[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

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