[Congressional Record Volume 149, Number 176 (Tuesday, December 9, 2003)]
[Extensions of Remarks]
[Pages E2534-E2547]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DOCUMENTS REVEAL DECEPTIVE PRACTICES BY ABORTION LOBBY
______
HON. CHRISTOPHER H. SMITH
of new jersey
in the house of representatives
Monday, December 8, 2003
Mr. SMITH of New Jersey. Mr. Speaker, today, I submit to theRecord
documents that reveal deceptive practices used by the abortion lobby.
It is critical that both the American and foreign public are made aware
of these documents because they shed new light on the schemes of those
who want to promote abortion here and abroad. It is especially
important that policy makers know, and more fully understand, the
deceptive practices being employed by the abortion lobby. These
documents are from recent Center for Reproductive Rights (CRR) strategy
sessions where, according to a quote from a related interview session,
one of CRR's Trustees said, ``We have to fight harder, be a little
dirtier.'' These documents are important for the public to see because
they expose the wolf donning sheep's clothing in an attempt to sanitize
violence against children. These papers reveal a Trojan Horse of
deceit. They show a plan to
[[Page E2535]]
``be a little dirtier.'' In their own words, these documents
demonstrate how abortion promotion groups are planning to push abortion
here and abroad, not by direct argument, but by twisting words and
definitions. In discussing legal strategies to legalize abortion
internationally they go as far as to say, ``. . . there is a stealth
quality to the work: we are achieving incremental recognition of values
without a huge amount of scrutiny from the opposition. These lower
profile victories will gradually put us in a strong position to assert
a broad consensus around our assertions.'' People should know about
this stealth campaign, and that is why I submit these documents
unedited and for public review.
International Legal Program Summary of Strategic Planning Through
October 31, 2003
Staff lawyers in the International Legal Program, (ILP)
have met three times with Nancy Northup, Nancy Raybin and
Elizabeth Lowell (September 3, September 23, and October 16)
to discuss our strategic direction. In the periods between
those meetings, ILP staff met and worked on the memos
attached hereto, as well as two other working memos.
We have stepped back and considered the types of strategic
legal work the ILP has worked on to date, examining in
particular how we evaluate or measure our effectiveness. We
reflected on our key accomplishments, and the constant
challenge of being in far higher demand than we have
resources. This led us to discuss and further develop the
ILP's ``theory of change.'' (See Memo 2.) What is our
overarching programmatic objective and what should that mean
in terms of hard choices on how to focus our work in the next
3-5 years? We have made some solid progress in answering that
question, as outlined below:
The ILP's overarching goal is to ensure that governments
worldwide guarantee reproductive rights out of an
understanding that they are legally bound to do so.
We see two principal prerequisites for achieving this goal:
(1) Strengthening international reproductive rights norms.
Norms refer to legal standards. The strongest existing
international legal norms relevant to reproductive rights are
found in multilateral human rights treaties. Based on our
view of what reproductive rights should mean for humankind,
the existing human rights treaties are not perfect. For
example, at least four substantive areas of reproductive
rights illustrate the limits of international reproductive
rights norms in protecting women: (a) abortion; (b)
adolescents access to reproductive health care; (c) HIV/AIDS;
and (d) child marriage. One strategic goal could be to work
for the adoption of a new multilateral treaty (or addendum to
an existing treaty) protecting reproductive rights. The other
principal option is to develop ``soft norms'' or
jurisprudence (decisions or interpretations) to guide states'
compliance with binding norms. Turning back to the four
substantive areas noted above, in all four cases, it is
possible to secure favorable interpretations. Indeed, the
Center has begun to do so. (For an in-depth discussion of
this, see Memo 1.)
In theory, existing international norms are broad enough to
be interpreted so as to provide women with adequate legal
protections. Therefore, we are in agreement on the need to
work in a systematic way on strengthening interpretations and
applications of the existing norms. If, at the end of 2007.
we determine that the existing norms are proving inadequate
(as evidenced by the interpretations we seek), then we would
reconsider whether to undertake a concerted effort to secure
a new international treaty or addendum to address this gap.
We would supplement our own conclusions by convening a
conference or expert group to consider whether it would be
strategic to pursue such an effort.
(2) Consistent and effective action on the part of civil
society and the international community to enforce these
norms.
This action follows from the premise that the best way to
test existing international reproductive rights norms is to
make governments accountable for them. In other words, to
work for their enforcement or implementation. would seek to
do this by: (a) developing activities aimed at enforcement of
international protections of reproductive rights in regional
and international fora; and (b) working for the adoption and
implementation of appropriate national-level norms.
The regional and international fora with a quasi-judicial
character arguably offer the most promising venues for
securing justice and interpretations that actually change
governments' behavior. To date, we have used the Inter-
American Commission on Human Rights (three cases, one
pending) and the UN Human Rights Committee (which oversees
compliance with the International Covenant on Civil and
Political Rights) (one case pending). We believe that seeking
favorable interpretations from the ``quasi judicial
mechanisms of the European human rights system, the African
system, and other UN individual complaint mechanisms will be
particularly important in the next 3-5 years.
Ultimately, underlying the goal of strengthening
international norms and enforcement is that of ensuring that
appropriate legal norms are in place at the national level so
as to improve women's health and lives. Working on the above
prerequisites can help bring about national-level normative
changes (since one key way for governments to comply with
international norms is to improve national norms). But these
processes are not linear and the adoption of appropriate
national-level norms may be feasible first (without
advocates' emphasis on governments' obligation to apply
international norms). Such new national-level norms can, in
turn, influence and strengthen international standards. Our
goal above is reached only when governments in fact guarantee
women's reproductive rights; first by adopting appropriate
laws and policies, and, second, by adequately implementing
them.
We have begun the process of considering what the above
theory of change means for our work: It will mean
concentrating on securing strong interpretations the strength
of international reproductive rights norms. But the work
suggested by the discussion above is still greater than our
resources. We must think in terms of working in a concerted
way on certain reproductive rights is issues; in a smaller
number of focus countries; and on honing our ability to
provide cutting edge input on relevant international and
regional norms and on providing a comparative legal
perspective. (i.e., analysis of laws and judicial decisions
across countries).
memo #1--international reproductive rights norms: current assessment
Our goal is to see governments worldwide guarantee women's
reproductive rights out of recognition that they are bound to
do so. An essential precondition is the existence of
international legal norms that encompass reproductive rights
and guarantee them the broadest possible protection. Our
task, therefore, is to consider the current content of
international law relating to reproductive rights and assess
its adequacy for guiding government decision-making and
holding governments accountable for violations of
international norms.
This memo provides an overview of the sources of
international law that may be invoked to protect reproductive
rights, examining both binding treaty provisions (hard norms)
and the many interpretative and non-binding statements that
contribute to an understanding of reproductive rights (soft
norms). It examines four substantive areas that illustrate
the limits of international law in protecting reproductive
rights: (a) abortion, (b) adolescents' access to reproductive
health care, (c) HIV/AIDS, and (d) child marriage. The memo
then considers whether, given existing support for
reproductive rights in international law, reproductive rights
activists should seek new protective norms or whether our
efforts would be better spent seeking stronger mechanisms for
enforcement of existing norms. Assuming that our goal is to
pursue the development of international norms, there are
several approaches we could take:
Develop a jurisprudence of existing norms that guides
states' compliance with binding norms;
Strategically work toward developing customary norms; and
Work to create another binding instrument, such as an
international treaty or a protocol to an existing treaty.
I. The foundations of reproductive rights in international law
By way of introduction, international human rights law is
grounded in both ``hard'' and ``soft'' norms. Legally binding
or ``hard'' norms are norms codified in binding treaties such
as the International Covenant on Civil and Political Rights
(ICCPR) or the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW). As a result of the
hard-fought efforts of human rights activists, hard
norms have gradually been extended to more and more of the
human family, including ethnic and racial minorities,
women, children, and refugees and internally displaced
people.
Supplementing these binding treaty-based standards and
often contributing to the development of future hard norms
are a variety of ``soft norms.'' These norms result from
interpretations of human rights treaty committees, rulings of
international tribunals, resolutions of inter-governmental
political bodies, agreed conclusions in international
conferences and reports of special rapporteurs. (Sources of
soft norms include: the European Court of Human Rights, the
CEDAW Committee, provisions from the Platform for Action of
the Beijing Fourth World Conference on Women, and reports
from the Special Rapporteur on the Right to Health.)
Reproductive rights advocates, including the Center, have
found guarantees of women's right to reproductive health and
self-determination in longstanding and hard international
norms, relying on such instruments as the Universal
Declaration on Human Rights (Universal Declaration), the
International Covenant on Civil and Political Rights (ICCPR),
and the International Covenant on Economic, Social and
Cultural Rights (ICESCR), and the Convention on the
Elimination of All Forms of Discrimination Against Women
(CEDAW). This approach received international affirmation (in
a soft norm) at the International Conference on Population
and Development (ICPD) in the conference's Programme of
Action. Paragraph 7.3 of that document states:
``[R]eproductive rights embrace certain human rights that
are already recognized in national laws, international human
rights documents and other consensus documents. These rights
rest on the recognition of the
[[Page E2536]]
basic right of all couples and individuals to decide freely
and responsibly the number, spacing and timing of their
children and to have the information and means to do so, and
the right to attain the highest standard of sexual and
reproductive health. It also includes their right to make
decisions concerning reproduction free of discrimination,
coercion and violence, as expressed in human rights
documents.''
We and others have grounded reproductive rights in a number
of recognized human rights, including: the right to life,
liberty, and security; the right to health, reproductive
health, and family planning; the right to decide the number
and spacing of children; the right to consent to marriage and
to equality in marriage; the right to privacy; the right to
be free from discrimination on specified grounds; the right
to modify traditions or customs that violate women's
rights; the right not to be subjected to torture or other
cruel, inhuman, or degrading treatment or punishment; the
right to be free from sexual violence; and the right to
enjoy scientific progress and to consent to
experimentation.
Our publications feature legal arguments resting on these
broad principles, many of which have been well received by
treaty monitoring bodies and other authoritative U.N. bodies.
Still, there are some arguments that could be considerably
strengthened with legal norms that relate more specifically
to reproductive matters. The next section will briefly
discuss four areas in which international law provides less
protection than desired.
II. Gaps in existing norms
A. Abortion
We have been leaders in bringing arguments for a woman's
right to choose abortion within the rubric of international
human rights. However, there is no binding hard norm that
recognizes women's right to terminate a pregnancy. To argue
that such a right exists, we have focused on interpretations
of three categories of hard norms: the rights to life and
health; the right to be free from discrimination; those
rights that protect individual decision-making on private
matters.
Bolstered by numerous soft norms, the assertion with widest
international acceptance is that a woman's right to be free
from unsafe abortion is grounded in her rights to life and
health. The right to life has been interpreted to require
governments to take action to preserve life. The right to
health guarantees the highest attainable level of physical
and mental health. Because unsafe abortion is responsible for
78,000 deaths each year and hundreds of thousands of
disabilities, criminalization of abortion clearly harms
women's life and health. The international community has
recognized the dangers of unsafe abortion. Statements to that
effect were adopted at the International Conference on
Population and Development in Cairo (1994) and the Beijing
Fourth World Conference on Women (1995), as well as the
recent 5-year reviews of these conferences.
While this has been an important stride, the global
community has fallen short of recognizing a right to
independent decision-making in abortion, providing us with
relatively few soft norms. We argue that the right to make
decisions about one's body is rooted in the right to physical
integrity, which has been interpreted to protect against
unwanted invasions of one's body. We assert that the right to
privacy protects a woman's right to make decisions about her
reproductive capacity. We also rely on the right to determine
the number and spacing of one's children. Here, the soft
norms arguably work against us, particularly given the phrase
repeated in both the Cairo and Beijing documents affirming
that under no circumstances should abortion be considered
a method of family planning.
We have also grounded our arguments in the right to be free
from gender discrimination, which is protected in every major
human rights instrument. Because restrictive abortion laws
deny access to health care that only women need, they
constitute discrimination in access to health care. This
position is supported somewhat obliquely in a CEDAW general
recommendation. In addition, we argue that by denying women
the means to control their own fertility, restrictive
abortion laws interfere with women's ability to enjoy
opportunities in other sectors of society, including
educational and professional opportunities. No soft norms
affirm this argument.
B. Adolescents--Access to Reproductive Health Services and Information
The Center has taken a leading role in pressing for
protection of adolescents' right to access reproductive and
sexual health information and services. In creating a human
rights framework for such rights, we use the same hard norms
that form the foundation for non-adolescent women's right to
access reproductive health services. However, the challenge
is to assert that the hard norms apply to adolescents under
age 18. We rely almost exclusively on soft norms to do this
since none of the treaties explicitly discuss adolescents'
reproductive rights.
Rights Relating to the Right to Reproductive Health
The right to health (including family planning services and
education);
The right to life; and
The rights to education and information.
With respect to the first cluster of rights, the hard norms
relating to women's right to access reproductive health
services and information are well established and accepted.
However, there is no hard norm specifically stating that
these provisions also protect adolescents' right to access
reproductive health services and information. There is one
important, and somewhat ambiguous exception. A recent
interpretation suggests the provision on the right to health,
which asks states parties to develop family planning services
and education, applies to children/adolescents.
Rights Relating to Reproductive Decision Making/Autonomy
Right to privacy;
Right to plan the number and spacing of one's children; and
Rights to liberty and security of person.
In issues relating to adolescents' reproductive autonomy
and decision-making, there are even fewer hard norms and it
is even more difficult to say that these hard norms apply to
adolescents under the age of 18 and their reproductive
decision-making. For example, the Children's Rights
Convention (CRR) provisions on the right to privacy are
problematic, prohibiting ``arbitrary or unlawful interference
with his or her privacy.'' The provision is not explicit that
the right applies to health services and the use of
``unlawful'' could imply that only interferences that
contravene national law would be prohibited. There are no
hard norms on: (1) confidentiality in provision of health
services or information; (2) prohibiting parental consent
requirements and (3) third party authorization for access to
reproductive health services and information.
The Right To Be Free From Discrimination
While there are hard norms prohibiting sex discrimination
that apply to girl adolescents, these are problematic since
they must be applied to a substantive right (i.e., the right
to health) and the substantive reproductive rights of
adolescents are not `hard' (yet!). There are no hard norms on
age discrimination that would protect adolescents' ability to
exercise their rights to reproductive health, sexual
education, or reproductive decisionmaking. In addition, there
are no hard norms prohibiting discrimination based on marital
status, which is often an issue with respect to unmarried
adolescents' access to reproductive health services and
information.
The soft norms support the idea that the hard norms apply
to adolescents under 18. They also fill in the substantive
gaps in the hard norms with respect to reproductive health
services and information as well as adolescents' reproductive
autonomy. Two important standards are applied in order to
fill in the gaps:
The ``Evolving Capacity of the Child'' standard, which
limits parental control to the extent that children take on
more autonomy as their capacities grow. (e.g., An adolescent
who is sexually active and is taking the initiative to seek
out means to protect herself from STIs and unwanted pregnancy
is demonstrating a level of maturity to justify access.)
The ``Best Interest of the Child'' standard, which mandates
that in the context of health, parental involvement that
prevents adolescents from accessing potentially life-saving
information and services is NOT in the child's best interest.
Rather, it is in the best interest of adolescents to have
access to the means to protect themselves. It is often in the
best interest of the child to be granted autonomy in
decision-making.
Soft Norms Relating to the right to Reproductive Health
The Treaty Monitoring Bodies (TMBs) have explicitly
interpreted adolescents' right to health as including the
right to access services and information on reproductive
health. In addition, they have called for sexual education in
the context of the rights to education and information. Both
the International Conference on Population and Development
(ICPD) and the Beijing Platform for Action (Beijing PFA)
further help to fill in the gaps in this cluster of
substantive rights, clearly stating that these rights apply
to adolescents.
Soft norms relating to the right to reproductive autonomy/decision-
making
Soft norms supplement the dearth of hard norms. The TMBs
have interpreted adolescents' right to privacy as ensuring a
right to confidentiality in reproductive health services as
well as the right to access services and information without
parental consent.
Soft norms relating to the right to be free from discrimination
There are no explicit soft norms on the right to be free
from discrimination based on age in the context of
adolescents' reproductive rights. There are soft norms
relating to the age of marriage, which would impact
adolescents' ability to access services since in many
countries married adolescents are granted access regardless
of their age while unmarried adolescents are effectively
denied access. This relates closely to soft norms on
discrimination based on marital status. In this regard, the
TMBs General Recommendations/Comments and Concluding
Observations have explicitly condemned discrimination based
on marital status in accessing reproductive health services.
C. HIV/AIDS
The rights of women implicated by HIV/AIDS include: the
rights to life, dignity, liberty, and security of the person,
freedom from inhuman and degrading treatment,
nondiscrimination and equality before the
[[Page E2537]]
law, the right to health, including reproductive health care
and reproductive self-determination. There are no hard norms
in international human rights law that directly address HIV/
AIDS directly.
At the same time, a number of human rights bodies have
developed soft norms to secure rights that are rendered
vulnerable by the HIV/AIDS epidemic. In 1998, the Office of
the U.N. High Commissioner for Human Rights and UNAIDS issued
``HIV/AIDS and Human Rights: International Guidelines,''
which provide a roadmap for governments seeking to
incorporate human rights protections related to HIV/AIDS into
national law. In June 2001, the U.N. General Assembly Special
Session (UNGASS) on HIV/AIDS resulted in a Declaration of
Commitment on HIV/AIDS that included strong language on the
need to integrate the rights of women and girls into the
global struggle against HIV/AIDS.
In addition, the TMB's have interpreted existing treaties
in the context of HIV/AIDS and reproductive rights, creating
new and positive jurisprudence that safeguards women's
reproductive rights.
In the national-level courts, the South African.
Constitutional Court interpreted the ICESCR Covenant
progressively to enforce the right to HIV/AIDS prevention and
treatment in a case brought against the government by the
Treatment Action Campaign (an HIV/AIDS rights NGO) seeking to
compel the government of South Africa to provide Nevirapine
to pregnant women and their babies, to prevent the
transmission of HIV from mother to child.
Practices with implications for women's reproductive rights
in relation to HIV/AIDS are still not fully covered under
existing international law, although soft norms have
addressed them to some extent. Two of these include: (1)
denials of the right to consent to HIV/AIDS testing of
pregnant women and (2) the presumption of consent to sex in
marriage.
1. Pregnant women's consent to HIV/AIDS testing
There is a lack of explicit prohibition of mandatory
testing of HIV-positive pregnant women under international
law. General international law provisions relating to consent
or refusal to consent to medical treatment under the ICCPR
(article 15.1) and the ICESCR (article 7) has been applied.-
The legal and ethical foundations for HIV testing broadly
require respect for the conditions for informed consent, pre-
and post-test counseling and confidentiality. But on many
occasions in practice, HIV positive pregnant women are
subjected to mandatory routine tests, without adequate
counseling. These mandatory tests often owe their
justification to public health demands to curb transmission
of the HIV virus to their offspring.
HIV testing that is conducted without pre- and post-test
counseling violates a woman's rights to autonomy, dignity,
privacy and bodily and psychological integrity. The same
degree of consent pre- and post-test counseling and
confidentiality applicable to every other person undergoing
an HIV test should apply equally to a pregnant woman.
Among the most persuasive ``soft norms'' are the UNAIDS
Guidelines on HIV/AIDS and Human Rights, which call for
international human rights norms to be translated into
practical observance in the context of HIV/AIDS, point out
that programs emphasizing coercive measures directed towards
the risk of transmitting HIV to the fetus, such as mandatory
pre- and post-natal testing, seldom prevent perinatal
transmission of HIV/AIDS, because they overlook. the health
needs of women. In its policy statement on HIV testing and
counseling, UNAIDS states that pregnant women should not be
coerced into testing nor be tested without their consent. But
these guidelines do not carry the force of law as would be
the case if language prohibiting mandatory HIV testing of
pregnant women were included in an existing treaty.
2. Presumption of consent to sex within marriage
Human rights law should explicitly address the legal and
social subordination women face within their families,
marriages, communities and societies, especially as these
barriers expose women to the risk of HIV infection.
International protections for the right of women to autonomy
over their sexuality within or outside marriage can be found
in the principle of bodily integrity enumerated in the ICCPR,
which provides for the right to liberty and security of the
person. However, with the challenges provided by HIV/AIDS, it
is necessary to institute stronger protections of the rights
of women in the family, especially their rights to autonomy
over sexuality and reproduction. Some stronger language on
women's rights in the context of HIV/AIDS is found in soft
norms, including the recent UNAIDS guidelines on HIV/AIDS and
human rights. In addition, both the ICPD Programme of Action
and the Beijing PFA reflect an international consensus
recognizing the inalienable nature of sexual rights.
Paragraph 96 of the Fourth World Conference on Women
Platform.for Action states, ``The human rights of women
include their right to have control over and decide freely
and responsibly on matters related to their sexuality,
including sexual and reproductive health, free of coercion,
discrimination and violence.'' Again, these rights are much
more clearly articulated as a matter of progressive
interpretation and jurisprudence than as hard norms in
themselves.
D. Child Marriage (Marriage Under Age 18)
None of the global human rights treaties explicitly
prohibit child marriage and no treaty prescribes an
appropriate minimum age for marriage. The onus of specifying
a minimum age at marriage rests with the states' parties to
these treaties.
Several treaties prescribe the hard norms we use to assert
human rights violations associated with child marriage. They
include (but are not limited to): the right to freedom from
discrimination; the right to choose a spouse and to enter
into marriage with free and full consent; the right to
health; and the right to protection from all forms of sexual
exploitation and sexual abuse.
We have to rely extensively on soft norms that have evolved
from the TMBs and that are contained in conference documents
to assert that child marriage is a violation of fundamental
human rights.
In the main treaties and conventions relevant to marriage
and the rights of women and children, the issue of minimum
age at marriage has been dodged by the use of phrases--such
as ``full age'' and references to full and free consent as
the proposed standard for determining the validity of a
marriage. Even the Convention on Consent to Marriage, Minimum
Age for Marriage, and Registration of Marriages (1964) does
not clearly articulate an appropriate minimum age. Notably,
the African Charter on the Rights and Welfare of the Child,
does recommend a minimum age of 18 and is the only treaty to
do so.
Committees have issued general comments and recommendations
emphasizing the problematic aspects of child marriage. Most
have issued concluding observations that discourage and
condemn child marriage as a human rights violation.
The Beijing PFA echoes most treaty provisions relevant to
the issue of child marriage by calling upon governments to
enact and strictly enforce laws to ensure that marriage is
only entered into with the free and full consent of the
intending spouses. It also requires governments to ``raise
the minimum age where necessary.'' While thus provision does
mark a step forward, it does not take a position on what the
minimum age should be.
III. More norms vs. better enforcement
Because we wish not only to set standards for government
behavior, but also to ensure that governments understand that
they are bound to those standards, our success depends on
some focus on enforcement of international law. Gaps in the
substance of human rights instruments are accompanied by
weaknesses in mechanisms for enforcing even the most accepted
norms. Accountability is rarely achieved even for governments
who engage in arbitrary killings and torture. It is even more
difficult to ensure the enforcement of economic, social and
cultural rights, which, while legally 'binding, offer few
measures for compliance. We are particularly sensitive to the
practical difficulties of enforcing the Women's Convention,
which enumerates a number of rights that are fundamental to
enjoyment of reproductive rights. A question arises as to
whether promoting the recognition of an expanding body of
rights might dilute the still untested gains that we have
made in the past 20 years.
Many human rights activists have focused on developing
better mechanisms for enforcing existing norms, rather than
filling the substantive gaps in binding 'instruments. The
campaign for the International Criminal Court is an example
of an effort to make highly accepted international legal
norms--the principles of the Geneva Conventions--more
practically enforceable in an international forum.
As a program, we should consider whether we would be better
served engaging in the process of enforcing existing norms--
through international litigation, factfinding, reporting to
the treaty monitoring bodies--rather than developing
the substance of international law. (In reality, both of
these goals can be pursued simultaneously, but our
question here is one of emphasis.) We could also focus on
developing new mechanisms for governmental accountability,
which could themselves be the basis of a new legal
instrument.
Should we decide, however, that we cannot move forward in
our work without the development of stronger substantive
norms, there are a few strategies we can take. These
strategies are not exclusive and each can reinforce the
others. However, because we wish to take a more self-
conscious approach to choosing our strategy, we have laid
them out in the following section.
IV. How to fill normative gaps
A. Seeking Authoritative Interpretations of Existing Norms
This approach involves developing a jurisprudence that
pushes the general understanding of existing, broadly
accepted human rights law to encompass reproductive rights.
Such a jurisprudence is developed primarily through:
Report to the treaty monitoring bodies;
Bring cases to international and regional adjudicative
bodies (such as cases we have so far brought before the
Inter-American Commission); and
Bring claims based on international law to national-level
courts (such as the recent PMTC cases brought before the
South-African Constitutional court by the local HIV/AIDS
Advocacy group, Treatment Action Campaign.
[[Page E2538]]
While, given the variety of jurisdictions, the common law
concept of ``precedent'' has little bearing in this context,
international jurists are aware of how legal questions have
been resolved by their peers in other fora. Arguments based
on the decisions of one body can be brought as persuasive
authority to decision-makers in other bodies,
There are several advantages to relying primarily on
interpretations of hard norms. As interpretations of norms
acknowledging reproductive rights are repeated in
international bodies, the legitimacy of these rights is
reinforced. In addition, the gradual nature of this approach
ensures that we are never in an ``all-or-nothing'' situation,
where we may risk a major setback. Further, it is a strategy
that does not require a major, concentrated investment of
resources, but rather it can be achieved over time with
regular use of staff time and funds. Finally, there is a
stealth quality to the work: we are achieving incremental
recognition of values without a huge amount of scrutiny from
the opposition. These lower profile victories will gradually
put us in a strong position to assert a broad consensus
around our assertions.
There are also disadvantages to this approach. As decisions
are made on an ad hoc basis to apply to a variety of
situations, there may be a lack of clarity or uniformity in
the decisions.. It thus may be harder to point to one
position as an ``accepted'' interpretation. In addition, the
incremental nature of this approach escapes the notice of not
just our opponents, but also our potential allies. It is very
difficult to gain press attention to issues affecting a
relatively small group of.people or a narrow set of facts.
Finally, because we cannot rely on respect for precedent in
international and national bodies of overlapping
jurisdictions, gains that we achieve may be lost in
subsequent decisions. While we have seen an encouraging trend
in international jurisprudence, we are forever at risk of
losing ground in the same fora.
B. Working Toward a Customary Norm
The second approach has much in common with the first. It
involves a gradual process of seeking repetition of
interpretations of existing norms to encompass and protect
reproductive rights. Again, we seek affirmation in
international adjudicative fora and national-level courts, as
well as at international conferences. The difference in
taking this approach is that it would require adopting an
overarching strategy for our interventions. We could first
develop a wish-list of international legal protections that
need to be developed, ideally through convening workshops
around the world designed to sound out additional gaps in
existing international law and reinforce the interest of
allies in following a set of strategic priorities. We would
then seek every opportunity to get items on our wish-list
incorporated into treaty interpretations and soft norms.
The advantages of such an approach are many. First, it
would give focus to our current work, forcing us to establish
a set of priorities. Our priorities could be reflected both
in our advocacy and in our efforts to shape public opinion.
The approach would draw a minimal level of distracting
opposition, while increasing our visibility with our allies.
The major disadvantage is that developing a customary norm
is a slow process and it is difficult to know when you have
accomplished your goal. Very few norms that are currently
considered accepted and mainstream can be attributed to
recent deliberate campaigns. While the standard for creating
a customary norm is open to some scholarly debate, most such
norms can be traced to centuries of practice and belief. In
addition, although we are talking about undertaking a
campaign of sorts, it is a difficult one to explain to non-
lawyers and it is not very sexy.
C. Seeking Adoption of a New Legal Instrument
Finally, if we determine that the foregoing options are
ineffective, we should consider whether the weaknesses in
international law can only be remedied with the adoption of a
new legal instrument. Such an instrument could be a protocol
to an existing treaty (such as the optional protocol to the
African Charter on Human and Peoples' Rights or a
new protocol to CEDAW) or a free-standing treaty. A
campaign for the adoption of a new international treaty
would be an extremely involved, resource-intensive and
long process. It might begin with a campaign for a General
Assembly Declaration on Reproductive Rights or another
soft norm. Then there would be a process of drafting a
treaty, getting broad input from many key players. Again,
workshops would have to be held around the world to
establish buy-in. Then there would be a process of,
identifying sympathetic delegates in the General Assembly.
These efforts would be followed by years of campaigning,
with the leadership of a sophisticated, media savvy team.
There are clearly a number of advantages to this approach.
First, it offers the potential for strong, clear and
permanent protections of women's reproductive rights.
Further, having a campaign with clear objectives could serve
as a focal point for advocacy around the world. In addition,
the campaign itself could have an educational function with
the potential to influence national-level legislation.
There are also potential disadvantages to consider.
Embarking on a campaign for a new legal instrument appears to
concede that we do not have legal protections already, making
failure potentially costly. Moreover, during the many years
it takes to succeed in adopting an instrument, we create the
impression that women are ``protectionless.'' Second, the
campaign is unlikely to succeed in the near term, and thus
might be deemed a waste of limited resources. Finally,
depending of the timing of the campaign and the surrounding
conditions, it could stir up nasty opposition, which might
ultimately set the movement back, at least temporarily.
V. Conclusion and further questions
There are a number of questions that we would need to
answer before we decided on a strategy. Some of these
questions may be. best answered by people outside the
organization. These might include Ruth Wedgwood, David
Weissbrodt, Oscar Schacter, Donna Sullivan, Ken Roth, Rebecca
Cook, Roger Norman, Widney Brown, Anika Rahman, and certainly
others. Whatever strategy we pursue, we should continue to
research our approach, perhaps by enlisting the assistance of
students at a law school clinic.
Here are some questions we would like answered:
1. Are the weaknesses in international norms protecting
reproductive rights of a severity that can only be remedied
by the adoption of a new legal instrument?
2. Do most governments currently think that they have a
duty to uphold reproductive rights? Do they care about
interpretations of hard norms and do these interpretations
shape their views about their obligations under international
law?
3. As a matter of public perception, does pursuing a new
instrument--without any assurance of success--undermine
current claims regarding the existence of reproductive
rights?
4. Would it be more strategic, to consider an instrument
covering other ``gaps'' in legal protections for women's
rights and include these?
5. How have other movements succeeded at creating norms
that governments consider binding?
6. What would be an appropriate timeline for pursuing a new
legal instrument?
7. Would we be the group to take the lead on a campaign for
a new legal instrument?
MEMO #2--ESTABLISHING INTERNATIONAL REPRODUCTIVE RIGHTS NORMS: THEORY
OF CHANGE
Our goal is to ensure that governments worldwide guarantee
women's reproductive rights out of an understanding that they
are bound to do so. The two principal prerequisites for
achieving this goal are: (1) the strengthening of
international legal norms protecting reproductive rights; and
(2) consistent and effective action on the part of civil
society and the international community to enforce these
norms. Each of these conditions, in turn, depends upon
profound social change at the local, national and
international (including regional) levels.
Ultimately, the goal of strengthening international norms
and enforcement is to ensure that appropriate legal norms are
in place at the national level so as to improve women's
health and lives. Working on the above prerequisites can help
ensure. national-level normative changes, but these processes
are not linear and the adoption of appropriate national-level
norms may happen first and can, in turn, influence and
strengthen international standards. Our goal above is reached
only when governments in fact guarantee women's reproductive
rights, first by adopting appropriate laws and policies, and,
second, by adequately implementing them. Thus, a third
prerequisite is suggested that reinforces international
standards: adoption and implementation of appropriate
national-level norms.
Achieving the above goal does not depend on legal
strategies alone. Support for norms and their enforcement may
require sustained public awareness-raising campaigns, media
attention, and support from key sectors like the medical
community, among others. The role of law in social change is
a complex one. But the adoption of good reproductive rights
norms at the national, regional and international levels is
crucial because it indicates such norms' formal recognition,
and provides a firm basis for the government's duties,
including its own compliance and its enforcement against
third parties. With formal recognition of reproductive rights
through law, women's ability to exercise these rights is left
to chance.
The remainder of this memo attempts to concretize the
Center's theory of how such change can be achieved, with an
emphasis on the Center's possible role in this process. This
memo serves as an initial concept paper, not a work plan. In
some cases, activities identified are already well underway.
But, in any case, we recognize that we cannot undertake all
the work suggested by the analysis below, but that this
provides us with a more concrete starting point for
identifying what needs to be done and our appropriate roles.
1. Strengthening international legal norms
Our legal analyses to date are primarily based on
interpretations of well-accepted international norms. There
are at least three means of strengthening these norms to
ensure greater protection of reproductive rights: broadening
authoritative interpretations of existing norms; gradually
establishing an international customary norm; and adopting a
new legal instrument protecting reproductive rights. (For a
more detailed description of these approaches, see Memo #1.)
[[Page E2539]]
Regardless of the mechanism, expanding legal protections
requires action on multiple fronts. First, there is a process
of developing broad international agreement among our allies
and potential allies on what the norms should be. Second,
steps must be taken to put reproductive rights on the agenda
of international normative bodies. Finally, advocates must
foster broad support for reproductive rights among
governments while countering opposition. The following
subsections will address each of these activities in greater
detail.
A. Developing Agreement on Norms
Much of the work of developing agreement on norms
protecting reproductive rights has been achieved at United
Nations conferences, including the International Conference
on Population and Development (1994) and the Fourth World
Conference on Women (1995). While documents adopted at these
conferences are not themselves legally binding, they are a
clear articulation of most of our institutional values, and
they have been formally accepted by nearly every government
in the world. There are (as noted in Memo #1) a number of
gaps in the content of these international agreements, and
much work is needed to gather support for the Center's
position on how these gaps should be filled. For example, the
Center needs to continue its advocacy to ensure that women's
ability to choose to terminate a pregnancy is recognized as a
human right. Advocacy of this nature can be carried out
through various means, including:
Public education and awareness-building, in part through
production of advocacy materials and publicity surrounding
their release;
Bringing reproductive rights into the mainstream of legal
academia and the human rights establishment; and
Collaboration with NGOs engaged in establishing legal norms
at the national level.
B. Putting Reproductive Rights on the International Agenda
Developing broad agreement on norms protecting reproductive
rights does not in itself ensure that they will find their
way into international law. Advocates have to look for
opportunities--such as international conferences and meetings
of treaty monitoring bodies and other UN human rights
bodies--to put norms relating to reproductive rights on the
international agenda. In some cases, the timing of such
efforts may depend upon strategic considerations. For
example, advocates for reproductive rights opted not to lobby
for an official 10-year review of the International
Conference on Population and Development, fearing that
negotiations would be hijacked by the right-wing, which
includes the current U.S. Government.
There are several means of putting reproductive rights on
the agenda of international normative bodies, including:
Identifying allies in government and civil society who can
champion reproductive rights;
Securing positive interpretations from the treaty
monitoring bodies related to reproductive rights, either
through the reporting processes or by bringing individual
complaints;
By seeking action from such UN and regional bodies as the
Human Rights Commission and its sub-Commission and the
European, Inter-American, and African commissions/courts on
human rights; and
Engaging the media in bringing reproductive rights to the
attention of relevant international, regional and national
normative bodies, including legislators, other government
officials, local and international judicial bodies, as well
as medical bodies that can influence law and policy.
C. Garnering Support Among Governments and Countering Opposition
Ultimately, we must persuade governments to accept
reproductive rights as binding norms. Again, our approach can
move forward on several fronts, with interventions both at
the national and international levels. Governments'
recognition of reproductive rights norms may be indicated by
their support for progressive language in international
conference documents or by their adoption and implementation
of appropriate national-level legislative and policy
instruments. In order to counter opposition to an expansion
of recognized reproductive rights norms, we have questioned
the credibility of such reactionary yet influential
international actors as the United States and the Holy
See. Our activities to garner support for international
protections of reproductive rights include:
Lobbying government delegations at UN conferences and
producing supporting analyses/materials;
Fostering alliances with members of civil society who may
become influential on their national delegations to the UN;
and
Preparing briefing papers and factsheets exposing the broad
anti-woman agenda of our opposition.
2. Enforcing international protections of reproductive rights
For legal protections of reproductive rights to be
meaningful, they must be tested through concerted enforcement
efforts. Enforcement of human rights norms can be pursued at
the national, regional and international levels. Some
enforcement strategies, such as the use of the treaty
monitoring bodies, also serve the goal of strengthening legal
norms, as described above.
Advocates' use of enforcement mechanisms can help cultivate
a ``culture'' of enforcement in which violations of
reproductive rights are recognized as such by victims, and
complaints are addressed under conditions of impartiality and
the rule of law. Specific activities that contribute to
enforcing international norms include:
Using adjudicative mechanisms at the national, regional and
international levels;
Documenting, and publicizing reproductive rights violations
and recommending appropriate reforms; and
Supporting efforts to strengthen existing enforcement
mechanisms, such as the campaign for the International
Criminal Court and the Optional Protocol to the Convention on
the Elimination of All Forms of Discrimination against Women
(CEDAW).
3. Adoption and implementation of appropriate national-level norms
An important measure of the extent to which a particular
government accepts its obligation to respect, protect and
fulfill reproductive rights is whether it has adopted and is
properly implementing appropriate legislation and policy.
This may come about through means other than an international
enforcement effort. For example, the national political
moment may be ripe for change, with or without the
influence of international standards. Such changes in one
or more countries, particularly key countries in a region,
may have a catalytic effect on neighboring countries or on
the solidification of international norms. Moreover, these
kinds of changes, whatever the impetus, must be encouraged
as they are more likely to have an immediate impact on the
health and lives of women previously unable to enjoy
reproductive rights.
Similar to activities outlined in #2 above regarding
enforcement, possible activities in this area include the
following:
Providing input to civil society or government actors to
change offensive laws or adopt progressive laws where none
had existed;
Examining the effectiveness of implementation of laws and
policies; and
Assessing whether courts are adequately enforcing existing
legislation.
____
Domestic Legal Program Summary of Strategic Planning Through October
31, 2003
Staff attorneys in the Domestic Legal Program (DLP) have
met with our strategic planning consultants and Nancy Northup
to discuss our current work and to plan for the future. At
our initial meeting we focused on the following issues:
Abortion Litigation: Are the litigation strategies of the
last 10 years still viable? If so, for how much longer?
Should we be taking a different approach to some of the
issues that we have been litigating?
How can we influence the people who influence the legal
landscape around reproductive rights? How does CRR influence
these communities now? Are there new strategies we should
adopt? What are the key issues? What would it take to resolve
those issues?
Expanding Beyond Abortion. What are the other reproductive
rights issues we have not been addressing or that we should
put renewed energies into?
As a result of these discussions, we formed working groups
on the following four issues: (1) the future of our
traditional abortion litigation; (2) development of
systematic approaches to or ``campaigns'' concerning selected
core issues; (3) the development of non-abortion related
litigation; and (4) development of new approaches to
influencing the legal landscape. A summary of our thinking to
date follows:
I. The future of traditional abortion litigation
We believe that the traditional abortion litigation that
has formed the core of our legal program in the United States
has been, and is likely to remain, the most effective
strategy for protecting the right to choose abortion in
hostile political climates, like that we face today, as well
as in friendlier times. Even under pro-choice
Administrations, women's right to choose has always needed,
and will need again, the protection of the judiciary from
hostile majorities in many, if not most, states. Moreover,
Supreme Court decisions in litigation arising from these
hostile states have defined the contours of the right to
choose. If CRR is going to continue to have an impact on
legal developments in our field, we need to continue to be
involved in these cases. Therefore, we will carry on in this
area, informed by evolving standards in some areas, such as
TRAP and biased counseling cases. We have also made a plan
for reviewing our options to bring new ``affirmative''
litigation in areas such are Medicaid funding and parental
involvement. The attached memo (#1) discusses these issues in
some more detail.
memo #1--future of traditional abortion litigation
I. Traditional work
When the Center was founded in 1992, its staff was already
well-known for the litigation conducted at the ACLU's
Reproductive Freedom Project. The Center built on that
reputation and, through the 1990's, solidified its position
as the preeminent team litigating on reproductive rights in
the U.S, with the largest caseload by far of any other group.
The Center's reputation developed because of its willingness
to litigate issues others had discarded (e.g., waiting
periods and, originally, the ``purpose'' prong of Casey
(which has since been eviscerated by the Supreme Court)), its
determination to push the envelope with legal theories that
were sometimes on the edge, and because of the sheer
[[Page E2540]]
volume of cases we have been able to handle with a fairly
small staff. We have also earned a reputation as being very
client focused--often assisting clients with issues that
arise in their day-to-day operations--issues that other
attorneys either cannot or will not handle (a recent example
is the litigation in Michigan over the payment provision in
the amendment to the waiting period statute, an issue the
ACLU RFP declined to litigate). Although often in a defensive
posture, challenging restrictive legislation enacted in the
states, the Center sought to use this litigation to restrict
the reach of Casey's undue burden standard and to strengthen
the ``state interest'' inquiry in privacy and equal
protection claims.
Recently, the frustration of funders with the current
Administration and anti-choice Congress, and their assault on
reproductive rights and the judiciary, has led some to
question the usefulness of traditional abortion litigation.
What good is all our work if the Bush Administration can
simply take it all away with the stroke of a pen, by, for
example, enacting the federal partial-birth abortion ban that
we are currently fighting?
Therefore, we are examining whether our traditional work
will continue or whether we need to anticipate a new legal
landscape, either because limitations on the right to choose
will be firmly established and viable legal challenges will
dwindle or because Roe v. Wade will be overturned or
substantially undermined, also eliminating the cases that
make up much of our current docket.
A. Will Our Traditional Work Continue in Its Current Form?
This group examined our traditional work, particularly
focusing on whether we should alter the standards we use to
evaluate whether to bring a case in one of our traditional
areas, such as TRAP, parental involvement, abortion bans,
biased counseling/mandatory delay laws. We believe this work
will continue, though in some altered forms. Two examples
are:
It is unlikely that we will bring another federal court
challenge to a requirement that women make two-trips to their
abortion provider, but we will continue to evaluate whether
these laws can be challenged on other grounds and whether a
state court challenge is appropriate;
We may bring limited challenges to TRAP schemes,
particularly where they threaten patient privacy (the outcome
of our Arizona TRAP case on appeal to the Ninth Circuit will
be important here).
B. Additional ``Affirmative'' Litigation To Bring in Our Traditional
Areas?
We also examined whether there is additional
``affirmative'' litigation we should bring. While we think
there is probably only one more viable state constitutional
challenge to a Medicaid funding ban left, we believe that we
should do additional research on state constitutional equal
protection case law to insure that this is the case. Coming
off our recent successes in Alaska and Florida, we have
considerable expertise in state constitutional challenges to
laws forcing parental involvement in a minor's decision to
have an abortion. We will determine whether to move forward
in any more states as part of our Systematic Campaign
discussed in Memo #2.
We are also following through with our cases challenging
Choose Life license plates and the fundraising these plates
do for so-called Crisis Pregnancy Centers. We are currently
seeking law firm support for new cases in two or three
states.
II. What is the framework for answering these questions?
In developing our plans for new litigation, we will balance
the following factors: impact on clients; impact on women;
helpful to jurisprudence; distinguishing ourselves from the
field by taking on issues others wouldn't; dominating
specific areas to insure CRR's impact in that area; other
organizations' involvement in these issues; institutional
resources; and costs.
MEMO #2--REPORT TO STRATEGIC PLANNING PARTICIPANTS FROM SYSTEMATIC
APPROACH SUBGROUP
This group met to discuss ``systematic approaches'' or
``campaigns'' that CRR might pursue. We considered five
possible topics for such an approach: (1) minors' access to
reproductive health care; (2) developing our use of equal
protection jurisprudence to protect reproductive rights; (3)
minimizing the burdens of the undue burden standard; (4)
abortion funding/Harris v. McRae issues; and (5) developing
our use of first amendment jurisprudence to protect
reproductive rights. These topics were suggested at the
initial strategy meeting of the domestic program. For each
topic, we considered whether a campaign would be useful to
the field, what the positives and negatives would be to
pursuing the campaign, whether the Center is well-positioned
to pursue the campaign, and how the campaign might be
effectuated.
It is our opinion that our field would benefit from a
systematic approach in the first two of these areas--minors
and equal protection--and that the Center is well-positioned
to pursue such an approach in those areas. We believe that
the Center needs to undertake work in the third area--undue
burden--but that such work may not be well-suited to the
context of a campaign. Finally, it is our opinion that a
systematic approach would not be productive or useful to the
field with respect to the last two areas--funding and first
amendment. This does not mean that we wouldn't do work in
these areas but just that they do not lend themselves as well
to a systematic campaign.
The following is a summary of our discussion of the five
possible campaign areas. For each area, we have included an
articulation of the possible campaign and some thoughts about
the positives and negatives of pursuing that campaign. With
respect to the three areas where we thought a campaign--or,
in the case of undue burden, other work--might be useful, we
have also included some possible elements for the campaign.
I. Minors
Articulation: A project to secure the fundamental right of
minors to access all reproductive health services
confidentially. This includes: (1) undoing the notion that
parental rights are an adequate justification for imposing
additional burdens on minors seeking abortions or other
reproductive health care; (2) staving off efforts to require
parental involvement for minors seeking contraception and
abortion; (3) undoing child abuse reporting requirements with
respect to non-abusive sexual relations; (4) ensuring minors'
ability to consent to all reproductive health services; (5)
establishing minors' right to comprehensive information about
reproductive and sexual health.
Positives: (1) This has always been one of our priority
areas. (2) We are seeing the antis push hard to diminish
minors' rights, so we should see what we can come up with to
push hard back (i.e., being proactive in addition to
defensive). (3) The topic lends itself well to a systematic
approach. (4) The issue extends beyond abortion. (5) This is
a topic about which we can coordinate efforts with our
international program.
Negatives: (1) In terms of parental involvement for
abortion, we have large body of federal case law against us
(which makes our campaign harder), and the reasoning of that
case law could be applied to contraception. (2) It is very
difficult to garner public and legislative support on issues
concerning minors. (3) We will likely have to confront the
politically difficult issue of whether minors have a right to
have sex (and more generally, whether minors should be
treated as adults). (4) This area involves difficult line
drawing and subtle points that are difficult to convey to
the public in an appealing way. (5) There is growing
opposition amongst minors to abortion and being pro-choice
(or at least a national pro-life campaign aimed at teens
that is garnering more public attention).
Possible Elements:
(1) Legal research and writing to (a) debunk the extent of
parental rights currently recognized; (b) discuss the
development of minors' legal rights generally; and (c)
analyze sodomy and death penalty cases to see how courts and
litigants have relied on evolving societal norms and social
science evidence.
(2) Comprehensive survey of available scientific evidence
supporting our positions (e.g. re: competency of minors,
importance of confidentiality for access), to use to (a)
strengthen our position and to (b) assess where we need to
fill in the gaps.
(3) Follow up to fill in the gaps with additional studies,
development of expert witnesses, etc.
(4) Work with major medical groups to develop and expand
public policy regarding minors' ability to consent to medical
care and need for confidentiality.
(5) Advance legislation re: minors' ability to consent to
care and confidentiality of care.
(6) Develop litigation--bring facial challenges to non-
abortion consent and confidentiality issues in federal court;
as-applied challenges to parental involvement for abortion
laws in federal court; state courts cases to establish rights
or minors.
(7) Public education strategy to support legislative/
litigation efforts.
(8) Develop an international component, which looks at
international norms on the rights of children.
II. Equal protection
Articulation: Project to expand the use of equal protection
doctrine to protect women's access to abortion and
contraception. This includes: (1) reversing decisions
indicating that pregnancy and abortion discrimination are not
sex discrimination; and (2) developing the fundamental rights
strand of equal protection to prevent singling out of
abortion and abortion patients from rest of medicine for the
imposition of special burdens.
Positives: (1) This is an area of law that we could do more
with. (2) Because this area of law is not yet firmly
established in the abortion arena, we don't have to overcome
lots of precedent to be able to make progress. (3) Equal
protection claims get us out from under some of the proof
difficulties we have with undue burden claims. (4) This
project is more accessible to the public than the undue
burden project. (5) This project gives us a way to talk about
abortion in terms of fairness and discrimination principles,
which are appealing and understandable to the public. (6)
This issue is important to our goal of ensuring access to
abortion. (7) This project might be able to be combined with
the undue burden project.
Negatives: None articulated other than the potential for
bad outcomes, which exists with all five possible projects,
and the fact that federal courts have not yet been receptive
to equal protection arguments where they have been advanced.
Possible Elements:
(1) Legal research and writing as to (a) abortion as sex
discrimination; (b) abortion discrimination under the
fundamental rights
[[Page E2541]]
strand; and (c) analyze sodomy and death penalty cases to see
how courts and litigants have relied on evolving societal
norms and social science evidence.
(2) Analysis of how equal protection jurisprudence has
evolved in other areas.
(3) Public education to talk about abortion laws (and other
obstacles to repro health care) as both discrimination
against women and unfair discrimination against abortion.
(4) Look to expand the litigation areas in which we push
equal protection claims and state ERA claims (e.g.
contraceptive equity, challenges to abortion restrictions as
applied to medical abortion).
(5) Analysis of the kinds of factual development we should
do in cases in which we bring equal protection claims.
(6) Development of studies helpful to our equal protection
claims such as (a) study comparing the morbidity and
mortality of abortion with that for other office surgeries;
(b) study establishing that other health care decisions women
make are comparable to the abortion decision in relevant
respects.
(7) Develop strategies for advancing legislation that would
add to women's protections against sex discrimination in
health care (e.g. establishing that disparate impact on
pregnant women is sex discrimination).
III. Undue burden
Articulation: Project to limit the'application of the undue
burden standard and to increase its ``bite'' so as to bring
it as close to strict scrutiny as possible. This includes:
(1) limiting the application of the undue burden standard
(e.g. requiring a health exception and service of a
legitimate state interest regardless of burdens); (2)
developing meaningful purpose prong challenges; and (3)
developing case law establishing some burdens as undue.
Positives: (1) The law in this area is not yet fully
developed so we have some more room to make progress than we
do in other areas. (2) Progress in this area would positively
affect all our abortion cases. (3) This issue is important to
our goal of ensuring access to abortion.
Negatives: (1) This project is difficult to support through
public education or media (since it is so legally-focused).
(2) These kinds of cases are very resource-intensive. (3)
Successes in these factually-intense cases can be difficult
to apply more broadly.
Possible Elements:
(1) Analysis of federal courts' application of the undue
burden standard and assessment of where they have improperly
articulated the standard.
(2) Legal research and writing regarding (a) how the
standard should be interpreted; and (b) areas where we can
try to limit application of the standard (e.g., with health
exceptions, lack of legitimate state interest).
(3) Analysis of which types of abortion restrictions
actually have the effect of imposing the greatest burdens.
(4) Obtain studies demonstrating the effects of those most
burdensome laws.
(5) Litigation challenging those most burdensome laws in
favorable circuits.
IV. Funding
Articulation: A project to overturn Harris v. McRae by
building upstate court opinions, state legislation and
factual bases to compel the Supreme Court to overrule its
prior decision as it did in Lawrence v. Texas with respect to
Bowers v. Hardwick. The strategy would be to showthat the law
and social standards have evolved since Harris v. McRae in
recognition of the fact that, for poor women, access to
public funding for abortion is part of their constitutional
right.
Positives: Funding is one of our priority issues, and the
Harris decision has had a very significant on women's access
to abortion.
Negatives: Unlike what happened with sodomy laws, we are
not going to be able to get an expansion of abortion funding
rights in the states: we are running out of state courts to
rule in our favor on the funding issue, and in most states we
have no chance of getting the legislature to act in our
favor.
V. First amendment
Articulation: Project to enhance reproductive rights
through the development of first amendment theories in areas
like specialty license plates and biased counseling.
Positives: (1) We could try to develop this area of law, in
which we have had some success; (2) restrictions that are
imposed on speech about abortion, and preferences given to
antiabortion speech, undermine the right by contributing to
an anti-choice public dialogue about our issue.
Negatives: (1) First amendment theories have limited
application to restrictions on reproductive rights; (2) this
area does not lend itself as well to a ``campaign.''
Memo #3--REPORT TO STRATEGIC PLANNING PARTICIPANTS FROM ``OTHER
LITIGATION'' SUBGROUP
This group met to discuss ``other litigation'' that CRR
might pursue in addition to areas in our current docket. We
focused on three main areas: (1) contraception; (2) women of
color; and (3) misleading information. These topics were
discussed at the initial strategic planning meeting of the
domestic program. For each of these topics, we considered
some of the possible ways that we might pursue work in these
areas; the positives and negatives of pursuing these
strategies; and possible elements pursuing these issues might
entail.
I. Contraception
Articulation: The Center's commitment to reproductive
rights includes a woman's right to control if and when she
becomes pregnant. We considered possible ways that we may be
able to expand our work in the area of contraception,
including potentially focusing on: (a) funding restrictions
(e.g., restrictions in Medicaid, Title X, and in abstinence-
only programs); (b) government restrictions, both on a macro
and micro level (e.g., statutes and or regulations; police
harassment of sex workers by destroying condoms; school
policies that prohibit condom distribution); (c) Title VII
and Title IX cases, expanding the Title VII precedents into
the university setting; and (d) women of color's specific
concerns in this area (e.g., steering towards certain
methods; unique access issues; and implications in
sentencing).
Positives: (1) This is an area in which the Center has had
a long-standing commitment and it would affirm that
commitment to litigate issues affecting access to
contraception. (2) Work in this area could have a significant
impact on the lives of women. (3) Increasing access to
contraception is much less controversial than abortion. This
could be potentially significant to donors, press, public,
and courts. (4) Expanding our work in this area would
undercut the criticism that we are solely an abortion-rights
organization.
Negatives: (1) It is difficult to find legal theories to
pursue many of the areas identified. (2) In those areas where
legal theories are clearly articulated (e.g., Title VII and
Title IX), it is difficult to find women willing to be
plaintiffs and there are many groups pursuing these goals.
Possible Elements:
(1) Research and assess whether there are viable legal
avenues to pursue in this area;
(2) In those areas where there are well-articulated viable
legal avenues, assess whether or how much resources the
Center should direct in light of other groups' commitment to
these issues;
(3) Collaborate with groups that are working more directly
with these issues to see if we can educate ourselves to
possible litigation opportunities;
(4) Assess whether there are non-litigation opportunities
and consider if this is an area we would consider directing
resources.
II: Women of Color
Articulation: Laws restricting access to reproductive
health services disproportionately affect women of color and
women facing economic barriers. Our litigation work on
funding bans is an example of our long-standing commitment to
this area; however, we need to explore other ways of
addressing the needs of this population head-on. While the
work of the International Legal Program deals with many of
these issues, we realize that the Domestic Legal Program
could place more specific emphasis in this arena. Some of the
possible areas of litigation which cross-over with ILP are:
(1) women in the criminal justice system; (2) immigration;
and (3) trafficking; and (4) safe motherhood/pregnancy.
Positives: (1) This has always been one of our priority
issues; (2) we cannot claim to be serving the reproductive
health needs of women in the U.S. if we are ignoring issues
specific to women of color; (3) the issue extends beyond
abortion; and (4) we may be able to coordinate efforts with
the International Legal Program.
Negatives: (1) We are not sure that legal strategies are
the most useful strategies to combat reproductive health
issues specific to women of color and economically
disadvantaged women; (2) we have little experience (and some
would say credibility) in this area, other than defense of
women being prosecuted for drug use and our Medicaid cases,
and, therefore, would first need to take a systematic look at
the needs of women confronting racial and economic barriers,
and would need to devote the resources to do this properly;
(3) cases in this realm might involve non-impact litigation,
which we aren't as accustomed to taking on; and (4) we are a
department/organization comprised largely of economically
advantaged white women, which undermines our credibility
in this area.
Possible Elements:
(1) Focus on areas in which we already have some
expertise, e.g., treatment of pregnant women who use drugs or
abuse alcohol, women in prisons and funding issues.
(2) Identify other areas in which specific issues facing
women with economic and social barriers could be remedied or
addressed through legal strategies, e.g., issues facing
immigrants and migrant workers, and safe motherhood/pregnancy
issues.
(3) Work in partnership and build relationships with other
groups working on issues affecting the health of women of
color.
(4) Identify legal strategies.
III. Misleading Information
Articulation: This area includes the following issues,
which we believe contain misleading information by
definition, or often incorporate misleading information: (1)
abstinence-only education; (2) abortion/breast cancer link;
(3) crisis pregnancy centers (``CPC's''); and projects by
anti organizations such as Life Dynamics Inc. (``LDI'') that
distribute misleading information. The most noteworthy
project by LDI was their campaign to public schools
indicating that a school, or school employee, could be
legally liable for distributing reproductive health
information to students.
Positives: (1) Distribution of misleading information
regarding reproductive health care can have devastating
effects and undermines our goal of enabling women to be
knowledgeable and obtain safe and medically
[[Page E2542]]
appropriate reproductive health care; (2) this has been a
more recent and successful campaign by the antis, both to
the public and in the courts; (3) outing the antis as
liars would undermine their credibility; (4) although
several medical and health people and groups, as well as
legislators, are outraged by these tactics, there hasn't
been much success in countering these attacks; thus, we
could stand out on these issues. In fact, we are the only
group with significant experience litigating (and
refuting) the claims of an abortion-breast cancer link.
Negatives: (1) We have struggled for years without much
success to try to develop legal theories to attack these
issues proactively; (2) we think that there might be viable
non-constitutional legal theories, but we are not experts in
some of those areas and therefore don't even know of the
existence of some avenues; (3) cases in this realm might
involve non-impact litigation, which we aren't as accustomed
to taking on; (4) individual cases in this area often are
seen as less important than the impact litigation facing us
and, therefore, fall through the cracks; (5) LDI has been
quite careful to try to stay within legal bounds with their
misleading attacks.
Possible Elements:
(1) Decide if this area is a priority for us and determine
if that depends on whether we can litigate in the area or
not. If so, proceed to the following elements;
(2) Brainstorm regarding litigation versus non-litigation
tactics;
(3) Do fact research on types of misleading information and
then prioritize potential attacks on the different types of
dissemination;
(4) Do legal research in obvious areas with which we are
familiar--i.e., First Amendment entanglement/establishment
clause (see license plate cases and the Gibbons case in E.D.
La.);
(5) Determine how to familiarize ourselves with other areas
of law that we're not so familiar with--including business
torts such as interference with business, torts, false
advertising--both currently and how to keep abreast of
changes in the area (have a law firm do a CLE for us and be
our consultant on such matters?);
(6) If lawsuits are a viable option, decide how to proceed
with them (alone? With a law firm?).
What are our criteria for project and site selection? Do we
have ``clients''? Are they our NGO partners? Women in need?
UN agencies? Sister organizations in the US/Europe? How can
we make these ``clients'' more a part of our strategic
planning and priority setting?
C. Integrating the Center's Program Work
The Center's work in the U.S. and abroad has proceeded on
independent tracks (e.g., we have not used the international
human rights strategies in the U.S.). Should the new interest
by the Supreme Court suggest we should be taking a human
rights approach in the U.S.? What would that involve? Are
there other ways in which our domestic and international work
could be integrated?
____
Strategic Planning: Communications--First Steps
Like the other programs at the Center, domestic and
international, Communications needs to be strategic. And for
Communications to be strategic, the Center must have a
clearly articulated goal.
So the first question we must ask is, Why communications?
What purpose does it serve for the Center?
Depending on the organization, Communications strategies
vary widely. Here are two examples from two organizations
whose Communications programs I directed before coming to the
Center.
Two Communications Models
The Vera Institute of Justice had an entrepreneurial goal.
We wanted government officials to hire us to make government
justice systems fairer and more efficient. We believed that
without actual government investment in the research and
projects we piloted, there wouldn't be the necessary will to
change. And we wanted to be known, unlike government
bureaucracy, as an organization that got things done.
This goal meant that Communications strategy focused on
marketing more than advocacy. We developed strong research
reports and briefing papers, as well as attractive and
forceful ``identity'' materials (that described what we do).
We also established the president and other key staff and
colleagues as trusted and authoritative resources. But we
kept a very low media profile, with a few exceptions. For
example, when we launched our citizens' jury project, which
essentially acted as ombudsman for jurors in New York City
courts, Judge Kaye encouraged us to publicize it as much as
possible, because we wanted New York City residents to use
the service. For the most part, however, we sought less to
get our name in the media than, to change the quality of
reporting on criminal justice. So we held a seminar for
editors and reporters at which they and criminal justice
experts exchanged (no holds barred) views on how the media
could do a better job and how researchers could help them do
it.
An adjunct goal of Vera's was to encourage the next
generation of government official or public interest lawyer
who might become our partner in future projects or perform
pro bono work for us. For example, we invited law firms to
propose young partners to attend a series of after-work
seminars we held, introducing them to high-level officials in
NYC government who could explain how various parts of the
justice system worked.
The International Women's Health Coalition had a very
different goal: to promote and protect women's and girls'
reproductive and sexual health and rights. Our strategy
focused in inserting a gender perspective into international
policies and agreements, either directly through our own
staff's involvement with global entities such as the
World Health Organization or, on a country level, through
funding and technical assistance to groups trying to
change national and regional policy.
Communications developed and provided written and
audiovisual ``tools'' to these groups (case studies of
successful programs, how-to manuals, etc.), as well as policy
papers, disseminating them widely through our website, and,
when possible, publishing in peer-review journals.
We also engaged aggressively with the media, partly in
order to embarrass the Bush administration for its failure to
support the reproductive rights and needs of women globally.
This included the development of Bush and Congress Watch fact
sheets detailing the actions and appointments of this
Administration that held back progress on women's
reproductive rights both domestically and internationally.
Because IWHC also cared about involving the next generation
of leadership, we too brought together potential leaders
doing cutting-edge work from around the world to encourage
dialogue and generate momentum for change. Communications
sometimes published the results of those dialogues.
Center for Reproductive Rights: Key Questions
In order to develop effective Communications strategies, we
must first ask questions like these:
Is our goal to increase our visibility or is it to change
how people think about the Center? If it is to become better
known, for what and by whom?
What is different about the Center now as compared to
earlier in its history? What do we want people to understand
about how we've changed?
Is our goal to make people understand reproductive rights
as human rights?
What is unique about our organization that we want people
to know? What people?
Do we want to be known as a cutting edge organization that
generates innovative ideas, i.e. a think tank for litigation
and jurisprudence?
Do we have a special role to play to encourage thinking
about the proper role of the courts in protecting
reproductive rights?
____
Center for Reproductive Rights--Strategic Planning Workshop, November
10, 2003
agenda
Overview
1. Introductions, agenda for workshop, strategic planning
overview, rules, and roles [9:00-9:30].
2. Agree on a planning perspective [9:30-9:45]:
What can we accomplish in this political and economic
environment?
What are appropriate strategic planning horizons for the
Center and our issues? e.g. Next 1-2 years; 3-5 years; 5
years plus.
How do we combine strategic cost reduction and strategic
planning?
Identify the Issues Raised During the Strategic Planning
Interviews and Staff Workshops [9:45-10:15].
Focus the Work
4. International Legal Program: How can we begin to focus
our International Program? [10:15-11:30]:
What have we learned in pursuing our 4 key strategies?-
Accomplishments and outcomes.
Shortcomings.
What is our Theory of Change guiding our future program
activities?
How do we evaluate the effectiveness/sufficiency of
existing international norms?
What does this evaluation mean for focusing our work, e.g.:
Testing international and regional enforcement mechanisms?
Timeframe?
Selecting priority countries, issues, projects?
Morning Break [11:30-11:45].
5. Domestic Legal Program: What are the opportunities and
limitations in our agenda? [11:45-1:00]
What is the future of traditional abortion jurisprudence?
How is our defensive work moving the legal norms forward?
What is the importance of our continuing litigation work in
other areas?
Who else does this work and what gives the Center a
competitive advantage?
What is a more systematic approach to strengthening the
abortion case?
What would it mean for CRR?
Which issues, e.g. minors and equal protection?
Who else do we bring to the table?
Lunch [1:00-2:00].
Coordination Across Programs
6. A Global Perspective: How can we better coordinate our
International and Domestic programs? [2-2:45]
What are the implications for the U.S. as we advocate for
International norms?
Why don't we treat the U.S. as a country in the world of
nations?
[[Page E2543]]
Would the distinct programs have more commonality and
synergy if the International Program focused on legal and
Human Rights enforcements?
How will this coordination change/enhance our domestic and
international agendas?
7. Communications: What issues should we consider as we
make Communications a more substantive part of the work we
do? [2:45-3:30]
How should we design a communications program to influence/
shape the legal landscape around reproductive rights?
How should broader communications strategy integrate our
litigation, legislative, research, and advocacy work?
How can we shape and frame our messages differently? More
aggressively? With more resonance to more constituents?
What would a multi-year program look like?
Afternoon Break [3:30-3:45]
Leadership
8. Leadership: How can the Center use its expertise to
exert more leadership? Distinguish ourselves? Become more
collaborative? [3:45-4:45]
What do we mean by ``leadership'' and how do we better/more
effectively communicate our leadership role and position
ourselves as leaders?
Can we set the broader agenda for the Reproductive Rights
(RR) movement?
What will it take to incorporate RR work into a broader
Human Rights agenda?
What can we learn and apply from other serious disciplines?
What does it mean to ``stay on the cutting edge''?
How do we engage the broader public interest bar?
Next 3-5 years
Wrap-Up and Next Steps [4:45-5:151
Cocktail Reception [5:15-6:15]
program strategies and accomplishments
(The following program descriptions focus on our core legal
program. We have not included descriptions of our state and
federal programs as well as our ongoing counsel to providers
and patients.)
Domestic Legal Program. Our core strategy domestically is
the use of high-impact litigation to secure the highest
constitutional protections for women's reproductive rights.
Our domestic staff attorneys are among the most senior and
experienced reproductive rights litigators in the country.
With 21 cases in 13 states--on issues ranging from abortion
bans to funding restrictions to forced parental involvement
laws--we have the largest and most diverse docket of any pro-
choice organization in the United States.
The Center has won two landmark cases before the United
States Supreme Court: Stenberg v. Carhart (striking down
Nebraska's so-called ``partial-birth abortion'' ban as an
unconstitutional violation of Roe v. Wade) and Ferguson v.
City of Charleston (affirming the right to confidential
medical care and informed consent by striking down a drug-
testing scheme targeting poor women of color). In addition,
we have:
Secured and restored Medicaid funds for low-income women
seeking abortions, with victories in 14 states;
Successfully fought ``partial birth abortion'' bans and
other access restrictions, with victories in 16 states; and
Challenged parental consent and notification laws, with
victories in 5 states.
International Legal Program. The Center's international
program works to establish reproductive rights as. human
rights by using international law and legal mechanisms to
advance legal norms and secure women's access to quality
reproductive health care globally. We are the world's only
organization of international human rights lawyers that focus
exclusively and extensively on reproductive rights. Nearly
all of our international legal advisors come from the regions
we cover; all have honed their skills at top law schools,
legal organizations and national-level NGO's before joining
the Center. At the heart of our international work is a
commitment to building a global network for reproductive
rights legal advocacy by building the capacity of NGO's to
use international human rights laws and mechanisms to advance
reproductive rights.
The Center's international program implements four key
strategies:
Researching and reporting on national laws, policies and
judicial decisions;
Advocating in international and regional human rights fora;
Documenting reproductive rights violations in fact-finding
reports; and
Training NGO's and lawyers through legal fellowships and
visiting attorney programs, workshops, published and online
resources and other technical assistance.
Key accomplishments under these strategies include:
Conceptualizing and publishing the Women of the World (WOW)
series. Non-governmental organizations must be able to
identify national and regional legal obstacles to furthering
reproductive rights in order to craft effective advocacy
strategies for removing them. No comprehensive listing of
laws and policies existed, however, until the Center launched
the WOW series in 1996. Researched and written with partner
NGOs, these regional reports document the laws and policies
of 50 nations. They cover a range of issues, including:
health, abortion, population and family planning,
contraception, safe motherhood and women's legal status. To
date, we have completed four regional reports: Anglophone
Africa, Latin America and the Caribbean, Francophone Africa,
and East Central Europe.
Publishing Bodies On Trial, which documents a significant
gap between reproductive rights law and judicial
interpretation in five Latin American countries. The Center's
150-page report serves as a resource not only in Latin
America and the Caribbean but in other regions where
advocates are evaluating potential litigation strategies to
advance reproductive rights.
Filing groundbreaking legal cases in the Inter-American
human rights system and in the UN Human Rights Committee,
with two successful settlements to date to ensure that Peru's
government abides by international agreements and its
existing reproductive rights-related laws.
Securing favorable interpretations of international human
rights law from UN and regional human rights bodies, and
documenting the increasingly progressive jurisprudence of the
UN Treaty-Monitoring bodies in our 300-page report, Bringing
Rights to Bear.
Investigating reproductive rights violations in over seven
countries, including two reports on Chile and El Salvador
that highlighted the role of criminal abortion laws in
maternal mortality and two reports that generated significant
public pressure to reform criminal abortion laws in Nepal and
to safeguard women's rights to informed consent in Slovakia.
Providing technical assistance and capacity to use legal
strategies to advance reproductive rights to over 100
organizations in over 45 countries, including training over
16 lawyers in reproductive rights advocacy at our New York
office for periods of at least three months.
Launching the Safe Pregnancy Project, a series of fact-
finding reports that document laws and policies contributing
to maternal mortality in select countries, and make
recommendations for change. Our first report, on Mali, was
released in February 2003 and presented at the landmark
Amanitare Conference in South Africa in March.
Advancing adolescents' access to reproductive health
services through reporting, fact-finding and legal advocacy.
Our WOW reports specifically isolate legal and policy
barriers to adolescents' reproductive and sexual health and
rights. Our analysis of the Convention on the Rights of the
Child is a definitive resource for advocates and key UN staff
alike, as is our fact-finding report, State of Denial, on the
inadequate legal and policy protections of adolescents'
access to services and information in Zimbabwe.
Establishing our website as the go-to online resource for
international reproductive rights legal advocacy. In the past
year, advocates in over 150 countries downloaded over 250,000
Center publications.
____
The Center for Reproductive Rights Summary and Synthesis of Interviews
In August, September, and October of 2003, Nancy Raybin and
Elizabeth Lowell of Raybin Associates conducted some 18
strategic planning interviews with members of the Center's
Board of Directors (10), representatives of long-term
institutional funders (5), and colleagues at other
organizations concerned with reproductive rights (3). (We did
not discuss funding opportunities with any specificity during
these conversations because these issues were being addressed
in separate Development Assessment interviews by Miller/
Rollins.)
We also interviewed members of the management team and
other Center staff and facilitated several brainstorming
sessions with Center staff of both the Domestic Program and
the International Program. All of these (continuing)
conversations, either face-to-face or by telephone (when
geography or schedule did not permit a personal meeting),
focused on creating a vision and future strategies for the
Center. Raybin Associates' work intentionally did not focus
on internal management and organization, as that had been the
subject of fairly recent strategic planning work.
A ``white paper,'' prepared by President Nancy Northup, was
sent to each study participant prior to the interview. Some
interviewees read the material, some did not, and several
Trustees felt that they did not know enough to comment
intelligently on the issues and questions raised in the
paper. In most instances, they deferred on issues of strategy
to Center staff, whom they trust to define and set the
direction for the future. Board members unequivocally
welcomed the Center's new Director and praised the staff's
legal expertise.
The remarks below are both a synthesis and summary of what
we learned in our interviews with Trustees, funders, and
colleagues. There is no input here from the staff workshops.
We have separated the comments made by Trustees from those
made by funders and colleagues. A copy of our Interview
Guideline is appended; it is important to note that some
participants' lack of knowledge meant that many of our
questions were not addressed.
mission and vision
Differentiating the Center
Most Trustees noted that what differentiates the Center is
its law and legal work. They noted ``expertise around
Reproductive Rights (RR) and Human Rights (HR),''
``brilliant, focused, sophisticated lawyers who can fight and
win,'' and ``who work on the `cutting edge.' '' One Trustee
noted that it is the only organization working on the legal
and
[[Page E2544]]
human rights aspects of RR, but most felt at a loss to speak
concisely and specifically about what the Center does that
makes it different from other ``players'' in the field.
Trustees also cited international work as a unique aspect of
the Center, but were unclear as to the specifics of this
work.
Funders and Colleagues could, and did, give definition to
the international role. They talked about the Center's role
in ``linking groups of people trying to advance women's
issues globally,'' how the Center helps ``to define and
challenge national legal systems,'' and how ``finely-honed
the legalistic work'' is. One funder declared, however,
that the legalistic often comes at the expense of economic
and social justice--and gave a stark example of a Somali
woman.
While one funder noted that the Center is unique because of
its strong commitment to RR, two others noted: ``other
organizations are also grappling with these issues.'' ``The
Center should place itself within the range of other groups
which do similar work. . . . It is not enough to assert you
are unique--you must describe why.'' ``The Center is not
unique in litigation; both Planned Parenthood and the ACLU
also litigate: How are the client base and issues different
and has the Center deliberately developed their expertise
accordingly . . . or has it just happened?'' One colleague
asked about how the Center views itself: ``as a litigating
organization or as a broader advocacy group?''
Articulating a broad vision for the next five years
Trustees hold the Center's staff in extremely high regard.
Their level of respect and trust is extraordinary. Most
Trustees would largely defer to staff in setting the vision
for the future and determining the direction. Having said
that, most believe that the domestic focus should still be on
abortion. Several Trustees mentioned that they would also
like to see work in the related areas of Emergency
Contraception (EC), contraceptive equity and comprehensive
sex education, including work with adolescents.
Most Trustees think that the image and reputation of the
Center needs clarifying and heightening and that
collaboration with other RR and HR groups would help to
improve the Center's visibility as well as move the agenda(s)
forward.
Funders and colleagues believe strongly that the broad
vision for the next five years must be ``ruthlessly
prioritized.'' ``Their approach should be outcomes-oriented.
It's not good enough just to research, write and present.
Engineer backwards from what they want to see happen.'' ``I
understand the causal model of theory of change; spell it out
for us; define the outcome you expect . . . not just winning
decisions.'' Most see this as requiring more sharing of
expertise. Indeed, partnering with other organizations, both
domestic and international, was a strong and recurrent theme
in all of their comments. Nepal and Slovakia were cited as
examples. where the Center had identified local groups with
which to work and had been successful. Acknowledging that the
Center cannot do it all, ``after the outcomes are defined,
then the Center needs to determine who best to work with
locally.'' ``Greater collaboration must be a defining
characteristic of the Center's future work.''
In speaking about the international program, one colleague
suggested that ``publicly shaming a country, so that it is
coerced in doing the right thing (the Amnesty International
model) will not work around Reproductive Rights. If, however,
the ILP saw itself as a midwife to the global choice
movement, that would be a longer-term, albeit, less glamorous
vision.''
Funders and colleagues also envision the need for
continuing emphasis on Reproductive Rights. ``We must `stay
the course.' '' Several commented: ``the Center must continue
as the legal reference point for policy implications and
shaping thinking and monitoring.'' Most called for a more
proactive stance identifying and analyzing trends--and
potential backlash. ``This is a real need--and one that
the Center could fill. They need to tell the rest of us
what's coming down the pike.'' Added another: ``The Center
needs to think through the leadership role it can play . .
. there is a gap at the national level, which the Center
could fill.''
They would also like to see the Center ``provide new and
useful information and training'' and ``more paper for
colleagues and constituents.'' ``We should get something
every three to six months from the Center about what's
happening in the field.'' ``But, there is so much information
reaching people in the RR arena that if the Center were to
spend time better packaging and abbreviating materials, it
would get more mileage out of its work.'' ``Electronic
newsletters are effective.'' Several funders proposed a
serious analysis of Roe v. Wade soon to ascertain the
roadblocks lying ahead and the best options for addressing
them. None thought that Roe v. Wade would fall, but that it
``might be left out there, hanging all by itself . . . Then
what? We need to think that through now.'' ``What happens
after PBA? If we win? If we lose? The legal win should not
become the public relations loss. There must be a strategy
for this.''
Involving and energizing constituents
Trustees, finders and colleagues agree that shaping the
Center's focus and making it more easily articulated will
help constituents become more involved. ``If we comprehend it
ourselves and can explain it to others, we are more likely to
activate people.'' Trustees noted: ``our inability to clearly
articulate makes us poor ambassadors for the cause.''
Trustees would also like to see a succinct list of successes,
both domestic and international, with a timeline, and an
explanation of the impact and practicality of these
successes. A visual of what has been accomplished in RR--
since the Center's founding would help to bring home the ``so
what factor''--``So what difference have we made?''
Funders and colleagues emphasize that consistent partnering
with other groups will strengthen the Center's overall
visibility, present constituents with the bigger picture and
bigger numbers, thereby offering more assurance - ``there's
some safety in numbers.'' They stress that the Center should
take the time now to identify who those long-term partners
might be, both domestic and international, and if
relationships do not now exist, begin to build them. They
further cautioned that in all collaboration the ``emphasis
should be on the success of the work rather than the
credit.'' ``The need to be the dominant partner can sap
energy and good will.''
STRATEGY and PROGRAM
Assessing progress to date
Most Trustees said that the Center ``does program and
strategy well,'' but they were short on specifics. Most
believe that the Center ``litigates well.'' Backing up this
assertion, two Trustees cited the Center's role in the
Nebraska case and its work on Partial Birth Abortion
(PBA). Several others referred to its pro-active role
around EC. They noted that, despite domestic ``wins,'' the
current political climate undercuts the Center's work.
One Trustee cited progress in Chile and Mexico, which could
not have happened without the Center's activities. All knew
that litigation around abortion was a domestic hallmark, but
most could not explain the essential components of the
international programs. One did, however, single out the
``spectacular WOW reports, their use at the UN and their
import to other international organizations working in the RR
and HR arena. Another cited the work in Nepal.
Funders and colleagues alike felt that ``the Center has
moved well since its founding.'' More familiar with the
international component than the Trustees, three mentioned
``fabulous'' reports . . . but ``want to know what happens
next.'' One said candidly, ``I am unable to assess--it's been
all over the place,'' but remarked that the Center is most
effective bringing attention to the issues.'' Nearly all
funders and colleagues were familiar with and spoke highly of
the work in Nepal. ``It demonstrated change processes, the
train of intervention, the change itself and needed follow-
up.'' And one referred passionately to the ``practical,
hands-on-quantifiable, usable-elsewhere, most effective work
in Slovakia.''
With one exception (who did not think the Center should
devote itself to international work at all), funders and
colleagues felt that the international program could be more
effective by ``working on a country by country basis.''
``Legislative debates are needed; they have proven useful and
educational elsewhere.'' One argued for taking more cases
internationally through the European Court of Human Rights.
And, returning to the issue of collaboration, one funder said
that the Center has been least effective internationally
``when it goes off on its own initiatives that are not well-
developed with other partners.''
Measuring success
Trustees, funders and colleagues were unaware of any
systematic or specific efforts to measure the Center's
success. All agreed, however, that measurements and
benchmarks will be important moving forward. Some said, ``the
hard data--what's quantifiable--is the easy part--number of
cases won, number of cases lost.'' What's harder, but equally
valid is the soft data--the gnalitative--which takes note of
``laws changed (although perhaps not immediately), lives
improved, learnings which help the Center in other cases.''
``If we lost, did we educate, create a precedent?'' There was
strong consensus overall that as new strategies are
developed,-they must be evaluated against the Center's
vision.
Substance guiding future strategy
Several Trustees identified the ``shoring up of favorable
state constitutions'' as core to the domestic work ahead.
They also want the Center to ``identify trends.'' Funders and
colleagues looked for a more proactive role around the
intersection of needs, e.g., RR and HIV/AIDS. Again, they
stressed network building (domestically and overseas),
collaboration and outcome oriented strategies rather than
identifying specific goals, litigation or issues per se (as
requested by the interviewer). They also expressed their
belief that new leadership at the Center would embrace
these tactics.
Domestic and International programs informing each other
Trustees were not sure how the domestic and international
programs could inform or better inform each other, but they
were quite insistent that it needs to occur. They do not know
the frequency of interchange between the two staffs, although
they assume that there is some and that there should be more.
Funders and colleagues spoke about thinking collectively
with other groups to move the agenda forward, broadening the
discussion well beyond the Center staff. A greater
[[Page E2545]]
awareness of what others are doing nationally and
internationally ``can make us all more effective as we focus
on what each does best.'' Most talked of identifying ``cross
country issues,'' where both domestic and international could
bring experience and expertise to bear, e.g., medical
abortions, access to various forms of contraception, RR and
HIV/AIDS. Said one ``be more clear about the connection
between global and national. Look at the US impact
globally.''
Race and Ethnic Discrimination as a Program Component
All study participants recognized that minorities and the
poor are underserved in RR and HR. How this should factor in
to the Center's program development, non could specifically
say.
Domestic Program
Expanding domestic litigation beyond abortion?
The Trustees believe that abortion is still the key issue.
But many also think that the Center should ``move beyond''
and address linked issues. They cited EC, HIV/AIDS, work,
with teens, and family planning ``wherever there are legal
issues (e.g., women denied prenatal care.)'' ``If Medicare
funding changes, will there be a legal issue there? Is there
a legal issue around the misinformation around abortion on
the government website?'
Trustees have a deep concern that the image of the Center
is ``only around abortion'' and believe that image must
change, so that the public has a greater understanding of the
overall impact on women's lives of what the Center does. One
suggested that every time the Center is litigating a case,
there be a full explanation of how the case fits into the
larger context.
One Trustee believes that Roe v. Wade could be overturned
and that the Center should begin now to develop strategy.
Another said, ``If it is overturned, we'll know in advance
and have time. We need to keep the thought in play, but we
can't focus completely on it.'' Most felt that Roe itself
would remain intact, but several concurred that, given the
current political climate, its impact could be gutted.
Only two funders commented on Roe v. Wade. One said, ``it's
not going to be overturned, but everything else will be.
Therefore, look to work at the state level.'' Another stated:
``We need a serious analysis of the decision and come out
with an opinion whether or not to continue to defend it.
There are lots of weaknesses in the legal approach to Roe v.
Wade. If it is flawed, we need to come up with a remedy. Is
the Center satisfied that it can continue to defend it?
Commenting on other issues, one funder commented: ``Look at
the things that are winning and advancing. What is the
principle that appeals and the legal strategy that can be
derived and applies?'' Asked one colleague: ``Would the
Center take up a broader rights issue, e.g., women's access
to the full array of health services and gender choice and
what that means for women's advancement in society? Who is
active on college campuses and universities--there is a role
here that needs to be filled.''
Other Strategies To Make Forward Progress in the Courts
Most Trustees felt that there was nothing to be learned
from the Conservative Right ``because they just play a
different game.'' Another, however, remarked, ``We're not
vocal enough. People pay attention to the loud voices. We
have to fight harder, be a little dirtier. Be graphic and
show all the roadblocks.'' Said yet another, ``We should
shine a bright light on the U.S. internal policies.''
There were no specific strategies suggested for succeeding
in non-litigation areas, but many Trustees felt that the
Center should be thinking in terms of education. ``Young
women don't know what they are losing.'' ``Abortion is a
medical procedure and all medical students who enter the OB/
GYN specialty should be required to learn the procedure.
Medical school curricula must address this.'' All agreed that
collaboration is a strategy that the Center must use. Law
schools, bar associations, universities, the Alan Guttmacher
Institute, and the Brookings Institution were suggested as
potential partners.
Funders and colleagues said: ``Keep fighting.'' They
returned, yet again, to the issue of collaboration and while
most did not identify specific partners (``other mainstream
human rights groups''), they urged working together. One
quite specifically said ``the Center and the ACLU should work
reach out together to clergy, so that there are religious
voices for choice--so that we're not called `barbaric,
irreligious, immoral'--we need to have the ethical leaders of
our society with us at press conferences.'' Another noted
that the ``litigation messages need to be coordinated'' and
went on to say ``litigation alone is not going to carry the
day. It's also how to position and leverage the court cases,
so that the Center can do its long-term strategy. It's very
hard to think that way when you're preparing a brief at 120
mph.''
International Program
Global, Political, Health-Related Factors Driving Scope and Direction
of International Work
Most Trustees felt that they did not know enough to comment
on the direction of the international work, except to say
``helping NGO's understand and implement their laws seems
appropriate.'' One with a deeper knowledge of the
international scene remarked: ``There's a need for a catalyst
in developing countries. Help the women in Eastern and
Central Europe get their laws enforced and that new laws
don't violate basic human rights. The Center can be a
catalyst rather than an active litigant.'' Another said,
``Step up the international work and link it with the
domestic. The US domestic policy is affecting
international programs, and we need to link with other US
organizations and do advocacy, as well as testify how the
US is affecting the health of women. We also need to train
NGO's in developing countries to make their concerns
known.'' ``Do more and link more with other HR and RR
groups.''
Funders and colleagues say that ``one size does not fit
all'' and that the Center needs to do a quick assessment on
the work already done and make a long-term commitment in a
few key places, where they can support and transfer skills to
in-country advocates, rather than coming up with an overall
rationale.'' ``Choose litigation where it will work.'' ``It
is more important for the ILP to choose well than it is for
domestic--pick certain countries because they're key priority
areas, or long-term relationships, or because--you can leave
something behind.'' ``Make smart political judgments.''
``Collaborate with NGO's.'' Said one, ``Push the expertise
down and out.''
One interviewee talked at length about the need for
developing contacts within the European Union because ``there
is no real debate in Europe on abortion and, there is funding
available.'' Noted one colleague, ``All these factors (i.e.,
global, political, economic and health-related) drive the
scope and spectrum of the program, but it is how an issue is
seen politically, socially and culturally that makes it a
flashpoint and drives the work forward. Something often
becomes a symbol and that's what you work with. The Center
needs to be able to jump on these.''
Balancing Tensions in the Focus and Commitment of Resources
Once again, most Trustees felt themselves unequipped to
talk about this. One said, however, that the Center ``should
select issues such as abortion laws, violence against women,
adolescent law, and a more minor role in genital mutilation,
where we are better suited to be the data gatherers.'' Said
another ``select the strategic issues, those that will
command attention, linking RR and HR with rights of child/
girl. The HR link is education and protection. The Center
needs to bring out the whole discriminatory process against
groups associated with AIDS and everyone with AIDS.''
Funders and colleagues noted that the Center cannot work at
the ``wholesale'' (global) level, because the resources are
not there. ``Track and report country by country, within the
context of all other international agencies working in these
countries.'' Several commented ``it's not an `either/or.' ''
Both the human rights approach and the comparative legal
approach have merit and must work together. ``One creates an
opening and the other backs it up.'' No one wanted to see the
Center locked into mega projects, preferring ``prioritized
focus where you can make an impact'' and staying ``nimble
around opportunities.''
Asked one: ``Has there been a mapping of pro-Choice groups
in various, parts of the world, because donors need to know
who they are and how the Center can serve as a backstop?''
ORGANIZATION and OPERATIONS
Most Trustees said that they really did not know enough to
comment on the organization and operations. All expressed
their pleasure with new Center leadership. Several voiced
concern about the expense of the Washington, DC office and
wondered aloud about its role and necessity. Most are
concerned about Center communications. They want more and
better coverage in the press. Several commented that there
needs to be ``rigorous media training for the main
spokespeople.''
When it came to talking about the Board of Directors
itself, the operative word is more.
Trustees expressed a desire for: A bigger Board; more
people on the Board with money and access to money; more
lawyers on the Board; more younger people (especially women)
on the Board; a few more doctors; and more international
representation.
They also talked about the need for substantive Board
education, more effective and efficient Board Meetings and
training in their fund-raising role. Most recognized that
they could indeed play a much more active role for the Center
and be of greater assistance with education and training than
they have been in the past.
Funders and colleagues could not comment on the Board, but
they spoke highly of staff. One said, ``They are a precious
resource with skill and focus and `on the attack.' '' Another
said, ``Given the importance of collaboration in moving
forward, it is the bridging skills that may need
strengthening. And, you may need some on-the-ground
communications/community people.'' Yet another spoke of the
need for ``better coverage in the international press.''
Another suggested that there is ``a role for a broader
education program and perhaps putting more resources into
advocacy, public education, media.''
One colleague did suggest that, in terms of structure, the
Center needs a working i.e., ``giving and getting,'' Board
and another entity composed of ``non-traditional allies--
Fortune 100 CEO's, heads of universities,
[[Page E2546]]
heads of major religious denominations'' to give heft and an
ethical imprimatur to its work.
FINANCIAL IMPLICATIONS
Money for new strategies
Trustees, funders and colleagues alike have no sense of how
much money will be needed to finance new strategies. Several
Trustees and one funder spoke of redirecting more, if not
all, of the unrestricted money into the domestic program.
Said one Trustee: ``The ratio should be 6:1 Domestic to
International. It's where we need to focus our efforts.''
Most Trustees suspect that new strategies will have leaner
resources with which to be implemented and therefore, the
strategies will have to be ``very focused.''
Source(s) of money
All study participants concur that the source of future
monies will need to be individuals. Funders said ``it's a
tough time for us. Some have left the population field; some
have been affected by the stock market. (We) don't see much
new money and the existing money is shrinking.'' One funder
pointed to a great deal of government funding available in
Europe, should the Center choose to involve itself there.
Building capacity
Trustees worry about the age of individual donors. ``This
is an area largely funded by donors over 60 years old. Where
are the people in their 30's and 40's?'' They see a critical
role for the Center's Board in attracting the next generation
of donors who will keep the issues alive and fund them.
One colleague noted that ``the Center is way ahead of
others in capacity building,'' and without offering any
suggestions, is confident that funding will be found Funders,
colleagues and Trustees expressed confidence and hope in the
Center's new leadership and other staff (specifically,
Development, Domestic and International Program leaders) to
articulate the needs and to identify and solicit the funding
necessary to carry the Center forward.
Appendix: Crafting a Strategy for the Next Five Years--Interview Guide
Background
Describe current task, the link to prior strategic planning
efforts, and coordination with the development audit
Clarify terms, language, jargon
Understand Interviewee's:--Experience and knowledge in this
or related fields; and experience with and knowledge about
the Center.
Reactions to White Paper
Mission and vision
What does the Center do that differentiates it from other
organizations and individuals?
What have been the Center's emphases in the ``mission and
values'' statement in the last 5 years?
How would you articulate a broad vision for the next 5
years? How will this affect: Scope of activities/projects/
docket; size; ``Competitive advantage; and Image/reputation,
etc.?
How will the Center involve and energize both internal and
external constituents, in a new and/or expanded vision?
Strategy and Program
Overall
How would you assess the Center's progress to date?
What does the Center do well? Less well? Why?
What have been the essential components of the domestic and
international programs?
Where/when has the Center been most effective? Least
effective?
Where/when should the Center be more pro-active?
How has the Center measured past success? How should the
Center think about and measure future success?
What should be the substance guiding the future strategy?
Specific goals we should accomplish? (Identify)
Projects that we should undertake? (Identify)
Substantive issues we should address that we are not
addressing now? (Identify)
Litigation we should pursue proactively. (Identify)
Other. (Identify).
How can the international work be more informed by the
domestic work, and vice versa?
How should the Center's concern about race and ethnic
discrimination factor into program development?
Specific (at a level of detail appropriate for the interviewee)
Should the Center expand the domestic litigation agenda
beyond its primary focus on abortion?
Do clients have other issues that we should understand and
pursue? If so, what are they?
While we have a broad set of abortion cases on our docket,
do we run the risk of running out of interesting/effective
strategies or losing our fenders' interest and support?
Do we need to develop a strategy now if Roe v. Wade is
overturned?
Are there more important/different issues that we are
missing because of our focus on abortion? Does this matter?
What other strategies can the Center pursue to make forward
progress in the courts?
What are the programmatic components of a more
comprehensive strategy?.
What can be learned from the Conservative Right as they
pursue their multi-faceted strategies to change
jurisprudence?
How can the Center succeed in non-litigation areas, e.g.,
education and training?
With whom can the Center collaborate, e.g., similar legal
organizations, advocacy and policybased reproductive rights
organizations, law schools, etc.?
What are the global political, economic, and health-related
factors that drive the scope and direction of the
international work?
How all of the different strategies required in different
parts of the world recognizing that ``one size does not fit
all?''
Given a rapidly changing world, where should the Center
focus its work to be most effective and demonstrate results?
With whom should the Center collaborate?
How should the international program balance tensions in
the focus and commitment of resources, e.g.,
``Promoting the application of international human rights
standards to reproductive rights issues at global and
national levels (human rights approach) vs. providing
expertise on developing national-level legislation/policies
(comparative legal approach)''?
``Focusing on certain core issues (abortion, quality of,
care, safe pregnancy, etc.) vs. consistent strategies/
activities (litigation, documenting violations, legislative
reform)''?
``Wholesale (``global'') vs. retail (national-level)
impact''?
``Locking ourselves into mega-projects vs. nimble and
responsive to sudden opportunities.''
Organization and operations
What are the talents and resources-managerial, legal,
programmatic, policy, political, communication, etc-that we
need to pursue different strategies?
How should the Center shape the organization to support/
implement new strategies and take advantage of new staff and
Board leadership?
What additional structures and systems are needed to
support the Center as it grows and evolves?
What are the talents, size, and mix of star and Board we
need to successfully implement the new strategic plan? What
does the transition look like?
Financial implications
(Not intended to be redundant with Development Audit
questions.)
How much money is needed to finance the new strategies?
Could the Center redirect current unrestricted money to
more effective new strategies?
What is the financial plan to support the new strategy?
Where will the money come from to fund our new vision/
strategy/plan?
Who are the likely donors?
What is the timing?
What are the appropriate phases?
What might we be doing now to build capacity for the
future?
table of abbreviations and glossary
General terms
Comparative Law--The study of legal standards from several
countries or systems.
Customary Law, Customary International Norm--When there is
a very consistent pattern among nations on a particular
normative issue it is called a customary international law or
customary international norm and it attains the force of
international law--for example, that countries should outlaw
executing mentally incompetent people or prohibit official
torture.
Fact-finding--A research methodology employed to expose
human rights violations, seek accountability from responsible
parties, identify and secure a remedy for those whose rights
have been violated, and help develop an effective advocacy
strategy.
Jurisprudence--Law developed by judicial or quasi judicial
bodies.
NGO--Non-governmental organization.
Norms (legal norms, international norms, hard norms, soft
norms)--Legal standards, such as constitutional provisions or
legislation. Hard norms are binding treaty provisions. Soft
norms are the many interpretative and non-binding statements,
for example by Treaty Monitoring Bodies; that -contribute to
an understanding of reproductive rights.
UN and regional instruments and bodies
African Charter on the Rights and Welfare of the Child--
Regional human rights treaty protecting the rights of
children in Africa.
Beijing Conference--1995 United Nations Fourth World
Conference on Women: Global conference on women's human
rights.
Beijing Platform for Action--Beijing Declaration and
Platform for Action, United Nations Fourth World Conference
on Women: Consensus document adopted by nations participating
in the Beijing Conference.
Cairo Programme--Programme of Action of the United Nations
International Conference on Population and Development:
Consensus document adopted by nations participating in the
International Conference on Population and Development.
CEDAW--Convention on the Elimination of All Forms of
Discrimination against Women: International treaty codifying
states' duties to eliminate discrimination against women.
CEDAW Committee--Committee on the Elimination of
Discrimination against Women: UN body charged with monitoring
states' implementation of CEDAW.
Children's Rights Convention (CRR)--Convention on the
Rights of the Child: International treaty upholding the human
rights of children.
Convention against Racial Discrimination--International
Convention on the
[[Page E2547]]
Elimination of All Forms of Racial Discrimination:
International treaty upholding individuals' human rights to
be free of discrimination on the basis of race.
Economic, Social and Cultural Rights Committee--Treaty
Monitoring Body that monitors state compliance with the
Economic, Social and Cultural Rights Covenant.
European Convention for the Protection of Human Rights and
Fundamental Freedoms--European treaty upholding the rights of
the Universal Human Rights Declaration.
IACHR--Inter-American Commission on Human Rights:
International body upholding the American Convention on Human
Rights.
ICCPR--International Covenant on Civil and Political
Rights: International treaty protecting individuals' civil
and political human rights.
ICESCR--International Covenant on Economic, Social and
Cultural Rights: International treaty protecting individuals'
economic, social and cultural human rights.-
ICPD Programme of Action--Programme of Action of the
International Conference on Population and Development:
Consensus document adopted by nations participating in the
International Conference on Population and Development.
Treaty Monitoring Bodies (TMBs)--United Nations Treaty
Monitoring Bodies refer to the six committees which monitor
governmental compliance with the major UN human rights
treaties. While the TMBs are not judicial bodies; they -
influence governments by issuing specific observations about
states' progress and compliance with human rights
obligations. Four committees also hear individual complaints.
Universal Declaration--Universal Declaration of Human
Rights: UN human rights instrument at the foundation of
modern international human rights law.
the center for reproductive rights board of directors--primary
affiliation information
Executive Committee Members
Nicki Nichols Gamble (Vice Chair), Former President and CEO,
Planned Parenthood of Massachusetts
Francis W. Hatch, III (Vice Chair), Chairman, The John Merck
Fund
Betsy K. Karel (Chair), Board Chair, Trellis Fund
Nancy J. Northup (Ex-Officio 1/13/03), President, Center for
Reproductive Rights
General Members
Laurie G. Campbell (Treasurer and Chair of Finance Committee)
Jane E. Hodgson, MD, MS, FACOG, Founding Fellow, America
College of Obstetricians and Gynecologists
Sylvia A. Law, Elizabeth K Dollard Professor of Law, Medicine
and Psychiatry, New York University Law School
Marcie J. Musser, Vice President and Treasurer of the Board,
General Service Foundation
Nafis Sadik, MD, Special Envoy for United Nations, Secretary
General for HIV/AIDS in Asia and Pacific
Sheldon J. Segal, PhD, MD, FRCOG (Secretary), Distinguished
Scientist, The Population Council
Marshall M. Weinberg, Board Member, American Jewish Joint
Distribution Committee
____________________