute that authorizes the Department of Public Safety and Corrections to issue special, "prestige" license plates bearing the legend "Choose Life." Plaintiffs argue that the use of state tax monies for the administration of the license plates and the fact that there is no similar "Pro-Choice" license plate available for drivers who wish to express their pro-choice views on abortion violates the First Amendment. Distribution of the license plates is currently on hold pending a hearing on the plaintiffs' motion for a preliminary injunction.

Background: Louisiana House Bill 2082 mandates that proceeds from the sale of the special license plates be deposited into a "Choose Life Fund," which would be made available to qualifying nonprofit organizations that provide counseling to expectant mothers. The law stipulates that no money shall be distributed to organizations that counsel women to consider abortion, provide referrals to abortion clinics, provide abortions or advertise for abortion services.

The statute also requires the establishment of a "Choose Life Advisory Council" to design the license plates and decide which nonprofit organizations will receive funds generated from sale of the plates. The Council must be comprised of a representative from each of the following anti-choice organizations: The American Family Association; the Louisiana Family Forum and the Concerned Women for America.

The Act requires that state taxpayer dollars be used to make and distribute the license plates; establish and maintain the Council; and establish and maintain the Fund.

Plaintiffs in Henderson v. Stalder (No. 00-2237) include Russell Henderson, Doreen Keeler, Rabbi Robert H. Loewy and the Greater New Orleans Section of the National Council for Jewish Women. Simon Heller and Brigitte Amiri of CRLP represent the plaintiffs along with William Rittenberg, an attorney with the firm of Rittenberg and Samuel in New Orleans.

Louisiana Abortion Clinic Restrictions Blocked

Current Status: U.S. Federal Judge Ivan Lemelle issued a permanent injunction on August 2, 2000 against Louisiana's attempt to impose restrictions on abortion providers by equating abortion facilities with ambulatory surgical centers. Ruling on summary judgment, Judge Lemelle found that the plaintiffs' abortion facilities do not come within the state's definition of ambulatory surgery centers and therefore cannot be subject to the same regulations.

Background: On July 2, 1999, Governor Mike Foster signed a law into effect forcing abortion facilities to comply with the extensive and onerous licensing requirements for ambulatory surgical centers, or risk criminal prosecution. A preliminary injunction has been in effect since August 1999.

Plaintiffs in Causeway Medical Suite, et al. v. Murphy J. Foster, Jr., Governor, et al. (No. 99-2069) include Causeway Medical Suite, Bossier City Medical Suite, Women's Health Clinic and Hope Medical Group for Women. They are represented by Bebe Anderson and Linda Rosenthal of CRLP, and cooperating counsel William Rittenberg of the New Orleans firm Rittenberg & Samuel.

Post-Carhart: Abortion Bans Struck Down in States Across the U.S.

Current Status: In light of the U.S. Supreme Court decision in Stenberg v. Carhart declaring Nebraska's "partial-birth abortion" ban unconstitutional, the following states' laws have been struck down: Alaska, Florida, Louisiana, Virginia and West Virginia. The lower courts based their rulings on the Supreme Court's decision, which held that the Nebraska law imposed an undue burden on a woman's right to an abortion and failed to contain the necessary exception for a woman's health. Other states with similar laws are expected to follow suit.

Background: On June 29, 2000, the State of Alaska dismissed its appeal to the Alaska Supreme Court following the Carhart decision. The law had been blocked since March 1998 by Alaska Superior Court. Plaintiffs in Planned Parenthood of Alaska v. State of Alaska (Sup. Ct. No. S-8610) are represented by Janet Crepps of CRLP and local counsel, Stephen H. Williams of Anchorage.

Florida's second "partial-birth abortion" ban was signed into law on May 25, 2000 but blocked by a temporary restraining order on June 2. Both sides agreed to delay further action on the case until the Supreme Court's ruling on the Nebraska ban. On July 6, 2000, the State agreed to entry of a permanent injunction. Plaintiffs in A Choice for Women v. Butterworth are represented by Janet Crepps and Suzanne Novak of CRLP, and local cooperating counsel Louis M. Silber of West Palm Beach and Charlene Carres of Tallahassee.

On August 17, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit declared Louisiana's "partial-birth abortion" ban unconstitutional and, in doing so, denied the State of Louisiana's request to have the statute interpreted by the Supreme Court of Louisiana. This decision affirmed the March 4, 1999 decision of U.S. District Court Judge G. Thomas Porteous, Jr., which permanently enjoined the Louisiana statute. Plaintiffs in Causeway v. Foster (No. 99-30324) include Causeway Medical Suite; Bossier City Medical Center; Hope Medical Group for Women; Delta Women's Clinic; Women's Health Clinic; James De Gueurce, M.D.; and A. James Whitmore, III, M.D. They are represented by Priscilla Smith of CRLP and William Rittenberg, an attorney with the firm of Rittenberg and Samuel in New Orleans.

On August 9, 2000, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit affirmed a district court judgement ruling unconstitutional Virginia's 1998 statute banning so-called "partial-birth abortion." The opinion follows the Fourth Circuit's decision on July 28, 2000 to dissolve a stay of the permanent injunction against enforcement of the law, pending the outcome of the Commonwealth appeal. In doing so, the Fourth Circuit affirmed U.S. District Court Judge Robert Payne's July 1999 ruling that the Virginia statute imposed an undue burden on women seeking abortions before viability. Plaintiffs in Richmond Medical Center v. Gilmore (No. 3:98CV309) are represented by Simon Heller, Janet Crepps, Bonnie Scott Jones and Karen Raschke of CRLP and Dara Klassel of the Planned Parenthood Federation of America.

In the West Virginia case, Daniel v. Underwood (2:98-0485), a permanent injunction was issued on July 7, 2000. The West Virginia law has been blocked since June 1998, when Judge Joseph R. Goodwin issued a temporary restraining order. Plaintiffs are represented by Bonnie Scott Jones and Simon Heller of CRLP.

Fourth Circuit Rules Against Abortion Providers - Finds SC Clinic Regulations Constitutional

Current Status: In a blow to pro-choice advocates, a panel of the U.S. Court of Appeals for the Fourth Circuit ruled 2-1 on August 15, 2000 to reverse a lower court decision that found South Carolina's targeted regulation of abortion providers (TRAP) unconstitutional. The Court found that the regulations did not unduly burden a woman's right to choose abortion and that it was acceptable for the State to treat abortions differently from all other comparable medical procedures. Plaintiffs will appeal the decision.

Background: In February 1999, U.S. District Court Judge William B. Traxler, Jr. enjoined the regulations imposed on South Carolina abortion providers in 1996 by the South Carolina Department of Health and Environmental Control (DHEC). The regulations have never been enforced. The State appealed Judge Traxler's decision to the Fourth Circuit.

Bonnie Scott Jones and Bebe Anderson of the Center for Reproductive Law and Policy and local cooperating attorney Randall Hiller represent the plaintiffs in >Greenville Women's Clinic v. Bryant (CA-96-1898-6-21). Plaintiffs include Greenville Women's Clinic, Charleston Medical Clinic, Inc., and William Lynn, M.D.

- Suzanne Grossman














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