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September 14, 2012

Federal Court Rejects Idaho's Claim That it May Punish Women Who End Their Pregnancies

Last year, NAPW published an article called Missed Opportunities in McCorvey v. Hill: The Limits of Pro-Choice Lawyering, looking at the ways in which abortion litigation has been done in the past, and could be done more effectively in the future. NAPW wanted to make sure that the case of Jennie McCormack, a woman arrested for having an "illegal" abortion in Idaho, was not yet another missed opportunity.

As a result, when Ms. McCormack was arrested, we immediately reached out to her attorney, Richard Hearn. NAPW then worked with sister organizations Legal Voice and the Center for Reproductive Rights to file a "friend of the court" brief supporting Jennie McCormack in McCormack v. Hiedeman. Kathleen O'Sullivan, Breena Roos, and Ashley Locke of the law firm Perkins Coie LLP represented our organizations in filing this brief.

Our amicus brief highlighted the fact that punishing third parties for performing illegal abortions is different - historically, constitutionally, and physically - from punishing the pregnant woman herself. We also reminded the court that women alone bear the risks to life and health that pregnancy creates. And, we emphasized that advocates who seek to overturn Roe v. Wade consistently claim that the laws re-criminalizing abortion will not be used to prosecute and punish the women who have them.

On September 11, 2012, in the first decision of its kind, the U.S. Court of Appeals for the Ninth Circuit issued an opinion that addressed whether states may use their existing criminal abortion laws to arrest and prosecute women who have abortions. In this case the charges against Ms. McCormack had been dropped for lack of evidence, but the state threatened to reinstate them if more evidence became available, and argued that it had the right to punish any woman who self-induced an abortion.

Ms. McCormack filed suit in federal district court to enjoin the state from using Idaho Code § 18- 608A ("it is unlawful for any person other than a physician to cause or perform an abortion"), § 18-606(2) (Idaho's pre-Roe law stating "every woman who knowingly submits to an abortion or solicits of another, for herself, the production of an abortion, or who purposely terminates her own pregnancy otherwise than by a live birth, shall be deemed guilty of a felony. . ") and §18-5-505-507 (the newly-enacted "Pain-Capable Unborn Child Protection Act," a ban on all non-therapeutic abortions after 20 weeks) to prosecute Ms. McCormack and other women in the future under these laws. The district court granted a preliminary injunction as to the "physician only" and the "woman herself" provisions, and the State appealed.

Using strong language, the Court of Appeals upheld a preliminary injunction that prevents the state from prosecuting Ms. McCormack under Idaho Code §18-606 and §18-608, finding that she was likely to succeed on her constitutional challenge to Idaho's criminal abortion law as a mechanism for locking up women who have had abortions. The court ruled that she did not have standing to challenge the Pain-Capable Unborn Child Protection Act.

The Court's opinion specifically relied on arguments from our brief that acknowledged 1) that earlier decisions that allowed states to restrict the provision of abortion services to doctors did not address the question of whether women themselves could be locked up, 2) that third parties who perform abortions on women are not the same as the women themselves, and 3) that an overriding historical purpose for regulating abortion has been to protect - not arrest - women.

The court took pains to acknowledge the barriers that women, especially low-income women, face in obtaining abortion services, including lack of providers, financial obstacles, and harassment at clinics. The opinion also acknowledged the practical realities of Ms. McCormack's life and the medical, moral, and ethical decision-making women engage in when making decisions about the pregnancies.

We take special note of the fact that despite leading 'pro-life' organizations' repeated assurances that that their efforts will not result in women going to jail, none opposed the arrest of Ms. McCormack. NAPW's views were featured in this RH Reality Check report on the decision.

September 12, 2012

Press Release: US Crt of Appeals protects women from prosecution after abortion

FOR IMMEDIATE RELEASE
September 11, 2012

Contact:
Janet Chung, Legal & Legislative Counsel
Legal Voice
Cell: 425-306-4761

Lynn Paltrow, Executive Director
National Advocates for Pregnant Women
Cell: 917-921-7421

SEATTLE, WASHINGTON - Today the U.S. Court of Appeals for the Ninth Circuit issued a strong ruling protecting pregnant women and their decisions in the case McCormack v. Hiedeman. In the first decision of its kind, the Court affirmed the trial court's preliminary injunction preventing the state from using Idaho's criminal abortion statutes to prosecute a woman for seeking abortion care, finding her constitutional challenge was likely to succeed on the merits.

The decision was hailed by Legal Voice and National Advocates for Pregnant Women, who along with the Center for Reproductive Rights filed a friend-of-the-court brief supporting Jennie McCormack. Kathleen O'Sullivan, Breena Roos, and Ashley Locke of the law firm Perkins Coie filed the amicus brief on behalf of the organizations.

In the fall of 2010, Ms. McCormack became pregnant. Unemployed and already a mother of three, she sought an abortion, but there were no providers in southeast Idaho; the closest provider was in Utah. Because Ms. McCormack could not afford the costs of travel and a surgical procedure, she terminated her pregnancy through a medical abortion, using pills obtained over the internet.

Ms. McCormack was subsequently charged under an Idaho statute that makes it a felony for a pregnant woman - not a third party, such as a health care provider - to terminate her own pregnancy in a manner inconsistent with the state's abortion statutes.

The Ninth Circuit held that the Idaho abortion statute "constitutes a substantial obstacle in the path of women seeking an abortion." The court took pains to acknowledge the barriers that women - especially low-income women - face in obtaining abortion services, including lack of providers, financial obstacles, and harassment at clinics. Notably, the decision also acknowledges the practical realities of Ms. McCormack's life.

"We are thrilled by the Ninth Circuit's unequivocal statement that statutes that make it a crime for women to seek abortion care pose an undue burden on their ability to terminate their pregnancies," said Janet Chung, attorney for Legal Voice, a women's legal advocacy group that filed a friend-of-the-court brief supporting Ms. McCormack.

"This is an important decision that explicitly rejects Idaho's claim that the state may use its criminal abortion laws to punish pregnant women who end their pregnancies," said Lynn Paltrow, Executive Director of National Advocates for Pregnant Women. She added, "Leading 'pro-life' organizations have repeatedly claimed that their efforts will not result in women going to jail, yet none opposed the arrest of Ms. McCormack."

# # #
Legal Voice is a nonprofit women's rights legal organization that pursues justice for all women and girls in the Northwest through ground-breaking litigation, legislative advocacy, and educational tools to help individuals understand their rights.

National Advocates for Pregnant Women (NAPW) is a nonprofit advocacy organization based in New York City that works to secure the human and civil rights, health and welfare of all women, focusing particularly on pregnant and parenting women, and those who are most vulnerable - low income women, women of color, and drug-using women.

September 7, 2012

NAPW: At the White House and In the Courts

National Advocates for Pregnant Women is committed to the principle that all women, including pregnant women, are human beings who must not be denied their constitutional and human rights, including their rights to equal protection of the law, to health care, and to have decisions about them based on science not stigma.

Listen on Monday, September 10, 2012, at 10:00 a.m., to hear oral arguments before the Supreme Court of New Jersey in New Jersey Division of Youth and Family Services (DYFS) v. A.L.. This case challenges lower court decisions that radically expand the scope of the state's civil child neglect and abuse laws to apply to a pregnant woman in relation to the fetus she carries and sustains. Lawrence S. Lustberg, Esq. of Gibbons P.C., who, with National Advocates for Pregnant Women, represents a group of fifty national and international medical, public health, and child welfare organizations and experts will have the opportunity to argue that judicial decisions about pregnant women and families must be based on science, not presumption. It will be possible to watch the oral argument online at the New Jersey Supreme Court Webcast page.

We are also proud to report that last week Executive Director Lynn Paltrow was an invited presenter at the Leadership Meeting on Maternal Addiction, Opioid Exposed Infants and Neonatal Abstinence Syndrome sponsored by the White House Office on National Drug Control Policy. This meeting was held in response to recent reports and a flood of media about prescription opiate use by pregnant women.

In her presentation (archived online), Pregnancy, Parenting, and Drug Use - What Does Science Have to do with it? Legal and Media Responses, Lynn drew connections between the media hysteria that drove the harmful myth that babies were irretrievably harmed by in-utero exposure to cocaine, and the media responses today to articles reporting an increased use of prescription opiates by pregnant women. She emphasized the need to understand the ways in which the combined war on women and war on drugs have resulted in responses to the issue of pregnant women and drug use that are primarily punitive and counterproductive to maternal, fetal, and child health.

She urged opposition to these measures and to barriers to treatment. She provided examples from NAPW cases and requests for help from women in successful methadone treatment and from methadone treatment providers who report that child welfare authorities and judges are punishing women for obtaining the treatment urged by our own federal government. We are pleased that stories like Medical Consensus or Child Abuse? Moms on Methadone Caught in the Middle, featuring Legal Director Emma Ketteringham, are bringing attention to these cruel state actions.

Please help NAPW ensure that the war on drugs is not expanded to women's wombs, and that child welfare actions are based on science and actual evidence, not stigma.

Press Release: NAPW, 50 Leading Medical, Public Health, and Child Welfare Organizations and Experts To Argue to NJ Supreme Court on Monday that Family Courts Should Insist on Science Not Stigma

FOR IMMEDIATE RELEASE
September 7, 2012
CONTACT: Emma Ketteringham
212-255-9252 or 917-991-4943

50 Leading Medical, Public Health, and Child Welfare Organizations and Experts To Argue to NJ Supreme Court on Monday that Family Courts Should Insist on Science Not Stigma
Junk Science No Basis for Child Neglect and Abuse Finding


TRENTON, NJ (September 10, 2012): On September 10, 2012, at 10:00 a.m., the Supreme Court of New Jersey will hear argument from Lawrence S. Lustberg, Esq. of Gibbons P.C., who, with National Advocates for Pregnant Women, represents a group of fifty national and international medical, public health, and child welfare organizations, experts, and advocates challenging lower court decisions that radically expand the scope of the state’s civil child neglect and abuse laws to apply to a pregnant woman in relation to the fetus she carries and sustains. These experts maintain that the finding of the lower courts rests on a number of invalid assumptions about drug use rather than on reliable science.

In this case, New Jersey Division of Youth and Family Services (DYFS) v. A.L., a woman identified as A.L. gave birth to a healthy baby in September of 2007. DYFS argued that positive drug screens for cocaine on A.L. and her newborn alone -- without any evidence of harm and without any science at all finding that positive drug screens predict harm -- were a sufficient basis to find that A.L. had neglected her child. A lower court and the Appellate Division agreed, not only finding neglect in this case, but also declaring that a New Jersey’s neglect law could be applied in the context of pregnancy. On October 26, 2011, the New Jersey Supreme Court agreed to hear the case and oral argument is scheduled for Monday, September 10, 2012 at 10:00 am at the Richard J. Hughes Justice Complex in Trenton, NJ.

In their brief filed on January 9, 2012, amici, including the American College of Obstetricians and Gynecologists, the Addiction Science Research and Education Center, and the American Academy of Addiction Psychiatry, focus on the New Jersey Supreme Court’s commitment to the use of reliable scientific evidence in judicial decision-making. Amici argued that the lower courts relied on popular misconceptions about drugs, pregnant women, and child welfare that lack any foundation in evidence-based, peer-reviewed research.

Lawrence S. Lustberg, Esq. of Gibbons P.C., co-counsel representing amici, explains that “the New Jersey Supreme Court has been a national leader in recognizing that when cases raise scientific, medical, or other technical issues, the evaluation of these issues must be informed by existing scientific knowledge, including expert testimony. This case should be no exception.” He points out, “significantly, the State’s brief relies on long-discredited, factually incorrect statements about drug-use in pregnancy and effectively concedes that the question at the center of this case requires consideration of scientific and social science evidence.”

Amici also note that DYFS presented no evidence that the child had suffered any actual injury at birth or at any time after birth, and presented no witnesses with expertise regarding the effects of prenatal exposure to cocaine, what drug test results mean, or the association between a pregnant woman’s drug use and a likelihood of abuse or neglect of a child once born. Nor did DYFS present, or the lower courts consider, the vast body of medical and social science research on these questions.

“If this were a case about the harm caused by a particular drug in any other context the judiciary would require reliable scientific evidence. Pregnant women and children who are caught up in the child welfare system and who are disproportionately low income and of color, no less than other people or corporations, deserve decisions that are grounded in evidence-based research,” said Emma S. Ketteringham, co-counsel in the case and Director of Legal Advocacy for amici National Advocates for Pregnant Women. Ms. Ketteringham added, “Pregnant Women and families should not be deprived of their fundamental rights – including the right to family relationships – based on junk science, or no science at all.”

Expert amici explained to the court that medical research makes clear that numerous substances, conditions, and circumstances raise similar or greater risks to fetuses than prenatal exposure to cocaine. While amici were careful to note that they were not suggesting that prenatal exposure to criminalized drugs is benign, they emphasized that current scientific evidence simply does not support judicially rewriting state law to allow for a per se finding of abuse or neglect based solely on evidence of a woman’s use of cocaine, or other criminalized or non-criminalized drug during pregnancy.

Amici also noted that there is no research to support the idea that a positive drug test demonstrates harm, risk of harm, or a likelihood of neglect or abuse. They emphasized, however, that there is research finding that threats of punishment, including the loss of child custody, deter pregnant women from care, undermining rather than advancing maternal, fetal, and child health.

Wendy Chavkin, MD, MPH, a physician and researcher who has written extensively about the issue of drug use and pregnancy, observed: “These issues have become caught up in other political battles. It is critical that state agencies, like DYFS, and the court base their decision on scientific evidence, not on misinformation and stereotype.”

Ms. A.L. is represented by Clara Licata of the New Jersey Office of Parental Representation. An amicus brief supporting Ms. A.L.’s position was also filed on behalf of The Legal Services of New Jersey.

Amici organizations include: American College of Obstetricians and Gynecologists, Addiction Science Research and Education Center, American Academy of Addiction Psychiatry, American Society of Addiction Medicine, International Centre on Science in Drug Policy, International Doctors for Healthy Drug Policies, National Perinatal Association, National Coalition for Child Protection Reform, Child Welfare Organizing Project, HealthRight International (Former Doctors of the World –USA), and National Women’s Health Network. This amicus brief – including a full list of the amici – is available here on the National Advocates for Pregnant Women’s website: http://bit.ly/TstXFD

It will be possible to watch the oral argument online at the New Jersey Supreme Court WebCast page: http://bit.ly/dCvPGA