There is so much to say about what is wrong with the anti-abortion policy that got smuggled into the House’s “health care reform” bill last weekend. Yet The New York Times’ Op-Ed page today contained a singularly disappointing piece titled Trading Women’s Rights for Political Power by Kate Michelman (the former president of Naral Pro-Choice America) and Frances Kissling (the former president of Catholics for Choice) about the Stupak Amendment. The piece took aim more at inside the beltway politics than the fundamental injustices of the refusal to treat abortion as part of women’s health care needs, and the extension of the Hyde Amendment to the private sector. The outrageousness of this “compromise to get the bill passed” is made all the more stark when you learn that even the health insurance policy that covers RNC staff includes coverage for abortions.

The Michelman/Kissling opinion piece isn’t really about abortion or health care but is instead about democratic party politics. Well ok, but if part of the problem with the Stupak Amendment was the way that it further marginalized the interests of women and made the urgency of reproductive liberty for women all the more invisible, then their op-ed basically did the same by framing the problem as one of points scored in an intra-mural sport.

If Andrew Rosenthal, the editorial page editor of The New York Times, was committed to publishing something on this issue that set it up as a kind of sport, would that he had given the Michelman/Kissling piece a pass and instead published Katha Pollitt’s really wonderful article from the Nation titled: Who’s Team Is It Anyway? Here’s a taste of Pollitt’s piece that just leaves Michelman and Kissling in the dust:

For example, budget hawks in Congress say they’ll vote against the bill because it’s too expensive. Maybe you could win them over if you volunteered to cut out funding for male-exclusive stuff, like prostate cancer, Viagra, male infertility, vasectomies, growth-hormone shots for short little boys, long-term care for macho guys who won’t wear motorcycle helmets and, I dunno, psychotherapy for pedophile priests. Men could always pay in advance for an insurance policy rider, as women are blithely told they can do if Stupak becomes part of the final bill.

You go girl.

Nicole Medham is a third year law student at Columbia Law School and has these thoughts about a recent 20/20 episode that caught her attention when the authors of Freakonomics were interviewed about the what and why of various implications of feminism:

Last Friday’s edition of ABC’s 20/20 featured the authors of the bestseller Freakonomics, Steven D. Levitt and Stephen J. Dubner, who were promoting the sequel to their best seller SuperFreakonomics.  During the hour long broadcast, some time was spent on the authors’ controversial views of the women’s liberation movement.  Essentially, Levitt and Dubner argue that the principal beneficiaries of the liberation movement were not female teachers or financiers, but high end prostitutes.   To that end, both men say that those who seek to “save” women from prostitution should ask and determine why women are responding to the market and becoming [high end] prostitutes in the first place.  Additionally, the authors argue that the invention of hormonal birth control gave women more control over their future occupations; therefore, instead of having to choose an occupation like a teacher which would allow for flexibility to enter and leave the work force, they could choose to become doctors, lawyers, bankers, etc.  Because of this, Levitt and Dubner claim that the talent level of school teachers has fallen, thus leading to the seeming overall failure of the country’s public school system.

Let’s take on the prostitution issue first.  Of course to some anti-prostitution advocates, there is no need to question why women choose prostitution, as it is invariably a result of the sexist and patriarchal society we live in.  Yet, I can’t help but think that Dubner and Levitt are right in that this is question that must be asked in order to make any needed changes.  In order to solve anything, one must get to the root of why the “problem” is occurring in the first place.  The women who have supposedly benefitted aren’t the stereotypical prostitute one thinks of that sets up shop on a dingy poorly lit street corner.  These are often [well] educated, well versed women who had fairly stable upbringings.  In fact, the woman profiled on 20/20 actually had a husband, children, and stable job, all of which she left to become a [high end] prostitute, due to her claims of boredom.  So  why would someone like that and the other well educated and well traveled women not want to put their brains to use in an arguably more productive way toward society and choose to sell their bodies instead?

Maybe these women are just more frank and upfront about how some relationships involving sex works.  Arguably, what these women are doing is no different than women (or men for that matter) who date people solely for money and other material benefits.  Even in popular culture, there are some marriages that have taken place where money seems to be the only answer why a particular couple was together.   And, marrying for financial gain is a historical facet of the institution of marriage.  In those cases, however, the monetary transactions take place in a socially acceptable form of a relationship.   In any event, the fact that the woman profiled on the show made $5000 a week for 10 hours of work speaks volumes, though it may speak different things for different listeners.   But, just maybe it says that she’s smarter than many other women out there.

Dubner and Levitt’s next hypothesis argues that hormonal birth control led to truly talented women leaving the teaching profession thus leading to a decline in gifted teachers in this nation’s public school system.  First and foremost, correlation does not imply causation.  To be sure, the seven and a half minute segment didn’t really delve into the authors’ method s of reasoning and argumentation.  Thus, I’d be interested to see how they made that leap.  For the sake of argument, let’s say that they are right—that control over reproduction gave women more occupational choices and power.   How does it go from that to implicitly putting the blame on women for the failing public school system?  That’s a pretty big leap, I’d say.  Why not look at the affects of the pay these teachers receive, the environment in which some of them would have to teach had they not chosen other fields, or the affect of various federal government regulations that have left many educators frustrated?  Moreover, why not take into account the fact that men can be just as effective as teachers and that they aren’t courted as heavily into that profession. Like I said, without knowing their methodology, it’s kind of hard to argue against them.  But, from what was shown on 20/20, their reasoning is tenuous at best.

The CRR-Columbia Fellowship is a full-time, residential fellowship for up to two full years starting in July 2010. The Fellow will be a member of the community of graduate fellows at the Law School and will be integrated into the legal and policy work of the Center and will have work space at both locations. The Fellow will also have access to law school facilities, including the library and on-line research resources, and faculty events. It is expected that the Fellow will work closely with an assigned Law School faculty mentor.

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Both during and after the City Bar Association panel I participated in a few weeks ago on the future of same sex marriage, I’ve gotten some push back for suggesting that we consider and evaluate the merits and risks of various constitutional arguments that have been made in the cases challenging the exclusion of same sex couples from the legal institution of marriage. At the panel, I commented that simply because a legal argument is available to us doesn’t mean we should make it. The availability of the argument merely inaugurates, rather than concludes the political discussion about why and how we should win the right to marry.

What does it mean to have an argument available and what arguments were available in the same sex marriage cases? Availability means that it has some level of plausibility – that there is some body of case law to which the advocates in the case can turn that can form a non-specious basis of having the marriage laws overturned. In the Hawaii case in 1993, for instance, the case was won on a sex discrimination argument – that barring same sex couples from marrying amounted to a form of sex discrimination in so far as the state’s marriage law allowed you to marry one, but not another, sex (men can only marry women, women can only marry men). Professor Andrew Koppelman¹ has been making this argument for years, and Professor Edward Stein², among others, has offered a sustained critique of Koppelman’s sex discrimination argument.

Most of the cases since then have stressed other arguments – Fundamental Right to Marry, Dignity and Equal Protection. The Fundamental Right argument asserts that there is a fundamental right for all people to marriage, and that the state better have a compelling, non-discriminatory reason for denying access to marriage licenses to same sex couples. I’ve blogged previously on my problems with this argument. The Dignity argument maintains that refusing to confer the blessings of civil marriage upon same sex couples confers a dignity harm upon them, by refusing to acknowledge that same sex unions are entitled to the same dignity and respect as different sex unions. I’ve blogged previously about my concerns with this argument as well. The Equal Protection argument, which won the day in Iowa, claims that an equality norm has been violated when the state discriminates on the basis of sexual orientation in access to marriage licenses. Read here for why I liked the Iowa Supreme Court’s equality argument.

Reasonable minds on the same side of an issue can disagree about the relative merits or dangers of pursuing any or all of these approaches to gaining marriage rights for same sex couples. Yet, as one audience member at the City Bar panel asked: “if we might win with the dignity argument, why shouldn’t we make it?”

Law reform litigation is not about winning at any cost. These cases are part of a larger set of political strategies that play a key role in a political movement. Each of these arguments, if successful, enable or extinguish subsequent political action in complex ways. The fundamental rights argument cuts off any efforts to disestablish or de-emphasize the institution of marriage. The dignity argument implies important judgments about unmarried people that may have implications for many people well outside the lesbian and gay community. The equality argument makes no claim about the virtues of the institution of marriage, but merely states that if the state is going to be in the marriage business it must be so fairly.

I find it odd that the lot of us who have sought to have a critical discussion about how to argue these cases are being branded as traitors and are met with hostility from some of the lawyers and activists in the marriage equality movement. This debate is healthy and politically necessary. In the early 1970s there was no unanimity as to whether reproductive rights in general, and abortion rights in particular, should be argued as a matter of sex equality, liberty, privacy, bodily integrity, decisional autonomy or dignity. Harry Blackmun was able to get 4 other votes for privacy in Roe v. Wade, but most agree today that privacy provided a fragile and unsatisfactory hook upon which to hang this important issue. Poor women have not been helped by privacy, and over time the privacy right for all women secured in Roe has been pretty porous.

Similarly, should we have won the Lawrence v. Texas sodomy law case on privacy, equal protection, liberty or fundamental rights grounds? What about a notion of sexual citizenship? Wouldn’t finding that sodomy laws violate a notion of sexual citizenship be a victory not only for sexually non-normative people such as lesbians and gay men, but also potentially shore up reproductive rights as well?

These are important arguments to keep having among all of us on the same team.

1. Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197 (1994)
2. Edward Stein, Evaluating the Sex-Discrimination Argument for Lesbian and Gay Rights, 49 UCLA L. REV. 471 (2001)

Khiara Bridges, the Center for Reproductive Rights – Columbia Law School Fellow, presented her paper for our last colloquium of the semester entitled “Capturing the Judiciary: Carhart and the Undue Burden Standard.”  Bridges explains the problematic assumptions and questionable logic behind the “undue burden” standard as promulgated by the U.S. Supreme Court in Carhart.  While the overarching question remained whether the state legislation “unduly burdened” the abortion right as located by Roe v. Wade, the Court in Carhart found both that the state had a legitimate interest in “protecting the life of the fetus that may become a child,” and that the state had not unduly burdened the abortion right because the law “express[ed] respect for the dignity of human life.”  Thus, the state’s action would have to pose a substantial obstacle to the abortion right for it to be considered unconstitutional.    

Bridges questioned the specific meaning of “human life” as articulated, implicitly, by the Court, and delineated two definitions: a biological, protozaic “life,” or a “life” that “demands an emotional response” and “our profound respect,” and upon termination, “invokes grief, anguish, [and] sorrow.”  The Court adheres to the latter understanding of “life.”  Bridges calls this the morally weighted life, and she shows how this notion of “life” has been embedded by the Court into the standard, perverting the task it was supposed to do, and in a sense, stacking the deck for future courts who must make a decision using the undue burden standard. 

Bridges advocates for a morally agnostic undue burden standard, one in which the moral status of the fetus is not known and not definitively answered for the woman contemplating abortion.  The standard should not be committed to a particular view of the fetus; the state should foster a moral pluralism which allows for any number of answers to the question whether a fetus constitutes a “life.”  Courts would then ask whether the state’s action refrains from imposing upon a woman the state’s conception of fetal life, or whether it clears a space for contemplation of the moral status of the fetus.  She outlines a methodology for exercising the morally agnostic undue burden standard, looking at both the purpose and effect of the state’s regulation, and ultimately asking whether the legislation has succeeded in maintaining a morally pluralistic space. 

Professor Ariela Dubler gave great feedback, emphasizing the strengths of the paper, especially in Bridges’ intuitive ability to anticipate counterarguments and grapple with the weakness of the Carhart standard, and asked both methodological and political/doctrinal questions, searching for ways that the morally agnostic undue burden standard could move the discussion away from a stark pro-choice vs. pro-life perspective.  Bridges responded by clarifying that the morally agnostic undue burden standard should provide a liminal space between these two extremes, so long as the state refrains from giving one message (usually a pro-life message), but instead allows for a plurality of messages; one gets to this point through an understanding of the “undue burden” standard as morally agnostic, or neutral.   

Bridges paper is extremely creative and provocative.  It pushed me to consider whether morality has a place at all in the law, and if so, where it does and why.  Courts are often confounded when confronted with a clash between rights and values – should values be taken into consideration, should they be given legitimacy, even if they directly contradict one another? Scholars and advocates alike have struggled to find a system or methodology that can lead courts to decisions that reconcile these clashes.  Bridges has provided us with one insightful way to think about this within the context of reproductive rights and the undue burden standard.    

Jeannie Chung

Jeannie Chung is a second-year law student and research assistant for the Gender and Sexuality Law Program.  

The National ACLU and its New York affiliate announced this week a change in policy by the New York State National Guard that it will no longer administer mandatory pregnancy tests to female Guard members and will not automatically dismiss female members of the New York Guard when they become pregnant, rather they will be treated like male guards who have temporary disabilities.  This brings New York National Guard policy into conformance with federal and state pregnancy discrimination laws.

If only the Department of Defense would abandon it’s “heterosexuality test” for federal military service!

The ACLU describes the policy reform thus:

Under a new policy announced today, women in the New York National Guard serving on a state active duty task force will no longer be required to take mandatory pregnancy tests or face dismissal from the force if they become pregnant. Instead, they will be treated the same as men who become injured or disabled during a state active duty mission. The change occurred in response to objections raised by the American Civil Liberties Union and the New York Civil Liberties Union, the ACLU’s New York State affiliate.

Soldiers in the New York National Guard had alerted the ACLU about a discriminatory policy requiring women in active duty positions to take periodic pregnancy tests and to periodically sign a form agreeing that becoming pregnant would end their assignments and cancel all associated health benefits, including health benefits for their families. In contrast, male National Guard soldiers on state active duty whose spouses became pregnant were not fired and their families retained health benefits.

“I hope this change will enable women to come forward if they feel they are being discriminated against. Many soldiers were against this policy of pregnancy testing but feared they would lose their jobs if they spoke up,” said Tammy Sullivan, a soldier in the New York National Guard. “The new policy is a step in the right direction to protecting a woman’s right to privacy and ending discrimination against women in the military.”

The ACLU and NYCLU brought their concerns to Governor David A. Paterson’s administration, which resulted in discussions that culminated with this new policy.

“It’s blatantly unfair to dismiss women from National Guard state active duty missions if they are pregnant or refuse to sign a form agreeing to be kicked off a mission if they become pregnant,” said Ariela Migdal, staff attorney with the ACLU Women’s Rights Project. “We are pleased that state officials looked into this discriminatory practice as soon as it was brought to their attention and took swift steps to change the policy.”

Under the new policy, being pregnant no longer automatically disqualifies soldiers from state active duty service, pregnancy tests are not required and women soldiers do not have to sign a special form. The policy now simply requires all soldiers to sign a form indicating their understanding that in order to remain on a state active duty mission they must be physically able to perform all tasks associated with their mission, including physical training drills.

However, under the new policy, pregnant soldiers will be dismissed from state active duty when their pregnancy advances to the point that they cannot physically perform the mission. No alternative assignments, like desk jobs, are available.

“While we are pleased that this blatant discrimination has been addressed, the new policy will still have a disparate impact on women soldiers who will eventually become unable to serve if they become pregnant,” said Galen Sherwin, Director of the Reproductive Rights Project at the NYCLU. “No one who is willing and able to contribute to missions of such vital importance should be dismissed and have their health benefits cut simply because they are unable to perform certain tasks due to injury or pregnancy.”

The old New York National Guard “Statement of Understanding: Pregnancy” can be found online at:
www.aclu.org/womensrights/employ/38935lgl20090304.html

The revised form, “Statement of Understanding of Conditions of Assignment,” can be found online at:
www.aclu.org/womensrights/employ/38934lgl20090223.html

A podcast interview with Tammy Sullivan can be found online at:
www.aclu.org/multimedia/audio/38951res20090306.html.

- Katherine Franke

From Columbia Law School Professor Patricia Williams, via The Nation

For some years now, the biotechnology of fertility enhancement has been exalted as God’s gift to the biblically barren. A relentless narrative of entitlement intertwined with prayerfulness has framed infertility as a tragedy, an oppression, an agony, a disease. Some have proclaimed a “right” to a “natural,” biologically related child, a child “like me.” Unusually large Middle American families–some with up to eighteen children–are offered movie deals and television programs.

Against the backdrop of a cold, impersonal and lonely world, these well-feathered and overly populated nests look villagey and warm. It’s an undeniably seductive vision, even if other options like adoption and fostering are almost never mentioned. Also less discussed are the side effects of this mad race for biological generation at all costs: the likelihood of multiple births, low birth weight and birth defects; the ethics of using poorer women as fetal hatcheries; the health risks to young women who have their “Ivy League” eggs extracted for handsome sums of cash.

There are loads of good reasons to think about regulating these medical procedures; we should have come up with something other than a “free market” for them years ago. But now, with the birth of Nadya Suleman’s octuplets in Bellflower, California, we are confronting a perfect storm of eugenic outcry. With a plunging economy, all the well-rehearsed elements of the “undeserving” welfare queen are lined up: Suleman is single, disabled, unemployed, on food stamps and has six other children under the age of 8, one of whom is reportedly autistic. She lives in a matchbox-size house with her resentful parents, who think she’s insane. Toss in that funny, foreign-sounding name–which turns out to be, gasp, Iraqi!–and the backlash is in full swing.

No doubt Suleman has emotional problems. But rather than caring about her mental health, much of the media are content to pillory her as a drain on the public dole–selfish, frivolous, calculating and cruel. No Brangelina-style accolades of “God Bless ‘Em” in People magazine. Just impassioned calls to cut off her remaining sources of income and to criminally prosecute the doctor who fertilized her. The Atlanta Journal-Constitution even ran an op-ed calling for the government to appoint a legal advocate for every child born to an unmarried woman, since the “lack of a father’s guidance” must be “a major cause of [children's] suffering.” Furthermore, in the case of Suleman’s children, “the legal advocate would file suit against the fertility clinic or a physician who knowingly contributed to their abuse–life in a multiple-child household headed by a single woman.”

Nadya Suleman’s saga, in other words, has highlighted a deep cognitive dissonance about whether children are “assets” or eternal expenditure, divine joy or devilish curse in a time of dwindling planetary resources. When I first heard of Suleman, my immediate thought was of Andrea and Rusty Yates–married, fundamentalist Christian believers in that ubiquitous story line about going forth and multiplying no matter what. After caring for and home-schooling five very young children with no assistance but prayer, and with accumulating signs of postpartum psychosis, Andrea Yates woke up one morning and drowned all her children with quiet efficiency.

And so the specter of psychotic breakdown haunts me when I think of the Suleman abode: one autistic child, plus 2-year-old twins, plus four other kids ages 3 to 7, plus eight newborns ranging from one to three pounds, plus a grandfather who has gone back to Iraq to earn more money for the family, plus a grandmother furious at the medical professionals who “assisted” her daughter, plus a surreally chipper Nadya, who despite the miserable odds remains enrolled as a graduate student in, of all things, pediatric counseling. This situation is undeniably sheer madness, but the public discussion seems fixated on the question of whether she can “afford” so many kids, as though if she was rich, this would be sane.

This past fall The New York Times Magazine ran a cover story by Alex Kuczynski, fashion writer and self-confessed “cosmetic surgery addict.” Her wish to have a child was framed by fierce determinism, the “natural outgrowth” of marriage to her husband–without whom she “would skip the child.” Kuczynski is married to a man whose “sperm had a track record”–six other children by two prior wives. She, the third bride and twenty years her husband’s junior, described herself as engaged in nothing less than a “battle for my fertility”; having a biological child was “necessary,” a “mad desire,” a “compulsion” and “proof” of the marital bond, without which she faced “wrecked hopes” and an “abyss of grief.” Indeed, to die “without having created a life is to die two deaths: the death of yourself and the death of the immense opportunity that is a child.” When she thinks she’s pregnant, she feels a “shiver of victorious accomplishment…. my own fecundity triumphant.” When she tells people she’s not, she feels “barren, decrepit, desexualized,” “branded with a scarlet ‘I’ for ‘Infertile,’” “the dried-up crone with a uterus full of twigs.”

Just because Kuczynski is married and wealthy does not make her less obsessive or more profound than Suleman. Kuczynski sounds like a sad, silly child mooning over “fertile but fit” stars like Halle Berry, Nicole Kidman, Salma Hayek and “John Edwards’s sometime mistress,” who all had babies in their 40s. Likewise, Suleman takes heart looking at Angelina Jolie. Suleman and Kuczynski represent disturbing emotional extremes. But that should not excuse the rest of us from examining the oppressive competitive natality that seems to have gripped us–the fantasies of “baby bumps” and breeding, always breeding, yet more of “our kind.” Our culture’s antifeminist backlash and its unrealistic aspirations have bewitched Kuczynski and Suleman, these two young women who are so addled and so suggestible, so endowed and yet so impoverished. All these years after the age of “liberation,” perhaps it is time to revisit the myths we still concoct about childless women’s worth.

Yesterday, the Gender and Sexuality Law Program kicked off its spring 2009 colloquium with the presentation and discussion of Professor Anna Marie Smith’s paper entitled “Reproductive Technology, Family Law, and the Post-welfare State: The California Same-Sex Parents’ Rights ‘Victories’ of 2005.“ Professor Smith’s article touches on several facets of parental rights and its intersection with political theory, the law, and same-sex relationships; however, we spent the bulk of the time discussing Smith’s illumination of some of the “unintended consequences” of the National Center for Lesbian Rights (NCLR)’s participation as amici in the Elisa B. case, and the impact those consequences might have on poverty law, family law, and LGBT and single mothers’ parental rights more broadly.

Here are the facts: In California, two lesbian women (Elisa and Emily) in a relationship each bore children via donor insemination. During this time, the women agreed that Emily would be the “stay at home” mother, and Elisa would be the family “breadwinner.” The two women separated after having three children (Elisa moved away, taking her child, while Emily stayed in California with twins); Elisa initially continued financially supporting the children, but after some time, stopped. Emily subsequently applied for California’s public assistance benefit for single mothers of “needy families,” otherwise known as TANF. TANF requires its beneficiaries to initiate proceedings with the state to identify absent second parents of their children to assist in the collection of support payments from him or her. Emily was the absent second parent, so the state went after her for child support, and NCLR filed amicus briefs on behalf of the state. When California won, and Elisa B. was required to pay child support to Emily under TANF, the decision was hailed as a victory for LGBT families everywhere.

Here’s the problem: The state of California brought this case against Elisa B, not Emily. Why? Because TANF requires its recipients to initiate proceedings to identify and go after their ex-partners for child support. This poses a particularly dangerous dilemma for recipients who have experienced domestic violence: get the benefits, or risk the repercussions of opening up contact with the partners who abused them. In fact, Smith points out that indeed, all TANF recipients are robbed of their autonomy to decide whether to contact their former partners at all, or at least, on their own terms, and not via the state.  

Sudhir Venkatesh, a sociologist and Director of the Center for Urban Research and Policy at Columbia University, gave insightful commentary, noting the social and cultural assumptions that all those involved in the litigation process inevitably make in the process of advancing case law. He also brought up the question of decision-making: when TANF recipients are faced with the difficult choice of whether to contact the child support payer in order to receive benefits, what goes into that decision-making process, and are there other ways to negotiate relationships with child support payers?

Other interesting points raised: (1) what about “vertical” family relationships, that is, parent-child relationships, and how does autonomy play into that relationship?  What if there is a conflict between protecting the autonomy of the “horizontal” family relationship to the detriment of the parent-child relationship? (2) Is there a legal consciousness story to be told here, one that centers on affirmative rights to a relationship between the social mother and child versus the responsibilities to which a social mother must adhere vis-a-vis her child after the relationship ends? and (3) To what extent are these cases about redistribution of benefits from one LGBT parent to another, or about recognition of a status relationship between the two?

Jeannie Chung

Jeannie Chung is a second-year law student and research assistant for the Gender and Sexuality Law Program.

From the Reproductive Rights Law Prof Blog:

Obama to Keep Abstinence-Only AIDS Coordinator, by Jodi Jacobson:

Confirming month-old rumors, a high-level source reported last night that President-Elect Obama’s transition team has asked Ambassador Mark Dybul to remain in place as Global AIDS Coordinator, despite strong opposition by treatment access, HIV prevention, and women’s rights advocates across the global HIV and AIDS community, many of whom signed letters calling for a change in PEPFAR leadership at this crucial time.  While keeping Dybul on may be a stopgap measure for a new Administration dealing with huge problems across the board, it is a decision that signals we may not be getting “the change we need” in global AIDS policies.

Dybul, a medical doctor, is strongly associated with the failed policies of the President’s Emergency Plan for AIDS Relief (PEPFAR), including those that flout both evidence and human rights, and that neglect the role of stigma, discrimination and gender equity in the spread of HIV.