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Six Supreme Court Cases to Watch This Term

12:08 pm in Uncategorized by RH Reality Check

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

The US Supreme Court

These Supreme Court cases could affect women’s rights in the near future.

The United States Supreme Court term begins in October, and while the entire docket has not yet been set, already it’s shaping up to be a historic term, with decisions on abortion protests, legislative prayer, and affirmative action, just to name a few. Here are the key cases we’re keeping an eye on as the term starts up.

1. Cline v. Oklahoma Coalition for Reproductive Justice

The Supreme Court looks poised to re-enter the abortion debate, and it could do so as early as this year if it takes up Cline, the first of the recent wave of state-level restrictions to reach the high court.

Cline involves a challenge to an Oklahoma statute that requires abortion-inducing drugs, including RU-486, to be administered strictly according to the specific Food and Drug Administration labeling despite the fact that new research and best practices make that labeling out of date. Such “off-label” use of drugs is both legal and widespread in the United States as science, standards of care, and clinical practice often supercede the original FDA label on a given drug. In the case of cancer drugs, for example, the American Cancer Society notes that “New uses for [many] drugs may have been found and there’s often medical evidence from research studies to support the new use [even though] the makers of the drugs have not put them through the formal, lengthy, and often costly process required by the FDA to officially approve the drug for new uses.” Off-label use of RU-486 is based on the most recent scientific findings that suggest lower dosages of the drug and higher rates of effectiveness when administered in conjunction with a follow-up drug (Misoprostol). According to trial court findings, the alternative protocols are safer for women and more effective. But, according to the state and defenders of the law, there is great uncertainty about these off-label uses and their safety.

When the issue reached the supreme court of Oklahoma, the court held in a very brief opinion that the Oklahoma statute was facially invalid under Planned Parenthood v. Casey. In Casey, a plurality of justices held that a state may legitimately regulate abortions from the moment of gestation as long as that regulation does not impose an undue burden on a woman’s right to choose an abortion. Later, in Gonzales v. Carhart, a majority of the Supreme Court, led by Justice Anthony Kennedy, interpreted Casey to allow state restrictions on specific abortion procedures when the government “reasonably concludes” that there is medical uncertainty about the safety of the procedure and an alternative procedure is available.

Cline, then, could present an important test on the limits of Casey and whether, under Gonzales, the Court will permit states to ban medical abortions. But it’s not entirely clear the Court will actually take up Cline. At the lower court proceedings, the challengers argued that the Oklahoma statute bars the use of RU-486’s follow-up drug (Misoprostol) as well as the use of Methotrexate to terminate an ectopic pregnancy. If so, the statute then bars both any drug-induced abortion and eliminates the preferred method for ending an ectopic pregnancy. Attorneys defending the restriction deny the law has those effects, and do not argue that if it did such restrictions would be constitutional. With this open question of state law—whether the statute prohibits the preferred treatment for ectopic pregnancies—the Supreme Court told the Oklahoma Supreme Court those disputed questions of state law.

So a lot depends on how the Oklahoma Supreme Court proceeds. Should the Oklahoma Supreme Court hold that the Oklahoma statute is unconstitutional because it prohibits the use of Misoprostol and Methotrexate, this case could be over without the Supreme Court weighing in. But if the Oklahoma Supreme Court invalidates the law insofar as it prohibits alternative methods for administering RU-486, the Supreme Court will almost certainly take a look.

2. Town of Greece v. Galloway

The Roberts Court is set to weigh in on the issue of when, and how, government prayer practices can exist without violating the Establishment Clause’s ban on the intermingling of church and state. In Marsh v. Chambers, the Supreme Court upheld Nebraska’s practice of opening each legislative session with a prayer, based largely on an unbroken tradition of that practice dating back to the framing of the Constitution. In Marsh, the Court adopted two apparent limits to a legislative prayer practice: The government may not select prayer-givers based on a discriminatory motive, and prayer opportunities may not be exploited to proselytize in favor of one religion or disparage another.

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Sex Education in South Carolina Still Failing 25 Years After Passage of Comprehensive Law

11:13 am in Uncategorized by RH Reality Check

Greetings from South Carolina

Greetings from South Carolina

Written by Martha Kempner for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

In 1988, the South Carolina legislature passed the Comprehensive Health Education Act (CHEA) which was designed to standardize health education instruction in the state in order to “reduce substantially the amount of money the state spends to care for teenage mothers and their often sickly babies.” We can argue about the language and motives behind the legislation but the process of standardizing how young people learn about health is an important one that many states still have not undertaken.

South Carolina was certainly ahead of the curve passing such a bill so long ago (I was still in high school in 1988), but 25 years later there are questions as to how effective the law has been since sexual health statistics show South Carolina struggling with teen birth rates and sexually transmitted disease (STD) rates higher than the national average.

A new report assesses the current status of health education with a focus on the reproductive health component. A Sterling Opportunity: 25 Years After the Comprehensive Health Education Act was conducted by Health Advocates LLC and the New Morning Foundation using a Department of Education survey of school districts in the state. The authors wanted to determine whether districts were following the parameters of the CHEA, what they were teaching, how well those teaching the subject were trained, and what materials they were using. The authors found a number of places where schools were failing to follow the law and providing inadequate — and in some cases inaccurate and outdated — information to students.

While the findings are not as outrageous as some found in other states, they shed important light on the situation in South Carolina which is struggling with a few issues: a law that has some good components and some highly restrictive ones, misunderstandings about what the law does and doesn’t require, and a complete lack of accountability.

The Law

The CHEA is very prescriptive in what is required as well as what is prohibited in health education including reproductive health education and teen pregnancy prevention. For example, it requires that each year students in grades nine through 12 receive comprehensive health education that includes at least 750 minutes of reproductive health education and pregnancy prevention education. Sixth through eighth graders are also supposed to receive reproductive health education which must include STD information. It may also include information on contraception, though this is up to the local school board.

The law does restrict sexuality education to a certain extent. It requires an emphasis on abstinence, says that contraception information must be provided in the context of future planning, and directs schools to present adoption as a “positive alternative.” In addition, schools cannot provide any information about abortions, distribute contraception of any kinds, or show films that portray actual or simulated sexual activity. Finally (and I’d argue most disturbingly), the law states that “health education classes may not include discussions of alternate sexual lifestyles from heterosexual relationships” except in the context of STDs.

Despite these conservative aspects, the sexuality education component of the law has been controversial since the law was passed. In fact, there have been a number of attempts to change that part of the law. The report notes one amendment to the law proposed in 1998 that sought to change the purpose of the CHEA from “promote responsible sexual behavior,” to “the goal of this act is to reduce the incidence of sexual activity among school aged youth.” In 2004, there was an attempt to reduce the amount of sex education instruction from a minimum of 750 minutes per year to a maximum of 200 minutes. These challenges have failed.

The law also has administrative aspects such as teacher training requirements; an “opt-out” provision that allows parents to remove their children from the reproductive health portion of the course; and a requirement that districts assemble an advisory board of parents, teachers, and clergy to review materials.

Even though the law remains in place, according to the report many school districts are not following it. In fact, the study found that 75 percent of the districts surveyed were out of compliance with some piece of the reproductive health portion of the CHEA.

The Findings

Schools were out of compliance on issues related to time spent on reproductive health, teacher training, and administration. For example:

  • 66 percent of districts that responded did not teach STD and HIV prevention in all three middle school grades.
  • 23 percent of districts that responded did not have the appropriate community members on their advisory boards.
  • 12 percent of districts that responded did not provide the required teacher training.

Interestingly, 96 percent of districts that responded reported teaching all 750 required minutes of reproductive health in high school.
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Young People and Comprehensive Sex Education: Moving Beyond Scare Tactics and Fear Mongering in 2012

10:06 am in Uncategorized by RH Reality Check

(photo: recrudescence/flickr)

(photo: recrudescence/flickr)

Written by Andrew Jenkins for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Knowledge is power.

I mean that in the most cliché way possible. Without knowledge, agency and self-determination become meaningless fragments of our imagination. Something that we desperately wish for but can’t quite grab onto.

This is especially true when it comes to young people.

Growing up in the United States is like playing a foucauldian game of discipline and punish. Disciplined by a morally bankrupt narrative about sex and sexuality and then punished for daring to question it.

I guess we shouldn’t be all that surprised. When young people are subjugated and disenfranchised, systems of power thrive. When we’re alienated from our bodies and fearful of our sexuality, we lack the resources and agency necessary to become responsible agents of social and political change. Suffice it to say; those in power have a vested interest in dislocating the nation’s youth from real sex education.

For young people, sexuality is undoubtedly the most politicized site of social control. Parents fear it. Politicians debate over it. Scientists study it. Intellectuals theorize over it. Everyone is talking about it; yet, no one is talking to young people.

It doesn’t take a semester of reading Michel Foucault to understand that sexuality is an important site of power. Young people know very intimately the role that sex and sexuality play in our daily lives and we know the detrimental consequences that a sex-phobic culture has on our futures. We’re experiencing it first-hand. Read the rest of this entry →

Spewing Misinformation and Ideology, A New York Times Op-Ed Spreads Unfounded Fears About Sex Ed

11:10 am in Uncategorized by RH Reality Check

Fear! Fear! Fear!(Photo: Wilderdom on flickr)

Fear! Fear! Fear!(Photo: Wilderdom on flickr)

Written by Elizabeth Schroeder for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

See our earlier reporting on New York City’s sex ed program here.

An op-ed in today’s New York Times, “Does Sex Ed Undermine Parental Rights?” by Robert George and Melissa Moschella, is not as much about sexuality education as it is an overt example of how deeply the socially-conservative agenda is pervading all aspects of our culture.

This is no accident; it is an intentional, widespread campaign against not only sexual and reproductive health, sexuality education, women’s rights, and the inclusion of LGBTQ youth in anti-bullying measures, but also against the rights of young people to dare to want to access information that will make them educated consumers of the world in which they live.

This campaign started gaining momentum with the Tea Party (you know, the folks who applauded “Let’s hear it for letting someone who doesn’t have health insurance die!”), formerly considered to be more on the fringe, but who are now, inexplicably and horrifyingly, gaining legitimacy.

I’d like to highlight several core elements of social conservative propaganda—some of which appear throughout the piece—that continue to be used to manipulate people into thinking there is a concerted effort being made by educators to contribute, as the authors claim, to “the sexualization of children in our society at younger ages:” Read the rest of this entry →

Regis Philbin, Nicki Minaj and Objectification as a Form of Gender-Based Violence

8:35 am in Uncategorized by RH Reality Check

Written by jaz for – News, commentary and community for reproductive health and justice.

Over the last week, I became moderately obsessed with blog posts and internet chatter about Regis Philbin and Nicki Minaj. If you don’t know, Nicki Minaj is the hottest commercial female emcee right now and she is both loved and hated because of her lyrical content, allusions to being a “Black Barbie,” and sexually explicit lyrics which at times reference her on-again/off-again bisexuality. She is often looked at as a Hip-Hop version of Lady Gaga because for each, their spectacle is a large part of their performance persona. A couple of weeks ago, Nicki performed on the Regis and Kelly show during Thanksgiving and things got pretty creepy during the interview when Regis grabbed Nicki’s butt and waist. Yes, on national live television. You can see the clip here.

I’ve read a lot of great posts about this including one by Super Hussy that reasonably suggested that Regis and Kelly treated Nicki Minaj like a modern day Saartije Baartman. I also commend the Women’s Media Center for taking a stand and writing a letter to ABC denouncing Regis’s unacceptable on-air behavior. What many posts did not mention is Kelly’s inappropriate gushing over the size of Nicki’s waist. Kelly says that women are dying to know what size waist she has. Really? While it seems harmless and probably well-intentioned, it’s still an uncomfortable objectification of Nicki Minaj’s body, in particular her butt (note how she is amazed at her waist to hip ratio). At the end of the awkward conversation, Nicki says “Oh it’s not that big,” implying she too understands that Kelly is actually fascinated by the size of her butt, not her waist. She is visibly uncomfortable but smiles through it. There is a clear gender dynamic at play but also a racial one. Would Regis be feeling up on Lady Gaga like that? Would Kelly be so amazed at Gaga’s tiny waist and frame? I was waiting for them to gush at any moment, “You’re so exotic!” Read more

Punishing Women: A Woman’s Job?

7:21 am in Uncategorized by RH Reality Check

Written by Amanda Marcotte for – News, commentary and community for reproductive health and justice.

If you were looking for a poll to capture exactly how much of America is judgmental and mean-spirited—especially towards women—you couldn’t top the recent Rasmussen poll that found that 48 percent of Americans think abortion is “too easy” to get.  I’m not entirely sure why Rasmussen took the poll.  Lack of generosity towards others and a dark eye specifically towards those you resenting people perceived as young, sensual, and not weighted down by the responsibilities of adulthood, which is how the public (incorrectly) imagines your average abortion patient to be.  (In reality, the majority are mothers trying to make ends meet.)

You may as well have polled people asking, “Do believe kids these days listen to their music too loud?” or “Do you believe that you’re a sexually responsible person but there are some real sluts out there?”  Even though the reality is that women from all walks of life get abortions, the perception in the general public is that abortion is an indicator of sluttiness.  And sluts, last I checked, aren’t well regarded in our culture. When people imagine the obstacles between a woman and an abortion, they’re making an idealized judgment—some kind of major hassle that will teach the slut to keep her legs shut next time.  But mean-spiritedness, stereotypes, and generalized ideas about what counts as “promiscuous” aren’t something on which to base public policy.

I don’t know whether to be sadder that the public still has these stereotypes about who gets abortions, or that the public still thinks sexually free women are evil and deserve to be punished.

The anti-choice media was triumphant over this poll, mostly because it showed that women are more likely to want more obstacles for women seeking abortions.  According to anti-choicers, this somehow means this isn’t a women’s rights issue, even though the people who hold the right to abortion are women, aka the sex that gets pregnant by accident.  But there’s no reason to think reproductive freedom isn’t an important women’s issue just because women are more likely to judge other women about their sexual choices.  In a patriarchy, women are usually tasked with the job of monitoring female sexuality and enforcing norms of modesty.

In cultures that practice female genital mutilation, for instance, it’s often the women who do all the work of setting up the cutting, guiding the girl through it, and often doing the cutting themselves.  That hardly means female genital mutilation is automatically feminist.  It just requires that we have a more nuanced view of how oppression works.  Enforcing modesty norms on women is dreary scut work, because by definition it’s anti-fun and anti-pleasure.  In a patriarchy, women take on the scut work.  We do housework so men’s time is freed up to do more "soul-affirming" work.  We’re more likely to do assistant work so men can do the work that gets them all the credit.  And when it comes to sex, women are tasked with the job of pushing prudery.  Men have the privilege of not having to worry about these sorts of things to nearly the same degree.

It’s not just on abortion. In all sorts of avenues, women do the hard work of punishing and controlling female sexuality. David J. Ley is far too blasé in his assumption that women monitor other women just because, and that men have nothing to do with this.  Most women who take punishing female sexuality very seriously believe this is ultimately about men, which is to say they view it as their responsibility to create a chaste population of women for men to marry.  If women weren’t so dependent on men for status, we would be as free with each other as men are about our sexual choices.

Women are also roped into judging each other’s sexual behavior because we’re led to believe it’s our only realistic source of control.  Being lower status than men, and especially when you’re dependent on a man, means you often have a lot of desire to keep male promiscuity to a minimum, but men are expected not to listen to women or care much what women think about these issues.  Thus, women start putting demands on each other, because we can’t appeal to men.  Which is why you see a culture where the “other woman” is blamed more than the cheating man for infidelity.  Or you see women like Susan Walsh arguing that other women have a responsibility not to have sex when we want with who we want, because that means that fewer men will have to pony up wedding rings in order to get laid.

Of course, if women don’t have to rely on men for social status and economic survival, then the power balance shifts, and women can start making demands directly of men.  It’s a lot easier, for instance, to demand monogamy directly from your husband if you can leave him without being destitute.  Creating a world where women have equality and men have to share responsibilities for sex and family life is the goal of feminism, and more sexual liberation is the result.  Indeed, I would say that the reason that only half of women polled take should an old-fashioned view on abortion (which is a symbolic stand-in for female immodesty) shows how far we’ve come already.

The numbers of women who feel that their only form of control over their lives is to exert control over other women is declining.  Now that we have ways of attaining economic independence and social status that don’t involve getting and staying married, we have less of a need to create a protectionist racket over female sexuality where women who break the rules are treated like scabs breaking a strike.  Now that we have powers outside of the power to say no to sex and to force other women to say no to sex, there’s simply less need to deprive ourselves or judge others.  And the less that men have complete dominance over our lives, the less reason we have to try like mad to control the one thing we’ve been given to control, which is female sexuality.