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Tag: equality

  • Pregnant women shackled, jailed for alleged substance use

    Pregnant women shackled, jailed for alleged substance use

    A pregnant woman tumbles down a flight of stairs and is arrested for attempted feticide. A pregnant woman about to be released from prison is re-incarcerated when the judge learns she is pregnant and HIV-positive. A pregnant woman informs health care workers that she previously used drugs but has kicked her habit and is clean. She’s handcuffed, shackled, taken to court and ordered into detention at a drug treatment facility.

    All of these incidents happened.

    The last one occurred in Wisconsin last summer, leading to the filing of a federal civil rights lawsuit in Milwaukee and helping to inspire two state legislators to offer a trio of bills aimed at protecting the rights of pregnant women.

    In mid-March, Democratic state Reps. Chris Taylor and Terese Berceau of Madison introduced the Pregnancy Protection Package, which was not passed in the 2014 session but will be reintroduced next session.

    In the headlines when Taylor and Berceau offered the bills was a battle in Texas, where hospital officials had refused to remove 33-year-old Marlise Muñoz from life support because of her pregnancy, even though the woman had been declared brain dead and had previously indicated to her family that she did not want to be kept alive artificially.

    One bill, authored by Berceau, would ensure pregnant women’s advanced medical directives are respected.

    “Pregnant women are not second-class citizens and deserve the same rights as everyone one else,” Berceau stated. “Major medical decisions, as outlined in advanced directives, are very personal decisions that should be left up to individuals and their families, not politicians.”

    A second measure, introduced as Assembly Joint Resolution 111, would affirm “that pregnant women be afforded all the rights of non-pregnant people.”

    And the third bill, written by Taylor, would ensure pregnant women who are alleged to have used drugs have the right to counsel before being detained.

    This last measure is a response to the forced detention last summer of Alicia Beltran of Jackson. Beltran, seeking prenatal care, told a health-care provider that she had previously used drugs but was clean. Several days later, Beltran was handcuffed in her home, shackled and taken to a holding cell. She was then brought before a judge, where she found her fetus had a court-ordered attorney, but she had no counsel.

    At the hearing, without testimony from any medical expert, Beltran was ordered to spend 78 days in a drug rehab facility, where, she maintains, she went without adequate health care or prenatal care.

    The federal civil rights complaint is pending in the U.S. District Court in Milwaukee.

    Beltran is represented by attorney Linda Vanden Heuvel, who has said locking up the woman was not in the interest of a future child and “most certainly tramples the rights of Ms. Beltran, a woman who was not in fact using any controlled substances at the time of her arrest.”

    The complaint challenges a 1997 Wisconsin law that “takes away from a pregnant woman virtually every right associated with constitutional personhood — from the most basic right to physical liberty to the right to refuse bad medical advice,” stated Lynn Paltrow, executive director of the National Advocates for Pregnant Women and a co-counsel in the case. “This kind of dangerous, authoritarian state action is exactly what happens when laws give police officers and other state actors the authority to treat fertilized eggs, embryos and fetuses as if they are already completely separate from pregnant women.

    The complaint lists a series of violations, including the rights to:

    • Physical liberty

    • Due-process notice

    • Privacy in medical decision-making

    • Carry a pregnancy to term

    • Abortion

    • Privacy in medical and personal information

    • Freedom from illegal searches and cruel and unusual punishment

    • Equal treatment under the law.

    Four states — Wisconsin, Minnesota, Oklahoma and South Dakota — have laws that explicitly permit detaining pregnant women alleged to have used alcohol or drugs, according to NAPW.

    On April 29, Republican Gov. Bill Haslam made Tennessee the first state to enact a criminal law explicitly permitting the prosecution of women for their pregnancy outcomes.

    “This law is bad medicine for Tennessee families,” said Cherisse Scott, CEO of SisterReach. “It was promoted by prosecutors against the recommendations of medical professionals, (it) permits arrest and incarceration of women who cannot guarantee that their newborn is in perfect health and (it) creates a separate and unequal law for women, allowing their arrest if they are pregnant and struggling with addiction.”

    Thousands had called on the governor to veto the legislation, which conflicts with the more progressive safe harbor law that was enacted to lessen the threat of punishment and encourage pregnant women to seek treatment if needed.

    The Tennessee measure is a new breed of law, but since 1973 and the Supreme Court ruling in Roe v. Wade, advocates for pregnant women have documented the use of other measures to arrest, detain and force medical procedures in hundreds of cases involving pregnant women.

    On April 18, the Alabama Supreme Court upheld the conviction of Sara Hicks, who gave birth to a healthy baby who tested positive for cocaine in 2008. The court, in an 8-1 decision, affirmed its prior ruling that “child” in Alabama law includes fertilized eggs and that women can be arrested for using a controlled substance while pregnant.

    The legislation used to prosecute Hicks, the chemical endangerment law, was passed in 2006 and intended to deter people from bringing children to places where controlled substances are distributed or produced, like meth labs.

    Since 2006, more than 100 women have been arrested.

    Research shows that policies that deter women from seeking prenatal care are contrary to the welfare of the mother and fetus and that incarceration or the threat of detention are ineffective in reducing drug or alcohol abuse.

    There is a long list of medical and mental health organizations that oppose punishing and prosecuting pregnant women for alleged risky behavior. The list includes:

    • The American Medical Association

    • American Academy of Pediatrics

    • American College of Obstetricians and Gynecologists

    • American Public Health Association

    • American Nurses Association

    • American Society of Addiction Medicine

    • March of Dimes

    • American Psychiatric Association

    • American Psychological Association

    • National Perinatal Association

    • Association of Maternal and Child Health Programs

    • Center for the Future of Children.

    Many of the organizations have opposed laws such as those in Wisconsin and Tennessee for more than two decades, arguing that such measures not only infringe on women’s rights but also scare women away from medical care, treat addiction as a moral failing and lead women who want to give birth to instead undergo abortion procedures.

    “Criminalizing pregnancy outcomes scares women away from prenatal care and drug treatment,” said Farah Diaz-Tello, a staff attorney with National Advocates for Women. “Women who cannot afford private treatment for their addiction and who fear arrest and separation from children they already have feel as though abortion is the only way to keep their current families together.”

    Jennifer Roth was among those who campaigned against the Tennessee Pregnancy Criminalization Law. She is the president of All Our Lives, which she described as a “pro-woman, pro-life organization.”

    In a letter urging Haslam to veto the measure, Roth wrote, “We fear that the effect of this law will be to discourage vulnerable women from seeking care that would benefit themselves and their babies, and even to provide an incentive for abortion. That doesn’t foster life.”

  • We can be heroes: In pursuit of equality in the courts

    Eight same-sex couples — with a team of lawyers — committed earlier this year to overturn Wisconsin’s constitutional amendment barring gays and lesbians from the freedom to marry in the state. Their fight continues, but already their pursuit of equality has resulted in the marriages of at least 555 same-sex couples in Wisconsin.

    “These families simply want the security and recognition that only marriage provides,” Larry Dupuis, legal director of the ACLU of Wisconsin, had said when he filed the equality case in Madison in February. “They have built their lives and raised children here. It is wrong for the state to treat these loving and committed couples as second-class citizens, and it is cruel to place them in a catch-22 where they can’t even travel elsewhere to obtain federal protections without their marriage being labeled a crime.”

    The couples’ attorneys, the state’s equal rights leaders and the gays and lesbians who hope to take marriage vows have heralded the couples — Charvonne Kemp and Marie Carlson, Judith Trampf and Katharina Heyning, Roy Badger and Garth Wangemann, Johannes Wallmann and Keith Borden, Salud Garcia and Pam Kleiss, Kami Young and Karina Willes, Bill Hurtubise and Dean Palmer — as heroes.

    “To be a plaintiff in a case like this, you have to put yourself out there and vow to see the fight through, maybe all the way to the Supreme Court,” said April Goodmann, a Waukesha resident who, when the case is settled for good, hopes to marry her longtime girlfriend. “These people are heroes, plain and simple. They are my heroes.”

    There are now hundreds of heroes serving as plaintiffs in more than 70 marriage equality cases pending in 31 states.

    And there’s a long history of heroes who, with the support of groups such as the ACLU and Lambda Legal, challenged laws and regulations, changing the lives of LGBT people in housing and schools, in the Armed Forces and on the job, at the marriage license bureau and in the privacy of their own bedrooms. Most of them have been plaintiffs, but some have been defendants.

    A look at just a handful of the many LGBT civil rights cases fought over the years and the legal activists involved in them:

    • Jamie Nabozny. For four years, Nabozny was subjected to anti-gay verbal and physical abuse by students at his school in Ashland, Wisconsin. Students urinated on him, pretended to rape him during class and, in one assault, kicked him so many times in the stomach that he required surgery. Nabozny sued the school district and won in a federal appeals court in Chicago, which said in 1996 that public schools are obligated to protect students from anti-gay abuse. Nabozny, represented by Lambda, also won back in Wisconsin, where a jury in 1996 also found school officials liable.

    • Richard G. Evans. Evans, an administrator in Denver, was the lead plaintiff in a lawsuit seeking to overturn Colorado’s Amendment 2, enacted by voters in 1992. The amendment barred governments in the state from enacting non-discrimination ordinances or policies that would protect gays. The state argued that Amendment 2 simply prohibited creating “special rights” for gays, but Evans et al., represented by the ACLU and Lambda Legal, argued the measure denied gays the right to participate in the political process. The U.S. Supreme Court, ruling in 1996, said the amendment did not satisfy the Equal Protection Clause. The majority opinion said, “The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.”

    • John Geddes Lawrence and Tyron Garner. On Sept. 17, 1998, deputies in Harris County, Texas, were dispatched to an apartment expecting to deal with a “black male going crazy with a gun.” It was a false claim, called in to the police by a jealous man. At the apartment, two deputies said they saw Lawrence and Garner engaged in sexual activity. They arrested the men for “deviate sex.” The two pleaded no contest before a justice of the peace, then appealed in Texas Criminal Court. Their case, managed by Lambda Legal, reached the U.S. Supreme Court, which ruled in 2003 that sexual relationships between consenting adults are protected by the 14th Amendment.

    • Ninia Baerhr and Genora Dancel. The women became the lead plaintiffs in Baehr v. Miike, the landmark lawsuit seeking the freedom to marry in Hawaii in the 1990s. Though state lawmakers and voters erected barriers to the plaintiffs securing that right in the 1990s, their case launched the marriage equality movement and resulted, way back in 1993, in the first high court ruling for gay marriage. Today, Hawaii is an equality state.

    • Edith Windsor. Windsor is the widow of Thea Clary Spyer and the executor of Spyer’s estate. The women married in Canada in 2007, two years before Spyer’s death, and their marriage was legal in the state of New York. But until last summer, the marriage was not recognized by the federal government, which imposed $363,000 in taxes on the estate left to Windsor. Windsor’s lawsuit, brought by the ACLU, resulted in the U.S. Supreme Court overturning Section 3 in the Defense of Marriage Act and the full federal recognition of gay marriages.

    • Miguel Brashi. Braschi and Leslie Blanchard lived together for 10 years in a rent-controlled apartment in New York City, beginning in 1975. When Blanchard died in September 1986, the landlord threatened to evict Braschi, maintaining that he had no right to stay because Blanchard was the tenant of record. The 1989 case, Braschi v. Stahl, led the court to expand the definition of family in the city’s rent control regulations. The majority opinion said that protection against eviction “should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life.”