Unknown Speaker  00:03
Okay, we I guess we're not having moderators for these workshops of gentlemen. I will just start. I'm Suzanne lane. This is John Burton. And this is a workshop on what is it controlling women's reproduction or dominating reproduction. I'm going to be speaking first and my talk will be talking mostly about the right to abortion and then Joan will broaden that perspective and talk about some other issues, which include abortion but are not confined to them. The right to choose of women to choose whether and when to bear children is very recently an incompletely one right. We're familiar with the right to abortion rights that is posed by the right to life movement. And a newly conservative Supreme Court, which now has a conservative five to four majority which is seems bent not only on rolling back reproductive rights, but all progressive social change over the last 30 or 40 years. We are aware of hope that the right to abortion, while a reality for middle class women is maybe an illusion for poor women who can't afford to pay for their abortions and are not lucky enough to live in one of the 16 states that paid for them out of state Medicaid funding. And I we should also know that young women's rights to abortion are being severely curtailed by the passage in various states of parental involvement laws, which require parental notification or consent. Before young women under 18 can get abortions. And more fundamentally, we should always be asking ourselves, what constitutes real choice in a society marked by such glaring disparities between wealth and opportunity? Canada, a woman a poor woman who has an abortion because she can't afford to feel she can't afford to raise a child that has been abandoned by the Father. Can she be said to be making a real choice? Similarly, a working mother with one child who has an abortion because she just can't afford the additional expense of more childcare? Can she be said to be making a real choice? So, I just put those out. Because those are my particular bugaboos. Whenever I whenever I talk about reproductive rights, I find that too often the focus in the so called coach was movement is much too narrow, focusing on the abstract legal right. The fact that abortion remains a battleground in the society bespeaks a deep seated ambivalence and fear on the part of the American public toward the changes in women's status and roles over the last 30 years. People instinctively understand even if they can articulate it, that if a woman can really choose the timing of her children, or choose to have no children at all, and not have to answer to anyone for that decision, that frees her in ways that this society is not at this point ready to deal with. Joan is going to be talking more about how that dynamic is playing out today. But I want to talk today to historically about the evolution of the abortion right in American society, hopefully to give us a deeper understanding of what's going on today in that arena. I don't know how many of you know that up until about the mid 19th century, abortion was not commonly considered a crime in this country. English common law, in fact, did not recognize abortion as any sort of a crime until 1803. And even then it only acknowledged as a crime after quickening, if the woman aborted after quickening, which was considered to be 40 days for a male fetus and 80 days for females.

Unknown Speaker  04:23
It was, but it was almost 20 years before American state took the lead of the English common law and pass the first criminal abortion statute in the United States. That was Connecticut in 1821. And there again, it mimicked the notion it mirrored that distinction between pre and post quickening. Before 1850 or 1860, not very many states really follow the lead of Connecticut, New York was one of the earlier stage states to pass a criminal abortion law but I believe It was only to prevent surgical intervention and not to IT DID NOT ADDRESS women who took potions and herbal remedies to induce abortions, which I think was a more common method of abortion in the 19th century. But even when the states you have to understand that even when the states did criminalize abortion during that period, they never made abortion the equivalent of homicide. And very rarely sought to punish the woman who's having the abortion. And as I pointed out, abortion was an extremely common phenomenon in the 19th century. Of course, we have no way to exactly measure its frequency, but by all historical accounts, it was quite, it was quite common. Now starting around 1850, the drive to criminalize abortion began in earnest. And it was spearheaded by the newborn no pun intended, ama American Medical Association, the American Medical Association started around 1850. And there are at least three or three reasons that are most commonly given for the for this development. First, the AMA was driven by a desire to professionalize the practice of medicine. Medicine, back then was not the highly regulated, organized, or even prestigious profession that we know today it was in its infancy, it was it was not regulated, there were lots of para professionals, if you will, in the field, a lot of midwives, a lot of practice, practitioners of traditional medicine, and part of the drive to criminalize abortion was to on the part of the AMA was to take out of the hands of the midwives and the other people who were not part of the regulars, this very powerful and important practice. They were also meant motivated secondarily by genuine concern for women's health since surgical intervention. surgical intervention in particular was very dangerous in the 19th century. Say Secondly, the drive to criminalize abortion was was motivated by open. Open support for the subjugation of women that the late 19th century of course, was the height of the cult of true womanhood and the idealization of motherhood. And if you read some of the tracks from those times, you will see quite openly expressed the anxiety that you know, free access to abortion is going to undermine women's roles as mothers. Unlike today, they were not afraid to openly stated at that time, of course, I should point out that this cult of true womanhood and idealization and motherhood was a was a code that was confined to white women. Nobody really cared what black women did if black women had been working and having babies and having abortions, ever since they had been brought to the shores, but what their circumstances were certainly not the stuff of that cult. In fact, my, what I think and I think it's very important to point out is that the cult of true womanhood could not have existed for white women could not have existed without the presence of black women, and other women who could be stigmatized as being bad, you can't have a good idea of quote, unquote, if you don't have something immoral and impure to contrast against. But that's another speech at least to get right. And thirdly, and that sort of leads into the third major impetus behind the drive to criminalize abortion in the late 19th century in that was nativism, fears that white Protestant women of good stock, were not having enough babies to replace themselves. And there was a fear that they would be that race that the white Protestants would be overrun by the immigrants from Southern and Eastern Europe, not to mention the non white population. And those if you read the historical texts from those those areas, you will also see that very openly expressed. So those are the three considered the three major reasons behind the drag to criminalize abortion in the late 19th century. Now what is missing from that list? Well, there what were no strong really Just or grassroots movements at that point to outlaw abortion because of the fetus because of the sanctity of the fetus because of the concept of the fetus as a as a full person, the established Protestant churches and in the night late 19th century were silent on the issue of abortion. And even the Catholic Church itself did not declare the fetus to be a person until 1869. So the arguments against abortion which are fashioned from or sprang from a notion of the fetus as a full person, are really an artifact of the late 20th century. And the question is why and I think it's at least partly because the other reasons have become either obsolete, such as in the case of the desire to professionalize the practice of medicine or to protect women's women from unsafe surgical procedures, or they become unsafe, unacceptable, that is an open desire to continue the subordination of women or racism and nativism. And so that makes one wonder how much the focus on the fetus and fetal personhood has become a surrogate for deep seated feelings and anxieties that people still have, but it's no longer acceptable to openly acknowledge that brings me to the mid 20th century.

Unknown Speaker  11:35
And,

Unknown Speaker  11:36
and the fact that the drive to decriminalize abortion, ironically, one of the major players in that in the in the latter half of the 20th century has been the medical profession. That began also, as I say, sometime around the mid 20th century, Roe v. Wade, which was decided in 1973, was the product of a variety of forces that happened to all coincide around the 60s is when it really all started to happen. That's when you started to see a law reform movement, bear fruit in the various states spurred by the AMA, AMA and a BAS suggestions on it liberalizing abortion laws. But abortion about Roe v. Wade, basically was the fruit of at least three social forces that that were acting more or less in concert, although not always towards the same goals. You had the women's movement, which, at least in its early stages, was talking about what it always was, but in its early stages, was talking about abortion as a necessary condition of women's freedom, the ability to control their bodies. The medical establishment, which saw by that time was seeing criminal abortion laws as a restraint on their professional discretion. And a population control movement which sprang from the elite sectors of society, which saw was motivated by a fear of overpopulation among the poor in the inner cities and also in the third world. So all of these forces were working together, although they clearly had very disparate aims. So at any way due to the efforts of these groups and some others, the states had already begun to liberalize their abortion laws before Roe v Wade. In fact, four states had essentially decriminalized abortion for all intents and purposes prior to 1973. New York, of course, being one of them, New York, liberalized its abortion law in 1970. Now roe essentially held that the right a constitutional right of privacy was broad enough to encompass a woman's choice whether or not to bear a child and privacy. It was probably the most narrow legal theory that the court could have chosen for recognizing that right. In choosing privacy, the court could claim that it was merely following the long line of Supreme Court cases dating back to the 1920s, which recognized that there were certain areas of life that were so intimate and personal that the government had no business interfering in those spheres. But surprisingly, the extension of the privacy doctrine to matters concerning sexuality and reproduction was relatively recent. I mean, it was only in 1965 that the Court struck down a Connecticut statute, making it illegal for physicians or anybody else to distribute contraceptives even to married couples. So What we're talking about a very recent and narrowly grounded right when we when we discuss Roe v. Wade ROE of course, what posited a three trimester framework for the abortion right the first three months, you basically get an abortion apps free from state interference. Second three months you could get an abortion, but the state could regulate it to protect women's health and in the third, three months, which roughly coincided with viability threshold of viability, you couldn't get an abortion unless it was to save your life or to prevent serious health consequences. A couple of things about the role of opinion are important to remember. First, that the court posits the abortion right as a woman's right as a necessary corollary of her doctor's authority to make the best medical decision. It is a classic, middle class paradigm of the woman consulting with her private physician. Second, although the court the row court does say that the fetus has never been recognized as a person under the law. Full person under the law it also says that the abortion decision is different from other kinds of personal decisions because the woman is not alone. In her decision, she carries a fetus. Thus, the court does set the stage for the debates about the fetus versus the woman which would have increasingly dominated cases in which John will probably be touching on more.

Unknown Speaker  16:34
But, but aside from these criticism, there's no question but that Roe v Wade was a tremendously liberating step forward for women. And at first, in the first few years following Roe, the right looked fairly secure. The few cases that that were decided between 1973 and 1977, basically upheld the right and it had the unfortunate effect of lulling the women's movement into complacency and causing them to cease organizing and political activism around the right to choose and left it to the lawyers which enrich and obviously was a big mistake. The first intimations of trouble and cracks in the facade as appeared in the late 70s. And the women who paid the price of the short sightedness of the pro choice movement were poor women, and then secondarily young women. In by the late 1970s, the so called right to live movement had gotten its political act together and was organizing very aggressively on the state and local levels. And in 1975, several states state legislatures voted to discontinue Medicaid funding for nontherapeutic. That is elective abortions. And their decision to do so was upheld by the Supreme Court in 1977. In two cases, in which the Court said that states could constitutionally refuse to pay for women's non therapeutic abortions, these decisions have had a profound effect not only on abortion law, but on social welfare law. Their importance to the whole area of cases involving nature of the government's duty to care for citizens or to provide certain necessities of life if they can't provide them themselves, has been affected by the abortion cases the abortion funding cases. The final nail on the funding coffin was put in place by the Supreme Court in Harris V. McRae in 1980, which basically upheld the constitutionality of the federal Hyde Amendment, which forbade state of federal Medicaid monies from being used to pay for abortions. The courts reasoning is very enlightening here. It's been used, as I say over and over again in the decades since Harris been McCray and that is that the state The court reasoned that the state has no obligation to fix situations for which it is not responsible. Since a poor woman's ability inability to get an abortion as a result is a result of a poverty which is a condition that the government did not create. The government is under no obligation to remove that obstacle. So while the state cannot remove erect affirmative obstacles to the abortion rights, such as passing laws to provide husband's consent, or whatever, it has no obligations to remove obstacles not of its own making, that is poverty and to facilitate the exercise of the right through of funding. We are still of course living With the effects of these decisions today, each year Congress goes through the same motions. It has to reenact the Hyde Amendment every year because it's a it's a bill. It's an amendment put on yearly appropriations bill. It's not a it's not a federal statute that just exists into infinity. It's something that has to be passed every year. So every year, the debate goes on in Congress about whether or not about whether we should or should not have a Hyde Amendment, but whether it should include exceptions for rape and incest. And life in danger. And for all of those to all those people who say, who are wanting so much the newfound strength of the pro choice movement, I say, we still had a situation last fall where President Bush was able to veto without political consequences, Hyde amendment that had put back rape and incest exceptions into the bill, he vetoed it. And there didn't seem to be any large public outcry about that. So makes me wonder about the all of the newfound strength of the right of the pro choice movement.

Unknown Speaker  21:09
The second front on which the second front in which the right to life has made a great deal of progress, starting in the late 1970s, was the question of minors rights, that is women under 18. Their right to get an abortion without parental involvement. Now the right to life was correctly assessed the American public on this issue, they understood that while the public, the majority of the public might tolerate relatively free access to abortion for adult women, who could pay for them, many would be uncomfortable with the notion of teenagers being able to get them without their parents know, knowing it. That tapped into very deep anxiety around sexuality and parental authority and the sanctity of the family. That I don't think people as cannot necessarily could articulate but which are nevertheless very powerful. So again, in in two Supreme Court decisions from the late 70s, the Supreme Court upheld or didn't necessarily upheld, but they gave their imprimatur of approval to a basic scheme by which states can limit minors rights to access to abortion. That is, by allowing, at least in principle, the notion of a parental involvement in the parental consent or parental notification statute. Basically, the court said that you couldn't that minors had the same constitutional rights as adult women do, but that the abortion decisions are different. And the state while the state while the minor may have the right to state also has countervailing rights which are not present in the case of adult women, the right to the interest in protecting minors against the consequences of their rash decisions, as if deciding to have a baby and 15 is less rash decision than having an abortion and in promoting parental authority, and the Supreme Court has been very open in in expressing that aim. At any rate, without going into the details, if anybody's really interested, I can get into it in the in the question and answer period. The court without actually upholding any actual statute approved that kind of statute in the abstract. In 1981, I was at the reproductive freedom project at the ACLU at the time, we challenged the Minnesota law in the case of Mike Hodgson against Minnesota, and we tried that case in 1986. And it was the first as applied challenge to a parental notification law. This was a law that that required parental notification of both parents, with no exceptions, no exceptions for divorce separation cases where the father had abandoned the family and the kid had never seen a father. There were if the if you asserted that your father was dead, you had to bring in a death certificate to the abortion clinics. I mean, that's how draconian the law was. Yet no, they hadn't. They had a they did have an exception for incest, but you had to have reported the incidence within 48 hours as it happened. So that basically got rid of Vince's. So we went to trial, as I say 1986 And it was the first quote as applied unquote challenge to this kind of a Law as applied in lawyers jargon means that the law had actually been in effect for five years. And so we what we had to challenge was the way it actually worked, we had to argue that the law really worked in real life to burden impermissibly burden miners reproductive rights. So what we did was we called in Judges who had to hear these cases, they Minnesota law provided for court bypass, if you didn't want to tell your parents, you could go to court and get a court order authorizing you to have the abortion without telling them. So we've we've, this, of course, was designed to really help young girls in a time of crisis, that we work very closely with the clinics, actually, during the five years that the law was in effect. And the clinics really got a system down, they had some of them at bus services, take the girls, clinics to the court and back again, it was all very elaborate scheme, of course, driving up the prices of abortion and creating additional trauma for the women, young women.

Unknown Speaker  26:08
And anyway, we had judges who came in and said, This is crazy, I don't want to be doing this in my courtroom, I don't want some teenager to come in and tell me about her intimate life history. And we had, we had evidence showing that 99.9% of all abortion petitions were granted anyway. So the judges were merely acting as a rubber stamp. And a lot of them just resented being used in this way and correctly saw it as them being tools for the state legislatures ideological campaign. We had dozens of girls testify as to the circumstances under which they decided they couldn't let their parents know. And I show you some of the some of the stories really heartbreaking. I was quite surprised myself to learn that a lot. I was I didn't give those teenagers enough credit. Before this trial, I didn't understand how complex and mature a lot of these teenagers could be in making the assessment as to whether they could safely tell their parents or not. I particularly remember one girl who told me that her mother was an alcoholic and only been off the wagon for on the wagon for three months, and that she was afraid that her mother would start drinking again. And she was she were told, I thought that was a very sort of caring and mature kind of decision to make. And we had a lot of young women like that come in and tell the judge and I think it definitely had an impact on his thinking. We had we had this very conservative Republican, older man judge who started out the child was hating us, he just thought we were completely off the wall and ended up ruling in our favor. He struck down the law. But we were overturned on appeal. And the case was recently argued in the United States Supreme Court, you should all be looking out for that case, it's kind of come down this spring or early summer, and it's going to be a loose it's called Hodgson against Minnesota. And I frankly don't have very great hopes that it's going to I think the court given what it's already done in this area. It's pretty safe to predict that they're not going to be expanding minors rights to have abortions. And it could could prove to be the door, an opening of the door for all these states to start passing these laws. States have been sort of a lot of states have been reluctant to pass laws because the state of the law has been the Supreme Court law has been rather doubtful in this area, and they don't want to pass on constitutional laws. I think once Hodgson comes down, it's going to give permission to a lot of states that want to limit minors access to abortion. There they're going to it's going to open the door for them to pass more of these laws. And even in New York. We have to watch out. It's it's an ever present threat. It's I guarantee you if the Hudson decision is what I think it's going to be we're going to have a battle in the New York State Legislature next year. So you should all be looking at. Well, I don't want to draw I could go on and on about the various aspects of the legal fight to abortion, but I don't I don't want to do that. As you all know, the the change in the court came about in 1988 When Justice Powell resigned. He was a strong pro choice advocate. And he was replaced by Justice Kennedy who is turning out to be just what we feared he would be an anti choice, generally conservative kind of guy. He, of course, put it nicely. And of course his presence on the court made possible the Webster decision from last summer which of course is very troubling, without without explicitly over Turning Roby Wade Webster has now cast the basic ro framework into grave doubt, at least three justices, maybe four would if presented with the proper case, overtly repudiate Roe v. Wade. And so we're, we are reduced now to looking at Justice O'Connor who has not proven herself to be any friend of abortion rights as a swing vote. And we are praying that she decides that she doesn't want to take that lead that final step and overtly repudiate Roe v. Wade. But Justice O'Connor was definitely no bargain. I mean, she, while while shying away from actually repudiating Roe, she has

Unknown Speaker  30:47
consistently voted in favor of restrictions on access to abortion, if you look at all of her opinions, and she has she was the originator of the infamous notion that roe is on a collision course with theirs with itself. She was the first one to say that and the Supreme Court opinion, opining in 1983. That that because the threshold of viability was being pushed back earlier earlier into the pregnancy that eventually it was going to clash with the woman's unrestricted right to choose abortion in the first trimester. That remark has, it was like a stone being flown into a pond and had a tremendous ripple effect and became a sort of an article of faith among anti choice opponents. But in fact, the threshold of viability has not been pushed back meaningfully. And if any earlier into the pregnancy, then it wasn't Roe v. Wade. And Roe v. Wade, it was 28 weeks now maybe the earliest record of of a baby being born and surviving is 24 weeks. And all experts in the field agree that the pushing back further earlier into pregnancy viability is simply not in the cards for a variety of reasons. It's just not in the foreseeable future. Yet that comment and that general perception that viability is inexorably pushed back further and further, and that it will event necessarily clash with the woman's right to get an early abortion remains in great currency. And so we have to constantly repeat that this is not the case. So at any rate, I think I for now that I'm going to end I mean, I could go on we have a case, I have a case now that we just filed a petition for certiorari in the Supreme Court. I'll just tell you about that before I am because it's a New York case. And it will affect you directly. We challenged the Reagan administration's regulations governing family planning clinics, federally funded family planning clinics, which are the single biggest source of reproductive health care for poor women in the country. And title 10 is the federal family planning program started in 1970, which has been a very successful program. And among the services that these title 10 clinics have always provided as counseling and referral for pregnant women. The biggest single reason why women go to these clinics is because they think they're pregnant. And since a lot of poor women don't have regular medical care, the medical profession and Congress has always correctly seen the title 10 clinic as a valuable tool for making having women enter the general medical care system. So counseling and referral for pregnant women has always been a major and important component of title 10 services overall. The Reagan administration in 1988 enacted or promulgated a series of regulations which prohibit title 10 professionals, doctors and counselors from telling pregnant women about abortion even they can't mention it. If the woman asks about it, they can't say anything about it. They the regulations suggest that if a doctor is asked by a woman about abortion that he or she says something like, well, we don't believe abortion is a proper method of family planning. And no more. It required the guy the regulations require that if a woman asks, well, can you refer me to a facility where I can get an abortion where I can learn more about what my options are? The health professional can't even get can't even do that. The most they can do is give them a list of health care providers. Which the regulations make clear have to include prenatal care providers in the in the language of the regulations, providers that promote the welfare of mother and unborn child. On that list, you can include providers that might provide abortion, but you can't and include on the list anybody whose principal business it is to provide abortions. And most importantly, you can't, the health professional can't tell the women which are which on the list. So it's a big guessing game. The Counselor hands the woman a list or 25 providers, it's up to her to figure out which ones may or may not

Unknown Speaker  35:23
perform abortions or even give full information about abortion. This is, of course, not only a tremendous violation on the woman's privacy, right, because as we argue, the essence of the privacy right has to be the ability to make a reasoned and intelligent decision based on full information. But it's also infringement of her first amendment rights to receive information and infringement of the health professionals first amendment rights. As I say, we just filed this case in the Supreme Court, a petition for certiorari. And I, by the way, we lost we lost in the federal district court, and we lost the Court of Appeals level. But we have an injunction in place against the regulations, which is why it's not operating in New York right now. But I'm almost positive that the Supreme Court is going to accept this case, and it's going to be the next test on abortion rights in the Supreme Court. And frankly, I'm not terribly optimistic, I think we've come to a very sad state legally, when we have to start when we've been reduced to arguing about whether a health professional can even tell a woman about abortion, we're not even arguing that access to abortion anymore. We're arguing about whether you can even tell the woman about it. And you know, if we've been reduced to that legally, where it we're in terrible shape. And I will just end with the observation that it's really the foreseeable fruit of a strategy that left protection of the abortion ride by and large to lawyers and the courts. And with that observation, I'm going to turn it over to John.

Unknown Speaker  37:14
will try to spend time with the discussion. I'm going to move the discussion into sort of the current scene overall with regard to some expanded notion of reproductive rights. But I want to start out with some observations about the ways in which the movement to obtain the right to choice and in some respects, the success of the movement and controversy that it generated are feeding into some of the current events that we're seeing. In one respect, the abortion debate enabled people to focus on women and fetuses as being separate and at odds with one another. In the second respect, the success of the movement has, in a sense, created a backlash or a reaction to this notion that women are truly in control of reproduction, and has taken a peculiar form. And that is a sort of, if you have the right to choose whether or not to have a child, if you elect to exercise the right to have that child, we're going to impose a duty of care on you to do it the right way. So we're seeing an awful lot of this good mother, bad mother stuff, in other words, promoting so called good maternal behavior and punishing bad maternal behavior that I see connected very close to the notion that this is now a voluntary act. And a responsible human being only undertakes this voluntary act in certain socially responsible ways. Of course, what might call socially responsible ways, it's not simply left to a woman's judgment as to how she's going to exercise. The Right. They're being prescribed in prescribing some very coercive manner. Again, there's so many things that Suzanne said about the earlier period that resonate now, one of them let me just march, you mentioned about the nativism being an element of the earlier drive to restrict abortion rights. And I think that in that, of course, fed into eugenics movement that was a very significant feature of our history in the 19. Teens and 20s. I think that in same way, the imposition of a duty of care on women during Pregnancy is a part of a recessive movement. And I don't want to go into that in great detail. But I want to sort of suggest that and plant that as a seed for you, as we talk now about restraints on women in terms of their ability to engage in employment, in terms of the things that they put into their bodies when they are pregnant. And as a response of the state, to the desire to control women, I mean, I sometimes get the sense that if they could hermetically seal, you know, tight little environments to you know, saran wrap, plastic wrap, that that might be appealing to some. And it's always and again, this is another point that Suzanne made very well before the domination is felt most acutely by the most vulnerable segments of the female population, the people who are are young, the people who are poor, and women of color. Let me just start by describing another case in the Supreme Court, that is representative of a much bigger problem. There's a action called United Auto Workers versus Johnson Controls, in which the Seventh Circuit upheld the right of an employer to ban all fertile women from employment in a battery manufacturing plant, on the grounds that there might be a risk to this conclusion, seventh circuit's the Federal Court of Appeals sits in Chicago, and they heard this case on paying which means that all 11 of them sat to make this determination. Seven of them are joined in the majority opinion for decentral. Two of the dissenters are judges Posner, and Easterbrook reputed to have been on President Reagan shortlist for the last Supreme Court appointment. So we have an odd mixing of very conservative and liberal judges in the dissent is case, it's a very interesting fact that

Unknown Speaker  42:18
we will of course capitalize on this as much as possible in the Supreme Court. But nonetheless, seven members to this court of appeals were able to reach this conclusion, notwithstanding a federal law that says that the employer cannot discriminate on the basis of sex, including pregnancy, child birth and related medical conditions. And the statute goes on to say it's very important. And women affected by pregnancy, childbirth, and related medical conditions shall be treated the same as others not so affected with similar ability or inability to work. That's Title Seven of the Civil Rights Act. It was supposed to bring it that's full employment rights. Pregnant, not pregnant didn't much matter, potentially pregnant, a seventh circuit has simply read that statute and said, basically, that fetus, but you don't even have to have a fetus. To to be the the victim of this domination, all you have to do is to have an intact uterus. You know, we're working reproductive system. As a result, of course, of this case, and many others, you've been litigating these cases for dozen years, winning them nicely, which is why we've been sort of feeling we've been keeping this problem with a until, until very recently, but I think there are reasons why that change has occurred. But But in any event, the extreme nature of the ruling in this case and extreme nature of the, of the policy extending to offer women has, has compelled many women to submit to surgical sterilization in order to secure the flu. And it is in that respect, of course, that women who are most vulnerable economically, are most susceptible to this type of oppression. There are lots of interesting elements to these cases that I will talk about in you know, in the question and answer period, if people are interested in that I can also refer you to some written materials back. But let me just simply say lest you be under any illusions, that of course, the fetuses are not hyper susceptible. And of course, the toxic substances in these workplaces affect men as well. And the health of adult women whether or not they're pregnant. So what's going on here is the utilization of the fetus is an excuse and a selective concern for fetal health. So that employers are being empowered to develop policies that only protect the fetuses head. Moms and dads can die in tracks, frankly. But fetuses they can. They're entitled according to the Seventh Circuit to offer the ultimate protection. And a theme that has derived from the employment case, that is essential, I think, for understanding what is going on in the drug and alcohol, which is what I'm going to get to, is the manipulation of scientific literature to serve the social goals, which is to support the concept that fetuses require more health protection than their mothers or fathers. And I, we have documented this case by painstaking case by case manner, in the employment context. And now it remains, of course, for us to do exactly the same thing in the drug and alcohol contest. Because one of the goals, I think, is to pull out the purportedly object objective underpinnings of these policies. They're not objective, they're no more objective than policy that they're aligned. Now, I may not need to sort of, you know, you might say, read you the riot act about all the horrible things that are going on out there. But it's good for the circulation system. So I'll do it anyway. We've seen, of course, a vast increase in the number of women who've been subjected to criminal prosecutions as a result of undesirable conduct using illicit drugs. Now, let me make one little comment about the difference between licit and illicit drugs. Three or four years ago, I thought and implements that country here, too, I thought we'd be able to hold the line with this state interference in women's activities, I thought we'd be able to hold the line at illegal drugs, and that with regard to conduct that was otherwise legal,

Unknown Speaker  47:20
that we would be able to resist intrusion of the state into into women's behavior. And that left us employment and alcohol and smoking and other things like that. But it took out cocaine and heroin. And I thought that that might be, you know, a logical mind for regulators to draw. It's turning out not just as we've seen in the employment context, but what is otherwise lawful for everyone to do. It's not something that women who are capable of becoming pregnant to do. So that So similarly, the line between illegal drugs and legal drugs like alcohol has become completely blurred. And that are the clearly some of these cases that I'm going to mention. Jennifer Johnson's case, of course, most people know about. One of the many examples of being charged with delivery of controlled substances to mine are because of the fetal personhood problem. As a legal proposition, what the state of Florida did in that case, and other states have done is to base the indictment on the time after birth, before the umbilical cord was cut. And to assert that in that period, in which there was still a transmission of blood through the umbilical cord, that she was delivering cocaine metabolites to hurt, then newborn child. We have another case in Kansas involving a woman who's a heroin addict who is nursing child who has been charged with possession and delivery, controlled substance a controlled substance to mind. You might say the nursing situation is easy to answer stop nursing, give the kid a bottle. But before we provide these sort of live answers, let me suggest to you that that may not be an optimal response for an infant who was born, in fact, with heroin in its system, and and that, in fact, the nursing and weaning process might be a better medical way to manage that child's medical problems. I don't want to suggest for a moment that the kid doesn't have medical management and of course, that's true. It's also true of its mother, that she needs. Some medical management of her addiction problems. Well, yeah, the Johnson case is also interesting for the sentence that was imposed on her upon her convictions under appeal, but this is really astonishing. She was ordered to enter drug rehabilitation she had tried and had been turned away. She was ordered to get a GED. She's been ordered not to drink any alcoholic substances. She cannot associate with a known drug user known to whom she can enter a bar without the permission of her parole officer, she must do 200 hours of community service. But she must remain employed Now who is this judge can order to hire her? And if she's pregnant, she must enter a court approved prenatal care program. Who's going to pay for that? Too? Interesting. Okay, let me just run down a couple of others. There's been a number of cases involving charges of prenatal child abuse, criminal neglect and child endangerment. Stewart case in California, received a lot of publicity most people know about it. Another less well known case. But one of interest is a case in Wyoming of a woman who went to the police to complain that she had been beaten up by her husband, and she had the bruises to prove it. She was four months pregnant, the cops smelled alcohol on her breast. And they had her arrested for prenatal alcohol. For prenatal child, that charge was subsequently dropped. But, you know, not after she's not until after she has been four days where we've seen a case of possession of illicit drugs, criminal charge based upon a report from the hospital that the newborn child had drugs in its blood system. In other words, a newborn toxicology screening. We've seen a case criminally negligent homicide against a woman who was driving while intoxicated in Massachusetts, and the state allege that she had died as a result of the car accident that she had. She alleged that the kid died as a result of medical malpractice at the county hospital and they said that we've seen selective punishment of women who have drug habits. In other words, remember Brenda Vaughn in Washington DC, who had

Unknown Speaker  52:18
shoplifted some small object. She was a cocaine addict, that fat came out in the sentencing process. Everyone else that day was being led off with probation. But the judge gave a little speech about how terrible it was for her to be an addict. And what a bad thing she was doing to her unborn child, and she sentenced her to the remainder of her pregnancy in jail, so that she couldn't get drugs. So that she couldn't get me a job. What she got protected from was good prenatal care and nutrition. It turns out in the facility in which she was imprisoned, there was no prenatal care, or other medical services available. And that is generally true in most prisons. Okay, we've seen preventive detentions. Now, as bad as these criminal proceedings are, and they're certainly terrifying. They are the tip of the iceberg. And the iceberg is the abuse and neglect stuff that's going on, against women who are drug users or abusers. And that I think, is just a vast phenomenon that nobody really has any sense of the depth. And what I'm talking about here is a number of women who get their kids taken away from them. By state authorities ostensibly to protect the child, the child bank goes into an overburdened and inadequate foster care system. Sometimes these children are placed in as many as 20 separate locations in the course of a stable year. And in short, it is a very poor solution to a very difficult problem. But the main thrust of it is if you show up in a, in a medical care facility to give birth to a kid, and your kid is screened for drugs in the system, this in fact, is a common experience for women of color, because, of course, the screening process is a subjective process. And those of us with private practitioners who deliver our children in, you know, non clinic settings, don't experience this but women who can't pay the full price. So what we're seeing is, for example, Nassau County woman who lost custody because she had smoked a joint during labor, it took her nine months to get a kid and Nevada woman who's lost custody for drinking beer on Super Bowl Sunday, the medical people smelled alcohol on her breath, and they immediately instituted abuse and neglect proceeding, which is virtually ex parte meaning the state goes in alone they get an order of protection in the candy There's and sometimes the mother has no idea what has happened. Even if there's a father on the scene, he is frequently not. In New York City when chavkin did a study a few years ago, more than 50% of these children are ultimately returned to their parents after an investigation anywhere, showing that this disruption is the relationship between the child and its parents was was unnecessary in the first place. In in Butte County, California, we represented a woman who was a heroin addict to early in pregnancy, sought treatment for her addiction. She was turned away from every clinic in her environment and her immediate environment, and ultimately had to drive 160 miles each way to get to treatment, she, she did it for a few months, and then she simply couldn't do it anymore. So she lapsed, excuse me lapse back into addiction. And of course, when her kid was born, the child was taken away from her case is representative of something that's very, very troublesome fact, which is that for all women, for for most women who are addicts are severe. And that is there is a discriminatory denial of treatment services to women generally, and in particular to here's some statistics from that study that when he did a few years ago that I mentioned before, in New York City, 54% of 78, drug treatment programs refuse to treat pregnant women at all, doesn't matter whether you can pay 67% Refuse to treat pregnant women on Medicaid, and 87% have no services available to pregnant women on Medicaid, addicted to crack.

Unknown Speaker  56:57
So there is a fast to not problem with the denial services to women who have drug problems. And at the same instant, the fact of the drug problem is ultimately going to be used as a reason to take child away from women, even if they can successfully and adequately parents to those children. Yeah, you know, one of the things that's happening here is that any amount of drug use has been put in the same category with total, you know, addiction, creating complete chaos. And this is something that is said, according to the medical care professionals is completely bonkers. I mean, it doesn't make any sense at all. Contrary to popular myth, not everyone who takes crack is completely destroyed by it. Although it is a dangerous drug, there are some people who are not disturbed by it. The same is true of cocaine. And indeed, even the same is true heroin certainly is to alcohol. Medical care providers all say that one must examine the circumstances of an individual who is a user of drugs, there are levels of use and abuse. But we have really sort of smushed it all together. And so and that's what's being represented in the reliance on the newborn toxicology. All that a newborn toxicology shows is that there has been some introduction of some degree, could be minute, or some metabolite of one of these substances into the system within the last 24 to 72 hours. It does not reveal addiction at the moment. It does not I mean, here, in fact, are many false positives and some false negatives. And it also does, there are also positive findings based upon secondary exposure. So you know, we still we have all of those problems to deal with. I think I'm going to skip some of the legislative stuff. There's a lot of activity in the in the legislative arena on this stuff. And I'll summarize what I perceived to be going on in the state areas. And that is as follows. Every time a criminal prosecution fails because the state law doesn't cover the conduct. Some state legislature introduces a way to fix that problem. So the next criminal prosecution will work. So in those states where they want to prosecute women for prenatal child abuse, but the state courts have held that this is for children after birth, not fetuses. What they're doing is redefining child abuse to include prenatal acts. There's a big trend to define a child in need of protection, meaning by the Department of Social Services, if there's a positive newborn toxicology, to fix these other problems where the courts have said, positive toxicology doesn't necessarily mean that but you still have to go out and do an investigation to see if the parent is in fact unfit for use. There's a lot of interest. And this is both state and federal mandatory testing, and reporting. And, of course, what this does the mandatory reporting in particular, so it turns medical care providers into agents of the police. And, you know, women on the street know this, they will not go to clinics. If the, if the clinic is obliged to report their drug problem to the cops and to DSS. The result will be that those women will not seek prenatal care, because they know damn well, that they'll lose their kids. If they do and they make it furniture. There's an occasional good proposal as it one in New York to prevent criminalization of prenatal behavior. And in Pennsylvania, there's a proposal floating around to provide treatment to women who have drug related problems, and it's got it, it's a good idea, but it needs to work for reasons that we can discuss more because the sex specific aspect of combat, he used as a sledgehammer against women, it would be better in my view, to broaden the scope of the treatment provision and include a non discrimination clause, or else to frame it as an affirmative action need. In other words, the fact that women have been so consistently denied prenatal care services and drug treatment services justifies the provision of a greater supply of those services for a period of time in the future.

Unknown Speaker  1:01:51
We have seen at the federal level, a fascinating bill from Pete Wilson, which fortunate from California, fortunately, I think, isn't going although he's his absolute panic about this fall, that we conditioned federal funding for drug related programs on states adoption of laws making it a crime, fine to give birth to a child adversely affected by prenatal exposure to any harmful agent, including prescription drugs. So now it's a crime to give birth into presents some interesting constitutional problems. I think that Senator Wilson has been convinced that it presents some interesting constitutional problems. And he's, you know, working on trying to fix that, we hope that he will hold off. In any event. Now, I want to close with some observations. And go back to some of the things that I mentioned before about the science of the hazards to fetuses of the things that women do, and I want to put it in that broad category. There's a very interesting piece in a journal called The Lancet, a Health Medical Journal called The Lancet, quite a well respected journal from December of 1989. It's called bias against the null hypothesis, the reproductive hazards of cocaine. It reports that in a prestigious pediatric journal of all of the studies that were submitted for publication on the reproductive effects of cocaine of the ones that were negative, meaning they showed no reproductive effects of cocaine only 11% one study was accepted. Whereas the other of the positive studies showing Yes, negative effects on new production for cocaine 57% or 28. were accepted for publication. And they say the following things very, very important. Negative studies tended to verify cocaine use more often than to have more cocaine in control cases of the aid rejected negative studies and 20 Rejected 21 Rejected positive studies. Significantly more negative studies verify cocaine use in predominantly reported cocaine use rather than use of other drugs. What that says if you want to translation is with the negative studies were better studies that were conducted with better controls, better methodology. And then they made the following statements. This bias against the null hypothesis may lead to distorted estimation of the transgender, meaning fetal risk of cocaine and thus cause women to terminate their pregnancy and justify along with some other effects. And I and I want to read one other point from this paper Most negative studies were not rejected because of scientific flaws, but rather because of bias against their non adverse message. The subconscious message may be a study did not detect an adverse effect of cocaine, from the common knowledge is that this is a bad drug, then the study must be strong. Now, I'm sure you all saw that article that Elisabeth Rosenthal wrote in the New York Times magazine a few months, month and a half ago, I'll just hold it up. John, remember when a pregnant woman burning a piece of trash, but I mean, that's just my butt. Okay, so that's like some page in the New York Times. What falls into it onto page C, six of the New York Times and is barely noticed, is this little island, defective offspring of alcoholic rats, reporting that. The DNA, you know, study, an animal study of rats who were the father only had been dosed with alcohol and not the mother, they found Developmental Disabilities among the offspring, indicating, as the researcher said that heavy consumption of alcohol may damage the grant sperm, thus passing on genetic defects in the same way that other toxic substances have been shown to cause defects through maternal exposure. Now, you know, here's what we've done some literature searches, trying to see what happens to all of this research on male reproductive, the stuff that comes out of that can be garbage, and it makes the front page of The New York Times, I'm sure you also remember the study that showed that was widely reported as saying that women are more susceptible to alcohol than men. I have that little item here to the role of high blood alcohol levels.

Unknown Speaker  1:07:16
This is a study says I'll just give you a few quotes. Most of the Saturday's 23 women, six of whom are alcoholics and 27 men, six of whom are also alcohol. Most of the subjects entered the study after undergoing medically indicated endoscopic biopsy. The translation of that is that these were all people that were in the hospital because they had surgically they had stomach disease of such severity, that surgical intervention was necessary. So you have a population. Yeah, just endoscopy. These people were in fact, pick candidates for surgical intervention with their stuff. No, I know. Okay. In any event, these were all sick people. And they come out of this saying, without any reservation, without any reservations about it, that this shows that women are more susceptible to the effects of alcohol than men. What I think may well be true that the studies that the alcoholics were driving the results there, but nobody knows for sure, back to the matter is that you do not extrapolate from a population of sick people to a population of wealthy. And that is a very important principle that was completely lost on the way in which the study was reported in the press. And I can't blame the researchers too much for that, because of course, to control the press reporting, but I can blame them for the following statement. These differences should be considered in the definition of safe levels of drinking for men and women driving motor vehicles or engaging in other activities requiring a high degree of attention. So that's, that's just another example of the way in which a teeny little piece of information that supports a socially desired goal is, is used totally out of its appropriate context to to advance that goal. There are, you know, you probably don't. In one of these, we've just sort of started circled all of the studies on the male reproductive effects of alcohol, anybody wants to come up here and look at I mean, there may be 30 or 40 studies documenting in a variety of species and including some things and studies, very, very serious male reproductive effects of alcohol, and I'm not even talking about the general health effects. And this information seems to fall into a black hole. Nobody wants to see the significance of this, at the same moment that they want to throw women in jail because they have alcohol on their breath. So it's made me quite skeptical about all this stuff. What I see in both employment context in the drug and alcohol context is the same tendency to see reproduction affected only by the activities of women, and to see that only women are controllable in their behavior. And the social and legal assumption is that women should be forced to do anything to enhance feelings. Whether or not what they're being forced to do enhances their own interest. And the assumption that women cannot make intelligent risk decisions. And when their decisions are not correct decisions by the standards of some other person or entity, that it is appropriate for either the state or the employer or someone else to step in, and make sure that they do it the right way. So that leads us about 20 minutes to chat. And I'm going to stop there, we could go on.

Unknown Speaker  1:11:39
Your comments? Were were Protective Services, filed a child in need of protection petition against

Unknown Speaker  1:11:56
the mother, the pregnant mother, because they want to take into custody the unborn child at the moment that she's born, and somebody a friend of mine has been appointed to represent the interests of the unborn child. And I was just wondering, what would you do if you were that attorney?

Unknown Speaker  1:12:19
either? Well, unfortunately, despite clear law until recently, that fetuses are not considered persons and therefore don't have cognizable legal rights. The appointment of lawyers as guardians for fetuses and ongoing litigation has been a very common practice. And it all what it does is if you've got a halfway sympathetic judge, is that it? That it slows down the proceedings and what what should happen on the law is that the the, the court should immediately dismiss the guard, there should be no such thing as a guardian for fetuses.

Unknown Speaker  1:13:01
One opportunity might be to go in and say that this fetus is best shot at a different life is to have its mother go home and get social services. And Judge I'd like you to order the following. So social service agencies to make services available to this woman, let's have some drug treatment, let's have some prenatal care. Let's have you know, food stamps at an adequate level and a variety of other treatments, you

Unknown Speaker  1:13:28
are arguing basically, that this fetus is the individual,

Unknown Speaker  1:13:31
no, it's a part of her body. And she needs you know, and and as a part of her body, these are the things that will enhance its interest. I mean,

Unknown Speaker  1:13:39
it's they the pivotal thing is that it's her choice, she's choose if she's choosing to bring this fetus to term and to have a baby, then, Joan's argument is that she ought to be that this, that government's interest, and her interest in all are congruent and ensuring the birth of a healthy baby that doesn't, that is not inconsistent with a theory that does not recognize the fetus as a full person. Because what she's focusing on is that it's the woman's choice to have the baby. And that government, if it wants to intervene shouldn't be intervening on behalf of the fetus, which it's not even doing in good faith, because it's not interested in ensuring that birth of a healthy fetus. I mean, I think, you know, I

Unknown Speaker  1:14:26
don't I don't have any idea what the appointment law is. No, I assume that she's a law guardian or something like that. Family intersection, she could certainly hold an argument she thinks that the mother and the fetus are an inseparable entity, that therefore it is, in the best interest of the mother to be served in this is how they could be served and if they did that, it would also serve economically rather than not increasing that economic yet, we're encouraging for the very people

Unknown Speaker  1:15:17
who are going to have our

Unknown Speaker  1:15:20
children? Well, what so

Unknown Speaker  1:15:32
that's a complicated question, I think part of the part of the problem is that you've got to be real careful, the pro choice side has to be just as careful as the anti choice side on this issue, you can't go around making arguments either for or against, based on who deserves to have children or who can afford to raise children. You know, that's obviously a very dangerous argument to make the right to life or the anti abortion is, on some level, understand that and the way they're voiced by the wrong retard, because they can't, or they can't, they really aren't interested in women of color and poor women having more babies there. It's it's a fundamentally racist movement. And it's the fundamental impetus behind it is to force white women to have babies and one. Because, you know, there's a perception that there's an under supply of white babies, you know, all these white couples want to adopt white babies, and there aren't enough of them. So if you have, you know, abortion restricted, then you'll have a bigger supply. I mean, it's a fundamentally racist movement. And they're not interested in in there being more babies of color, but they can't, they can't say that there's no way to be consistent. They, if their, their fundamental drive is to subordinate women to keep women in their place, and if the price they have to pay for that is that, you know, more black and Hispanic, etc, poor women are going to have babies, and that that's the price that they're willing to play. Because that pay because there their real agenda is to is to is to roll back the progress women have made and the change in their status. And they cannot come out and make overtly racist arguments or eugenic arguments.

Unknown Speaker  1:17:30
Virtually, virtually,

Unknown Speaker  1:17:34
for all the reasons you mentioned. So it's almost as though they have the situation they've created themselves to punish those women that were doing, doing?

Unknown Speaker  1:17:46
Well, I mean, the but that's partly a function of the fact that poor women and women of color are more vulnerable to the kind of state intervention egregious state intervention that Joan

Unknown Speaker  1:17:56
was describing into contact with state authorities.

Unknown Speaker  1:18:00
Right? It's not that it I don't think it's that it's specifically racist as much as these people are. Well, it's racist, but not in its racist, more in that these women are somehow perceived as not full moral agents and not as capable of making

Unknown Speaker  1:18:20
its intelligence actually more racist than that. Because I mean, although the data is being read is being duplicated on this, because the first study was criticized methodologically, our chesnoff has done a study in Pinellas County, Florida, which found that and I forget the exact percentages, but the substantially more women of color were reported to state authorities than white women, even when they were identically situated with regard to their drug use in their pregnancy. And so he's seeing and we've seen in New York City, also the same subjectivity in terms of who gets tested.

Unknown Speaker  1:18:59
That's what you were saying before in terms of what kind of care providers or private physicians

Unknown Speaker  1:19:07
but, you know, a private physician sees I mean, this has always been true and child abuse to the private pediatricians offices opposed to the clinic, the private practitioner, sees a middle class person doing something wrong, and says, sweetie, we can fix you up now you just come along with me, she or he also never enters the aluminum. But that is entire and that's entirely different.

Unknown Speaker  1:19:39
You know, one thing then think I'm really thinking out loud about this. But if one way in which it is explicitly racist, is that I think it's part of a general punitive attitude towards the poor and towards black and Latino people. You know, the advent of Reaganism has really given license to people to blame the poor for their poverty and for their lack, you know, the fix that they're in. And so part of this is also an animus against poor people.

Unknown Speaker  1:20:15
Further discriminatory, not necessarily just racist, but that there's the assumption that before they're uneducated, they're not capable of making use of information. And even if they are unable to educate, making use of information, but this stuff, right, so the character takes back to the placing of women, people of color, should I need to take care of either physician being put on a pedestal but nonetheless cared for and limited or a certain experience?

Unknown Speaker  1:20:54
Because back to the basics that they have a right to do they have a right to become pregnant? Is so many issues, I heard so much of what you were saying. But basically, it goes back to how the society views, gravity, and how women fit into that. And if you make a bad decision, and decided to even take drugs, and somehow became addicted, you lose a lot of other rights that the society wants you to have. And you have to have the kinds of insurance because you're an addict.

Unknown Speaker  1:21:32
Think that question to us. There are ironies in the anti choice position. But I think that they are necessary, because of the sort of umbrella philosophy that derives from the fear of women being in control of sexuality and reproduction, which is sort of at the core of it. And at the core of what is going on, and all these other sort of isolated situations is an attempt to get back control over that sexuality and that reproduction, and to do it either by imposing punishments or basically restraining. And it does, you know, it does yield some incredible. I have so many Richard. Yes, in the back.

Unknown Speaker  1:22:24
I wanted to point out that not only women want to have children, and also, women don't want to have abortions want to have the baby in one of the places to be in trouble legally, every day? Because the bathrooms, right? At very, very strong. They're going into court, in so many states mother from placing a child even as father had no real connection with the mother has not paid for any child as a non Father, Father father's rights as are going after to try to place their production and I was really interested to see that in our audience today that was not in this thing, but in the main room of was a member of our court of appeals on May 1 Two years case, the girl s and crackdown three, that were there, that issue is coming up. And you have to understand that very good laws or mothers want to place their for adoption, and yet the courts government to enforce the law. They're letting fathers veto adoption, even though the law does not. So I think this is something that the women's movement should start focusing on. And I believe that among other things, another thing was the women or children or Josh's wife, often are very religious, and they refuse to have abortions on religious grounds. Unfortunately, we have not had as much sympathy for this. As we have you So these women are out.

Unknown Speaker  1:25:08
This is a complicated issue. And I don't want to get into it into into great detail. But let me just say that as always, there's two sides to the story. There is a problem creating preference, and an absolute right of a woman to dispose of a child that is biologically the product of two individuals. And there is connected to the notion that the biological father should have some interest in the welfare of that child, if the mother, especially when mother has chosen not to raise the child relates also philosophically to another piece of this movement, which is to encourage in some senses require men to take responsibility for the children that they father. So I cannot say that I am, you know, necessarily that mind completely, although it's certainly important to find ways to work these kinds of situations out that are respectful of the women involved, and yet recognize the not only the interest of the Father, and, and the interest of the society in encouraging fathers to the responsible fathers. And as a final matter, the problems having to do with the interpretation of equal protection law, if you create a different standard for women's and for men. So let me just say that very briefly, we've been troubled by this issue over the years this is not the first time it's come up and it's come up in the federal context is proof which taken cert on this case a couple of times and then denied it is in Providence for granted. So it's out there it's definitely problem