Abortion back before SCOTUS this week, with little mention of distance, new focus on shortage of providers

Abortion regulation and litigation is very much back in the news this month.  The New York Times has run a number stories, op-eds and even an editorial board opinion this past week about abortion regulation and the decisions of federal courts regarding the constitutionality of those regulations (so-called TRAP laws--targeted regulation of abortion providers).  Just three of those stories are here, here and here, and what is striking to me about them (other than the sheer volume of bad news regarding diminishing abortion access, especially across the South) is that the rhetoric and concern is shifting farther away from the obstacles of distance and poverty (admittedly my pet concerns, as discussed here, here, here and here) to a concern more widespread among reproductive-age women:  the shrinking number of abortion providers--especially in certain regions--means long wait times for all women seeking abortion services.  (Among other places, we see this in a 2014 decision by Judge Myron Thompson of the federal district court in Alabama and in the recent 7th Circuit opinions regarding a Wisconsin law that requires hospital admitting privileges).  This shortage of providers delays abortions until much later in women's pregnancies, thereby increasing the likelihood of complications and making abortion more expensive.  (In the education sector, we would say the services are "impacted"--hard to get because of high demand.)

These are matters of great concern for all women, but I can't let go of the distance issue just yet, not least because of my outrage at some of the knuckle-headed things that the Fifth Circuit Court of Appeals has said about abortion availability and the failure to meet the undue burden standard.  (Read more here).  The court is, for example, now treating as a firmly entrenched and unassailable constitutional truth the proposition that traveling up to 150 miles, each way, to reach an abortion provider, does not constitute an "undue burden."  That court in particular has been very stubborn about not recognizing the plight of poor and rural women.  With that in mind, let me highlight some of the key points from this week's news and opinion coverage of abortion regulation and the pending oral argument before the U.S. Supreme Court.

Linda Greenhouse's op-ed in today's Sunday NYT is titled "Courts Shouldn't Ignore the Facts About Abortion Rights."  In it, she lists some critical facts that the Supreme Court should take seriously in the Hellerstedt case, in which oral arguments will be heard on Wednesday, March 3.  One of those facts is:

Fact No. 2: If [Texas H.B. 2] goes into effect, the abortion clinics in El Paso will close, leaving no abortion services from San Antonio west to the New Mexico border. This is no problem, Texas maintains, because women who would have gone to El Paso can travel about 12 miles farther, across the New Mexico line, to an abortion clinic in Santa Teresa, N.M. The fact that New Mexico has neither the admitting-privileges nor mini-hospital requirements — the very requirements that Texas maintains are necessary to protect the safety of abortion patients — seems not to concern the state.

This is the only mention of distance in Greenhouse's op-ed, which fails to note that the current state of abortion availability in Texas--following implementation and upholding of the admitting privileges requirement of Texas H.B.2--has nearly 1 million reproductive age women living at least 150 miles from an abortion provider.  The women whose access to abortion has been greatly reduced are in south and west Texas, far from the surviving abortion clinics along the I-35 and I-45 corridors.

Erik Eckholm's recent story in the NYT focuses on the situation in Alabama (previously in the Fifth Circuit with Texas and Louisiana, but now in he 11th Circuit with Florida). It features June Ayers, who owns and directs Reproductive Health Services there.  The burden of distance is definitely a feature of the story, though it comes up only at the end:

Already, many of the 1,000 to 1,200 women obtaining abortions at this clinic each year face hours of driving, Ms. Ayers said, and all must make the trip twice because the state requires a 48-hour waiting period after the first visit, which abortion opponents hope will cause those planning to end their pregnancies to have second thoughts. More than two-thirds of the clinic’s patients live at or below the poverty line, and a large majority already have at least one child, she said.

Eckholm's story also features Ashley Garza, a 29-year-old veteran who drove two hours from southeastern Alabama, with her boyfriend, to get an abortion at the Montgomery Clinic.  Eckholm quotes Garza, who experienced extreme hardship as a child, and who is using her G.I. Bill to pursue a degree in social work:

If I had a child now, we’d be in absolute poverty.  It wouldn’t be fair to the child.

If the Montgomery clinic closed, Ms. Garza would have to drive five hours to Huntsville, the sole clinic to survive Alabama regulations.  That, Ms. Garza commented, is something “a lot of women just couldn’t do.”

So now let's consider how all of these issues look in the current litigation.  The Petitioners' brief in Hellerstedt doesn't talk much about the burden of distance--not as much as I expected given the focus on distance in the courts below.  It does, however, quote some of the most powerful language from Judge Lee Yeakel's decision in the federal district court, including this:

"increased travel distances combine with practical concerns unique to every woman." to create barriers to abortion access.  ... These practical concerns include "lack of availability of child care, unreliability of transportation, unavailability of appointments at abortion facilities, unavailability of time off from work, immigration status and inability to pass border checkpoints, poverty level, the time and expense involved in traveling long distances, and other inarticulable psychological obstacles." 

That is followed by the sole mention of rural women, again quoting from the district court:

"The district court also noted that "the act's two requirements erect a particularly high barrier for poor, rural, or disadvantaged women throughout Texas, regardless of the absolute distance they may have to travel to obtain an abortion."

It may prove a good litigation strategy to focus on that which burdens all women rather than "only" those living far from the major metropolitan areas that still have abortion access.  One reason that this shift away from the burden of distance and poverty bothers me, however, is that courts are not being compelled to see and grapple with the lived realities of more vulnerable segments of the population.  And on that issue I'm with Linda Greenhouse:  I'd really like to see Supreme Court Justices actually facing--and not evading--some cold hard facts.  Besides, if urban women are having difficulty getting timely appointments for abortion, just think how much more challenging the situation remains for poor and rural women who must overcome so many more obstacles in order to get to whatever appointment they are able to get.    

One of the questions this turn in the litigation raises for me is this:  Will the reproductive rights community do a better job of advocating against laws that curb the rights of all women--women "like them"--than they have done advocating for the well-being of the poor, rural women whose circumstances they probably cannot relate to?  More importantly, will judges be better able to empathize with the "generic" woman facing a long wait at an abortion clinic than they can with the poor, rural outliers/others?

Cross-posted to Legal Ruralism.

A woman's appearance is not an excuse to sexually harass or slut-shame her

The Urban Dictionary defines slut-shaming as a "phenomenon in which people degrade or mock a woman because she enjoys having sex, has a lot of sex, or may even just be rumored to participate in sexual activity."

The reality is that many of us, regardless of our gender, have at one time or another slut-shamed a woman. The most common scenario is labeling women who are exposing their skin or wearing tight clothing as sexually promiscuous. These character judgments about women based on their appearance are harmful especially for young girls who grow up internalizing these messages. What is even worse is that the perception of women as sluts is used to blame victims of sexual abuse, commonly known as victim blaming.

A good example is when a few days ago I came across an article about celebrity and model Amber Rose who appeared as a guest on a new show called “Its Not You, Its Men” hosted by Tyrese Gibson and Rev. Run. I was shocked to find out that both hosts slut-shamed Amber Rose during a segment.  Basically the hosts told Rose that the way she dressed encouraged people to assault her.

Rose admitted to the hosts that she is frequently sexually assaulted. She explained to them that fans, both men and women, frequently ask her if they can touch her breasts or behind. In return, Rev. Run said, “They are asking you to do that because of [the] representation of what you are wearing and stuff and what it seems like in their mind what you’re representing.” He then told Rose, “Dress how you wanna be addressed.”

Fortunately, Rose quickly criticized their notions that the manner in which a woman dresses is an invitation to be sexually harassed by explaining that a woman’s provocative appearance is not the equivalent of consent to touch her.

Nevertheless, what Run and Gibson said to Rose is a common occurrence for many women, especially in the school setting. In fact, slut shaming starts early. According to a 2011 survey by the American Association of University Women, slut-shaming is one of the most common forms of harassment experienced by middle and high school students. Among the third of all students who admitted to experiencing “someone mak[ing] unwelcome sexual comments, jokes, or gestures to or about” them in person, 46 percent are girls. 

School dress codes are notorious for policing girls’ appearance. An L.A. Times article reports that school administrators all over the country slut-shame girls through the use of dress codes. For instance, a girl who recently won her lawsuit against a school district was suspended for wearing a t-shirt that read “Nobody Knows I’m A Lesbian” because it was deemed a violation of the high school’s dress code.  The assistant principal directly told the student that her t-shirt was “promoting sex” and an “open invitation to sex.”

School administrators’ notions about young women’s clothing are wrong, and their approach to policing women’s appearance is misguided.  Suspending young women from schools promotes the shaming of young women for their appearance and reinforces the idea that women are to blame for sexual assault. I believe that society in general needs to change its beliefs about women and their appearance. But change cannot come without first creating awareness of these issues. 

To me, the SlutWalk campaigns that began in 2011 in Toronto, Canada have been great at the transnational level for challenging rape culture by creating awareness that it’s not acceptable to victim-blame women.  The SlutWalk rallies began after a Toronto police officer suggested to a group of young people that "women should avoid dressing like sluts" as a prevention to sexual assault.  Since then the SlutWalk has become a transnational movement of protest marches that call for the end of rape culture. I primarily have a positive view of the SlutWalk campaigns because of the movement’s ability to attract the attention of the mainstream media on an issue women have worked for years to address.  

I acknowledge the criticisms surrounding the SlutWalk movement. These are the failure to include women of color and its perpetuation of the male gaze. However, I agree with feminist author Kaitlynn Mendes that the SlutWalk movement has been instrumental in bringing a key feminist issue back onto the public’s consciousness and the ensuing feminist discussions are more widely available for the general public. I remain hopeful that the campaign evolves into a stronger movement to promote societal change to end the shaming of and violence against all women. 

Public defense is feminist work

Recently, headlines like “About That Time Hillary Clinton Smeared A Tween Rape Victim,” and “Hillary Clinton and her defense of an accused child rapist: Is it a big deal and will the media cover it?” have flared up across my Facebook newsfeed. While the headlines are dated, and I assume only being referenced due to the current election, the articles sparked a nerve.

The gist of the story is that when she was a young attorney, a judge asked Clinton to defend a man accused of raping of a 12-year-old girl. The articles alleged that Clinton “smeared” and disparaged the victim. Certainly, the criminal justice system frequently does not provide justice to victims of rape and sexual assault. To say that the system is imperfect is a gross understatement. That said, Clinton was doing her job. A job that she was obligated to take according to the Model Rules of Professional Conduct, and a job that guarantees that the constitutional protections of our nation stay in tact. Perhaps the reason these headlines hit such a deep nerve, is because as a future public defender, I will almost certainly have to defend people accused of rape.

Most of the time when I tell people that I am going to be a public defender they are supportive and say something overly generous along the lines of, “we need more people like you,” or “I could never do that type of work.” But every once in awhile, usually in a group of women, someone will say, “how could you defend a rapist?” or bluntly, “criminal defense work is un-feminist.” The first time I heard someone respond in the latter manner, I was taken aback and not sure how to respond. Surely public defense is nuanced and challenging, and part of the job is defending people guilty of horrendous crimes, but is it inherently un-feminist? I don’t think so.

For one, stating that public defense is un-feminist ignores the substantial amount of women in the criminal justice system. The number of women incarcerated in federal and state prisons has increased at almost double the rate of men in the past 30 years. In 1980, there were 13,258 women in federal and state prisons and in 2013 that number jumped to 104,134. According to The Sentencing Project, “these women often have significant histories of physical and sexual abuse, high rates of HIV infection, and substance abuse.”

The reasons for the rapid increase of female prisoners are varied and complex, but can be tied to four major factors – according to Erika Kates, a social scientist at Wellesley College – the war on crime, women’s susceptibility to drugs, relapsing to jail, and bail. During the war on crime, tough sentencing laws with mandatory minimums were passed for drug offenses; these laws contributed to an “800 percent increase in black women’s incarceration.”

Another factor that contributes to the rise in incarcerated women is women’s inability to pay for bail. Thus, women “languish” in higher security detention centers, farther away from home, because many states do not have the capacity to house women in their county jails. The juxtaposition of harsher sentencing laws for non-violent offenses, and the fact that women are poorer than men in every state, assures that many of my future clients will be women. Supporting the most politically disadvantaged women in our society, at the most vulnerable times in their lives, seems obviously feminist to me.

I understand that part of my career future career will be representing men who hurt women. While representing an alleged rapist is not something that I am excited about, doing so will not make me anti-feminist. In her article “How Could You Represent Those People,” Abbe Smith states that, “these cases are not my favorite part of the job, but I have found a way to do it that is consonant with my feminism.” Smith continues, “Feminists have a long history of working on behalf of the disadvantaged and marginalized. We take a critical view of law and recognize that it can perpetuate inequality.” Like Smith, my feminist beliefs are rooted in intersectionality and I understand that the patriarchy benefits from disenfranchising poor people and men of color, just as much as it benefits from disenfranchising women.

Our adversarial system of criminal justice pits parties against each other and leaves very little room for multifaceted accounts, legitimate justice, and genuine healing. The belief that some people are inherently good and other people are inherently evil is overly simplistic and fails to consider the various factors that intersect to determine people’s opportunities and outcomes. Frequently, my clients have suffered from a combination of adverse life events including physical and emotional abuse, addiction, mental illness, poverty, and institutionalized racism.

Indigent criminal defense is about more than guilt or innocence; it is about providing support and justice for the most disenfranchised members of our society. It is about the feminist notion of treating every person with humanity, regardless of their offense.

Bathroom Panic and the Myth of Bathroom Predators

Public bathrooms are the worst. I’m positive that this statement would receive a nearly universal confirmation. Yet as living beings, almost all of us will regularly encounter public restrooms. It’s the natural consequence of eating and drinking. Luckily, I have never felt unsafe to enter a public restroom. This isn’t true for many gender non-conforming and transgender women.

Thirteen years ago the Sylvia Rivera Law Project produced a documentary entitled “Toilet Training” that chronicled the discrimination, harassment, and violence gender-nonconforming people face when using the bathroom in public. The documentary depicted stories of transwomen who had been beaten and killed simply trying to relieve themselves. Recently, a Williams Institute Study found that over 54% of transgender individuals experience dehydration, urinary tract infections, and kidney infections due to avoiding bathrooms in public. I believe this is a human rights issue that must be addressed. Despite the growing body of LGBT advocacy, little has changed on the restroom front.

In an effort to protect transgender residents, a select number of states have enacted anti-discrimination laws that allow transgender individuals to use the bathroom that most closely matches their gender identity. In Maryland, for instance, the Fairness for All Marylanders Act updated the state’s existing Civil Rights Law to include protections on the basis of gender identity. This law prohibited discrimination on the basis of gender identity in places of public accommodation. This law, like other similar anti-discrimination laws requires an individual to use the bathroom consistent with their “core identity.”

This past Tuesday, however, the South Dakota Senate voted to approve a bill that will require public school students to use the bathroom based on their “chromosomes and anatomy” at birth. This week, the city of Charlotte, North Carolina is set to vote on an ordinance that would allow transgender people to use the bathroom that reflects their gender identify. While the Charlotte ordinance is inclusive of transgender individuals, it has ignited a surprisingly (or perhaps unsurprisingly) hateful controversy. A website and Facebook group titled “Don’t Do it Charlotte” urges the city to reject the ordinance. The advertising campaign demands “No Men In Women’s Bathrooms.”

Let’s be clear. Transwomen are not men. Transgirls are not boys. This type of language is dangerous and needs to stop. It invalidates the existences of transgender individuals.

Beyond deceitful language, the ad campaign specifically suggests that women and girls need protection while using the bathroom. This type of fear mongering reminds me of the equally stunning advertisements during the Prop 8 campaign. The “let’s protect our kids” mantra worked so well that the liberal state of California voted to deny same sex couples the right to marry.

So are women and girls in danger? If so, then these men in power should undoubtedly swoop in and find some sort of legislative solution to end all predatory behavior. However, there is little evidence (I would argue—no evidence) that suggests that allowing people to choose the restroom that conforms to their gender identity. This lack of factual basis did not stop Fox News from airing a fake story about a transgender student harassing girls in the bathroom.

Beyond the fact that these transphobic smear campaigns are based on absolutely nothing factual, Equality Maryland pointed out that “If someone goes into a restroom to ogle or expose themselves or harass or assault someone, what they are doing is illegal and they will be prosecuted – regardless of how they are dressed or what their sex is or what their gender identity is.”

This post does not intend to undercut the very real dangers that many women and girls face. Allowing transwomen the basic human dignity to relieve themselves in a safe space is not correlated, connected to, or the cause of any predatory behavior. Further, criminal statutes remain intact and aim to protect women and girls from predatory behavior.

Transwomen are women. Transgirls are girls. They need protection too, and that starts with equal access to the bathroom.

This millennial feminist is voting for Hillary

There has been a lot of discussion lately, both nationally and on this blog, about women and feminists voting in the Democratic presidential primary elections. Much ado has been made about the generational split revealed in early primary voting, with younger women overwhelmingly supporting Bernie (69% of women under 45 and 82% of women under 30 voted for Bernie in New Hampshire). Exit polls from Nevada, where Hillary won overall, reveal similar trends.

What does this mean, and why does it matter? It matters to me because at the same time I’m being told that it’s sexist to vote for Hillary because she’s a woman, my presumed voting preference as a 28-year-old is being defined for me because I’m a woman. I’m supposed to ignore Hillary’s gender when I vote, but the media focuses their coverage on the electorate’s gender. What gives? Either way, women are being told what to do and how to think.

A big part of why I’m voting for Hillary is because she’s a woman. Because she’s also struggling to break through the glass ceilings we all face as women. Because she continues to slog through the implicit bias and discrimination women see on a daily basis. Because I want the person determining the fate of legal precedent for the next three decades through nomination(s) to the Supreme Court to understand the importance of ending the Hyde Amendment. Because it’s ridiculous that there have been forty-four Presidents of the United States and never has someone of the gender that makes up more than half of the U.S. population sat in the Oval Office. I don’t think it’s sexist to vote for Hillary because she best represents the same lived experience as me or because I believe she has the best chance of representing my interests in the White House. (Sure, I also have concerns about Bernie: his ability to win a general election, the lack of nuance, the fuzzy math.)

I find myself empathizing with some of the recent commentary that hypothesizes that the generational Bernie/Hillary split is due to younger women not yet having experienced the sexism in the workplace that older women have. I certainly see that parallel in my own voting patterns, from a 2008 college-age Obama supporter to a 2016 world-wearier Hillary supporter. But that’s simply my own experience. I don’t think it’s right to extrapolate so broadly over a generation of women. Nor do I agree that all women who vote for Bernie have a “special place in hell” waiting for them. We can’t all be defined in one broad brushstroke. What I think we all can agree on as female voters is that who we vote for is a personal choice, made by each of us based on our lived experience, our beliefs about the candidate, and our priorities for the future. Don’t assume that we all think and feel the same way solely due to our age and gender. Don’t tell me how to vote because I’m a woman, but then tell me I can’t vote for Hillary because she’s a woman.

Recognizing stay-at-home dads to challenge traditional gender roles

As a mother I feel disappointed when I read articles that report statistical findings suggesting that working moms are happier than stay-at-home moms or vice versa.  The first time I came across such a report was in 2012 as I was taking the light rail to work.  At the time, my child was two years old.  As a working mom, I was curious to know who was the happier group, but I couldn’t help wonder why I had not read articles about the happiness of working dads versus stay-at-home dads.  To me the lack of articles about men on the same issue reinforces the traditional notions of women as caregivers without recognizing that in many families men are also primary caregivers. 

Today, at-home dads may represent a small percentage of at-home caretakers, but statistics show more dads are staying at-home to care for their children than ever before.  The Pew Research Center’s 2014 report estimates that more than 16 percent of fathers are at-home caretakers.  Nevertheless, child rearing is still sociologically considered a woman’s role.  This prevailing attitude not only hurts women by reinforcing gender stereotypes, it is also a factor that prevents shifting to a more egalitarian view that it is acceptable for fathers to be caregivers.   

Recently I read Beth Burkstrand-Reid’s, “Dirty Harry Meets Dirty Diapers: Masculinities, At-Home Fathers, and Making the Law Work for Families.” I found her article compelling because she argues that at-home fathers may be subtly reinforcing gendered family notions of breadwinner and caregiver roles instead of subverting these stereotypes.  She based her findings on about 430 news media articles reporting on at-home fathers.  However, I disagree with Burkstrand-Reid’s conclusion that balancing work with family life is not an issue that resonates with men.   

Burkstrand-Reid’s argument is mistaken because it does not account for a recent societal shift in which many fathers are purposely working less and spending more time with their children.  For instance, the Pew Research Center reports that from 1965 to 2011, fathers reduced the number of hours they devoted to paid work from 42 to about 37 and increased the number of hours they devoted to child-care each week from 2.5 to 7.  Furthermore, a survey of 1,023 professionals by Citi and Linkedin reveals that balancing work life with family life is the number one career concern for both men and women.  Thus, to state that the issue of work-family life does not resonate with men is at odds with empirical evidence of today’s trends. 

I  believe Burkstrand-Reid’s argument is further misguided because it conflicts with my own experience where the men in my life have been just as concerned with the issue of balancing work and family life.  Five years ago, my own partner willingly took time off work to care for our son when he was born.  This permitted me to recover and return to part-time work.  My partner’s decision to take an extended work leave was not financially motivated because it was unpaid and actually prevented him from being promoted.  Growing up, my father would take time off when the occasion called for it.  To this day, my godfather takes care of his two little girls while my godmother works as a full-time teacher and spends evenings in a masters program. 

            

Perhaps I am biased from my own personal experience, but the men in my life have demonstrated that they are as concerned as women are about balancing work and family life.  The notion that men are “breadwinners” is quickly becoming outdated as more women are challenging the notion by becoming the breadwinners of their own households.  

Women should have the ability to take on any role they want instead of being restricted by society’s construction of appropriate roles for men and women, especially for fathers and mothers.  Therefore, I believe that for men to take on women’s traditional roles of caregivers, employers should be more accepting and encouraging of male employees who take family leave.  It is not enough that men and women alone take the initiative to defy traditional gender roles.  After all, employers can be highly influential in shaping employees’ beliefs about what is acceptable in the workplace.