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June 25, 2020

NAPW Activist Update: Anticipating the Decision in June Medical Services v. Russo

Dear Friends and Allies,  

In the coming days, the U.S. Supreme Court will announce its decision in June Medical Services v. Russo, the first abortion case since Justices Gorsuch and Kavanaugh became members of the Court. The Court will be ruling on the constitutionality of a Louisiana law that is identical to a Texas law struck down by the Supreme Court in the 2016 case Whole Woman's Health v. Hellerstedt. In that case, the Court held that a Texas law was unconstitutional because it imposed a substantial and undue burden on women seeking abortions. The law required physicians who perform abortions to have admitting privileges at a local hospital. Three years later, when considering June Medical Services, the U.S. Court of Appeals for the Fifth Circuit ignored Whole Woman's Health, and held that an identical admitting-privileges law in Louisiana did not impose a substantial or undue burden. 

Contradictory? Yes. But these rulings are also in keeping with a Court that has never arrived upon a consistent view of the rights of the 51% of the population who have the capacity for pregnancy - the precursor to needing an abortion. Stories from two other Supreme Court cases illustrate this inconsistency. 

The first is from Roe v. Wade. The named plaintiff, Jane Roe, was a pregnant woman living in Texas when she brought a lawsuit challenging the constitutionality of the Texas law that made it a crime to procure an abortion. Roe, however, was not alone in bringing this lawsuit. A married, heterosexual couple called Mary and John Doe also wanted to challenge the constitutionality of the Texas law.  

Like Jane Roe, this couple wanted to see Texas' abortion law declared unconstitutional. According to their complaint, Mrs. Doe was suffering from a neural-chemical disorder and her physician had advised her to avoid pregnancy until her condition had materially improved. Pursuant to medical advice, she had discontinued use of birth control pills (that were at the time manufactured with dangerously high levels of estrogen). If she were to become pregnant, she would have wanted to terminate the pregnancy by having an abortion performed by a "competent, licensed physician under safe, clinical conditions." 

The Supreme Court denied the Does the right to sue in the federal court system. According to the Court, they did not have standing because they had no actual injury. Rather, they had "only an alleged 'detrimental effect upon [their] marital happiness' because they [were] forced to 'the choice of refraining from normal sexual relations or of endangering Mary Doe's health through a possible pregnancy.'" As the Court explained, "Their alleged injury rest[ed] on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health. Any one or more of these several possibilities may not take place and all may not combine."

In other words, the Does' injuries were merely speculative, not real or actual. 

Eight years later, however, the Supreme Court saw the possibility of pregnancy in quite different terms when it considered the constitutionality of a California statutory rape law that penalized underage sexual intercourse for males but not females.

In Michael M. v. Sonoma County, a 17-year-old boy, Michael M., had sexual intercourse with a 16-year-old girl. The boy alone was charged with statutory rape. Michael M. challenged the law's constitutionality as a violation of his right to equal protection.

In a complete about-face from the rationale used to deny the Does their day in federal court, the Court in Michael M. held that the possibility of pregnancy was a profoundly influential, ever-present factor in a woman's life; in other words not merely "speculative." Although the 16-year-old girl that Michael had sex with did not get pregnant, the Court saw pregnancy and its potential consequences including abortions, the medical risks associated with pregnancy, and the social consequences of childbearing as so concrete that the Court concluded that the mere possibility of pregnancy provided a substantial deterrent to girls under 18 from engaging in sexual intercourse. And since, according to the court, no similar "natural sanctions" deter males from having sex, the Court upheld the male-only criminal sanction because it served to roughly "equalize" the deterrents on both sexes. Specifically, in Michael M., the Court concluded that the risk of pregnancy and its consequences are so definite and substantial that they are equivalent to the threat of arrest, conviction, and a prison term of 4 years. 

Considering Michael M. and the Court's ruling on standing in Roe, we should not be surprised if the Supreme Court is inconsistent in its rulings on whether laws limiting access to abortion create undue burdens or no burdens at all. We should remember that June Medical Services v. Russo will be decided not only by a court with two new members committed to overturning Roe v. Wade, but also by an institution that hasn't made up its mind whether the capacity for pregnancy is an ever-present threat to women's freedom (akin to a term of incarceration) or a dismissible and inconsequential possibility with little or no impact on a woman's life (or, for that matter, her partner's). 

Throughout history, women's capacity for pregnancy - rather than the fact that they were actually pregnant - has been used to limit their rights. For example, women have, pursuant to various past Supreme Court rulings, been denied the right to serve on juries, become lawyers, and work hours equal to those of men, again, not because of pregnancy but because of their ability to become pregnant. Given this history, women do not want their capacity for pregnancy to define or limit them. At the same time, they do not want this significant aspect of their biological and social lives to be ignored, minimized, or used, under the guise of abortion regulation, to deprive them of their civil and human rights. 

We do not know what the Court's decision will be. Yet, we do know that whatever the Court decides, National Advocates for Pregnant Women will continue to do the hard work necessary to ensure that women's health is recognized and protected as human health, just as women's rights and the rights of all people with the capacity for pregnancy must be recognized and protected as human rights. 

In Solidarity,
Lynn M. Paltrow
Founder and Executive Director 
National Advocates for Pregnant Women 

A version of these comments was originally published on Jurist.

June 11, 2020

NAPW Statement in Support of Black Lives, Black Lives Matter, and Reproductive Justice for Black Lives (RJ4BlackLives.org)

National Advocates for Pregnant Women mourns the death of George Floyd and the death of every Black person murdered by police forces in the United States. We recognize the systemic problem of police brutality and join the Black Lives Matter movement in calling for immediate and radical change. NAPW will continue to stand with the organizations and individuals speaking out against police violence and all forms of state-sanctioned violence against Black people in the United States. NAPW joins those calling to redirect funds away from police departments and to the communities whose schools, housing, and health care have been deliberately and devastatingly defunded, policed and privatized.

NAPW knows that just as police and prosecutors misuse their authority on the streets, they also do so inside of hospitals and delivery rooms and, too often, do so with the assistance of health care professionals. NAPW will continue to fight against any policing of Black people through the health care system — including reproductive and maternity care. Further, NAPW will continue to fight against the child welfare system that disproportionally targets Black families for monitoring and family separation. Because Black lives matter, we will continue to fight the gross abuses of power exercised by police and child welfare authorities in Black communities, in health care settings, and against Black families.

National Advocates for Pregnant Women, an organization founded and led by a white woman, will continue to learn from, honor, and advance Reproductive Justice, the comprehensive framework developed and articulated by Black women in 1994.

Furthermore, NAPW will continue to ask our allies in the pro-choice and pro-abortion organizations to join us in recognizing and taking action based on the following:

• “My body, my right” must mean more than the right to choose abortion. It must include the right of all Black people to be free of police violence — a knee on a neck, bullets to a back, being stopped and frisked, being sexually assaulted.

• The loss of autonomy or bodily integrity in the context of pregnancy and reproduction is just one manifestation of the idea that some people may control the bodies and lives of others. It is a concept deeply embedded in our country’s DNA through 250 years of African enslavement that continues to this day through the ongoing and unrelenting afterlife of slavery. This idea must be erased in all its forms.

• “Choice” in “pro-choice” is impossible without dismantling the systemic racism and the economic inequalities that deny Black people the resources to make and defend their choices.

• “Choice” in “pro-choice” must also include the right to become a parent and to parent children without fear that they will be murdered by police. It must include addressing the persistent, relentless racism directed on Black women of all economic classes, a racism that has resulted in Black women dying at rates 4 -12 times higher than for white women during pregnancy and childbirth. (For an idea of what relentless racism and its impact on pregnant women looks like, one of many resources is When They Call You a Terrorist: A Black Lives Matter Memoir, Patrisse Khan-Cullors and asha bandele.)

• The war on drugs that has fueled mass incarceration and the criminalization of Black and Brown people is also the model for substituting policing for health care, housing, and jobs. It also provides the basis for policing pregnancy and for arresting women such as Jennie McCormack, Purvi Patel, Kenlissia Jones who used drugs (misoprostol/mifepristone) to end a pregnancy. (To learn about the war on drugs, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Michelle Alexander, and some of its impacts on Black women, Killing the Black Body, Dorothy Roberts.)

• It is not enough to fight the so-called “fetal personhood movement” because it would make abortion illegal. We must also recognize and call out this movement as strategically designed to distract attention from daily denial of rights to persons already born and to true personhood movements such as Black Lives Matter.

• Together we must insist on the right to life of Black people including George Floyd, Breonna Taylor, Tony McDade, Ramarley Graham, Tamir Rice, Eric Garner, Sandra Bland, Eleanor Bumpurs and so many more who have tragically lost their lives to police violence and racial injustice.

In the coming days, months, and years — for as long as it takes — NAPW will continue to work in solidarity with Black women-led reproductive justice organizations, including SisterSong, Women with a Vision , SisterReach and the Black Mamas Matter Alliance, in the fight to ensure Reproductive Justice and to protect the lives of Black people in the United States. In addition, we will continue to work with such organizations as Be Present Inc. to carry out our commitment to support diversity, inclusion, and accountability within our organization. Finally, NAPW recognizes our responsibility to work with white people — including poor white women — to support the changes needed to protect the lives and rights of Black people. For the transformations being called for to be enduring, (go to: https://rj4blacklives.org/ to learn about some of those necessary changes) all of us must support the changes being accomplished now by the extraordinary activism, courage, and leadership of Black people.

June 10, 2020

Frontiers in Psychology published, Totality of the Evidence Suggests Prenatal Cannabis Exposure Does Not Lead to Cognitive Impairments: A Systematic and Critical Review, a peer-reviewed systematic review on the effects of prenatal exposure to marijuana.

On May 8, 2020, Frontiers in Psychology published, Totality of the Evidence Suggests Prenatal Cannabis Exposure Does Not Lead to Cognitive Impairments: A Systematic and Critical Review, a peer-reviewed systematic review on the effects of prenatal exposure to marijuana. This serious and careful evaluation of 1,001 statistical comparisons between groups of participants exposed to cannabis prenatally and non-exposed controls debunks unsupported assumptions about negative cognitive effects of prenatal marijuana exposure. As the authors explain, assumptions about the data  “can cause harm to pregnant women and their children by leading to punitive policies and enhancing unwarranted stigma. In some cases, intense stigma has resulted in removal of children from their families, and even in maternal incarceration. The rationale for such policies is, in part, that prenatal cannabis exposure causes persistent deleterious effects, especially on cognitive functioning. Findings from this review suggest that this assumption should be reevaluated to ensure that our assumptions do not do more harm than the drug itself.”


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