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Republican Partisan Bill H.R. 4970 Will Make Life More Difficult for Domestic Abuse Victims

6:08 am in Uncategorized by RH Reality Check

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

Congresswoman Schakowsky delivered these remarks on a call with reporters and others last week. Her comments are reprinted here with permission.

I want to thank the National Immigrant Justice Center and the National Task Force to End Sexual and Domestic Violence for organizing this very important call this morning.

Immigrant women at a protest. Photo by Elvert Barnes.

Immigrant women at a protest. Photo by Elvert Barnes.

I appreciate the particular focus on the VAWA provisions that protect battered immigrant women – one of the most vulnerable of the vulnerable populations in our country.

Ensuring that immigrant women are able to leave their abusers and aren’t forced to stay because of threats of deportation, or because they are afraid to come out of the shadows has been a long-time focus of mine.

During past VAWA reauthorizations, I have gotten provisions to stop the deportation of eligible immigrant victims of domestic violence, sexual assault, and trafficking included, as well as a provision to allow battered immigrant self-petitioners to receive their lawful permanent residency status in the U.S. without having to travel abroad.

I have introduced – along with Representative Judy Chu – the Violence Against Immigrant Women Act (H.R. 5331).  Our bill would streamline the processing of VAWA cases and make adjustments to help victims escape from their abusers and overcome the effects of victimization.  Our bill would ensure greater numbers of immigrant victims of domestic violence and sexual assault receive U visa protection, and it would allow victims of stalking, elder abuse, and child abuse to access these important protections.  It would also require DHS to issue employment authorization to victims in timely manner.  Because of delays, the majority of immigrant victims who have filed valid cases are forced to wait more than six months for work authorization, some can wait as long as a year.

Read the rest of this entry →

Underreported and Unchecked: Sexual Violence Against Somali Refugee Women

8:32 am in Uncategorized by RH Reality Check

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

Amal* left her village in Somalia when she realized that there was nothing left there for her. There was no food and no water. So she gathered her emaciated children and began the long trek to the refugee camps in northeastern Kenya. She thought that being forced to leave her home would be the worst thing to ever happen to her.

That was until she was attacked and raped by bandits on the way.

I recently returned from Kenya, where Somali women and families are seeking refuge by the thousands. I met with Hubbie Hussein Al-Haji of MADRE’s sister organization, Womankind Kenya, a grassroots women’s organization of Somali pastoralists. We talked about the most urgent needs for famine refugees—for food and water—and about how MADRE and Womankind Kenya can work together to provide for them.

And Hubbie told me about Amal and other women like her, who are arriving in northeastern Kenya traumatized not only from famine and displacement—but also from being raped along the trek.

Sexual Violence Rising in Famine-Struck East Africa

Women and girls seeking refuge at displacement camps must walk for days, along the long and dangerous routes to the Somalia-Kenya border. Bandits and Al-Shabaab militia patrol much of southern Somalia and have infiltrated deep into Kenya, often attacking women and their families to steal the few possessions they have. In Amal’s case, they took the only piece of gold jewelry she had ever owned. She had been hoping to trade it for food.

In these attacks, women have been raped. Even once they arrive at the displacement camps in Kenya, they are not safe. They need food and water, but there is not enough to go around. Many are turned away for lack of resources, relegated to the outskirts of the camps. There, local communities are struggling, not only to sustain themselves through drought and famine, but to offer aid to even harder hit famine refugees from Somalia. The women of Womankind Kenya come from these very communities and have long been mobilizing to confront this famine.

Even as refugees fight to survive, the threat of sexual violence persists. Women and girls are especially vulnerable when they venture out in search of firewood for cooking. As more refugees pour into the area, women must walk farther to find wood, putting them at greater risk of rape. In the area of Dadaab, now the biggest refugee camp in the world, violence against women and girls has quadrupled in the past six months.

Grassroots organizations like Womankind Kenya are a lifeline for rape survivors, especially those who have been turned away from the camps. These women are isolated and vulnerable, cut off from the communities of support they might once have had. Womankind Kenya can do more than meet their pressing needs for food and water. They can speak to women in their own language, breaking through their isolation to offer them care and a new source of support to lean on.

Looking Forward

We’ve seen this surge in sexual violence after disaster many times before. We saw it after the 2004 Indian Ocean tsunami, after the massive flooding of 2005’s Hurricane Katrina and after the catastrophic 2010 earthquake in Haiti. In each of these cases and many more, major disasters uproot communities and leave women and girls vulnerable to violence, including rape and sexual assault. In the chaos and loss of social cohesion that routinely follow disaster, women and girls in places as far afield as Somalia, Nicaragua or the United States are rendered more vulnerable to sexual attack.

To combat this rise in sexual violence, MADRE partners with local women’s organizations around the world that know well the gender-specific threats women and girls face after conflict and disaster – organizations like Womankind Kenya.

Now, Hubbie explained to me, Womankind Kenya is working to fill the gap in access to counseling services and medical care for rape survivors. MADRE is working with them to set up a mobile clinic to bring essential services to refugee women and their families. They will collaborate with local doctors and nurses, who they have worked with before, to reach out to women who need care. They will help women overcome fear of stigma by offering counseling and medical services that respect women’s privacy, and they will help women find their path to recovery.

When the women of Womankind Kenya reached out to Amal, she had all but given up hope. She had just arrived and was living at the edge of a camp. She had nothing, after having been robbed by her attackers. Womankind Kenya gave her emergency food and water, and what’s more, they listened to her story. It was only a first step but an essential one—for Amal and all of the refugee women and girls traumatized by rape.

*Not her real name

Rough Summer in the City: Recent Rape Cases and the NYC Rape Shield Law

12:16 pm in Uncategorized by RH Reality Check

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

This week, the public humiliation of Nafissatou Diallo that has been the “DSK Rape Case” has come to a close, as all charges against Dominique Strauss-Kahn have been dropped. This motion marks the end to a case that has amounted to little more than a character assassination of a rape complainant who has endured a litany of shame-driven media accusations, including but by no means limited to the Post’s declaration that she “wasn’t just a girl working a hotel – she was a working girl.” This unsubstantiated claim of her sex worker status, in addition to problematic framings of her race, immigrant status and background, has been used in the media to reinforce the idea that she is not a credible witness and therefore unworthy of having her rape charges validated in a court of law.

It’s been a rough summer for rape cases going through the DA’s office in New York City, with no lack of victim-blaming happening all around. It’s been mere months since two NYC police officers were acquitted of raping a women in her East Village apartment after a call for their assistance at the same location. Since the victim was drunk, though, it wasn’t difficult to see how she would become the one on trial. In fact, there was enough victim-blaming to acquit two men who were caught entering the woman’s apartment on outside surveillance tapes not once, not twice, but three times. Enough victim-blaming to acquit a man who admitted to lying in bed with the victim while she was wearing only a bra and passed out drunk. Enough victim-blaming to have one of the officers, Officer Moreno, publicly declare post-acquittal that the results of the case “were a lesson and a win.” A lesson and a win, indeed.

How rape cases can play out in our criminal justice system, as seen this summer in NYC alone, is a lesson to every person that is socially vulnerable to the effects of a rape culture, and that’s a whole lot of people. If you have been raped, it does matter how you got there. It matters what your race is, what your immigration status is and how you’ve made a living. It matters a lot. For some rape victims, just being able to report the crime without shaming scrutiny is not a possibility. In the case of sex workers, for instance, sometimes the mere admission that they are sex workers leads to open refusal to document a rape. As one member of the Sex Workers Outreach Project explained:

I was taken very seriously until it came out that I was involved in sex work, that this man was going to get me work, and that I showed him my body. At that point, the cops started acting as though I had been dishonest for not revealing this sooner and started basically interrogating me. It was incredibly upsetting. One of the police officers actually said to me, “What makes it okay Monday, Tuesday, and Wednesday, but not Thursday?” I was not arrested, but I feared arrest, having heard of cops doing that. I was relieved just to leave the precinct, and needless to say nothing came of my complaint. And I was reminded of the treatment I had received when I discovered that he was later arrested in California as a sex offender. Presumably he raped someone with a little more social cachet.

Sadly, it is not just the acts of a few that affect how the system treats rape complainants. There are also policies in place that directly affect how a sex worker is treated in the eyes of the court in regard to sexual assault cases. For instance, in the New York City Rape Shield Law, a criminal procedure code that provides that “evidence of a victim’s sexual conduct shall not be admissible” in a rape case, there is a noted exception to the code. New York is one state that permits the victim’s status as a convicted prostitute to be admitted into evidence if the conviction occurred within three years of the sexual offense. In the past, this practice has been defended on the grounds that such information speaks to the credibility of the rape complainant “as a witness” and somehow suggests that the complainant, being a sex worker, may have consented. In many ways, this practice being upheld represents how prostitution (and indeed, sex work in general) is still considered an immoral act and treated in the eyes of the law as representative of a person’s defective character.

In the aftermath of the Dominique Strauss-Kahn dismissal and the recent acquittal of two police officers accused of rape, both cases which had a great deal to do with vilifying the complainant rather than the defendant, we must recognize that the rights of rape victims are tied up directly with how we frame rape victims in general, both in the media and in public policy. We must also be cognizant of the notion that there is a hierarchy of victimhood and that issues of race, class and status go into making up that hierarchy. Laws like NYC’s Rape Shield Law uphold the notion that our courts are the arbiters of sexual morality. Likewise, a court system whose decisions are in any way shaped by a rape victim being a sex worker (whether a valid claim or not) cannot be held to treat any complainant with a reasonable level of dignity. All in all, it’s a real wonder how any of us could withstand the scrutiny of such a system of judgment.

Women’s Reproductive Rights Under Threat in Colombia

10:32 am in Uncategorized by RH Reality Check

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

Cross-posted with permission from The Women’s News Network (WNN).


At 11 years of age, Nina was raped by her stepfather. Traumatized and pregnant, she sought an abortion. But every doctor she met claimed conscientious objection and refused. She was forced to travel 35 miles to another city, where she eventually tracked down an obstetrician willing to help.

She was one of the lucky ones.

Despite a landmark ruling five years ago – when Colombia’s Constitutional Court decriminalized abortion in cases of rape, fetal abnormality or to save the mother’s life – less than 0.5 percent of procedures are carried out legally each year. Many doctors simply turn girls like Nina away.

There is endemic confusion about the status of the law, especially the rules for conscientious objection, coupled with a widespread reluctance to obey it. Unsafe abortion remains the third leading cause of maternal deaths in a country where, according to government figures, over 300,000 take place each year.

Upon its inception the law has been the target of an aggressive anti-choice campaign, led by conservative political forces and supported by the Catholic Church. These forces are now threatening to unravel the little progress made.

Since coming into office in 2009, the Procurador-General, Alejandro Ordonez – the official appointed to protect the constitution and promote human rights – has led a vociferous campaign to dismantle the legislation. Read the rest of this entry →

New Jersey’s Governor is Taking His Time on a Rape Kit Bill

9:12 am in Uncategorized by RH Reality Check

"Chris Christie"

"Chris Christie" Governor of NJ, by Marissa Babin on flickr

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 March, the New Jersey State Senate overwhelmingly passed a bill to prevent sexual assault survivors from being charged for the rape kits used to collect forensic evidence.  The Assembly passed the measure in June. Months later, however, the bill remains “under review” on Governor Chris Christie’s desk prompting many advocates to ask what is taking him so long and some to start a petition demanding he take action.

Under federal law, health care providers must be reimbursed for the cost of these exams and the collection of evidence. They are supposed to look to government agencies for that coverage but bills are often sent to the assault survivor “due to administrative errors or attempts to get payment from a victim’s insurance company.”

The legislation that passed in New Jersey would prevent direct billing for any “routine medical screening, medications to prevent sexually transmitted infections, pregnancy tests and emergency contraception, as well as supplies, equipment, and use of space.”

Though it’s clear from his record (which includes “using a line-item veto to block funding in the state budget for clinics that provide family-planning services”) that woman’s rights and reproductive health are not a high priority for the Governor, it really is hard to understand why he’s dragging his feet on this bill.

Ignore That Self-Affixed Halo: Anti-Choicers Know Just What They Are Doing to Incite Violence

11:46 am in Uncategorized by RH Reality Check

Immediately after the assassination of Dr. George Tiller in the vestibule of his church in Wichita, Kansas just over two years ago, anti-choice leaders who had long used stridently violent language to describe Dr. Tiller specifically and abortion care generally, fell all over themselves proclaiming innocence of any connection to the murder.  Among these was Troy Newman, current president of Operation Rescue, who stated:

“We are shocked at this morning’s disturbing news that Mr. Tiller was gunned down… Operation Rescue has worked for years through peaceful, legal means, and through the proper channels to see him brought to justice. We denounce vigilantism and the cowardly act that took place this morning.”

But the fact is that Newman and his cohorts regularly used imagery and language that depicted Dr. Tiller himself as a monster and in many ways indirectly if not directly suggested him as a target for someone willing to commit a violent act. That someone turned out to be Scott Roeder, who had, it turns out, several links to Operation Rescue.

And, as the saying goes, a picture is worth a thousand words. Any doubt of Newman’s own gruesome feelings of glee about Dr. Tiller’s murder can be summed up in a photo showing Newman standing at the site of Dr. Tiller’s assassination giving a thumbs up.

Operation Rescue and other anti-choicers have now turned their sights on Dr. LeRoy Carhart, who is providing late abortion care to women in need several times a month in Germantown, Maryland.  During the several hours I spent on three days in Germantown, to help with clinic defense, I saw suggestions of violent action everywhere, courtesy of the anti-choicers marshaled by Operation Rescue and its colleague organizations.

First, for example, there was the truck plastered with photos of what the anti-choicers claim are mangled fetuses.  These photos, whether real or not, are obviously distasteful, and meant to be so. But they are also misleading if not outright fake.  If, for example, a woman is carrying a fetus that has died in utero, and it is removed for her own mental and physical health, it may well look grisly. So would, for example, heart surgery. But the implication without context is that someone is killing near-born babies without reason. Using photos-and science for that matter–that is either created entirely for shock value or so grossly misrepresents reality as to have no relation is a primary strategy of the anti-choice movement.

But also plastered across this truck, amidst the “dead baby” photos were photos of Dr. Tiller and those of Dr. Carhart. Those of Dr. Tiller pronounced him “dead,” and tho

se of Dr. Carhart had large yellow arrows fixed around the perimeter with the word “Abortionist” in large black block letters, pointing to Dr. Carhart.  The message, if not explicit, is nonetheless clear: “One of these men is dead, the other is still working. Whaddya gonna do about it?”

Then there were the sidewalk chalk drawings, pictured here.

These drawings, which were one version of other drawings that appeared on a different day as well, were drawn out by teenagers “called in” by OR to help out with th protest.

Among these on Sunday were the sayings:

  • Would it bother us more if they used guns?
  • What would Jesus do? (with a gun)
  • Would it bother us if they used guns?

A drawing of an exploding gun as at the bottom of this row of chalk drawings.

Again, these images have two purposes. One is to suggest violence is an answer to something that anti-choicers don’t like, namely, women exercising self-determination in their lives by determining whether and when to have children, taking control over their own reproduction and sexual health, and safeguarding their own and their family’s health when a wanted pregnancy goes horribly awry.

The other is to intimidate those who are protecting women seeking care, and doctors who serve them. What would come to your mind if you walked the street toward your doctor’s office and there were exploding guns sketched on the sidewalk leading up to the office door?

Operation Rescue and other anti-choice groups such as those in Germantown use religion and piety to advance a patriarchal agenda cloaked in religious fervor.

But it is violence by any other name.

Sen. Franken: Rape Victims Should Not Have To Pay for Their Own Rape Kits

8:17 am in Government, Legislature by RH Reality Check

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

Minnesota Senator Al Franken has spent his time in office as a staunch advocate for women’s reproductive health.  In the fall of 2009, Sen. Franken sponsored an amendment to a defense bill that would have de-funded military contractors who prevent rape victims from seeking justice, based on the case of Jamie Leigh Jones, who was sexually attacked while working for KBR – a subsidiary of Halliburton.

Now, the Minnesota Democrat is once more taking up the cause for women who have been victims of sexual assault.  Last week, Sen. Franken spoke in front of the Senate Judiciary Subcommittee on Crime and Drugs about the backlog of rape kits going unaddressed in police storage, and the practice of making victims pay for their own forensic evidence.

The problem is that some jurisdictions are still billing victims for the rape kits, leaving it to the victims to get reimbursed by insurers or victims’ funds. And with that objection, Mr. Chairman, I would like to add to the record four articles…that document this."

To me, the real problem is that this practice is actually legal under federal law.  It is legal to bill a victim for her rape kit….Can you elaborate on this?  Is it a good idea to allow victims to be billed for their rape kits, even if they get fully reimbursed later?

Sen. Franken brings up an additional issue as to the billing of rape kits to victims, even if they are reimbursed by insurance: that an insurance claim being sent to someone’s home could violate her privacy by informing the family, spouse or other residents about the rape, something about which the victim may not have wanted them to be made aware.

Susan Carbon, the Director of the Office of Violence Against Women, responds to that problem as well as others rape kit issues in her own testimony.  . . . Read the rest of this entry →

Rape, Violence, Abortion? Radical Right Says its All Your Fault

6:48 am in Uncategorized by RH Reality Check

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

I was pleased to watch “The Rachel Maddow Show” Thursday night, as Rachel dedicated not just one, but two segments on the surprising number of severely anti-choice candidates running for major offices this election cycle.  As reported on the show, the story is getting very little mainstream attention, but it’s certainly a new thing to have three major Senate candidates—Sharron Angle, Rand Paul, and Ken Buck—come out not just for restricting abortions for choice, but also for criminalizing abortion in the case of threats to a woman’s health, and in the cases of rape or incest.   

Since all three candidates reluctantly allow that they might allow an abortion should they be convinced that a pregnant woman’s life is in danger (though often said restrictions are so high they are functionally death sentences for the “crime” of being pregnant, for the doctors fear that a 5 to 10 percent chance of survival might be enough to prosecute), they adamantly stand for forcing rape victims to carry the rapist’s baby to term.  Yes, even if the rapist is the father or brother of the victim.  Melissa Harris-Lacewell came on the show to offer the perspective that hard times often make the populace more open to sadistic intrusions on a woman’s right to control her own fertility.  She made some excellent points about how the increasing acceptance of forced childbirth, even for rape victims, coincides with other enthusiasms for control over reproduction, such as the new talk of repealing the 14th Amendment strictly to punish immigrant women who give birth.

I have some points I’d like to add to Melissa’s excellent commentary.  This unwillingness to extend abortion rights even to rape victims may indicate more than simply a hard line attitude about abortion, but also a negative attitude about a woman’s right to live free from violence.  As Rachel reported, the Paul campaign’s response to the issue of abortion rights for rape victims was to scold victims for not being more careful about “family planning.”  Reasonable people might be as bewildered as Rachel about this point, but sadly, I feel these kind of responses indicate an acceptance of the widespread right wing myth that rape and other forms of violence against women are something that feminists made up in their supposed mission to get men.  There’s widespread myths that rape victims are either lying about being raped or somehow brought it on themselves, and therefore if they get pregnant, they deserve to be punished for being liars or temptresses or both.

Add these stereotypes to the anti-choice fears that any exceptions to a ban would be exploited by slatterns eager to get away with being loose women, and you have a toxic brew. If you think the myth that exceptions are mainly used by liars isn’t widespread, may I remind you that 2008 presidential candidate John McCain expressed a belief that most late term abortions performed for health reasons were nothing but the patients and doctors lying to cover up abortions by choice, even though there’s not a lick of evidence to support that claim. The misogyny that prompts anti-choice beliefs tends to bring along a host of other anti-woman beliefs about how women are stupid, fickle, and deceitful by nature.

A lack of sympathy for pregnant rape victims brings up a lot more questions than just ones about a candidate’s view on reproductive rights.  For instance, I’d worry that someone who has this attitude towards pregnant rape victims might generally not take the problem of violence against women seriously. Currently, it’s political poison to avoid nominal support for legislative efforts fighting violence against women, but that doesn’t mean that office-holders are necessarily dedicated to the cause of really taking steps to improve services and law enforcement in ways that would actually fight this problem. Already this election cycle, we’ve seen an anti-choice Senator get exposed for problems in this area. Even though Senator David Vitter knew one of his aides was convicted of domestic violence, he kept him on staff and, alarmingly, as an advisor on women’s issues, including the issue of domestic violence.

Fighting violence against women and supporting reproductive rights are so intertwined that it’s really hard to separate the two.  Paul’s comments about “family planning” were illogical in really obvious ways, but they also showed a lack of understanding of how gendered violence undermines women’s ability to prevent pregnancy in the first place, often making the need for abortion rights all that more important. As Lynn Harris reported in The Nation, a new (albeit limited) study of 71 women who had suffered domestic violence reported being the victim of birth control sabotage by partners who used forced pregnancy as a way to dominate and control their victims.  If the state takes a stance of supported forced pregnancy, that only makes it that much easier for domestic abusers to hurt and control their victims.  And that, in turn, makes it that much harder for law enforcement and social services to fight the problem of domestic violence. 

In a way, I appreciate it when anti-choicers take the “no exceptions for rape” stance.  Not for the reason some give, which is that it’s at least more consistent with the belief that a fetus is a person.  (I still don’t think they consistently believe that an embryo is the same as a 5-year-old.)  But it is more consistent with the overall view that women are chattel, that their rights are unimportant, and that their bodies are objects to be controlled by men and the state.  In a strict patriarchy, rape is considered a crime against the man who controls the woman, and after the rape has happened, her status plummets in the eyes of the community.  Anti-choicers who make no exceptions for rape are being consistent with this view—since the rape victim is already ruined, there’s no reason to offer any sympathy or relief to her.  “No exceptions for rape” is indeed a consistent worldview, but it’s mainly consistent with a pro-patriarchal one.

Feticide Laws: The Conservative Analogue to the 50-State Strategy

7:09 am in Uncategorized by RH Reality Check

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

There are 3 clear ways that feticide statutes being passed in various states are problematic.

Feticide: Recklessness and Speculation

The first problem is attempted feticide.

All crimes with a mental state above negligence have a corresponding "attempt crime:" Attempted rape, attempted larceny, attempted murder, and so forth.  The thing about attempt crimes is that we’re convicting people for acts that are not in themselves illegal but which represent a substantial step in a criminal algorithm.

For example, it’s totally legal to buy a knife. It’s legal to visit your ex-spouse’s house. It’s illegal to stab your ex-spouse. But the rub about attempt crimes is this: How far back in the timeline do we mark where the substantial step has been taken? The purchase of the knife?  Nope, a whole lot of innocent people would be convicted.  The visit to the ex-spouse’s house maybe?  It could be construed as "reconnoitering" and/or "lying in wait" [but only if you have the kitchen knife with you].

What I’m highlighting is the fact that attempt crimes are prospective — and therefore speculative. That’s not a problem if the police apprehend the person during the commission of the act.  But it’s definitely a problem before the commission of the act if you’re arresting someone just for "buying a knife" [so to speak] or for reading an outrageous book, for example.  Insert any innocent act that you speculate could be the beginning of a criminal scheme.

Conservatives argue that the more "prospective" [ie, speculative] our approach is to attempt crimes, the more lives we’ll save. As we saw in the Iowa case, attempted feticide has an extremely strong potential for flights of speculation. Because we treat pregnancy like an eggshell, we perceive everyday dangers to the fetus in even the most innocuous acts. My friend, a father-to-be at the time, was an alarmist about acts done by his wife that might lead to miscarriage.  "Don’t lift anything over your head! It causes miscarriage!"  You may think that example is absurd because the speculation is absurd — but it underscores the ways in which everyday people [jury fodder] can be so manically protective of a fetus that even wild speculation is suddenly not so unlikely. 

We can all agree that punching a pregnant belly may indicate an intent to harm the fetus. But the mental standard originally used in the Utah bill was less than intent; it was recklessness.  Recklessness is the willful disregard of a known risk, whereas [in those terms] negligence would be ignorance of a risk that you should have known [and thus exercised care] but didn’t.

So, if the bill in Utah had passed with the standard of "recklessness," would heavy lifting during pregnancy be "reckless?" Whether evidence beyond a reasonable doubt exists to suffice a conviction depends on the jury. But heavy lifting would certainly be enough for probable cause for an arrest [the police only need to justify 51 percent likelihood]. If you doubt the likelihood of this kind of speculative arrest, refer to what happened in Iowa — where someone fell down the stairs and the police presumed an intent to kill the fetus simply because she’d contemplated an abortion months earlier in the first trimester. 

I thought about going to Starbucks months ago, but that fact isn’t probative of whether I intended to go on the day in question. But again: crazy speculation’s suddenly "reasonable" when you’re dealing with pregnancy. With only the speculation of the doctor and nurse, the police still had probable cause to arrest [remember: just 51 percent likelihood suffices for probable cause]. 

So what’s the big deal, you say. You need evidence beyond a reasonable doubt to convict, you say. And they let her go, you say.  Well, for warrantless arrests with enough probable cause to arrest but not enough to detain, you get 48 hours of fun in jail [even though the evidence against you is mere 51 percent likelihood of some event] while the State scrambles to get enough evidence to suffice for your Gerstein hearing [where they prove probable cause to detain].

If they don’t get it in 48 hours, they have to let you go — which is little consolation for the "shower incident" that occurs while you are in jail. 

What’s worse is that the issue of a person’s intent, recklessness, or negligence is a question of fact answered by a jury not a question of law answered by a judge. And that should trouble you very, very much. "Oh she definitely intended to kill that baby! I know it!" or "She definitely knew the risk involved but did it anyway!"

Search, Seizure and Your Lack of Privacy 

The second problem with feticide statutes is a search and seizure issue I realized while contemplating the Iowa case.  There is no physician-patient privilege under the federal rules of evidence.  And regarding state law, few states recognize a physician-patient privilege and the ones that do only offer immunity under certain circumstances.  People typically derive some privacy protection from HIPPA, but HIPPA doesn’t create a physician-patient privilege.  It only establishes certain privacy protocols.

What’s more, many states have enacted statutes that place an affirmative duty on hospitals, clinics, teachers, and others to notify the police with evidence creating suspicion of certain crimes [like rape, homicide, child abuse]. That evidence includes what a patient says in the course of the visit.

For example, if a minor while seeking birth control mentions offhand that she had sex with an adult, the clinic is obligated to report that.  Now the problem arises when those two concepts interact under a suspicion of attempted feticide.  Since feticide is in the homicide family, there would be the same affirmative duty to report evidence of an attempted feticide. And so, a doctor’s mere speculation about the patient’s motives authorizes him to reveal otherwise private information that the patient disclosed under an assumption of confidentiality.  In the Iowa case, that’s how the police knew the woman in question had contemplated abortion months ago. She told her doctor in confidence. Acting under the suspicion of feticide, the doctor alerted the police.  Now, let’s say your doctor isn’t a crazy hysteric and protects your privacy, but your husband’s a hysteric because he’s eager to be a father and manic about all the possible ways you’re risking miscarriage. So he makes the call to the police. The police talk to the doctor, but the doctor is on your side.  So the police ask the DA for a warrant and the DA finds an amenable magistrate that signs the warrant. Now, the doctor must comply and divulge the information you disclosed — because there’s no physician-patient privilege. 

Significant legal issues arising from this: In an investigation of whether a suspicious act was feticide, can a warrant compel a doctor to disclose a patient’s abortion history to be used as evidence of intent?  In an investigation of whether a suspicious act was feticide, can a warrant compel a doctor to disclose a patient’s prior statements incident to an abortion or contemplating an abortion? 

Opening the Backdoor to Fetal Personhood:

The third problem with feticide statutes is that they’re a backdoor to fetal personhood.  The Republicans are executing a "50 State Plan" of their own that involves enacting feticide statutes in a majority of states and passing fetal personhood amendments to the constitutions of a sizable minority of states.  These constitutional amendments would have no legal effect [pursuant to Roe].  And the feticide statutes are careful not to describe the fetus as a "baby" or person [otherwise they'd be unconstitutional under Roe].  However, notwithstanding their legal ineffectiveness, the practical effect of these amendments would be to change the Supreme Court’s (SCOTUS) perception of the right to abortion [vis-a-vis the right to privacy] as a fundamental right.

That perception would be affected because SCOTUS is generally reluctant to declare that a right is "fundamental" — doing so disables the states’ ability to regulate the issue.  And so, as it did in Lawrence v. Texas, SCOTUS looks at whether a majority of states have already recognized the right in their constitutions or in case law.  If so, then they’ll take it a step further and declare that the right is fundamental — thereby bringing the minority of states up to par with the liberty offered in the majority.

Note that this isn’t the only consideration in the creation of a fundamental right obviously, but it is something they look at.  And so, if "enough" states outright reject an existing fundamental right [one as controversial as the right to abortion], then it follows that SCOTUS will consider that too and destroy the fundamental right — relegating it back to state regulation.  Scalia has intimated several times that the states’ constitutional perception of the right to abortion [collectively speaking] would be fodder for destroying the right.

Feticide statutes contribute to this plan the same way.  By creating a nebulous standard of review for the regulation of abortion, Planned Parenthood v. Casey effectively created an intermediate status for the fetus [a kind of "quasi-personhood"] and subsequent state cases have recognized a government interest in protecting fetal life.

Using that framework, feticide statutes effectively elevate the status of fetuses towards "nigh-personhood" — which obviously has negative implications for Roe on review.  That isn’t Planned Parenthood propaganda. It’s clear.  Homicide is an act that kills a person. 

Battery is an act that offends [via touch], injures or destroys a part of a person. If you chop off a person’s finger, that’s called battery, not "phalangicide." A finger is a component of a person, not a person itself.  But if you call this act "phalangicide" and criminalize it, then obviously you’re treating the finger almost as a person.

Feticide statutes are included in the family of homicide rather than the family of battery. Why? Since the conservatives can’t actually call a fetus a person [because the Court has already ruled that it's not], they instead purport to treat the fetus as a person to the extent allowable under Casey. In the last 30 years protection of the fetus has increasingly risen to the level of what I call "nigh-personhood." The trend is clear and its purpose is clear.

Utah Continues Reckless Efforts to Lock Up Pregnant Women

6:45 am in Uncategorized by RH Reality Check

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

On Thursday, a Utah legislator withdrew a bill that would have allowed sentences of up to life in prison for a woman who experienced a miscarriage or stillbirth as a result of her “reckless” behavior. This move has been attributed to a “firestorm” of opposition.  Almost immediately, however, Utah legislators revised the bill to exempt women who commit reckless acts but to permit the prosecution of women who commit “knowing” acts that may result in stillbirths and miscarriages from the earliest stages of pregnancy.

What does this mean? Under this bill, pregnant women who “know” that their cancer medications or other prescription medications could risk harm or cause pregnancy loss could still be arrested. Pregnant women who stay with abusive husbands who they “know” to be angry about the pregnancy could still be arrested under this law. Pregnant women who continue working in jobs they “know” pose hazards to their pregnancies could still be arrested under the law. And even pregnant women who “know” from reading the side of their cigarette packages that smoking is hazardous to their pregnancies could be arrested under this law.

Representative Wimmer, the bill’s sponsor, has assured critics that the bill would only be applied “in the most glaring of cases.” But whatever his intention, cases from around the country demonstrate that once law enforcement officials have the discretion to arrest, and judges have the opportunity to interpret the law, legislators no longer have control. In fact there have already been cases where government officials seeking to protect the “unborn” have sought to keep pregnant women from obtaining cancer treatment.

Moreover, sending the message that what women “know” and do while pregnant may be a crime also influences how doctors and nurses treat pregnant women. They become less likely to help women and more likely to judge them. In Iowa, it was a health care provider who called the police when a distraught pregnant woman sought help after she fell down a flight of stairs. The young woman was arrested for “attempted feticide.” The police eventually withdrew the charge but only after this young mother had been taken into custody, spent several days in jail and several weeks terrified about what was going to happen next.

If the Utah bill becomes law, a pregnant woman whose health care provider reports her to the police will not be comforted by the fact that, eventually, someone might decide that her actions were merely “reckless” and not “knowing.”

Some supporters of the bill would claim that this bill is really just about punishing women who intentionally seek to “self-abort.” For people who profoundly oppose abortion, it seems logical that legislation could be carefully crafted to distinguish between pregnant women who seek to terminate their pregnancies and those who do not. Criminal laws, however, depend on application of intent standards and are enforced by police officers and prosecutors who have extraordinary discretion in deciding who will and will not be arrested. Because everything a pregnant woman does or does not do can affect pregnancy outcome, it is hard to come up with an example of a law that could be applied only to women who “truly” intend to end their pregnancies while ensuring that pregnant women who do not intend to terminate their pregnancies or risk harm to their fetuses are protected from police investigation, interrogation, arrest, and prosecution.

Even if this Utah bill were carefully crafted (and it is not), its main purpose clearly is not to advance a culture of life, but rather to advance laws that permit imprisonment of pregnant women. The description of the bill explains its purpose as removing  “prohibitions against prosecution” of women. In other words – Utah apparently aspires to be the first state to admit that the purpose of an anti-abortion law is not to stop doctors from performing abortions, but to lock-up women who have them.

In fact, this bill was created out of frustration that no law existed that could be used to imprison a 17-year-old girl. According to its sponsor, Utah’s HB 462 was passed to respond to a case in which a desperate a pregnant teenager hired someone to attack her and cause her to lose the pregnancy. It should be clear, however, that any young woman who is desperate enough to invite violence against her – violence that could have caused her own death — is not going to be deterred by this law.

Imprisoning this teenager who survived and gave birth to a healthy baby would cost taxpayers approximately $30,000 a year. If the real purpose of the law were to prevent this kind of thing from happening again, the state could invest, for example, in Backline, an organization that could provide non-judgmental counseling to women struggling with their pregnancies.

The real purpose of the Utah bill, however, is to make it possible to police pregnant women and to imprison them as murderers. That deserves a firestorm of opposition as well.