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November 2000
Volume IX
Number 11

Cartoon published with permission of Lalo Alcaraz.

  Reproductive Freedom News

In This Issue:

Supreme Court
Ferguson v. City of Charleston

In the States
Mifepristone Approval Won't Remedy Abortion Restrictions

The Temperature After the Cold War:
Reproductive Rights in East Central Europe

Critical Age, Critical Problems: Adolescents in sub-Saharan Africa

Supreme Court

CRLP Defends Pregnant Women's Rights Before U.S. Supreme Court
Each of us expects that when we go to the doctor for medical treatment, the doctor will keep confidential all of the information she obtains from us and will use that information for our benefit. This expectation was sorely violated by the Medical University of South Carolina (MUSC) in Charleston when, beginning in 1989, doctors and nurses at MUSC began working with local police and prosecutors to gather evidence of cocaine use by pregnant women, by testing the urine of a targeted group of their
maternity patients.

On October 4, 2000, Priscilla Smith, Deputy Director of CRLP's Domestic Program, asked the U.S. Supreme Court to decide that this policy of cooperation with the police violates the Fourth Amendment because MUSC did not obtain search warrants or the women's consent before searching their urine for cocaine. The case, Ferguson v. City of Charleston, was filed in 1993 by ten women whose urine medical results were disclosed to law enforcement authorities without their consent. Nine of the women were arrested, some directly out of their hospital beds, still bleeding and in pain from childbirth. Seven of the women were arrested after they gave birth.

Lead counsel Priscilla Smith, speaking with reporters on the Supreme Court steps. (Photo by Primeshot.com)

The U.S. Court of Appeals for the Fourth Circuit ruled that the urine tests did not require search warrants because they were conducted to serve a "special need" beyond the ordinary needs of law enforcement - the need to protect fetal health. Under this "special needs" doctrine, however, the Supreme Court has never approved a search by government officials that was performed in cooperation with the police and designed to uncover evidence of crimes.

Smith argued that the policy could not be brought within the "special needs" doctrine, under which the Supreme Court has approved warrantless searches in contexts like public schools and the workplace. First, she argued, none of these prior cases incorporated the police and prosecutors as a key element, as did MUSC's policy. Second, none involved the heightened expectation of privacy that exists in the doctor-patient relationship. And third, unlike these other cases, MUSC and the Charleston police could have obtained search warrants if they had grounds to believe that a specific woman had used cocaine.

MUSC's lawyer, on the other hand, urged the High Court to uphold the urine tests because they were part of a policy designed to stem the tide of an "epidemic" of cocaine use that had, in his view, disastrous consequences for fetuses and newborn babies. He conceded that the purpose of the policy was to stop "child abuse," a crime which, since 1997 in South Carolina, encompasses conduct by a woman that harms a post-viable fetus.

If the Court decides that the policy of searching pregnant women for evidence of cocaine use is justified by a "special need" of promoting fetal health, South Carolina Attorney General Charles Condon has vowed to re-institute the policy in Charleston. But such a decision will have a much wider impact: it will mean that pregnant women have uniquely diminished Fourth Amendment protection. Under such a ruling, government officials may search pregnant women, without their knowledge or consent, simply by claiming that the search protects fetal health. If, on the other hand, the Court holds that the policy was not justified by a "special need," the case will probably be returned to the lower courts for analysis of whether the ten women whose urine was tested for cocaine consented to the searches. The lower courts will then be faced with the question of whether consent to medical testing constitutes consent to a search for evidence by police.

-Simon Heller

Ferguson v. City of Charleston: The Issue on Appeal

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, unless a "special need" beyond the normal needs of law enforcement exists.

The Fourth Circuit applied the "special needs" exception here to excuse the searches, pointing to a "special need" to promote maternal and fetal health.

The "special needs" balancing test, applied by the Fourth Circuit, has never before been applied -- by the United States Supreme Court or any other court -- to a search primarily serving the normal needs of law enforcement, and has never been applied to searches of citizens, such as the Petitioners, whose reasonable expectation of privacy is undiminished.

Punishing Women for their Behavior During Pregnancy: An Approach That Undermines Women's Health and Children's Interests

Many courts that have overturned prosecutions based on conduct during pregnancy have indicated that these punitive measures are counterproductive or run contrary to public policy. The Florida Supreme Court observed that "[r]ather than face the possibility of prosecution, pregnant women who are substance abusers may simply avoid prenatal or medical care for fear of being detected."

Similarly, a Pennsylvania superior court concluded that: [c]riminal prosecution of women for their conduct during pregnancy fosters neither the health of the woman nor her future offspring; indeed, it endangers both. Criminal prosecution cruelly severs women from the health care system, thereby increasing the potential for harm to both mother and fetus. Pregnant women threatened by criminal prosecution have already avoided the care of physicians and hospitals to prevent detection.

Thus, the Florida Supreme Court noted, "[m]edical science prescribes rehabilitation, not imprisonment, for the offender. . . . This prescription for rehabilitation applies to not just the mature woman, but the wayward teenager as well."

Despite the unanimous rulings from these courts, in 1997, the South Carolina Supreme Court upheld a prosecution of a pregnant woman for her behavior during pregnancy. In Whitner v. South Carolina, 492 S.E.2d 777 (1997), cert. denied, 523 U.S. 1145 (1998), the court held that a viable fetus was a "child" under the state's criminal child endangerment statute. Rather than limiting its decision to the facts of the case before it, which involved a woman's use of illegal drugs during her pregnancy, the court went out of its way to hold that any behavior during pregnancy that was potentially harmful to the fetus, whether illegal or legal, could be the basis for a charge of criminal child endangerment. Whitner remains the only standing appellate court decision in the nation that upholds criminal charges filed against a woman for behavior during pregnancy posing a risk of harm to her fetus.

CRLP's briefing paper "Punishing Women for their Behavior During Pregnancy" can be found on the web.

Excerpts from Brief Amicus Curiae of The American Medical Association

"The Charleston policy reflects a basic misunderstanding of the nature of drug abuse. In the experience of medical science, drug abuse is a disease that requires treatment and education. It cannot be cured merely by an exercise of self-discipline, nor can it be cured by subjecting addicts to criminal penalties . . . . Attaching the threat of arrest to a drug-testing policy also weakens the physician/patient relationship . . . . Knowing that discovery of drug use may lead to arrest, a patient will avoid treatment altogether, or, at a minimum, will be reluctant to disclose such drug use."

"As a result, the potential harm to unborn infants was increased, not decreased, by the Charleston policy. The resulting lack of appropriate medical care deprives the patient and her fetus of treatment for the high-risk medical conditions that frequently accompany drug abuse, in addition to deprivation of treatment for the drug abuse itself."

"Moreover, the drug-testing policy forces physicians to compromise their commitment to patient confidentiality, as codified in AMA guidelines. By requiring physicians to act as agents of law enforcement, the Charleston policy undercuts the physicians' ethical obligation to act as patient advocates and protectors."

"The AMA supports the funding of maternal drug addiction treatment rather than prosecution. Recognizing the inefficacy of criminalizing drug abuse as a means of preventing fetal exposure to drugs, the AMA has also expressly found that ‘criminal sanctions of civil liability for harmful behavior by the pregnant woman toward her fetus are inappropriate."

In the States

FDA Approval of Mifepristone Won't Remedy Harsh Abortion Restrictions

Cartoon published with permission of Signe Wilkinson.

On September 28, the U.S. Food and Drug Administration approved the use of the drug mifepristone as an abortifacient after more than ten years of political pressure by anti-abortion zealots to block its use in the U.S. FDA approval permits doctors who meet certain requirements to prescribe the drug. However, mifepristone, better known as RU 486, is subject to most of the same laws that many states have enacted to restrict women's access to surgical abortion.

"It is not a magic pill that will make the burdensome abortion restrictions that are on the books in every state in the nation vanish," says Janet Benshoof, president of the Center for Reproductive Law and Policy. "Despite mifepristone's great potential to improve medical services for women, anti-abortion state legislatures have already erected a labyrinth of laws restricting all abortions, most of which do not distinguish between medical and surgical abortion, and may apply equally to both procedures."

For example, parental notification and consent laws, in effect in 31 states, apply to any abortion. In 14 states, targeted regulation of abortion provider laws (TRAP laws) may force doctors interested in offering patients medical abortion to comply with burdensome regulations faced by surgical abortion providers, such as meeting strict physical plant and staffing requirements. And women will still have to abide by their state's mandatory 24-hour delay laws before they're allowed to swallow mifepristone pills.

Other laws, such as "physician only" laws, which prohibit non-physicians from performing abortions, and are in effect in 43 states, may apply to health providers who assist with medical abortion. In fact, just days after the FDA's approval, anti-choice legislator Rep. Tom Coburn (R-OK) introduced the "RU-486 Patient Health and Safety Protection Act" that would require any prescribing doctor to be able to perform surgical abortion and to have admitting privileges at a hospital, despite the sterling track record of mifepristone's safety and effectiveness in clinical trials in the U.S., and in the decade that it's been in use in Europe. Rep. Coburn, however, was unsuccessful in getting the bill before the House to consider it for passage.

For more information, see the CRLP briefing paper, "Providing Medical Abortions: Legal Issues of Relevance to Providers."

Mifepristone is Not the "Morning After Pill"

Many news organizations have been getting it wrong. Mifepristone (more commonly known as RU 486) is used if a woman wants to terminate an unwanted pregnancy in the first seven weeks. Emergency contraception pills (more commonly known as the "morning after pill") can be taken by a woman within 72 hours of unprotected sex to prevent pregnancy.

How Does Mifepristone Work?*
Mifepristone blocks the hormone progesterone that is needed for pregnancy to continue. Mifepristone, followed by misoprostol, is approximately 95% effective in ending early pregnancies. Mifepristone can be taken to end a pregnancy from the time a woman knows she is pregnant up to seven weeks after the beginning of her last menstrual period. The process requires three visits - the first to receive mifepristone, a second after two days to take misoprostol, and a third follow-up visit after approximately twelve days to ensure that the pregnancy has ended. Mifepristone will be available to physicians in November of 2000. Under the terms of the approval, the drug will be provided directly to doctors' offices or clinics and is not available through pharmacies. It will be distributed to physicians who can accurately determine the duration of a patient's pregnancy and detect an ectopic pregnancy. Physicians must also be able to provide surgical intervention in case of incomplete abortion or severe bleeding - or must have plans in advance to provide such care through others.

The FDA based its approval of mifepristone on data from clinical trials in the United States and France. Mifepristone, which has been taken by more than 620,000 European women since 1988, will be distributed in the U.S. by Danco Laboratories under the trade name of Mifeprex ™.

More information about Mifeprex™ is available on the web at www.earlyoptionpill.com, at the Mifeprex™ hotline at 1-877-432-7596, or at www.fda.gov/cder/drug/infopage/mifepristone.

*Source: National Family Planning and Reproductive Health Association


The Temperature After the Cold War

New CRLP Publication Reviews Reproductive Rights in East Central Europe

(Click on the above image for more information on the report.)The seven countries selected for this report represent a large cross-section of the populations of East Central Europe: Albania, Croatia, Hungary, Lithuania, Poland, Romania and Russia.

Women's reproductive rights in East Central Europe have shifted substantially since the iron curtain was lifted. Some changes have been for the better, some worse.

For instance, Poland had fairly liberal abortion laws during the period of Soviet hegemony, but the government has since outlawed abortion under most circumstances. Meanwhile, Romania has done just the opposite. Under the totalitarian dictatorship of Nicolae Ceaucescu, abortion was illegal and the government required workplace pregnancy screenings to insure that women did not terminate pregnancies. But in 1989, after years of soaring maternal mortality rates related to unsafe, illegal abortions, and after the fall of the Ceaucesca regime, abortion was legalized. Now Romanian women can obtain an abortion on rather liberal grounds for up to fourteen weeks after conception.

Amid the comprehensive analysis in CRLP's latest Women of the World publication, which tracks the laws and policies affecting the reproductive lives of women in East Central Europe, one thing stands out. The fall of communism has not produced a unified, progressive direction for women's reproductive rights in that part of the world. While the former Soviet bloc countries continue to possess many similarities, the reproductive health and rights initiatives put forth by the various governments since the late 1980s have more often reflected diverging paths and nationalist trends.

For instance, while Romania continues to have an antiquated Criminal Code that says women who are raped may remove their "shame" by "consenting" to marry the rapist, the country has taken a recent national initiative on sex education. To counter Russia's elevated and climbing HIV/AIDS rates, that government has passed several laws guaranteeing the dissemination of information on the spread of the virus (and also respect for the rights and freedoms of HIV-positive citizens). Lithuania stands out for passing its new Law on Equal Opportunities, which protects people from sexual harassment, and Croatia for what it hasn't done to improve women's status in society. In fact, says CRLP's Croatian partner B.a.B.e. (Be Active, Be Emancipated), there have been tendencies to shrink the few reproductive health programs that survived the previous regime. And, says B.a.B.e. "the government continues to propose restrictive laws to slowly exclude women from the public sphere. Women have been almost entirely driven out of Parliament, leaving us powerless to influence legislation."

If there is one salient policy trend reflected in all seven selected East Central European countries covered in the report, it is the narrow definition of reproductive health that seems to have emerged as a reaction to the region's declining birth rates. In an attempt to bolster birth rates, these governments have, in general, chosen to pursue an ideological agenda of pronatalist health policies over more progressive reproductive rights policies - by promoting programs that support women as mothers over women as women.

Former CRLP staff attorney Mindy Roseman, who coordinated the report with the assistance of women's rights organizations from each country, says, "The countries are pushing for decent maternal health care, but there is little attention being given to fighting reproductive tract cancers, for instance, or caring for the reproductive health needs of older women. And women who choose to have an abortion get substandard care, often having to pay for the anesthesia themselves."

As during the Cold War, abortion remains the most commonly-used form of fertility regulation throughout these countries. In Russia, for instance, there were 3.1 million registered abortions in 1994, which is twice the number of live births. While women's rights groups in Russia and elsewhere are doing everything they can to keep abortion legal while reducing the number of abortions performed, the fact is, "abortion remains a popular method of fertility control because there is not enough access to sex education or to modern contraception," says Roseman, who adds that the cost of a year's supply of oral contraception can equal a month's salary in Russia.

- Ann Farmer

To receive this unique publication, email publications@crlp.org, or call CRLP Publications at 917/637-3600. 194 pages, $25 ©2000. The entire report is also now available online in PDF format.

Anti-Abortion Maneuvers in East Central Europe

Several months ago, Polish police, acting on a tip that an illegal abortion procedure was taking place, raided a clinic in a small town, arrested the doctor and took the woman to a hospital where it was determined that she had, in fact, undergone an abortion, according to Wanda Nowicka, Executive Director of the Federation of Women and Family Planning. "This was the first time anything like this happened," she says, explaining that, until then, Poland's anti-abortion laws were not being enforced by the police.

Abortion had been legal in Poland from 1956 till the early 1990s - available practically on request up to 12 weeks from the presumed date of conception and free of charge if performed in a public hospital. But just as the walls of communism were collapsing, barricades to women's legal abortion rights were erected, a direct result of the Catholic Church's immense influence over the Polish government due to its instrumental role in helping Poland liberate itself from the communist yoke.

Today, abortion is restricted in Poland unless the pregnancy endangers the health or life of the pregnant woman, if there is a high probability that the fetus has irreversible and severe disabilities or an incurable disease, or if the pregnancy is due to a criminal act. The Polish Federation for Women and Family Planning says the ban is forcing many women to seek illegal, unsafe abortions a rate of 80,000 to 200,000 abortions yearly, and opinion polls indicate the majority of the population is opposed to the restrictive regulations. "It's dreadful that the decision makers don't pay attention to us," says Nowicka, whose organization researched the Poland section of CRLP's new Women of the World publication and organized an October launch meeting in Warsaw that included a press briefing and a reception co-sponsored by the Polish Women's Parliamentary Group.

Meanwhile, Judit Wirth, the program coordinator at NANE (the Hungarian women's rights organization that researched the book's Hungary section), reports a recent and alarming change in a Hungarian law entitled "The Act for the Protection of the Fetus." Effective July 2000, Hungarian women seeking abortions must undergo two counseling sessions, both aimed at convincing them to carry unwanted pregnancies to term. Furthermore, the Act does not specify any restrictions in determining "the extent of manipulation" that can be employed by these so-called counselors, says Wirth.

In enacting these new measures, says Wirth, the parliament "sent a clear message that legislators view women as containers for future citizens rather than as citizens with full and unalienable rights of their own."

- Ann Farmer

Critical Age, Critical Problems:

CRLP Speaks on Adolescent Reproductive Rights in sub-Saharan Africa

When CRLP staff attorney Maryse Fontus spoke at the Fourth Regional Conference of African Women Ministers and Parliamentarians last July, she asked the roomful of high-level officials to consider this: while the reproductive health issues of adolescents are not often distinguished from the health concerns of younger children, nearly half of all persons newly infected with HIV are between the ages of 15 and 24. Further studies show that within sub-Saharan Africa, where the majority of the global HIV-positive population lives, adolescents have a minimal understanding of how to prevent the spread of the disease. "It is therefore critical," urged Fontus, "that governments adopt age-specific laws, policies and health programs that protect this vulnerable population."

Representatives from Mauritania. (Photo courtesy of the U.N.)

"The HIV figures are very alarming," agrees Esperance Fundira, Programme Officer with the United Nations Population Fund (UNFPA) and organizer of the conference, which was geared this year to give African women leaders the opportunity to exchange information and experiences on the reproductive health of adolescents in sub-Saharan Africa. "The hope is with the adolescents," Fundira adds. "If we are able to stop new infections with adolescents, then in the long run we can stop this disease."

Sub-Saharan Africa is home to one of the most rapidly growing adolescent populations in the world. Here, and unlike the experience of their counterparts in the western world, the period of transition from childhood to adulthood can be fleeting, as many African adolescents enter into early sexual relations, marriage and childbearing. In fact, over 55% of women thoughout sub-Saharan Africa have had their first child by age 20.

Yet many African adolescents complain of deficient treatment by family planning clinicians. The President of Namibia, who delivered the keynote address, stressed the need for confidentiality when delivering adolescent reproductive health services.

Dr. Nafis Sadik, the UNFPA's executive director, talked about the practice of dry sex (using drying agents to reduce wetness in the vagina), which appears to be associated with an increased risk of infection by HIV; the problem of early and forced marriages; and the soaring rates of unsafe abortions. Africa accounts for more than 40% of the world's deaths due to unsafe abortions, and studies in the early 1990s showed that adolescents account for between 39% and 72% of all cases of abortion-related complications.

On the brighter side, there have been recent improvements in reproductive rights laws in the region, pointed out CRLP's Fontus. For instance, ten sub-Saharan African countries have recently passed laws criminalizing the customary practice of female circumcision/female genital mutilation.

And in 1998, Ghana passed a law banning the practice of Trokosi - a lesser-known west African custom that involves the ritual slavery of young girls. Within this tradition of female religious bondage, girls are forced to atone for transgressions committed by other members of their families, such as stealing lying and adultery. The girls become the property of a fetish priest and must perform domestic and farm chores for him. Once she has reached her third menstruation, she also becomes his sexual slave. "The new law," says Fontus, "criminalizes customary servitude and carries a minimum three-year penalty for those found guilty of harboring forced labor."

- Ann Farmer

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