What freedoms and rights do individuals have over their own bodies? And are these rights and freedoms being protected both during and outside of the COVID-19 pandemic? These questions underlie much of the debate around reproductive rights in the United States. They were also two of the central questions addressed in the daylong symposium “Reproducing Injustice: COVID-19, Reproduction, and the Law,” hosted by Drexel Law Review on October 15.
Daniel Filler, dean of Drexel University Thomas R. Kline School of Law, began the conference by observing that law is how society speaks out. “The rule of law,” Filler said, “allows us, as a democracy, to function and to navigate and to make sure that we as a community can be the one we want to be.”
The symposium created a space for experts from various fields to discuss reproductive rights, reproductive justice and reproductive freedom. All of which, according to Filler, are “issues that are so concerning for today and will ripple out in their implications for years to come.”
Panel One: Abortion Access and Care
Opening the symposium, panelists Rachel Rebouché, JD, LLM; Maya Manian, JD; Farah Diaz-Tello, JD; Jenifer Groves, MEd, PhD, MBA; and Christine Castro, JD, discussed how legislative and legal challenges to abortion have intersected with changes to health care that are a result of the pandemic.
Christine Castro, a staff attorney at the Women’s Law Project, spoke about the delivery of abortion care in Pennsylvania and the barriers and benefits encountered during the pandemic. She outlined how the Women’s Law Project works to defend the rights of pregnant minors by helping them navigate Pennsylvania’s judicial bypass system, which allows minors who cannot or do not wish to obtain parental consent to receive abortion care with permission from the court.
Castro noted that one benefit to the COVID-19 restrictions was remote hearings, which seem to have increased accessibility of judicial bypass hearings for minors. She attributed this to the disbanding of barriers, such as transportation and hearings scheduled during school hours.
Maya Manian, a visiting professor at American University Washington College of Law, discussed Dobbs v. Jackson Women’s Health Organization, Whole Woman’s Health v. Jackson and United States v. Texas, abortion cases that will go before the United States Supreme Court (SCOTUS) during the 2021-2022 term and could significantly impact reproductive justice. During this discussion, Manian suggested that Roe effectively doesn’t exist in the U.S. right now, because of Texas law S.B.8, legislation that bans almost all abortions after about the sixth week of pregnancy and is at issue in Whole Woman’s Health v. Jackson and United States v. Texas.
After outlining the specifics of these cases and the possible outcomes from the SCOTUS hearings, Manian expanded her discussion to explore reproductive justice as a framework. Reproductive justice holds that pregnant people have the right to not have a child as well as the right to raise their child “with dignity and [in] safe, healthy and supportive environments.” Manian noted that even under Roe, reproductive justice was not fully realized because the “legal world has never sufficiently protected access to abortion care for poor people and for people of color.”
Jenifer Groves, vice president of center administration at The Women’s Centers, discussed the barriers to receiving abortion care in Philadelphia that existed before the COVID-19 pandemic, including required parental approval for under-aged pregnant individuals, mandatory 24-hour abortion counseling and cost. Groves noted that many clients served at Philadelphia’s Women’s Center live at or below the poverty line and that, due to the Hyde Amendment, Medicaid only covers abortion care in cases of rape, incest or if the pregnant person’s life is in danger as a result of the pregnancy. The pandemic made these barriers more onerous and caused new ones, such as staffing shortages, equipment shortages and new safety procedures. Groves concluded her presentation by saying: “I want to ask this powerful group of allies: Where is the expanded ease of access en masse for those people, and what are you willing to do to help?”
Rachel Rebouché, interim dean and James E. Beasley professor of law at Temple University’s James E. Beasley School of Law, talked about the emergence of telehealth and abortion care. Telehealth abortion care is accessible through virtual clinics that offer medication abortion, a two-drug regimen that ends pregnancy before 10 weeks. As of April 2021, the Federal Drug Administration (FDA) does not mandate that the healthcare provider be physically present when the drug regimen is collected or taken by the patient. This has resulted in the expansion of virtual clinics throughout the pandemic. While telehealth abortion care offers reason for optimism about abortion access, it still present challenges for low-income pregnant people since its success depends on access to technology, a stable Internet connection and an uncomplicated pregnancy.
Farah Diaz-Tello, senior counsel & legal director at If/When/How: Lawyering for Reproductive Justice, closed out the first panel with a presentation about If/When/How’s efforts to end the criminalization of people who use self-managed abortions to end a pregnancy and discussed how COVID-19 changed the demand for self-managed abortions. According to Diaz-Tello, a person might choose a self-managed abortion because they don’t feel safe or welcomed in clinical settings. “Whatever an individual’s reason is, or whatever their preference is,” said Diaz-Tello, “people should have access to care that meets their needs and affirms their dignity, whether that is in a clinic with a healthcare provider or at home with a trusted friend.”
Panel Two: Pregnancy and Childbirth
Opening panel two, Elizabeth Kukura, assistant professor of law at Kline Law, suggested that the increased demand for birthing support from non-medical people, such as birth doulas and midwives, in maternity and neonatal care during the pandemic has led to an opportunity to assess such care in the United States generally. She noted that the country’s maternal mortality rate is one of the highest among developed countries and that there is good evidence showing that “continuous emotional and physical support” provided by birth doulas leads to more positive outcomes, such as shorter labors and less reliance on pain medication. Kukura concluded that the disruption caused by COVID-19 provides an opportunity to “reinvigorate the conversation about the rights of birthing people” and “to ensure that those rights are meaningful and enforceable rather than aspirational.”
Mari-Carmen Farmer, CNM, MSN, a midwife at Jefferson University Hospitals, explored three lessons that came out of COVID-19 on how to improve health outcomes. The first lesson: Understand the social and structural determinants for health outcomes and explore ways to change root causes for negative health outcomes. The second lesson: Listen to the communities who are the most affected by negative health outcomes. The third lesson: Promote collaboration in order to find solutions that improve health outcomes for the most vulnerable and marginalized communities.
Emaline Reyes, a doctoral candidate at Temple University, described her research about the pandemic’s effect on birthing and pregnant Puerto Rican people. Reyes interviewed 11 Puerto Rican women who work in reproductive health and justice, and her findings suggest that, as home births have increased because of COVID-19, healthcare officials have promoted the notion that midwives don’t provide sufficient care. “Overall, the birth workers I spoke with agreed that, more than anything, COVID has been making matters of reproductive health and justice more polarized [and that the] divide between Western medicine and traditional midwifery existed pre-COVID,” said Reyes. “But it is more exaggerated now and characterized by vitriol and intolerance.”
Robbie Davis-Floyd, an adjunct professor of Anthropology at Rice University, used a midwifery practice in the Philippines as a case study to show that community midwives can have a significant impact on the health and well-being of mothers, children and community.
Indra Wood Lusero, director and president of Birth Rights Bar Association, suggested that the COVID-19 pandemic has provoked a portal or disruption through which we can see new opportunities to improve maternity and neonatal health care. Lusero then discussed four truths that became apparent to her throughout the pandemic. They were: Human rights are a health outcome; points of connection and disconnection reveal power structures; the least expensive things are some of the best things (i.e., undervalued solutions, such as care provided by midwives, can be some of the most powerful); and risk isn’t the same for everyone.
Opening Keynote Speaker
Melissa Murray, the Frederick I. and Grace Stokes Professor of Law at New York University School of Law, based her keynote address on her recent Harvard Law Review article, “Race-Ing Roe: Reproductive Justice, Racial Justice, and the Battle for Roe v. Wade,” which argues that the biggest threat to Roe comes as a result of the U.S. Supreme Court Justice Clarence Thomas’s 2019 concurrence in Box v. Planned Parenthood. Murray argues that the Box concurrence lays the foundation for anti-abortion advocates to cloak their efforts in the ongoing quest to establish racial justice in the United States.
In his concurrence, Thomas notes that the constitutionality of trait selection laws that limit or prohibit abortion would need to be addressed by SCOTUS eventually. Thomas goes on to suggest that the Indiana trait selection law, at issue in Box, reflected the state’s attempt to ensure that abortion in Indiana did not fulfill its “eugenic potential to eliminate unwanted characteristics or traits,” said Murray, quoting Thomas and noting that the justice’s argument relied on conflated histories of abortion and eugenics.
Murray suggested that Justice Thomas’s concurrence twists the argument made by many reproductive justice advocates that reproductive rights and justice are matters of race and class—not just gender. Justice Thomas, said Murray, takes this reproductive justice argument and turns it on its head “by countering that the real racial injustice is not what abortion restrictions do to women of color but rather what abortion does to communities of color.”
Murray then argued that Thomas’s Box concurrence supports the notion that states’ restrictions against “eugenic abortion” function as anti-discrimination measures that were not included in Roe or Planned Parenthood v. Casey.
Murray noted that the Box concurrence has been cited to support such arguments in amicus briefs and in the lower federal courts. But the implications of the concurrence go beyond this. “To me, it seemed the concurrence and its efforts to change the social meaning of abortion by associating abortion with eugenics and the Black community was perhaps part of a longer-range strategy to destabilize and eventually overrule Roe v. Wade,” said Murray.
However, Justice Thomas’s argument relies on an incomplete view of history of controlling reproduction in the Black community, dating back to the days of slavery, according to Murray. It also ignores support for reproductive rights, including abortion, in Black communities.
Understanding this broader history provides advocates as well as the judiciary with a counter argument to the one posed in the Box concurrence. “The history that I provide gives pro choice advocates a means of challenging [Justice Thomas’s] historical narrative, or at the very least, it makes clear to courts that the history is more complicated than the Thomas narrative suggests,” concluded Murray.
Panel Three: Parenting and Families
Panel three, titled “Parenting and Families” and moderated by Lauren Katz Smith, assistant clinical professor at Kline Law, focused on how COVID-19 exposed issues within the American family care systems and how these systems have failed to support families. It also addressed positive reform efforts to change these systems in response to the COVID-19 pandemic.
Rebecca Feinberg, a professor in law, science, and health at DePaul University, discussed how the pandemic impacted fertility clinics, which were not deemed essential initially, and the question of whether or not fertility care is essential health care.
Early in the pandemic, fertility clinics were given three options: staying open, which led to criticism that they were doing so for financial benefit rather than providing health care; closing completely; or having a limited opening and focusing care on fertility preservation while not offering services related to new fertility treatments, such as embryonic implantation. Feinberg then outlined the two main perspectives that influenced what clinicians did: the practitioner perspective, which emphasized patient and staff safety, and the patient perspective, which focused on the mental health challenges associated with the changes to care. Feinberg noted that the unpredictability surrounding fertility clinics’ status caused extreme stress, quoting one person who stated, “I’m normally pretty resilient, but this has floored me.”
Feinberg concluded her talk by considering whether fertility care is essential. She focused on the different outcomes in fertility care compared to other types of health care (i.e., life saving versus life altering care) as well as the level of interaction involved in fertility care with other types of care and other types of businesses (i.e., sperm banks, matching agencies, etc.).
Sarah Katz, an associate clinical professor of law at Temple University Beasley School of Law, discussed the pandemic’s effects on those seeking to access family court as well as the effect the pandemic had on survivors of intimate partner violence.
Katz noted that Philadelphia’s Family Court was closed from March 2020 until June 2021, when it opened for protection from abuse filings in response to pressure from local advocacy groups. When the Court reopened, there was a backlog of cases, resulting in delays in accessing the Court and, subsequently, the justice and protection it provides. Katz noted that when the Court closed, families undergoing child custody disputes were forced to negotiate co-parenting plans on their own. Many were able to do so, but among the 20 percent who needed Family Court intervention, intimate partner violence and family violence were “remarkably prevalent.”
It’s difficult to assess the effect the pandemic had on those facing intimate partner violence; however, Katz used data showing a dramatic decrease in calls reporting such violence to 911 from March 2020 to May 2020. At the same time, there was an increase in mid-call hang ups to domestic violence hotlines, which suggests that those experiencing such violence faced new barriers in getting help.
Anna Arons, acting assistant professor at the New York University School of Law, examined how the pandemic offered a view of what the world would be like with the abolition of the child welfare system or family regulation system, which Arons said was designed to police, surveil and separate Black and Latinx families.
New York City, at the beginning of the pandemic, provides a real-world example of what abolition could look like, since reports to the family regulation system shrunk by almost half throughout the pandemic. However, during this time, New York City’s children stayed just as safe at home. This was a result of the absence of the family regulation system, according to Aarons. During this time, families learned to support themselves “through these growing robust mutual aid networks, as well as the influx of government aid in the form of stimulus checks and now the child tax credit,” according to Arons.
Courtney G. Joslin, professor of law at the University of California Davis School of Law, focused on “how the COVID-19 pandemic has really underscored the urgent need to reform outdated and discriminatory parentage laws.” This is a result of parentage laws in many states being rooted in a heterosexual lens, which often leaves same-sex couples and their children vulnerable. Joslin used the case study of the decision in the 2017 case In re Interest of A.E., in which the non-birth spouse was found not to be a legal parent to her ex-partner’s child, because of how the court interpreted Texas family code.
Joslin went on to describe how Elana and Denise, a Rhode Island couple with two children, face similar challenges. Elana is an emergency room doctor and Denise also works in health care. Early in the pandemic, Elana contracted COVID. Denise, the birth parent of her and Elana’s two children, was concerned about what would happen to her family if she fell ill or died.
Fortunately, there are several efforts to address these outdated parentage laws, including the Uniform Parentage Act implemented in 2017, for which Joslin was the reporter. The Act expands “the ways of establishing parentage for non-biological parents” and offers more protection to same-sex couples, according to Joslin. It also removes unnecessary gender distinctions, updates the assisted reproduction provisions and expands access to the voluntary acknowledgement process.
Concluding Discussion: Looking to the Future
David S. Cohen, professor of law at Kline School of Law, gave the concluding keynote, titled “Looking to the Future.” In his talk, Cohen outlined the history of abortion bans, including six week abortion bans, and discussed the utility of such legislation to the anti-abortion movement, even when they are struck down.
He then described how the Texas governor banned all non-essential services early in the pandemic and didn’t provide an exemption for abortion. The courts eventually found this lack of exemption unconstitutional, but the back and forth required to get to this decision resulted in periods in which abortion care was unavailable in Texas. After COVID-19 restrictions were lifted in Texas, the state passed S.B.8, which allowed Texas to implement the most restrictive abortion ban in the nation.
Cohen then outlined the reasons why he thinks SCOTUS will use Dobbs v. Jackson Women’s Health Organization, which it will hear during the 2021-2022 term, to overturn Roe. Cohen discussed an amicus brief in the Dobbs case that asks SCOTUS to overturn not only Roe but also cases related to the right to same-sex marriage and same-sex sexual activity. Cohen noted that these efforts are tied to a larger “pro-business, Christian nationalism” movement.
In the second half of his talk, Cohen shifted to discussing several reasons why “it’s not all doom and gloom.” For example, Cohen discussed the efforts to permanently lift restrictions on administering medication abortions. Similarly, access to judicial bypass hearings has expanded with the use of virtual hearings. Additionally, now more than ever, people are mobilizing and demanding that legislative leaders implement measures to protect their reproductive rights.
Cohen also noted that states are beginning to implement legislation to combat restrictive ban efforts. For example, New Jersey’s governor lifted abortion bans in doctors’ offices for women who are 14 weeks into their pregnancies and allowed nurses, physicians and midwives to perform abortions, creating more access.
Cohen concluded by telling attendees that “the road ahead is going to be tough,” but not impossible. “The hope here is that dire straits create an opportunity for fighting back in new and interesting ways and maybe, if that happens, we can eventually build a more just world that does an even better job,” said Cohen.