RRP: Year in Review (2004)
The Reproductive Rights Project (RRP) is proud of its role as the legal arm of New York's pro-choice movement. For fifteen years we have been combining legal action with public education and advocacy to make a difference in the lives of women and girls. Today, we are cultivating and empowering the next wave of reproductive rights activists. In 2004, the RRP achieved important victories in the face of unprecedented attacks on the right to reproductive freedom. We presented cutting-edge legal analyses in the courts and in the state legislature. We educated policy makers and professionals in the fields of health care, education and criminal justice and influenced institutional, city and state policies. We co-sponsored successful demonstrations in Washington, DC and New York City. We created and distributed user-friendly educational materials and used the media as a vehicle for communicating with the larger public. We won victories for our clients and for those whose rights are most vulnerable--women of color, low-income women, and adolescents. Defending Reproductive Rights Abortion Rights Within a day of President Bush signing the Federal Abortion Ban (deceptively named the "Partial Birth Abortion Ban,") a federal judge in Manhattan issued a temporary restraining order barring the government from enforcing this deceptive and extreme law. The ACLU and NYCLU brought the challenge on behalf of the National Abortion Federation and seven individual physicians. The abortion ban presents the most direct threat ever to the constitutional right to choose in New York. The name itself is a rhetorical device concocted by anti-choice extremists; there is, in fact, no known medical procedure termed "partial birth abortion." The ban would outlaw safe and common procedures used as early as 13 weeks (i.e. throughout the second trimester and well before fetal viability) even if necessary to preserve a woman's health. On August 26, 2006, after a four-week trial, Judge Richard Conway Casey found the ban unconstitutional because it did not contain an exception to preserve a woman's health. "While Congress and lower courts may disagree with the Supreme Court's constitutional decisions," Judge Casey wrote, "that does not free them from their constitutional duty to obey the Supreme Court's rulings." Judges in San Francisco and Nebraska also struck down the ban in parallel cases. The Bush Administration has appealed all three rulings, and the Second Circuit Court of Appeals will hear the appeal of our case in the spring of 2005. Recognition of "Fetal Rights" We were able to protect the right to choose at the state level as well. In 2004, anti-choice legislators in Albany introduced the "Unborn Victims of Violence Act," (UVVA) making it a crime to harm a fetus at any stage of development in the course of assaulting a pregnant woman. Disguised as a bill to protect pregnant women from domestic violence, it was, in actuality, a thinly veiled attempt to undermine Roe v. Wade by identifying the fetus as a person for purposes of the assault and homicide laws. To educate legislators about the UVVA's hidden agenda, the NYCLU distributed talking points to key policy makers. We explained that the bill would do nothing to protect a pregnant woman from an assault, but would undermine all women's reproductive rights. We identified pending bills that really would protect victims of violence and identified UVVA sponsors sitting on Senate committees where these bills were stalled. Our lobbyists succeeded in stopping the UVVA in both chambers of the legislature. As we were opposing the UVVA in the state legislature, we won an important legal victory when a state court judge dismissed criminal charges against a 22-year-old woman from Glens Falls whose newborn allegedly tested positive for alcohol. Stacey Gilligan was arrested only days after giving birth and charged with two counts of Endangering the Welfare of a Child because she "knowingly fed" alcohol to her baby (via the umbilical cord). The court ruled that the charges were "without legal basis." Protecting Minors' Rights Medical Privacy Rights for Students The RRP scored a major victory for the medical privacy rights of all New York City public school students when it settled a case against the NYC Department of Education on behalf of a group of 13- and 14-year-old girls from Washington Heights. After the principal of their intermediate school accused them of skipping school to attend a "hooky party," the girls in the group--but not the boys—were suspended until they submitted to HIV, STD and pregnancy tests and turned the results over to the school. The settlement included a system-wide policy change making it clear that school officials could not compel students to submit to or reveal the results of medical tests, nor could they demand such information from a student's health care provider. The new policy also reaffirmed that schools cannot exclude pregnant students or students who are HIV-positive or have any other sexually transmitted disease, and we insisted that all middle and high school principals and guidance counselors receive training on the new policy. Pregnancy Notification Policies During the past year the RRP received a mounting number of complaints from social workers, guidance counselors and other school personnel who were being required by administrators to report a student's pregnancy to her parents. The callers were deeply troubled by these requirements which clearly undermined not only a student's right to privacy, but also their own ability as professionals to counsel young women in dire need of their help. Our response was to write letters to the offending school districts in which we explained that they were violating both the Constitution and state laws that give teenagers the right to make decisions about pregnancy on their own. We also pointed out that this ill-advised rule actually interfered with students' ability to seek the advice of responsible adults. In all but one case, we were successful in convincing the districts to rescind the requirements. The exception was the Port Washington School District in Nassau County, and with our assistance a federal lawsuit was filed on behalf of the school social worker by New York State United Teachers. In August 2004 we filed a friend-of-the-court brief on behalf of six medical and mental health professional organizations. The case is pending. Mandated Statutory Rape Reporting In May of 2004, a bill was introduced in Albany which would have required various professionals who work with minors, including some healthcare professionals, to report underage sexual activity with an adult to the police. The bill, similar to one that was introduced in 2002 and which the NYCLU successfully stalled, would have had the effect of deterring teens from obtaining reproductive health care and seeking help from responsible adults. The RRP quickly developed a memo and talking points on the new bill and shared them with our coalition partners. Although the bill passed in the Senate, our efforts prevented it from reaching a vote in the Assembly and the bill was staved off once again. This experience highlighted a continuing communications gap: Although there is no law requiring the reporting of underage sex ("statutory rape"), many health care providers mistakenly believe that there is. To address this confusion, we developed a Q&A entitled, "Child Abuse Reporting and Teen Sexual Activity: Clarifying Some Common Misconceptions." We distributed our publication statewide at our professional workshops, including one in Washington Heights which attracted approximately 120 physician assistants, nurses, social workers, psychologists, and drug counselors. The Teen Health Initiative In New York State, minors have the right to obtain confidential reproductive care, but because the laws guaranteeing that right are so confusing and hard to find, teenagers and professionals who work with them are often misinformed. Understanding that teens rely on their peers for information about sexuality issues, the RRP launched the Teen Health Initiative (THI) in 1997. Since that time, we have trained hundreds of young New Yorkers to understand their own rights and to communicate that information to their peers throughout the city. The THI is so successful that Community Resource Exchange used it as the model program when they developed a tool to evaluate the efficacy of peer education programs. During the 2003-2004 academic year, we recruited and trained a racially and socio-economically diverse group of sixteen peer educators who conducted over thirty workshops for community-based organizations, youth groups and schools and traveled to Albany to participate in the 26th annual Family Planning Advocates Conference. One of their major focuses was on the need for comprehensive sex education that includes discussion of contraception and abortion. THI staff also conducted numerous workshops for adults who regularly deal with teens in schools, hospitals, clinics and other settings. Health care providers, educators and other professionals are in desperate need of clear information about the laws regarding minors' rights, and our written materials have been enthusiastically received. In particular, our Teenagers, Health Care and the Law: A Guide to the Law On Minors' Rights in New York State,, has proven to be very popular, and more than 20,000 copies have been distributed in English and Spanish. And the THI web site at www.nyclu.org/thi delivers information about minors' rights to reproductive health care in a youth-friendly format and invites visitors to contact the THI if they have any questions. Expanding Access To Abortion And Contraception Insurance Coverage After years of advocacy, the NYCLU helped secure for New York women the right to equal health insurance when the Women's Health and Wellness Act (WHWA) went into effect in January 2003. It requires employee insurance plans that cover prescription drugs to cover contraceptives as well. A narrow "refusal clause," which we supported because it correctly balances religious freedom and reproductive rights, permits institutions such as churches, synagogues, and mosques to claim an exemption. Soon after the passage of the WHWA Catholic Charities and nine other religiously-affiliated social service groups sued the state in an effort to prevent the law from taking effect. We worked closely with the New York Attorney General's office to strategize a response and we filed a friend-of-the-court brief arguing that entities providing the public with secular services like health care and social services—often with public funds—must abide by secular rules. The trial court upheld the law as constitutional, noting that a broader exemption would frustrate the law's goals of promoting women's health and ending gender discrimination. Catholic Charities has appealed ruling. Access to Emergency Contraception Emergency contraception (EC) is a is a safe and effective way to prevent pregnancy up to 120 hours after unprotected sex, and because it works better the sooner it is taken, quick and easy access is essential. For reasons that are ideological rather than medical, EC is only available by prescription. In May 2004, the Federal Drug Administration refused to approve the sale of EC over-the-counter, ignoring its own advisory panel's recommendations. We are working with our coalition partners to persuade the state legislature to pass a law permitting pharmacies to dispense EC without a patient-specific prescription. Abortion Providers In many parts of the state there is a critical shortage of abortion providers, and women who live in underserved areas have to travel long distances to exercise their reproductive rights. The availability of medical abortion (RU-486 or Mifepristone) has made it possible for a much broader group of health providers to offer abortion services. By advising family physicians, physician assistants, nurse practitioners and nurse midwives throughout the state about liability insurance and other legal and practical issues that arise when they integrate medical abortion into their practices, our work is expanding the abortion provider pool. Defeating Gender Discrimination In The Workplace Religious-Based Discrimination Our client A.N. of Grand Island, New York was the director of an after-school program located in a public school and funded by the state but administered by Catholic Charities of Buffalo. When A.N., who is not married, became pregnant, she was told she would have to accept a demotion to another Catholic Charities position that involved no youth contact, or resign. We represented A.N. before the Equal Employment Opportunities Commission and in federal court and ultimately negotiated a settlement with Catholic Charities which not only secured A.N.'s job as a supervisor, but imposed a new policy on Catholic Charities prohibiting discrimination on the basis of marital status or pregnancy. Fighting Pregnancy Discrimination When six female police officers with the Suffolk County Police learned of a new departmental policy denying "light duty" assignments to pregnant police officers they called the RRP. The policy meant that pregnant officers would have to remain on active duty or take an unpaid leave of absence while male officers with disabling medical conditions were still entitled to temporary light duty jobs. In June 2003, the Equal Employment Opportunity Commission sided with us and determined that the light duty policy was discriminatory. However, the Suffolk County Police Department refuses to change the policy, and we are now in federal court Opposing Pregnancy Policing A Financial Means Tests for Procreation In March 2004, during a child neglect hearing, a family court judge in Monroe County issued an unprecedented decision prohibiting the mother from becoming pregnant until she regained custody of all of her children who were in foster care. The judge concluded that the mother's constitutional right to have children was trumped by society's "right" not to have to support them, citing her history of drug problems and poverty. Incredibly, neither the mother nor her legal representative was present when the judge, who gave no prior notice, imposed the restriction. The RRP and National Advocates for Pregnant Women filed a friend-of-the-court brief on behalf of nine public health, child welfare and human rights advocacy groups and experts arguing that the order imposed an unconstitutional "financial means" test for parenthood and failed to promote child welfare by deflecting attention from the need for meaningful mental health, drug addiction and family assistance services.