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Justice Ruth Bader Ginsburg

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Photo Credit: AP

Justice Ruth Bader Ginsburg
March 15, 1933-September 18, 2020

The Southwest Women’s Law Center would like to recognize the passing of U.S. Supreme Court Justice Ruth Bader Ginsburg, on September 18, 2020 at the age of 87. Justice Ginsburg was a tireless crusader for gender-based equal rights and a reproductive rights supporter, often through powerful dissents.

A staunch supporter and warrior for gender-based equal rights while working on both sides of the bench, Justice Ginsburg herself faced numerous instances of gender-based discrimination throughout her life, which through perseverance and tenacity she turned to triumphs and firsts. No matter what obstacle was placed before her, she overcame it, whether professional or personal. A lesson for us all, especially during these troubling times.

During her first year at Harvard Law School, she was grilled by the dean about why she thought she had the right to take a place away from a male student. She refused to allow that attitude to deter her from success, becoming the first women to make the Harvard Law Review. After finishing her second year at Harvard, she transferred to Columbia University Law School to complete her final year (her husband, Marty, had taken a position with a law firm in New York) where she also made law review and graduated at the top of her class.

After graduation, she experienced significant obstacles in finding fulfilling work, from fewer options and lower pay than her would be male colleagues, to outright discrimination based on her gender, her status as a mother and being Jewish. Her early career included clerking for a U.S. District Court judge for two years, then working on a project studying international civil procedure (specifically Swedish civil procedure) and then teaching, first at Rutgers University Law School and then at Columbia Law School, where she became the first woman faculty member to earn tenure. During her time teaching at Columbia, she became the director of the Women’s Rights Project for the American Civil Liberties Union, where she argued several important sex discrimination cases in front of the Supreme Court of the United States. She was appointed to the U.S. District Court for the District of Columbia by President Jimmy Carter in 1980 and then onto the Supreme Court in 1993 by President Bill Clinton, where she served until her death on September 18, 2020.

In addition to the obstacles she experienced professionally, Justice Ginsburg had experienced her share of personal struggles, particularly with her health. Justice Ginsburg suffered numerous bouts of cancer throughout her life, all of which she overcame, until losing her final bout with pancreatic cancer. Notwithstanding these numerous health issues, she rarely let them interfere with her work on the Court. In January of 2019, she missed oral arguments for the very first time since taking the bench in 1993 and this because she was recovering from surgery to treat lung cancer. She was still able to participate and vote in the matter as she was able to read the transcript of the oral argument.

In the last decades of her life, she became a cultural icon of sorts, having been given the moniker “Notorious RBG”, a riff on rapper “Notorious B.I.G”. She seemed to enjoy this new notoriety,

although appeared somewhat perplexed by it as well. There are any number of t-shirt designs and knick knacks featuring Justice Ginsburg, documentaries made about her life, her name is featured in hundreds of songs and children dress up in her likeness for Halloween. Her public appearances were an event, with people waiting in line to see her speak.

Perhaps it was her small stature, her righteous dissents, the fact that she tried so hard to keep going until it was safe to let go, or the simple fact that she had personally experienced many of the scenarios which had come before her as a jurist, which is typically not the case with the predominantly white male jurists that populate the courts of this nation. She is undoubtedly the only Supreme Court justice who can be identified by a majority of Americans and the rent left in the fabric of society by her passing cannot be mended.

One last thing. In the days since Justice Ginsburg’s death, which fell on the first day of Rosh Hashanah, there has been telling of a Jewish tradition where one who dies on Rosh Hashanah is a Tzadik (also spelled Tzaddik), a person of great righteousness. How perfect. We cannot let her down. We must keep moving forward in her honor.

The Southwest Women’s Law Center sends its deepest condolences to the family of Justice Ginsburg, her Court family, friends, and all those across the United States who loved her.

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New Mexico-based “Crisis Pregnancy Centers” are Promoting Unethical Medical Experimentation on Pregnant People

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New Investigation Reveals 19% of New Mexico-based CPCs Promote Renegade Practice Known as “Abortion Pill Reversal”

(New Mexico, September 15, 2020) – A new investigation shows that nineteen percent of “crisis pregnancy centers” based in New Mexico promote an unethical experimental practice on pregnant people called “abortion pill reversal.”

“Claims regarding abortion ‘reversal’ treatment are not based on science and do not meet clinical standards,” according to the American College of Obstetricians and Gynecologists (ACOG). “So-called abortion ‘reversal’ procedures are unproven and unethical.”

This practice is not limited to New Mexico. The investigation focused on eight other states in addition to New Mexico, including, California, Pennsylvania, and Minnesota. Despite warnings from medical experts, the anti-abortion movement is focused on pushing “abortion pill reversal” from the fringes of anti-science activism into mainstream awareness through crisis pregnancy centers and laws mandating doctors mislead patients by claiming they can “reverse” a medical abortion. Like CPC websites, such laws “essentially encourage women to participate in an unmonitored research experiment,” according to an analysis in the New England Journal of Medicine.

During a medical abortion, a patient takes two drugs—first mifepristone, then misoprostol. Studies show it is a safe and effective method with no reports of long-term risks.

The renegade practice of “abortion pill reversal” is based on a theory developed by an anti-choice activist physician who conducted experiments on seven pregnant women in a study not supervised by an institutional review board or ethical review committee. The practice involves administering high doses of progesterone to pregnant people who have taken mifepristone, the first of two drugs used for a medical abortion, and discouraging consumption of the second drug, misoprostol.

The FDA has not approved of dispensing mifepristone without misoprostol, or this use of progesterone. The health effects on the patient and embryo are unknown.

“Anti-abortion activists are openly promoting medical experimentation with unknown health effects on pregnant Pennsylvanians,” says Susan J. Frietsche, director of the Western Pennsylvania office of the Women’s Law Project. “It’s unethical, dangerous, and echoes the darkest days of American history when brown and Black bodies were grotesquely exploited for medical experimentation. Does the state even know if Real Alternatives, the umbrella organization of CPCs that has so far received more than $100 million in taxpayer money, is participating in or promoting this abusive practice?” Forty percent of CPCs in Pennsylvania promote “abortion pill reversal”.

A systematic review conducted in the wake of the seven-person experiment found no evidence that pregnancy continuation was more likely after treatment with progesterone as compared with expectant management among women who had taken mifepristone.

“Crisis pregnancy centers target vulnerable people experiencing unplanned pregnancies. Many people who wind up at a CPC would not necessarily know they were being misled about their reproductive choices,” says Amal Bass, WLP director of policy and advocacy. “Beyond the obvious danger of experimentally dispensing powerful medicine to pregnant people, I worry about the person who might start a medical abortion even if they aren’t sure it’s the right decision for them because they were misled to believe they can just change their mind. This undermines informed consent in a particularly cruel way.”

The anti-abortion movement’s new emphasis on promoting abortion pill reversal coincides with the crisis pregnancy center movement’s increased efforts to target Black and brown clients.

“We are just beginning to reckon with our country’s long, shameful history of racist and sexist medical abuse,” says WLP attorney Christine Castro, “And now we’re seeing a coordinated effort to promote a new form of racist and sexist experimentation on pregnant people.”

Last year, the American Medical Association filed a federal lawsuit challenging the constitutionality of a North Dakota bill that attempted to force doctors to mislead patients by telling them about abortion pill reversal. The AMA said such laws “forc[ed] physicians …to act as mouthpieces for politically motivated messages that are misleading and could lead to patient harm.” In September, a judge blocked the law, stating it was “devoid of scientific support, misleading, and untrue.”

This March, a watchdog group called Campaign for Accountability asked the FDA to seize websites promoting this practice.

The Southwest Women’s Law Center and its partners in The Alliance, a collaboration of regional law centers working to ensure equitable access to evidence-based reproductive healthcare, conducted this investigation into crisis pregnancy centers promoting “abortion reversal” as part of a larger project. The Alliance law centers – Gender Justice, Legal Voice, Southwest Women’s Law Center, and Women’s Law Project – are working with California Women’s Law Center and reproductive epidemiologist Dr. Laura Dodge to conduct a systematic review of crisis pregnancy centers operations in Alaska, California, Idaho, Minnesota, Montana, New Mexico, Oregon, Pennsylvania, and Washington State.

Of the nine states included in this investigation, Washington state has the highest rate of promoting “abortion pill reversal” at 49 percent.

If you need more information or to request an interview with an attorney, please contact either Terrelene Massey, or Wendy Lee Basgall.

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Attitudes Towards Reproductive Health Policy Among Native Americans in New Mexico: Summary of Findings

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During the 2019 New Mexico Legislative Session, the Southwest Women’s Law Center (“SWLC”) and Forward Together/Strong Families (“FT/SFNM”) partnered on a legislative advocacy project resulting from the failure to pass House Bill (HB) 51 which would have repealed New Mexico’s dormant abortion ban.

In talking with legislators who were either Native American or represented significant Native American constituencies, many expressed the belief that Native Americans, as a monolithic group, are against abortion. The SWLC and FT/SFNM believe this stereotype caused some Democratic senators to vote against HB 51 (a few of whom had initially pledged to vote for HB51 and then recanted on that pledge), causing it to fail.

After the close of the 2019 legislative session, the SWLC recognized the need to address these stereotypes, and partnered with FT/SFNM to conduct a survey of Native American experiences and attitudes towards abortion care and reproductive healthcare in general. In 2017, FT/SFNM conducted a survey of rural New Mexicans’ attitudes towards reproductive health, which provided preliminary evidence that Native Americans who lived in rural New Mexico had progressive views in this policy area. The SWLC also discovered that there had never been a survey directed only to New Mexico’s Native American population. This survey was meant to be a more focused look at these attitudes.

The SWLC and FT/SFNM contracted with opinion research firm Latino Decisions, and in March and April of 2020, they conducted a mixed mode (phone and internet) survey of over 300 Native American adults in New Mexico. To the best of our knowledge, this is the largest sample of Native Americans in New Mexico ever collected for the purpose of understanding experiences of Native Americans and attitudes toward reproductive health policy.

The survey sought to illuminate the diversity of opinions on a range of reproductive health topics within the Native American population of New Mexico and to discover any trends. The SWLC and FT/SFNM plan to use this data to identify whether there are needs within Native populations that we should be addressing, what approaches would be most beneficial, and inform legislators about the diversity of opinion among their Native American constituents.

Methodology

Latino Decisions conducted the survey Attitudes Toward Reproductive Health Policy Among Native Americans between March 24, 2020 and April 7, 2020, completing 302 interviews of Native American adults in New Mexico. Of the 302 completed interviews, 158 were conducted over the phone (cell-phone/landline) and 144 were web-based.

The data collection effort was aimed at ensuring the sample was reflective of the state’s Native American population. The survey included several demographic factors to compare the outcome of these measures with data from the US Census. The results were weighted to known population characteristics using the Current Population Survey from the US Bureau of Labor Statistics. The nominal margin‐of‐error for the poll is 5.6%.

We have included several figures from the demographic content of the survey to provide the ability to assess the sample’s demographic profile.

Demographics

Slightly over half of respondents are affiliated with the Navajo Nation. The Navajo Nation is the largest Indian tribe in New Mexico, and one of the largest in the continental United States. Just about a quarter of respondents are Pueblo. Pueblo respondents came from 18 of the 19 Pueblos, with generally 1-2% of the sample from each one, and 6% from Zuni. The only Pueblo not represented is the Pueblo of Zia. Additionally, 3% are Cherokee Nation-affiliated, 1% are Mescalero Apache, 11% marked “Other,” and 7% didn’t know. This is roughly proportional to the population of each tribe in New Mexico. The majority of respondents are enrolled tribal members, at 77%; eighteen percent were not enrolled and 5% didn’t know. This is a higher rate of enrolled members than most of the New Mexico surveys conducted by Latino Decisions in the past.

Respondents were 52% female, 46% male, and 2% transgender or two-spirit. The age of respondents was varied, although all respondents were 18 years or older. Nearly half of respondents live on reservation or tribal lands, while 37% live off tribal lands and 14% split time across both areas.

Perceptions Regarding Access to Reproductive Health

When asked, “do you think Native Americans in your community have access to reproductive healthcare?”, 65% of respondents said yes, 22% said no, and 13% said that they didn’t know. Respondents living in rural areas or on tribal lands were the most likely to say they had access, at 67%, while respondents living off tribal land or in urban areas were much more likely to answer in the negative (42% and 35%, respectively). From this data, it seems that reproductive healthcare is less attainable for Native Americans living in cities, away from tribal lands. This might be explained by the data that 81% of respondents receiving healthcare from IHS or Tribal 638 clinics reported that they were able to access the reproductive health services they want and need. Alternately, it could be related to a greater awareness of the spectrum of reproductive healthcare by respondents in urban areas, and an attending perception that Native Americans in these urban areas are unable to access such care.

These responses on reproductive healthcare access must be contrasted with those answering whether respondents’ healthcare provider offered abortion services: only 29% of respondents said “yes.” The group that was most likely to say that Native Americans in their community had access to reproductive healthcare was the least likely to say that a clinic in their community provides abortions: Native Americans living on reservations and tribal lands (67% v. 10%). This discrepancy may be explained by the exceptionalism afforded to abortion care, specifically the preconception that it is not “normal” reproductive healthcare. The fact that abortion access is so limited on reservations and tribal lands can be attributed, at least in part, to the Hyde Amendment.

The Hyde Amendment prohibits the use of federal funds on abortion, except in a few cases (rape, incest, threat to the woman’s life), and this limitation affects Indian Health Service (“IHS”) clinics because they rely on federal funding. Surprisingly, active military respondents who are Native American were the most likely to say that a clinic in their community provides abortions (55%), despite the fact that the military’s TRICARE program is also subject to the Hyde Amendment. Urban respondents and those living off tribal land were the second most likely (44% each) to say that a clinic in their community provides abortion.

Thirty-seven percent of respondents reported that they were currently receiving reproductive healthcare from IHS, and a further 4% from Tribal 638 clinics. Of those who don’t receive healthcare at IHS, 29% said that they were uncomfortable receiving their care at IHS clinics, 17% said it was because of the quality of care they receive, and 13% cited difficulty getting an appointment. The lowest percentage (5%) marked that they don’t go to IHS because these clinics don’t provide the reproductive healthcare that they want or need.

The majority of people surveyed (89%) agreed that Native American women and families deserve to make their own healthcare decisions without government interference.

Attitudes Regarding Abortion and Reproductive Health Policy in New Mexico

When asked whether they would support or oppose a law that would make it a criminal offense for doctors to perform abortions, 45% of respondents said they would oppose, 25% said they would support, and 27% said they didn’t have a strong opinion either way. Broken down by political affiliation, Republican respondents were the most likely (38%) to say they would support making abortion a criminal offense. Only 22% of Independent respondents and 23% of Democrat respondents said they would support such a law. While men and women opposed such a law at approximately the same rate (45% and 44%), men were more likely to support the law (31% v. 21%) and women were more likely to say that they didn’t have a strong opinion either way (32% v. 21%). Active military respondents were by far the most likely to support abortion criminalization at 55%, while veteran respondents were the least likely to support, at 16%. In general, Native Americans in New Mexico are against making the provision of abortion care a criminal offense, and more respondents said they didn’t have a strong opinion than those who would support criminalization. Because the question did not specify that this would criminalize safe abortions, it is unclear whether some respondents who were supportive or ambivalent about criminalization were thinking of unlicensed or harmful doctors performing unsafe abortions.

Many respondents (59%) agreed that, if someone they care about has made the decision to have an abortion, they want them to have support—only 20% disagreed. When asked if they can hold their own moral views about abortion and still trust a woman and her family to make this decision for themselves, 72% of respondents said yes. This shines a light on the complexity that is often missing from national debates around abortion: people hold nuanced views, and even those who are not in favor of abortion recognize the humanity and need for support of people who decide to have an abortion.

Personal Experiences with Reproductive Health Challenges in New Mexico

Respondents were asked about their own experiences with abortion, miscarriage, infertility and sexual violence, as well as how those experiences shaped their views.

Around one-third of respondents (35%) said they have a friend or family member who has had an abortion, and 20% said they or their partner had accessed abortion care. This is consistent with national rates of abortion frequency. Fourteen percent of respondents or their partner had experienced infertility or trouble getting pregnant, and 21% had experienced a miscarriage or stillbirth. Nationally, 10-20% of known pregnancies end in miscarriage and about 1% in stillbirths, putting these survey responses on the high end of prevalence.

An equal portion of respondents (43%) said that their own experiences around reproductive healthcare “has made me realize we need more access to reproductive health[care] in New Mexico” and “has not had any impact on my views.” Only 10% of respondents said their experiences “made me realize we need less access to reproductive health[care] in New Mexico.”

Respondents who have personal experience with abortion listed who they turned to for emotional support: 45% turned to a family member, 41% turned to friends, 27% to their partner or spouse, 17% to a medical provider, 12% to internet support forums, and 5% to a faith leader (respondents were allowed to choose more than one). A quarter of respondents say that they didn’t seek or need support, while 11% said that they didn’t have the support they needed. This question was only asked of a small number of respondents, and so responses should be viewed as anecdotal, not statistically significant.

Twenty-two percent of respondents had been the victim of sexual assault or violence at some point in their life. In the US, 1 in 3 women and 1 in 4 men experienced sexual violence involving physical contact during their lifetimes, and this data is consistent with those national rates. It bears noting that sexual violence is underreported, and the real incidence of sexual violence is higher than the numbers show.

Experience with Long-Acting Reversible Contraception (LARC)

Long-Acting Reversible Contraception (LARC) includes intrauterine devices (IUDs) and subdermal implants, which provide low-level doses of hormones that inhibit fertilization of the egg. LARC is one of the most effective forms of birth control, but also one of the most expensive in terms of up-front costs. In the US, LARC can cost up to $1,000 out-of-pocket, although it is starting to be covered by more insurance plans. Additionally, healthcare providers must be trained in LARC insertion and removal, which has meant that not every office prescribing birth control has the experience or capacity to offer LARC.

In this survey, 57% of respondents said their healthcare provider offered LARC, 25% said they did not, and the remainder didn’t know. When this data was broken down by healthcare provider, 69% of respondents who received their healthcare from Indian Health Service (IHS) said that their provider offered LARC, compared with 59% from Tribal 638 clinics, and 50% from other providers. Respondents living off reservation were more likely to say that their healthcare provider offered LARC than respondents living on a reservation (74% v. 64%). Additionally, Pueblo respondents reported more access to LARC, at 67%, than Navajo respondents, at 56%. This is likely because of the relative locations of Pueblos and the Navajo Nation. The Navajo Nation, which covers a tremendous amount of land, is located in the northwestern region of New Mexico, which is more rural and frontier, whereas Pueblos are generally located on the Rio Grande corridor, near larger population centers, except for Zuni, Acoma, and Laguna Pueblos.

Fifty-eight percent of female respondents have never used LARC, while 14% had used it in the past, but are not currently using it, and only 8% are currently using LARC.

Of the respondents who had been prescribed LARC, but hadn’t used it, 67% said that this decision was because they had heard LARC can lead to problems with pregnancy after removal of the device, 27% said they preferred other options, while 18% said they heard it was a painful procedure and 15% said they felt pressure not to take it. This is once again a small subset of the total respondents, and so the numbers are not statistically significant, but they do indicate that there is misinformation about LARC’s long-term effects.

Key Take-Aways

Native Americans in New Mexico have varied attitudes and experiences around reproductive health; as suspected, they are not a monolithic group. The data shows how different affiliations and demographics relate to disparate viewpoints within the Native American population of New Mexico, and that even these other factors don’t fully account for an individual’s beliefs.

Native American constituents are not generally opposed to abortion. They are more likely to oppose the criminalization of abortion than support it.. Native Americans overwhelmingly agree that their women and families deserve to make their own healthcare decisions, free from government interference.

There is room for improvement in Native American access to abortion and other reproductive healthcare.

Recommendations
The SWLC and FT/SFNM should share these findings to indigenous-lead organizations, Native American advocates, and those interested in serving Native populations, and partner on next-steps. While the data is a useful starting point, it is important to collaborate and support Native American advocates in order to make sure that plans are responsive to the needs and sensitivities of this demographic, and that the organizations remain accountable to the people they are trying to serve.


Misinformation about LARC is common, and the data shows a concern with LARC’s impact on subsequent pregnancies after removal of the IUD. In addressing this information, it will be important to consider who is delivering the message and whether they are deemed trustworthy, especially because of the long history of medical abuse of Native American women and families in the US.


In addressing LARC uptake and contraceptive use, the SWLC, and other partners should pursue strategies that build trust between Native American patients and healthcare providers. This will include making it easier for patients to get whichever kind of birth control they choose, whether it’s LARC or not, and facilitating both easy insertion and removal so that patients don’t feel compelled to keep LARC. Part of this effort will be continued work for parity in provider reimbursement rates for insertion and removal of LARC.

The Hyde Amendment continues to pose an obstacle for patients who wish to receive a full range of reproductive health services, including abortion, at IHS. There is a broad-based movement to repeal this amendment, and to the extent possible, the SWLC and FT/SFNM should continue and support and participate in the repeal of the Hyde Amendment. In the interim, IHS and 638 clinics are permitted under the Hyde Amendment to perform abortion care for individuals who fall under the exceptions built into the Amendment. Upon information and belief, still both IHS and 638 clinics are not providing this reproductive health service, or it is very limited. Follow up conversations should occur with the IHS about this. Pending repeal of the Amendment in total, the SWLC should continue working with reproductive health and justice partners to ensure that IHS and 638 clinics are providing every reproductive health service as allowed by law to Native individuals living in New Mexico.

Last, the partnership of organizations serving Native Americans in New Mexico should investigate why healthcare access in urban areas seems to be worse for Native Americans than on reservations or tribal lands. There may be hidden barriers to access that need to be addressed.

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References:

1 This summary was authored by Kearney Coghlan, Harvard Law School, Class of 2022, Student and SWLC Summer Law Clerk, with the supervision of Terrelene Massey, Esq., (Navajo), Executive Director, and Wendy Basgall, Esq., Staff Attorney.

2 Recognition of Partners on the survey Attitudes Toward Reproductive Health Policy Among Native Americans: Survey Development and Research: Southwest Women’s Law Center, Forward Together/Strong Families New Mexico, and Latino Decisions. Part 1 of this research on rural New Mexico included the work of Bold Futures. Contributing Organizations: Indigenous Lifeways and Tewa Women United. Compilation and Analysis: Latino Decisions. Additional national data analysis provided by Forward Together/Strong Families New Mexico.

3 https://data.census.gov/cedsci/table?q=american%20indian%20new%20mexico&g=0400000US35&hidePreview=false&tid=ACSDT5Y2018.B02014&vintage=2018&layer=VT_2018_040_00_PP_D1&cid=B02010_001E

4 https://www.kff.org/womens-health-policy/issue-brief/the-hyde-amendment-and-coverage-for-abortion-services/

5 https://www.guttmacher.org/sites/default/files/factsheet/fb_induced_abortion.pdf

6 https://www.mayoclinic.org/diseases-conditions/pregnancy-loss-miscarriage/symptoms-causes/syc-20354298; https://www.cdc.gov/ncbddd/stillbirth/data.html

7 https://www.cdc.gov/violenceprevention/sexualviolence/fastfact.html

8 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3662967/

9 https://pubmed.ncbi.nlm.nih.gov/29544988/

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Latino Decisions Data

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NM Political Report: Reproductive health care poll finds support among Native Americans in state

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A poll taken earlier this year showed that 81 percent of Native Americans around the state believe that women deserve to make their own decisions about reproductive health care without government interference.

Two nonprofit organizations, Southwest Women’s Law Center and Forward Together commissioned the poll last spring and the poll results will be released later this fall. Latino Decisions conducted the poll. New Mexico Political Report obtained an unreleased poll summary.

By Susan Dunlap

Read full article at NM Political Report

SWLC Newsletter: Summer 2020

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In this issue:

With the goal of creating new and equal opportunity for women and girls, SWLC keeps a close eye on these social justice matters. In our Summer edition, you can read about the following in our Summer 2020 Newsletter:

Lovelace Women’s Health
Lovelace Women’s Health screening is discriminatory against Native American mothers and babies and the State should investigate.

June Medical Services v. Russo
SWLC applauds the June Medical Services v. Russo decision.

Black Lives Matter
The Southwest Women’s Law Center stands in solidarity with the Black community and supports Black Lives Matter.

Meet the Team
Meet the team at Southwest Women’s Law Center who are working for you.

Download Summer 2020 Newsletter

SWLC Statement Regarding Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania

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Release July 9, 2020

The Supreme Court of the United States (the “Court”) decided the contraceptive access case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, which upheld two Trump administration regulations allowing employers to deny contraceptive coverage under the Affordable Care Act (ACA) for “sincerely held” religious or moral reasons. This expands the exemptions that already exist for churches and other houses of worship, religiously-affiliated non-profits, and closely held corporations whose religious beliefs equate some forms of contraception with abortion, to now include for-profit companies and any employer that claims to have religious and/or moral objections to the provision of birth control. The Court cloaks this decision with the justification of religious liberty, but the impact will be to deny women, specifically low income and women of color, access to family planning services that are desperately needed.

This ruling will cause 70,000 to 126,000 women to lose coverage for contraception at work, and it remains unclear whether insurers or states will pick up the tab, or if the affected women will be forced to pay out-of-pocket for their contraception. When birth control isn’t covered by insurance, women are put in the position of having to choose between paying for their contraceptive prescription or paying for pressing essentials, like rent or groceries. We know that these kinds of decisions lead to lapses in birth control use, which contributes to high rates of unintended pregnancy in the United States. This is of course quite ironic, given the Trump administration’s attempts to pack the federal courts with anti-choice judges. Wendy Basgall, staff attorney, says this sends the following message: “We are not going to help you prevent unplanned pregnancies, nor will we allow you to choose to terminate an unplanned pregnancy that resulted from your inability to pay for contraception.”

Access to contraceptives is an essential part of bodily autonomy, giving individuals a say in whether and when to expand their families. Yet the Court’s decision effectively allows bosses to dictate whether their employees can access contraceptives—this isn’t a comprehensive approach to health care.

New Mexico has made the importance of contraceptive coverage clear: in our state, insurance plans that cover prescription drugs must include contraceptives with no out-of-pocket payment. The only exemption is for religious entities. However, this ruling may open the door for nearly any New Mexico employer to claim a moral exemption, leaving their employees in the lurch. Terrelene Massey, Executive Director states, “The Southwest Women’s Law Center believes that contraceptive access is a right and is essential to the well-being of New Mexico’s women and girls.  We also believe that creating a health insurance gap is bad policy and bad healthcare. We need to protect this access for all New Mexicans.”If your employer refuses to cover birth control because of a religious or moral objection, we want to hear from you! Contact us at info@swwomenslaw.org or 505-244-0502.

1— 591 U.S. ___ (2020). This case is being decided together with Trump, President of the United States, et al. v. Pennsylvania et al. No. 19-454.
2 — Burwell v. Hobby Lobby Stores, Inc., 573 U.C. 682 (2014)
3 — https://www.nytimes.com/2020/07/08/us/supreme-court-birth-control-obamacare.html
4 — 1978 NMSA §59A-22-42.

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