Two Reasons Why Rapists Should Not Have Parental Rights

TWO REASONS WHY RAPISTS SHOULD NOT HAVE PARENTAL RIGHTS

Caitlin Andrade

Vice President, Joel Sheppard Family Law Assistance Program
JD Candidate 2015
Sandra Day O’Connor College of Law
Arizona State University

After a sexual assault victim is raped,[1] violated, traumatized, and impregnated, she lacks legal protection in many states to raise the child without the involvement of the rapist. Because of the traumatic and criminal nature of sexual assault, rapists should not be able to continue re-traumatizing their victims by having visitation rights to the child conceived by that crime. In 31 states, a rapist is not automatically prevented from seeking and exercising his parental rights over the child conceived by sexual assault.[2] In Massachusetts, a 14 year old girl was raped, impregnated, and had the child in 2011. In 2013, despite being convicted for sexual assault, the rapist is pursuing visitation rights and is continuing to traumatize his victim and now child.[3] In S.J. v. L.T., the Supreme Court of Alaska held “absent a statutory mandate, the court refused to terminate a rapist’s parental rights over the child conceived by rape.”[4] A sexual assault victim who chooses to raise the child she conceived through rape should not have to endure a lifetime of forced, involuntary, court ordered interactions with her attacker.[5] Because of a lack of statutory protections, this is the precise reality that many rape victims are experiencing.
Sexual assault survivors in states without statutory protections are forced to gamble with the family courts. [6] The mother is forced to play “Russian Roulette” with the family law judge to deny custody and visitation with her attacker. [7] Or the rape victim can try to bargain with her rapist to not pursue criminal prosecution for the rape, in lieu of the rapist promising to allegedly relinquish their parental rights or run.[8] Absent legislation to the contrary, a rapist has the same parental rights to a child as any other father.[9]
Neither adoption nor abortion resolves the issue of a rapist having or asserting parental rights because not all sexual assault victims chose those options. [10] More importantly, the assumption that a woman will automatically want an abortion, robs her of a free choice to make a decision about the pregnancy. [11] Arizona should correct this statutory deficiency for two reasons: (1) it is in the best interest of the child; and (2) it will help alleviate the recurring and traumatic harm to the victim.
A real rape victim would never make the conscious and deliberate decision to carry to term, deliver and raise a child conceived by rape. If she does she is an imposter and not a real victim of sexual assault.[12] This is the precise rhetoric that contributes to the ideal rape victim, the prototype. There are rape prototypes circulating in the media, literature and culture.[13] Prototypes are a cognitive trick that people use to determine whether an individual’s behavior is typical or normal.[14]
Pregnancy resulting from rape occurs with significance.[15] Contrary to Senator Akin’s inflammatory comments that “’legitimate rape’ rarely results in pregnancy,” conception from rape occurs more frequently than society realizes.[16] A 1996 study (which has not been updated) estimates the pregnancy from rape rate to be 5 percent, which translates that for rape victims of reproductive age (15-45) there are likely “32,101” pregnancies that result from rape each year.[17] Conversely, a study from 2000 estimates that the roughly 25,000 sexual assault victims become pregnant after their attack.[18] Both studies indicate the clear reality that rape can result in pregnancy and that those women are in need of protection from the rapists should they choose to raise their children.[19] The 1996 study revealed that of the women pregnant from rape 50 percent aborted the pregnancy, 5.9 percent placed the child for adoption, 11.9 percent experienced a spontaneous abortion and 32.2 percent decided to keep the child.[20] Thus, the 32.2 percent of women who made the choice to keep the child conceived by sexual assault are in critical need of legal protections from the rapists who may try to assert any type of parental rights to the child.[21]
The rape-product justification underpinning harps on “the notion that it is cruel to force, through the absence of abortion laws or other protections, a pregnant woman to carry the ‘product of such [a] violent, vicious and terrible act as that of rape.’”[22] The rape product justification rhetoric further vilifies the child and leaps to the assumption that “any child born of such an occasion would have little chance of being well-loved.”[23] This idea that the “rapist’s child” is unwanted also supplies the basis of the notion that “pregnancy by rape does not result in ‘real ’motherhood.”[24] Further, the rape product justification advances support for abortions on the premise that by giving the rape victim a choice to terminate the unwanted and undesirable rape product pregnancy empowers the victim to take control and end the violence of the rape. The rape product justification robs a pregnant rape victim of the choice to determine if she, as an individual, wants to terminate her pregnancy. Society takes the choice away from the sexual assault victim by telling her that her child is a “monstrosity” and that she is not experiencing “real motherhood,” and should consequently terminate the pregnancy.[25]
Arizona should not require a conviction of rape in order to terminate a rapist’s parental rights. [26] Arizona should revise A.R.S. §8-533(B) to include the following grounds to terminate parental rights:
(12) The court’s presiding officer shall terminate a biological father’s parental rights (legal decision making, parenting time, supervised, unsupervised visitation or any combination of those) if:
(a) It can be established by clear and convincing evidence that child was conceived by rape.
(i) If the court’s presiding officer finds the child was conceived by rape there is a rebuttable presumption that is not in the child’s best interest for the father to have any legal decision-making, parenting time, supervised, unsupervised visitation or any combination of those.
(b) During this process the court’s presiding officer shall not allow the biological father to have legal decision-making or parenting time with the child(ren) in question until a decision is made.
(c) A court may not impose child support against the rapist when parental rights are terminated.
The reformed statute provides necessary safeguards to the biological father/rapist while protecting the mother and ultimately providing for the best interest of the child. First, the statute prohibits termination of the biological father/rapist’s sole or joint decision making of the child or unsupervised parenting time unless it is proven that the child was conceived by rape using a clear and convincing standard. [27] Clear and convincing evidence is a taxing standard; it requires “‘testimony that is so clear, so direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of truth, of the precise facts in issue.’”[28] The burden of the proof protects the biological father/rapist and enables a mother/rape victim to pursue this claim without the formidable task of obtaining a criminal conviction against the rapist, which requires proof beyond a reasonable doubt. [29]
Importantly, this statute also provides a mechanism to protect the child’s best interests. By creating a rebuttable presumption, the statute assumes it is in the best interest of the child to not have a relationship with the rapist. Additionally, to avoid the problem of the Texas statute, this proposal denies all visitation or custody of the child until a decision is rendered.[30] Conceiving a child by rape does not create a family between the rapist, the rape victim and the child.[31] The goal of this statutory reform is to protect rape victims/survivors and their children from the continued harassment and abuse of the rapist. [32]

[1] In this paper, the term rape and sexual assault refers to incidents where there has been sex without consent as claim by the woman. Rape and sexual in this paper does necessarily mean that the rapist was tried and convicted by a court of law.
[2] Gideon Resnick, Massachusetts Might Force a Woman to Share Parental Rights with the Rapist Who Impregnated Her, http://m.vice.com/read/massachusetts-might-grant-a-rapist (last visited November 22, 2013); Dahlia Lithwick, A Spectacularly Awful Week for Rape: http://www.slate.com/articles/double_x/doublex/2013/08/montana_massachusetts_rape_cases_when_judges_can_t_get_even_the_easy_cases.html (last visited November 22, 2013).
[3] See Resnick supra note 2.
[4] S.J. v. L.T., 727 P.2d 789, 800 (Alaska 1986)
[5] Meehan Fights for Rape Victims’ Rights, http://riponadvance.com/news/meehan-fights-for-rape-victims-rights/4671 (last visited November 22, 2013). In fact, on August 2, 2013, a move by “the bi-partisan team of Debbie Wasserman Schultz (D-FL) and Tom Marino (R-PA)” introduced federal legislation to enable “survivors of rape to terminate the parental rights of the men who raped them.” Without passage of “The Rape Survivor Child Custody Act” rape survivors are left with scant legal protections in the respective states.
[6] Shauna Prewitt Note, Giving Birth to a “Rapist’s Child”: A Discussion and Analysis of the Limited Legal Protections Afforded to Women Who Become Mothers Through Rape, 98. Geo. L.J. 827, 857 (2010)
[7] Shauna Prewitt, Pregnant, Raped and Ordeal Not Over http://www.cnn.com/2012/08/22/opinion/prewitt-rapist-visitation-rights/index.html?eref=mrss_igoogle_cnn (last visited September 28, 2013); See Prewitt, supra note 7, at 854
[8] Mark Duell, ‘This is not a family, it’s a felony: Teen whose rapist wants rights to visit their child says he is using the family court system to continue to victimize her” http://www.dailymail.co.uk/news/article-2402493/Massachusetts-teens-rapist-Jamie-Melendez-wants-rights-visit-child.html (last visited November 22, 2013)
[9] See Prewitt, supra note 7, at 829; Kara Bitar, Gender and Criminal Law & Policy: Note: The Parental Rights of Rapist 19 Duke Gender L. & Pol’y 275, 275 (2012)
[10] Id. at 275.
[11] Bitar, supra note 9 at 275-76, stating, “ Women are not forced to carry their pregnancies to term. Nor are women forced to have abortions or place their children up for adoption- or are they? […] even less protection is provided to women who keep their children [conceived by rape] instead of placing them up for adoption. This lack of protection strips women of a real choice.”
[12]Prewitt, supra note 7 at 840-42; See generally Bitar, supra note 10 at 275, 285-286 discussing a woman’s lack of meaningful choice concerning her pregnancy by rape.
[13] Melissa M. Holmes et al., Rape-Related Pregnancy: Estimates and Descriptive Characteristics from a National Sample of Women, 175 AM. J. OBSTETRICS & GYNECOLOGY 320, 320 (1996); Casia Spohn & Julie Horney, Rape Law Reform: A Grassroots and Its Impact, 159-75(1992); See also Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law, 17-46 (1998).
[14] Martha Chamallas, Deepening the Legal Understanding of Bias: On Devaluation and Biased Prototypes, 74 S. CAL. L. REV. 747, 782-89 (2001).
[15] Holmes, supra note 13 at 320.
[16] See Prewitt, Pregnant, Raped and Ordeal Not Over, supra note 8.
[17] Holmes, supra note 13 at 320, 322.
[18] Felicia H. Stewart & James Trussell, Prevention of Pregnancy Resulting from Rape: A Neglected Preventive Health Measure, 19 Am. J. Preventive Med. 228, 228 (2000). This study sampled 4,008 women over three years and then took the results to estimate the frequency nationally.
[19] Holmes, supra note 13 at 320,322; See Stewart, supra note 18 at 228.
[20] Holmes, supra note 13 at 320.
[21] Bitar, supra note 9 at 276; Prewitt, supra note 7 at 829.
[22] Prewitt, supra note 7 at 842; 141 CONG. REC. 21, 925 (1995) (statement of Rep. Johnson).
[23] Prewitt, supra note 7 at 847; See also Petition from NARAL Pro-Choice America to the United States Congress (“NARAL petition”) (June 27, 2007), http://www.thepetitionsite.com/takeaction/352749405 (quoting comments of Petitioner # 36,950, Anonymous) footnotes 141 and 133.
[24] Prewitt, supra note 7 at 842.
[25] SeSee also Petition from NARAL Pro-Choice America to the United States Congress (“NARAL petition”) (June 27, 2007), http://www.thepetitionsite.com/takeaction/352749405 quoting comments of Petitioner # 2, Pat Rued; Prewitt supra note 7 at 847.
[26] Prewitt, supra note 7 at 836-37, discussing the difficulty of obtaining a conviction, and highlighting the fact that rape is the most underreported crime.
[27] Bitar, supra note 9 at 296-97;
[28] Bitar, supra note 9 at 296.
[29] Bitar, supra note 9 at 296-297;
[30] Prewitt supra note 7 at 856-57, discussing as a result of time delay between a criminal conviction and termination proceedings, anywhere from 6 months to two years, termination statutes that are permissive rather than mandatory may force the mother and child to the nonetheless interact with the rapist. Further, during the time between criminal trial and termination proceedings, the mother may be forced to interact with the rapist where the criminal case precedes the custody hearing
[31] See Resnick, supra note 2; See Litwithick, supra note 2; See Prewitt, supra note 8; See Duell, supra note 9; See Filip, supra note 158.
[32] Bitar, supra note 10 at 302.

The Presence of the Law – High Crime Areas

By Michael Alvarez, JD Class of 2016

My passion for empowering societal change was one of the motivations for me to attend law school.  My father moved to Phoenix and became a paralegal after he was laid off from his job in a Southern Arizona mine.  My mother came from a Midwestern family that through hard work and skill managed to move up the class ranks.  I grew up in the Maryvale neighborhood of West Phoenix, where over half of the population attains less than a high school diploma.[1]

Why is any of this important? It is important because I got the very best seat at the table.  I was caught between two races and two economic classes.  I attended schools and lived in areas of the community that people had forgotten about.  They were the dirty or scary parts of town, but it was my home.

But I’ve also had the advantage of being able to travel the world with my mother’s family, and during holidays and weekends experience a life that many of the people I grew up with would never be able to.  I experienced and observed the opinions and biases of each group.  I was able to observe the opinions these groups have of each other.  I think that if an attorney can understand the life circumstances of any client that were to walk through the door, that attorney will be able to see a client’s case in many different mindsets, ultimately unlocking a tactical advantage.

Why is there more police presence in certain areas?

Hot Spot Policing is a strategy many police departments use in order to cure crime in specific geographical locations.  For most large urban cities, crime is concentrated in a small group of locations.  This is now easier to test and account for because of an increased use of the science of crime mapping by most urban police forces. A police department in a city that uses such a program would concentrate a larger number of law enforcement officers in areas that are seen to have higher crime.  This seems to serve the policy goal of fighting crime and satisfying the State’s legitimate interest in public safety.

These pockets of high crime overwhelmingly coincide with lower income areas of most cities, and neighborhoods with higher minority populations.[2]  For police and prosecutors alike, the majority of the crimes and cases they will have to work on come from these areas. Low-income populations and minorities are also groups that have commonly cited distrust of the government, especially law enforcement.[3]

Attorneys working in the criminal sector must be knowledgeable in this area.  They must understand the issues involved in these types of cases because the majority of the cases that populate the criminal justice system come from these areas and neighborhoods. Understanding these issues will ultimately make better tactical lawyers that also have a deeper understanding of the human side of the law.

What challenges arise when working on a case in a high crime area?

These forms of policing can often exacerbate the neighborhood’s negative opinion of law enforcement and professionals in the legal system.  More times than not the police-citizen relationship in these communities becomes adversarial. The distrust of authority and police is often passed down in families that have experienced incarceration.[4]  These sentiments are also spread through the ranks of teenagers at a time when friends and peers have the most impact on building social perception.[5]  The crime maps continue to show higher amounts of crime in these higher patrolled areas.  Could this possibly be a cyclical approach to justice in these neighborhoods? It is a problem that will continue to occur just because of the nature of the relationship between citizens of these hot spot communities and law enforcement?

Besides the obvious hurdles law enforcement must face when investigating crimes in these neighborhoods, there are also serious ramifications in a professional legal context.  Criminal justice professionals such as prosecutors and defense attorneys will be faced with unique situations when dealing with a case in communities that distrust law enforcement and the government.  These hurdles could seriously hinder an effective prosecution or defense at every step of the adjudication process.

Criminal Prosecutor

Prosecutors will be faced with trying to find qualified witnesses who would be willing to testify or offer information to help build a criminal case.  In some communities, just talking to government officials is a bad idea and can be evidence to other residents in the community that the witness has somehow sold out or that his allegiances now lie somewhere else.  Without such valuable witnesses, a prosecutor’s case can evaporate.

In addition to distrust of the criminal justice system, economic factors can also lead to hardships for witnesses and a severely weakened case for a prosecutor.  For example, if a prosecutor’s only witnesses to a convenience store robbery were the owner of the store and a high school student who works there, it could make it too difficult for the witnesses to effectively assist the prosecutor.  If the owner of the convenience store has not missed a day of work in three years and is the sole provider for his family, he may be disinterested in helping in any prosecution.  He barely makes enough money as it is now, and taking time off for pre trial interviews and possibly testifying at a future trial may actually cause him greater financial harm than the total sum he lost in the robbery.  The prosecutor may continue on with the case in the best interests of society, but his or her case may be severely weakened by the loss of a key witness.

The high school student who witnesses the robbery may have friends and family that tell him to avoid being involved in any type of investigation.  The student would have to miss school and if he lives a long distance from the courthouse he may not even be able to commute.  Testifying in a case could have negative implications for his education and undue hardship on his family if they need to offer transportation.

Criminal Defense

Compared to the hurdles prosecutors face in these types of cases, the modern criminal defense attorney faces even more demanding challenges.  In comparison, these challenges may prove more costly since they could prove to be insurmountable and impact the defendant’s liberty interests.

Some witnesses may be scared to be implicated in crimes themselves or fear that if they have a criminal past, it may come out at trial as impeachment evidence. This means some competent witnesses that possess valuable information may be afraid to offer their testimony because of their overall opinions and fears of the criminal justice system.  If a witness possesses exculpatory evidence, but is fearful or distrusting of the criminal justice system, the defendant’s case may be negatively impacted.

There are also different societal norms in neighborhoods with higher crime.  Some acts committed in these neighborhoods may be seen as acceptable or a normal way of life within the community.  Because of the distrust of the criminal justice system, neighborhoods may simply accept that crime is an everyday occurrence in life.  Witnesses may not understand the severity of the charges or not understand the impact that their testimony would provide to the defendants case.

The largest hurdle faced by criminal defense attorneys is the need to paint the defendant in a way that best creates empathy for the defendant.  The majority of criminal cases arise in different neighborhoods than the ones that the average juror lives in or even has ever been to.  Jury selection lends itself to selecting people that have the economic stability needed to serve on a jury.[6]  For example, the convenience store owner who is the only employee of his business would probably never be able to serve on a jury due to the negative economic impact it would have on his life.

Usually higher-paying, stable jobs offer paid time for jury service, and juries composed of individuals from disparate backgrounds than the defendants themselves.

The largest negative impact of a jury that does not understand the defendant’s economic and social background is the failure to effectively listen to and understand mitigation evidence in a capital case.  When deciding whether a defendant should live or die for his or her crimes, the jury must be able to effectively look at these mitigating circumstances.  This could prove to be very hard when the jury is made up of people who have never been in similar situations or simply grew up differently.  When a criminal defendant and the jury that will decide his fate are drastically different, empathy may fly out the window.

Jurors that live and work in communities that have little crime may also be biased in their decisions to convict.  They may convict the crime and not the defendant.  This means that they may fear that if crime is not stopped in bad areas of the city, it may spread to areas of the city much closer to home.  A jury may simply convict out of pure fear of crime and criminals or to show that crime is not accepted in their society.

Knowing these problems and perspectives will help attorneys think about cases in traditionally disadvantaged communities differently.  Providing different mindsets ultimately makes lawyers more tactical and creative when crafting cases that involve some of these situations.

[1] http://www.city-data.com/neighborhood/Maryvale-Phoenix-AZ.html

[2] http://www.cops.usdoj.gov/Publications/introguidecrimeanalysismapping.pdf

[3] http://www.gallup.com/poll/175088/gallup-review-black-white-attitudes-toward-police.aspx?utm_source=tagrss&utm_medium=rss&utm_campaign=syndication&utm_reader=feedly

[4] http://www.nij.gov/journals/263/Pages/neighborhood-crime.aspx

[5] http://wcr.sonoma.edu/v5n1/manuscripts/sun.pdf

[6] http://www.uh.edu/~jlehman2/papers/lehmann_smith_jurycomposition.pdf

Bullying Legislation – Arizona

Bullying Legislation

Bullying has become a nationwide problem and public health issue. Because of this, the majority of states are starting to take action by passing laws and amending current laws in order to help control and restrain bullying. However, there are currently no federal laws that directly address bullying.[1] Bullying can overlap with the federal civil rights laws about harassment if the bullying is based on race, national origin, color, sex, age, disability, or religion. These anti-harassment laws include the Civil Rights Act of 1964, Title IX of the Education Amendments, the Rehabilitation Act, Americans with Disabilities Act, and the Individuals with Disabilities Education Act. Even though these federal laws help prevent some harassment between students, not all students are covered.

The history of the States’ history of bullying legislation really took off after the 1999 school shooting at Columbine.[2] The Columbine shooting committed by Dylan Klebold and Eric Harris was thought to have happened because the two were bullied. “From 1990 to 2012 state legislatures nationally enacted more than 120 separate bills (about bullying). As of 2012, there are only two states (Montana and South Dakota) that do not have anti-bullying legislation. Even though most states have bullying legislation, as of 2012, ten states still do not have a definition of bullying and only 35 states have enacted legislation in their education or criminal codes about cyber bullying.[3]

Should legislation include everyone or should it have enumerated classes? Seventeen states include language of enumerated classes and protected groups. [4] Enumeration of specific characteristics “refers to the language in bullying legislation that conveys explicit legal protections for certain groups or classes of individuals.”[5] Having enumerated classes in bullying legislation can be very helpful to help limit the legal definition of bullying or to communicate that discrimination against certain groups is no accepted in that state, district, or school. All seventeen states that include enumeration list race as a protect class; sixteen list disability, religious practices, and sex or gender; fourteen list national origin and sexual orientation; twelve states list ethnicity and gender identity or expression; five include age, association with groups or other individuals, marital status, and socioeconomic status; four states list family status and physical appearance; and two states list academic status and obesity and weight.

Some states define bullying “as behavior that is motivated by the perceived or actual characteristics of the victim” but do not give restrictions on the types of characteristics. Other states discourage or prohibit school districts “from defining bullying in terms of the characteristics of targeted students.”[6] The states that prohibit enumeration of characteristics want to prevent school districts from adopting policies that would protect specific classes of students because of “a commitment to providing equal protections for all students.”[7] Even some states that have enumerated classes add to their policy a requirement that all students have the same protection “regardless of their status under the law.”[8]

Arizona: A Case Study

In Arizona, A.R.S 15-341(A)(37) focuses its efforts on addressing bullying and what school boards and districts should focus its efforts on.[9] Specifically, the statute states: “The governing board shall Prescribe and enforce policies and procedures to prohibit pupils from harassing, intimidating and bullying other pupils on school grounds, on school property, on school buses, at school bus stops, at school-sponsored events and activities and through the use of electronic technology or electronic communication on school computers, networks, forums and mailing lists that include the following components…”[10]

The components that need to be included in the policies and procedures put forth by the governing board include confidential reporting systems for instances of harassment, intimidation, or bullying; required reporting for school district employees and disciplinary procedures for those who fail to report known incidents; notice of rights and protections to students every year; notice or rights and protections for victims, confidential documentation systems that keeps documents for at least 6 years; formal investigatory process and notice to the victim; disciplinary procedures for offenders; procedures and consequences for false reports of bullying, harassment, or intimidation; procedures that protect physically harmed students; and the definitions of harassment, intimidation, and bullying.

There are no enumerated groups that are specified in the statute or training, prevention, monitoring, or legal remedies. Much of the burden is placed on the school board to create the specific rules. Even though there is a major outline and base for school boards, there are no statewide specifics or definitions. This could be a problem because there is no cohesion between the school districts. The fact that school boards have the ability to tailor it to their specific school districts could also be a positive.

A current prospective bill that is currently attempting to be pushed through legislation is SB 1462.[11] This bill provides a specific definition of bullying that includes cyber bullying, makes it broad to cover many types of bullying and harassment, and allows more acts to be considered bullying. It also makes bullying polices and procedures a specific and separate statute under the education section of Arizona Revised Statutes apart from the school board’s general powers and duties.

This bill is getting a lot of push back from conservatives and anti-LGBT groups. It has been proposed previously but voted against. Lobbying groups that are Christian and family values are pushing back against this bill because these groups believe that it is part of a “gay-friendly agenda”[12] even the bill never references sexual orientation as an enumerated group. Those that are attempting to pass this bill want to protect LGBT youth but their main goal is to protect all youth from the terror of bullying.

[1] http://www.stopbullying.gov/laws/federal/index.html

[2] http://www2.ed.gov/rschstat/eval/bullying/state-bullying-laws/state-bullying-laws.pdf

[3]https://www.networkforphl.org/_asset/khqyg6/50StateAntiBullyingStatutes41612FINAL.pdf

[4] http://www2.ed.gov/rschstat/eval/bullying/state-bullying-laws/state-bullying-laws.pdf (27)

[5] Id.

[6] Id. At 28

[7] Id.

[8] Id.

[9] ARS 15-341(A)(37)

[10] ARS 15-341

[11]http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/50leg/2r/bills/sb1462s.htm&Session_ID=107

[12] http://azstarnet.com/news/local/govt-and-politics/lawmakers-kill-school-bullying-bill/article_8f89c027-f4d3-54d7-b783-ba305f95b921.html

The Real Cost of Limiting Access to Abortion Services

Many states are enacting new legislation to shut down abortion clinics by adding draconian restrictions and requirements that are impossible for most clinics to meet. For example, Arizona and Texas passed bills outlawing FDA-approved abortion-inducing medication, forcing women seeking abortions to undergo more invasive and time-consuming surgical abortions instead. Arizona’s attempt at enforcing a ban on abortion after 20 weeks was shut down by the 9th Circuit Court of Appeals. Texas passed a similar law that will likely be challenged as well, which is the point: Texas hopes that the 5th Circuit will side with them, creating a “circuit split” (i.e. where federal circuit courts have made opposing decisions on the same topic) that can only be resolved by the Supreme Court. In fact, litigation on restrictive abortion laws has proliferated throughout the federal court system. These states’ ultimate goal  is to get the Court to overturn Roe v. Wade.

Texas has also enacted legislation requiring abortion clinics to become ambulatory surgical centers and have admitting privileges at a local hospital no more than 30 miles away. Transforming the clinics into surgical centers costs millions of dollars because the clinics have to build new facilities or upgrade existing facilities, and purchase expensive equipment that they will never use. Obtaining hospital admitting privileges is impossible for many clinics, either because no hospitals exist within the 30-mile mark or because area hospitals, many of which are run by religious institutions, flat out refuse to grant those privileges. The clinics that cannot meet these requirements have been forced to close their doors.

According to Nancy Northup, president and CEO of the Center for Reproductive Rights,

“if the law is allowed to remain in effect, fewer than 10 clinics will be able to stay open to serve Texas’ 13 million women. Some women in rural parts of the state would have to travel as many as 1,000 miles round trip to access abortion care.”

These restrictions, in addition to the 20-week ban, are incredibly detrimental to women living in poverty. These women do not have the resources to travel such long distances, which will ultimately lead to the type of unsafe abortions that the Roe decision was trying to prevent. Even those few who do have some small means to travel face the prospect of losing their jobs, taking unpaid time off, having to borrow money, or having to sell cherished possessions to pay for the trip. Wealthy women will always have access to abortions because they have the means to travel, not just to other states with more liberal abortion laws, but to other countries as well. Ultimately, this disparity will make poor women poorer, forcing them to rely on public benefits to feed the children that they knew they could not afford in the first place.

Clearly, these restrictions are an underhanded attempt to run abortion clinics out of the state, to circumvent Roe’s prohibition against total bans on abortions. Women need to speak up and speak out against these naked attempts to limit our freedom to choose what happens to our own bodies. We need to write to and call our state representatives and governors to let them know that we’re on to their game, that we will stand up for our rights, that we won’t let them relegate us to being mere incubators for the state.

Anti-choice legislators want to ignore women’s civil and human rights in favor of the state, but they forget the endgame: if the state is given the power to force a woman to have a child, the state will then also have the power to force a woman to abort a child. The political climate in the U.S. is variable, so it’s not a stretch to say that states may someday find that mandatory abortions are a viable (pun intended) solution to overpopulation and the resultant strain on resources. Both options treat women as chattel, so neither is acceptable. But it’s certainly food for thought.