Shut Up Or Get Out: PA City Punishes Domestic Violence Victims Who Call the Police

by Sandra Park, ACLU Women’s Rights Project

Last year in Norristown, Pa., Lakisha Briggs’ boyfriend physically assaulted her, and the police arrested him.  But in a cruel turn of events, a police officer then told Ms. Briggs, “You are on three strikes.  We’re gonna have your landlord evict you.”

Yes, that’s right.  The police threatened Ms. Briggs with eviction because she had received their assistance for domestic violence.  Under Norristown’s “disorderly behavior ordinance,” the city penalizes landlords and tenants when the police respond to three instances of “disorderly behavior” within a four-month period.  The ordinance specifically includes “domestic disturbances” as disorderly behavior that triggers enforcement of the law. 

After her first “strike,” Ms. Briggs was terrified of calling the police.  She did not want to do anything to risk losing her home.  So even when her now ex-boyfriend attacked her with a brick, she did not call.  And later, when he stabbed her in the neck, she was still too afraid to reach out.  But both times, someone else did call the police.  Based on these “strikes,” the city pressured her landlord to evict.  After a housing court refused to order an eviction, the city said it planned to condemn the property and forcibly remove Ms. Briggs from her home.  The ACLU intervened, and the city did not carry out its threats and even agreed to repeal the ordinance.  But just two weeks later, Norristown quietly passed a virtually identical ordinance that imposes fines on landlords unless they evict tenants who obtain police assistance, including for domestic violence. 

Today, the ACLU, ACLU of Pennsylvania, and the law firm Pepper Hamilton filed a federal lawsuit on behalf of Ms. Briggs, challenging the ordinance.  These laws violate tenants’ First Amendment right to petition their government, which includes the right to contact law enforcement.  They also violate the federal Violence Against Women Act, which protects many domestic violence victims from eviction based on the crimes committed against them, and the Fair Housing Act, which prohibits discrimination based on sex and was enacted 45 years ago this month.  The ACLU has long argued that evictions based on domestic violence can discriminate against women, because such evictions are often motivated by gender stereotypes that hold victims responsible for the abuse they experience and because the vast majority of victims are women.

Norristown is not alone.  Cities and towns across the United States have similar laws, sometimes referred to as “nuisance ordinances” or “crime-free ordinances.”  We represented a domestic violence victim in Illinois, who after years of experiencing abuse, decided to reach out to the police for the first time.  The police charged her husband with domestic battery and resisting arrest.  Yet only a few days later, the police department sent her landlord a notice, instructing the landlord to evict the victim under the local ordinance based on the arrest.  The message was clear:  Calling the police leads to homelessness.

A recent study of Milwaukee’s nuisance ordinance showed that domestic violence was the third most common reason that police issued a nuisance citation, far above drug, property damage, or trespassing offenses.  The study also established that enforcement of the ordinance disproportionately targeted African-American neighborhoods.  The result?  Women of color, like Ms. Briggs, were less able to access police protection.

Effective law enforcement depends on strong relationships between police and members of the community.  These ordinances undermine that trust, by punishing victims who call 911 and coercing them to endure escalating violence in silence.  Even worse, Norristown reports that domestic violence victims make up 20 percent of its homeless population.  In order to reduce domestic violence and homelessness, Norristown should repeal the ordinance, and keep it off the books for good.  And other towns that are considering enacting or enforcing these ordinances should learn the same lesson.

Cross-posted on the national ACLU's Blog of Rights.

“Slap in the face” or constitutional obligation?

by Alexandra Morgan-Kurtz, ACLU-PA legal fellow

There are some mornings where you just have to wonder if government officials enjoy wasting taxpayer money and hurting their constituents. Today was one of those mornings.

“ACLU request for inmate abortion policy riles Westmoreland controller,” read the headline. The controller, Jeff Balzer, has issues with the county’s obligation to pay for abortions, which he sees it as “a slap in the face.” I respect his right to that opinion, and his right to express it as vehemently as he wishes. What I take issue with is strong-arming his personal moral beliefs onto the women incarcerated at Westmoreland County Prison. Mr. Balzer isn’t objecting to the added costs - abortions cost hundreds of dollars; prenatal care and delivery can cost thousands of dollars. He’s objecting to the principle. There is simply no room for a heckler’s veto in the arena of fundamental constitutional rights. The law is clear that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution.” (Turner v. Safley) Whether Mr. Balzer likes it or not, this includes a woman’s right to choose.

The government has no general obligation to pay for a citizen’s medical care. Everything changes, however, when the government chooses to incarcerate someone. At that point, it is legally and morally bound to ensure that person’s safety and physical and mental well-being. People have argued for decades that it’s unfair that prisoners “get” these things when people who have committed no crimes receive far less. I agree there’s unfairness in the system. It’s unfair that our government has decided to only pay attention to people when they absolutely have to. It’s unfair that rather than address the problems of poverty and racial inequality, our government embraces a policy of overincarceration that continues vicious cycles and costs taxpayers millions of dollars each year.

I am all about fairness. If I had my way, we would quickly be following France’s lead and providing birth control and access to abortion at no cost. Regrettably, that isn’t going to happen in America any time soon. Fortunately, in Pennsylvania, New Jersey, and Delaware, incarcerated women aren’t left out in the cold. The Third Circuit has held that county prisons have an affirmative obligation to ensure that women receive timely access to abortions, and “[i]n the absence of alternative methods of funding, the County must assume the costs.” If the county doesn’t respect this right and a woman’s right to choose is obstructed or unreasonably delayed, the county could be faced with even more costly litigation. Incarcerated women are undoubtedly facing a crisis in their lives. The last thing they need is for the government to interfere in this very private matter.

You’ve Come a Long Way [Baby], But . . . .

by Carol Petraitis, Duvall Reproductive Rights Project Director

Women achieved the right to vote in 1920 with the ratification of the 19th Amendment to the U.S. Constitution: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."

The women’s suffrage (right-to-vote) movement was first articulated at the Seneca Falls Convention of 1848. Some states never barred women from voting; others began removing the barrier. Before the 19^th Amendment a map of the country shows a distinctive geographic pattern -- the entire western portion of the U.S. plus Michigan and New York gave full suffrage to women, whereas the eastern seaboard from Pennsylvania to Florida allowed none. The middle portion of the country was somewhere in between.

Fast forward to 2012. State legislatures across the country are trying desperately to limit access to the right to vote by passing laws with onerous ID requirements. Pennsylvania is at the epicenter of that effort. The ACLU-PA, along with several ally organizations, is currently challenging the law’s constitutionality in state court. The vast majority of our clients are women, which is not a coincidence.

For a variety of reasons, women – in addition to people of color, low-income individuals, and young people – are particularly affected by voter ID laws. Women often change their names because of marriage or divorce, resulting in names that don’t match voter registration records. Women who have changed their names also need additional documentation, such as a marriage license, to obtain PennDOT ID.

Around the country there are possibly hundreds of thousands of women whose participation in the electoral process is threatened. We’ve come a long way -- but as we celebrate Women’s History Month, let us be aware that the rights of women to participate fully remain fragile.

This post is part of a series for Women’s History Month.

How Pennsylvania municipalities hurt domestic violence victims

by Alexandra Morgan-Kurtz, ACLU-PA legal fellow

How does a Texan Southern Baptist, who wore ankle length skirts to church three times a week, didn't speak unless spoken to, and who can chalk her first protest to standing on Main Street with a venomous pro-life sign, grow up to be an attorney at the ACLU?  As that woman, the answer is simple. Annoyed by constant judgments based on my gender, I decided that everyone deserves a voice.

One in four women will be the victim of domestic violence in their lifetime. Twenty years ago no one talked about domestic violence.  School teachers looked the other way when a klutzy girl had another broken wrist.  Church elders reminded a nine-year-old that "your father, as the man of the household, is responsible for the uprightness of his family and should not be questioned.  You and your mother can be difficult."

A few concussions, several broken bones, and countless bruises later, I admitted that the problem wasn't mine, it was society's.  Society wanted to believe his version of the truth.  When I encouraged my mom to leave, people (men) accused me of trying to rip my family apart.  My father was a good man after all.   And I was a stubborn teenage girl who didn't know my place.

But that was years ago, surely in this modern and enlightened age, society has a better appreciation for the prevalence of domestic violence.  We recognize that victims and survivors of domestic violence are all around us, from the partners of professional athletes to the woman standing next to you at the bus stop.  We understand that it's not just about the punches thrown, but includes a psychological component that is often far more overwhelming and debilitating.  We can at least agree that once a woman has taken that terrifying step of calling for help, we should support her instead of persecute her for poor choices…can't we?

Municipalities across the commonwealth, including Pitcairn, Norristown, Pittsburgh, and Forest City, haven't gotten that message.  Dozens of municipalities have enacted "disruptive property ordinances," which punish renters for calling police in a three-strikes-you’re-out fashion.  Some of the ordinances allow the municipality to evict tenants for having the police called to their home too often (even when the tenant is the victim) while others fine landlords who refuse to evict.  The effect is the same—call the police to protect you and find yourself—and your young children—threatened with homelessness. 

Proponents argue that these ordinances are directed at cleaning up our neighborhoods by chasing away those noisy problem neighbors.  But the effect on domestic violence victims is very real.  These ordinances not only infringe on constitutional rights and violate the Fair Housing Act and the Violence Against Women Act, they endanger women's lives.  Domestic violence is already one of the leading causes of homelessness in women and finding affordable housing is one of the main reasons women wait to leave violent partners.  These ordinances only give women one more reason to be silent.

Title IX Turns 40

Guest blogger Deborah Brake, Professor of Law and Distinguished Faculty Scholar, University of Pittsburgh School of Law

This June marks the 40th anniversary of one of our greatest civil rights laws, Title IX of the Education Amendments of 1972, which banned sex discrimination in federally-funded education programs, including extracurricular activities at schools and colleges. Title IX's big birthday party falls on an Olympic year, so we can expect that this year, sports commentators will make the connection between America's female Olympic champions and the law that opened up athletic opportunities for them. Few laws prompt such anniversary celebrations, and there is good reason for Title IX's special place in popular culture as a "super statute"-the kind of law that shifts cultural norms and has a transformative impact on society.


Title IX is best-known for its impact on sports, but it covers many kinds of sex discrimination in all aspects of education programs, including sexual harassment, the treatment of pregnant and parenting students, access to opportunities in nontraditional fields like math and science, and sex-separate programming based on gender stereotypes.  In fact, when the legislation was enacted in 1972, athletics was the last thing on the minds of the legislators who voted for it.


Much of the congressional testimony centered on opening up academic opportunities to women. At the time, women were commonly expected to structure their lives around marriage and domestic life and so they were often excluded from graduate and professional schools. In 1971, even a public undergraduate institution like the University of Virginia restricted admission to men only.  Buoyed by the women's movement, supporters of Title IX sought to help women get the skills and education they needed to participate as equals in economic and professional life.


But Title IX also sparked a revolution in girls' and women's sports by forging an unusually creative measure of equal opportunity, one more concerned about substantive equality than mere formal equality.  As a result, we have gone from 1 in 27 high school girls playing varsity school sports in 1971, the year before Title IX's passage, to nearly half of all girls today playing high school varsity sports.


The law also ushered in massive growth in women's sports at the college level, from 30,000 female intercollegiate athletes in 1971 to about 165,000 today. There are several reasons why Title IX has been so successful in expanding participation in women's sports, but the main one is the law's refusal to put a ceiling on women's sports opportunities based on what seems like fixed or "natural" interests in sports.  For example, as one court recognized in a landmark Title IX case:


"Interest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience. … Rather than providing a true measure of women's interest in sports, statistical evidence purporting to reflect women's interest instead provides only a measure of the very discrimination that is and has been the basis for women's lack of opportunity to participate in sports."


Perhaps the biggest cause for celebration on this anniversary is that we have managed to hold onto these gains, at times, against long odds. Since the law's passage, detractors of women's sport have sought to derail the law's application to athletics.  Others have tried to vilify Title IX by saying that the law is responsible for cutting opportunities for male athletes. Yet, since Title IX was enacted, male sports participation has increased for the most part, both at the high school and collegiate levels.


The success of Title IX comes from its ability to change cultural norms to build strong public support for girls and women in sports.  But this doesn't mean it hasn't faced attacks. During the George W. Bush Administration, Title IX's legal standards were on the chopping block.  President Bush and his Secretary of Education set up a "Blue Ribbon" commission to reexamine the law and stacked it with some vocal critics of the law and officials from Division I-A powerhouses.  At the time, Dennis Hastert - a former wrestling coach long on a mission to roll back the clock on Title IX - served as Speaker of the U.S. House of Representatives, and the Republican-controlled Congress appeared hospitable to trumped-up charges of "reverse discrimination" and "quotas" linked to a civil rights law.  Despite this bleak outlook, Title IX advocates, including commissioners Julie Foudy and Donna de Varona, managed to beat back the assault and keep the law substantially intact.


Recently, there has been a spate of OCR complaints and court challenges citing unequal participation opportunities and treatment of girls' sports at the elementary and secondary level.  For example, we are still seeing countless complaints of poor coaching for girls and inferior facilities that put girls at risk of sprained ankles from playing on poorly maintained, non-regulation fields, while boys play in brand new state-of-the-art facilities.


In an Indiana case decided earlier this year, the court found that the common practice of always scheduling boys' high school basketball games in the prime-time slots of Friday and Saturday nights, while relegating the girls' games to school nights, reinforced the second class status of the female players.  Such discrimination in scheduling remains common, and creates academic conflicts for girls who have to balance homework with games while suppressing their spectatorship.  These cases show the continuing relevance of Title IX and the need for stepped-up enforcement efforts, even as we celebrate and remember the law's gains.


Much work remains to be done to reach full equality. But even so, Title IX has shifted cultural norms and changed societal expectations about gender.  The strong, powerful, hard-hitting, competitive female athlete has gone from being a "tomboy" to an iconic ideal.  Athletic success is now a path to popularity and leadership for girls as well as boys.  This is important stuff that can later affect a woman's later job success and her health in adulthood.  Most importantly, through sports, women learn important lessons about competition, teamwork and leadership- lessons that are as important for girls as they are for boys.


For a comprehensive look at Title IX's successes, limitations and disappointments, see Deborah Brake's new book, Getting in the Game: Title IX and the Women's Sports Revolution (NYU Press 2010), which was just released in paperback (and is available at amazon.com).

The War on Poor Black Women

African-American women make up only 12 percent of the female population in the U.S., but now comprise more than 50 percent of the female prison population in the U.S. This fact has led many to believe that what started as the “war on drugs” has quickly become the “war on poor black women.”

The number of women incarcerated for drug-related crimes increased by 433 percent between 1986 and 1991. But for African-American women it rose an astounding 828 percent, while the increase for white women was 241 percent, and for Latina women a 328 percent increase.

The causes of the epidemic of imprisonment of young black girls are rooted in the national zero tolerance rules, the war on drugs, policies and a juvenile justice system that treats women of color differently.

The crackdown on drug-related crimes was sold to the American public as the answer to the escalating levels of violent crime (mostly by men), but has subsequently affected women, and disproportionately women of color. Most women caught up in the drug trade play minor roles, but fall prey to the over-punitive policing and sentencing policies.

Due to Pennsylvania’s mandatory minimum sentencing laws, judges are not allowed to consider the individual and unique circumstances of a case. Even a woman with no prior offenses or with clear financial responsibility for a family, the judge is required to give a minimum sentence to those found guilty.

Experts argue that the intersection of race, class and gender puts low-income women of color, especially African-American women, in “triple jeopardy” and contributes to their disproportionate incarceration. 

Incarcerating women exacerbates problems that their families must deal with in their absence. Investing public funds in effective drug treatment and gender-sensitive services to help women live a prison-free life that allows them to continue to support their families makes far more sense than incarceration both in terms of long-term community health as well as from an economic stand point – it costs far less to pay for drug treatment than incarceration.

 The Women’s Prison Association’s “matrix” approach serves as a model for assisting women who might otherwise face incarceration stabilize themselves and their families.  WPA emphasizes the importance of understanding how poverty, trauma and victimization, and bad choices can combine to propel women into substance abuse and criminal involvement.  Successfully serving these women will mean giving access to coordinated services that address these multiple issues simultaneously. Good public policy can reduce trauma to women and families while reducing the need to spend scarce public dollars.

*Statistics for this post were obtained from The Institute on Women and Criminal Justice. 

Leah Wright is a high school student at Mastery Charter School – Lenfest Campus

Katherine Bisanz is a graduate student in Social Policy & Practice at the University of Pennsylvania

Reproductive Health Locked Up: No Contraception on Lock Down

In the newly-released ACLU-PA report, “Reproductive Health Locked Up,” there are numerous revelations as to just how unprepared Pennsylvania jails are to accommodate women’s reproductive health needs. Even more disappointing is how out of touch prison policymakers are with the practical realities of women’s encounters with the prison system.

According to the report, no county jails in Pennsylvania allow women to use contraceptives for the purpose of pregnancy prevention during incarceration. Over half of the prisons surveyed had no policy at all about contraception, and those that did only allowed inmates access to birth control for a medical purpose other than preventing pregnancy. The lack of support for women taking control of their reproductive health is unconscionable.

One might find it hard to imagine why an incarcerated woman would be concerned about the risk of pregnancy. This is the reality: the average jail stay for women is less than two weeks in length (pp. 22-23, “Reproductive Health Locked Up”). Then they’re out and back to their lives—but their pregnancy prevention plan has been disrupted. Repairing it might very well take a back seat to the litany of priorities to address after “getting out”—unresolved legal issues, compliance with parole, drug treatment, reconnecting with loved ones, finding a job.   

Reducing unplanned pregnancy is a major public health concern across the country. For women who are already in contact with the criminal justice system, an unplanned pregnancy can be a significant destabilizing event, one that would make it even harder for them to “straighten out” and get back on the right track.

How’s this for radical thinking: find out if women are using contraception upon intake and continue their prescription for as long as they want it. The infrastructures to take medical histories and to dole out medication are already in place. Offer affordable contraceptive options to all women before release, along with a prescription for refills, just like they’d receive from a doctor. Treat an encounter with the prison system as an opportunity to broaden the health options of low-income women and to empower formerly incarcerated individuals to make every child a wanted child. This can only have positive outcomes for both mother and child, and for society at large.

Janna Frieman is an intern with the ACLU-PA’s Duvall Reproductive Freedom Project. She is pursuing a master's in Social Policy at the University of Pennsylvania’s School of Social Policy and Practice.

Reproductive Health Locked Up

In the past 25 years, the number of women and girls caught up in the criminal justice system has skyrocketed. Many have been swept up in the War on Drugs and subject to punitive sentencing policies for nonviolent offenses.

In Pennsylvania, thousands of woman cycle through the county jail system every year.  Unfortunately, the county prisons that house these women – 57 in total – have been slow to adapt to the changing demographics of their prisoners. As a result, the unique health care needs of women have been largely ignored, leaving the health of this vulnerable population at risk.

This week our Duvall Reproductive Freedom Project issued a new report, “Reproductive Health Locked Up: An Examination of Pennsylvania JailPolicies,” that exposes the failure of counties to put adequate health care policies in place. In many cases, current policies fail to address the most basic reproductive health services, such as pregnancy testing, prenatal care, screening and treatment for sexually transmitted infections, and access to abortion services.

Three-quarters of the women incarcerated in county jails are of reproductive age, and the majority are mothers and the sole caretakers of their children. Most are incarcerated for nonviolent crimes, are undereducated, come from minority groups, and fall below the poverty line. Approximately 6 percent of all female inmates are pregnant upon admission to jail.

As the population of women in jail grows, counties will increasingly be vulnerable to lawsuits brought by prisoners whose medical treatment or lack of treatment has caused them harm or violated their constitutional rights. The public will be harmed as women laving jail re-enter the community with unaddressed health needs. And finally, we as a society are harmed when we squander the opportunity to help the most vulnerable among us.

Over the next few days, we will be posting a series of blog posts highlighting some of the findings of the report and what needs to be done to fix these problems.

Justice Scalia: Constitution doesn't protect women or gays from discrimination.

I'm just glad there are eight other opinions as important as his.

I'm Just a Bill to Ban the Shackling of Pregnant Inmates

On Tuesday, the state House passed a bill to ban shackling of inmates during childbirth in the commonwealth's prisons and in county jails. The state Senate previously passed the legislation, so it heads to Governor Rendell for his signature, which is expected.

The reaction we usually get when we talk about this bill is shock that it's even necessary, but Pennsylvania would become only the eighth state to ban this cruel practice by statute. A few states also ban it by policy, as does the federal Bureau of Prisons and the federal Marshalls Service.

Hopefully you don't need this blog post to convince you why this bill is needed. To read our arguments, you can check out our press release after Tuesday's vote and also see the memos we submitted in support of the bill at our legislation page.

What I really want to write about is the process on how this happened. Numerous legislators from both parties and from both chambers played a role in getting SB 1074 to the governor's desk. If any one of them had balked, the bill would have died. It's very difficult to get legislation passed, even on a slam dunk issue like this one.

Consider the impact of these legislators:

Senator Daylin Leach. Senator Leach is the primary sponsor of SB 1074 and advocated for his bill. That should be a given, but often legislators introduce legislation but don't lobby for it. Senator Leach did that.

Senator Stewart Greenleaf. Senator Greenleaf is the powerful chairman of the Senate Judiciary Committee. (Leach is the Democratic minority chairman of that committee.) Like all chairmen, Greenleaf makes decisions about what bills will be considered by the committee. When Leach asked Greenleaf to consider SB 1074, Greenleaf was willing to do that.

Rep. Thomas Caltagirone. Rep. Caltagirone is the chairman of the House Judiciary Committee and ensured that the bill got out of his committee. In addition, when Caltagirone became concerned that the bill might not get a vote in the House, he amended the language into another bill in his committee. That set off a chain of events that got the bill on the House floor.

Rep. Babette Josephs. Rep. Josephs personally advocated with House leadership to get SB 1074 before the full House. Two days later, it was on the House floor. (Full disclosure, Rep. Josephs is a member of the board of our Greater Philadelphia chapter.)

Senator Dominic Pileggi and Rep. Todd Eachus. The majority leaders of their respective chambers saw to it that the bill did get a vote before their members.

Like a clock missing a gear, if any one of these steps had not occurred, the bill would have stopped.

For the record, if this bill is signed by the governor, it will be the first bill in the 2009-10 session supported by the ACLU of PA that has become law. For now, no bill we oppose has become law. This classic Schoolhouse Rock cartoon illustrates why that is.



Andy in Harrisburg

Last week was a good week at the state capitol

The joke around here is that civil liberties are safest when the state legislature is on vacation. So please look at that headline again and enjoy it. Here's what we had cooking last week.

Shackling pregnant inmates in childbirth: Senate Bill 1074 would ban the practice of restraining pregnant inmates during childbirth in Pennsylvania's state prisons and county jails. The ACLU of PA supports the bill.

It's hard to believe that this is even an issue. As one Senate staffer said to me, "I can't believe we have to legislate commonsense." Sadly, the ACLU of PA and our allies have heard anecdotes of this happening. There's a word for people who think that a woman in labor is a flight risk- men.

Last Tuesday, the Senate Judiciary Committee unanimously voted the bill to the floor of the Senate.

Philadelphia Weekly and even the BBC have covered the issue. On Sunday, The Patriot News of Harrisburg editorialized in favor of SB 1074:

Legislators should pass this measure so no more babies are born to mothers shackled while in labor, like some scene from medieval times. Pennsylvania can do better.

The powers of the PA Game Commission: Under current law, officers of the Pennsylvania Game Commission can stop and search a person "at any time." That's actually how the law is written. House Bill 181 would require commission officers to follow the same standards as police officers- reasonable suspicion for a stop and probable cause for a search. The ACLU of PA supports the bill.

HB 181 passed out of the Senate Game and Fisheries Committee on a unanimous vote, and the bill is in its legislative home stretch. Barring a Senate floor amendment, it now only needs to be passed by the Senate before going to the governor. At this point, the governor's position on the bill is not known, so we will be working hard to advocate with him in favor of HB 181.

Sexting: The House Judiciary Committee was scheduled to consider House Bill 2189, which deals with teenagers sending semi-nude, nude, and sexually provocative pictures of themselves and others to romantic partners and friends. You may be aware that we have a pending case involving an overzealous DA who thought girls in their underwear was child pornography.

HB 2189 is so broad that constitutionally-protected activity would suddenly become a crime. A teenage couple consensually sending nude pictures to each other would be criminal, but this activity is protected by the First Amendment. If this bill becomes law as it is currently written, it will most certainly be challenged. The Times Tribune and WITF-FM have covered some of our concerns with the bill.

But a storm is gathering. And I use that phrase on purpose. Last week Senator John Eichelberger announced his plan to introduce a state constitutional amendment banning same sex marriage. The commonwealth has a financial crisis, a pension crisis, and a corrections crisis, but Senator Eichelberger thinks the best thing he can do with his time is worry about the gay couple next door.

We beat this in 06. We beat it in 08. Let's go for the three-peat in 10.

Also, the sexting bill is back on the House Judiciary Committee's agenda for February 9, and none of our concerns have been addressed. We're putting on the full court press with assistance from the Juvenile Law Center.

I don't want to end on a downer, so here's some good news. We are cautiously optimistic that the shackling bill, SB 1074, and the Game Commission bill, HB 181, will both get positive votes before the full Senate in March or April.

And beware of big gay rainstorms in your future.....

A Gaythering Storm from Jane Lynch

Andy in Harrisburg

Sentenced to Hard Labor

The growing population of women in prisons and jails brings with it special challenges, particularly if the woman is pregnant. Like -- what happens when she goes into labor? Is she a flight risk? Is this the moment she’s been waiting for – an opportunity to escape? Can you imagine being in active labor and trying to outrun a prison guard?

This seems to be the thinking of many in the correctional system. In Pennsylvania and 39 other states, correctional officers are allowed to shackle pregnant inmates on the way to the hospital, as well as during labor and delivery. Officials justify this practice by saying they need to prevent inmates from escaping. However, there is no record anywhere of an escape attempt by a woman in labor. And guess what? Among states that have banned the practice, there have been no escape attempts.

In addition to being an unnecessary security precaution, shackling is known to be risky for the health of women and their unborn children. The use of physical restraints can severely restrict women’s ability to move and change positions during labor. More importantly, shackles can interfere with medical staff’s ability to provide appropriate care or act quickly in emergency situations. Organizations including the American College of Obstetricians and Gynecologists, the American Public Health Association, and the American Correctional Association support policies that ban or restrict the use of shackles and other restraints during labor and delivery.

Several states and the federal government have recognized the risks associated with shackling and have implemented new policies that restrict the use of these restraints. Texas, New York, New Mexico, Vermont, Illinois, and California have all passed legislation prohibiting the use of shackles on pregnant inmates, while the Federal Bureau of Prisons, U.S. Marshall Service, and the states of Florida, Wyoming, Washington, Rhode Island, and Connecticut have implemented administrative policies restricting the use of shackles and other restraints on pregnant inmates during labor and delivery.

Advocates in Pennsylvania are trying to push the state in this direction. State Senator Daylin Leach recently introduced the Health Birth for Incarcerated Women Act (Senate Bill 1074). It would ban the use of shackles during labor, delivery, and postpartum recovery except for in extreme circumstances. This bill would also require correctional facilities to keep written records and justification for the use of restraints. This legislation could also open the door to establishing more comprehensive health services for incarcerated women who are pregnant.

To learn more, listen to Senator Leach and Kathleen Creamer of Community Legal Services discuss the bill on the senator’s podcast or read the full text of the bill.

Jenny in Philadelphia

Is that the Hallelujah Chorus I hear?

Yes, folks, we finally have a budget. Earlier this month – 101 days after it was supposed to be finished – the legislature passed a budget for the fiscal year we are already three and a half months into.

Aside from many, many agencies, schools, and organizations breathing a sigh of relief, what this also means is that the legislature can now get back to working on other things, including important bills on LGBT discrimination, capital punishment, and sex education.

A few to watch:

• House Bill 300

If you follow Speaking Freely or get email updates from us, you know that we were working hard on this bill – which would ban discrimination in employment, housing, and public accommodations on the basis of sexual orientation or gender identity or expression – before the budget impasse. We’re ramping back up now that the legislature is back on track and we need YOU to help get this bill moving again!

Even if you’ve done it already, please take a moment to let your representatives in Harrisburg know that this is something that’s long past due in Pennsylvania. There’s something for you to do no matter how much spare time you have.

If you only have two minutes:
Email your representative. Please take a minute and a half of your two minutes to add a sentence or two to personalize the email – for example, you might briefly summarize the story of a loved one who this law will affect; mention that as a person of faith, you support treating all Pennsylvanians with dignity and respect; or state that as a business owner, this is important legislation for you as you work to recruit and diverse and competitive workforce.

If you have five minutes:
Give your representative’s office a call and say the same thing. You can find the number by using the ACLU’s Find Your Legislator tool. Making a call often augments your voice with lawmakers – it is louder both literally and figuratively! If you have never done this before, don’t worry. All you need to do is tell the staff member who answers your name and address, the bill number you are calling about (HB 300), that you’d like Representative X to support the bill, and why (the personal notes mentioned above or a fact or two from our talking points).

If you have fifteen minutes:
Think about business owners or religious leaders you know who may be willing to sign on as supporters of this bill. Write a brief email or take a few minutes to speak to them about the importance of this bill and let them know that they can help show the diversity of groups that support anti-discrimination legislation. Have them contact us at aclupa@aclupa.org for more information about how they can help.

If you have half an hour:
Write a letter to the editor of your local newspaper. LTEs educate members of your community and are another way of making your voice heard with decisionmakers. You can see examples here or use our talking points for more ideas.

If you have an hour:
Visit your legislator! This is the most important way to make your voice heard with your lawmaker. Meetings can be held in-district (near your home) or in Harrisburg. Call your legislator’s office to schedule a visit. If you have never done a legislator visit before, contact aclupa@aclupa.org for help.

• Senate Bill 1110

This bill calls for a moratorium on executions while a comprehensive study of capital punishment in Pennsylvania is conducted. The study would include analyses of the death penalty’s impact on victims’ families, the potential for executing an innocent person, and the economic, geographical, and racial disparities present in the current system.

In 2007 the American Bar Association concluded that there is overwhelming evidence that the state’s death penalty system is flawed and that we are at risk of executing an innocent person. Among the problems with the death penalty are:

wrongful conviction – The most common causes of wrongful conviction are eyewitness error, government misconduct by the police and/or prosecution, mishandled evidence or the use of unqualified scientific “experts,” unreliable testimony from jailhouse snitches in exchange for a reduction in their sentences, and false confessions resulting from torture, mental illness, or mental retardation.

racial disparities – 69% of Pennsylvania’s death row inmates are racial or ethnic minorities, the second-highest death row minority rate in the country, and black defendants are more likely to be sentenced to death than white defendants, especially if the victim is white.

costs – Contrary to popular belief, it costs more to execute a prisoner than to house him or her for life. A new study released this week by the Death Penalty Information Center investigates other criminal justice needs that could use the hundreds of millions of dollars spent on capital punishment, including the need for 200 more police officers in Philadelphia.

deterrence – The science is inconclusive at best on the deterrent effect of the death penalty. Meanwhile, a national survey of police chiefs from around the country found that police chiefs do not believe the death penalty significantly reduces the number of homicides.

For more information on the death penalty, go to www.deathpenaltyinfo.org or check out our previous blogs on the subject.

• House Bills 1162 and 1163

After years of declining rates of teen pregnancies and teens contracting sexual transmitted diseases, those numbers are again on the rise. Why? Because the epic failure of abstinence-only-until-marriage education has come home to roost. Studies have shown that students who get abstinence-only sex ed don’t delay sexual activity and are less likely to use contraception than students who get comprehensive, science-based sex education.

The impact on public health is without question. Teen births cost the commonwealth more than $300 million per year.

House Bill 1163 (The Healthy Youth Act) would require all public schools that teach HIV prevention – which is all public schools in the state (although the bar for what qualifies as teaching prevention is low, e.g. “don’t have sex”) – to also teach comprehensive sex ed.

House Bill 1162 (The Notice Home Act) would require all schools that teach abstinence-only sex ed to send a notice home to parents informing them of the school’s sex ed curricula.

To learn more about this issue, visit the Pennsylvanians for Responsible Sex Education website.

Becca and Andy in Harrisburg

Paid to Stay Pregnant… Putting All Our Eggs in One Basket

Women’s bodies have always been a battleground. While many strides have been taken to give women control over their own bodies, financial compensation has rarely factored into the scuffle. Money has suddenly become a weapon, but where the blows land makes little sense. Somehow, some believe that paying pregnant women for carrying children to term to give them up for adoption or donating eggs for IVF is just great, while struggling women who need support to raise their own children or those who want to donate eggs to scientific research are menaces to society. Apparently, it’s only okay when we pay women to reproduce for others.

A recent discussion on Bloggingheads between Steven Waldnet of Beliefnet and William Saletan of Slate proposed an intriguing question: should women be paid to carry children to term? Both men agreed that reducing abortions would be beneficial to society, and Waldnet believes that financial considerations often impact the decisions of pregnant women. The obvious solution, then, is to pay women to have children to give up for adoption. Apparently there’s a shortage of children for the surplus of adoptive parents, parents who receive government benefits for adopting. If pregnant women received such benefits – Waldnet stipulates that “maybe we should pay her $1000,” although he admits that he does not have an exact dollar estimate – everything would work out just fine. So kind of like a national surrogate pregnancy policy, as Saletan suggests, except in reality, there wouldn’t be enough parents for such an influx of bundles of joy. Maybe it would be better to support mothers who do want to keep their children and are struggling financially. Oh wait, right - these same groups who would support paying women to give their children up for adoption seem adamantly opposed to supporting underprivileged mothers.

One thing women have been paid for is their donation of eggs for reproductive purposes: that is, for more babies. Stem cell researchers have been trying for years to recruit egg donors (using the same invasive extraction procedure) without being able to offer any form of compensation. Just last month, New York controversially became the first state to allow researchers to pay women up to $10,000 for donating eggs for scientific purposes. Makes sense: same procedure, same incentive. But apparently the problem is that it’s not the same result, with one leading to newborns and the other to stem cell research. Regardless of whether harvesting eggs exploits women, it seems odd that payment would depend on the result.

The math just doesn’t add up. Money for babies = good, while money for mothers = bad? Money for eggs = good and money for eggs = bad? If you’re going to commodify women, folks, at least be consistent.

Dina and Ruth in Philadelphia

A Doctor's Perspective on Dr. Tiller's Murder

Jennifer Chuang was the chapter leader for Medical Students for Choice at Temple University. She has worked closely with the Duvall Project, and is currently on her way to completing her residency. This is her response to the murder of Dr. Tiller.

I am saddened, angry, and heartbroken over the murder of Dr. George Tiller. I remember meeting him at a conference during my first year of medical school in 2001. I was facing a conflicting time in my career decision making. Do I follow what is safe and easy and make little stir? Or do I do what is just and right though it could come at a harder personal price? I always believed in abortion rights; that was never a question. But now that I was entering the field of medicine, could I count myself among those who were willing to provide abortions?

As I sat in the back of the room preparing for Dr. Tiller's speech, I thought to myself, "why would anyone willingly become an abortion provider?" As one provider once said to me, "it is easy to walk into a party and state that you are the local cardiologist. It is much harder to announce yourself as the local abortion provider."

Dr. Tiller began by saying he never planned to become an abortion provider. After finishing his service in the Navy, he had planned to go into dermatology. “Yes," he said, "I was going to be a pimple and wrinkle doctor." Prior to embarking on his dermatology plans, his father passed away, and he went to his office to close things down. The women who worked in the office quietly asked him who would take over his father's work. He did not initially understand what they were talking about. He then learned that his father was the local physician who safely terminated women's unwanted pregnancies. With what sounded like a reluctant beginning, Dr. Tiller did indeed carry on his father's practice. He spoke how he performed abortions because what lies behind a woman seeking a pregnancy termination were her "dreams, goals, and potential."

The room was silent at the end of his talk, and nearly all of us young future physicians in tears. Dr. Tiller's wife and daughter were also present. Dr. Tiller had already been shot several years prior by a protestor at his clinic (rumor has it that he was giving her the finger and thus he was shot in the arms instead). He still went to work the next day. He went to work in a bullet proof vest and continued to be subject to constant threats of violence. Someone in the room asked his daughter how she felt about her father being a high profile abortion provider and constantly under physical threat. She stated that she was proud of her father.

In a country where 87% of counties have no abortion provider, we have to ask ourselves whether we are going in the right direction in medicine. Whether our society likes it or not, abortion is one of the most common surgical procedures performed in the United States. Without practitioners committed to performing safe terminations, unsafe abortions will occur. Over 50% of our current abortion providers are approaching retirement age. These are the physicians who saw first-hand the atrocities of illegal abortions and the sepsis and death that ensued. My generation has not witnessed such devastation. We have instead witnessed the atrocities of the murders of Dr. Barnett Slepian, Dr. David Gunn, and now Dr. George Tiller.

That day that I met Dr. Tiller had a strong impact on me and I had the opportunity to meet him a few more times. I spent those years a bit more outspoken, ruffled a few more feathers. What have I been doing in these last 5 years? I've kept my head down, trying to get through residency quietly. As I near graduation from residency, I see that I have made it through successfully: quietly, complacently, ruffling fewer feathers than in previous years. I read the news quietly. I read the news reports that Dr. Tiller's clinic was facing increasingly violent threats. And yet, did I turn to one individual in the last month and tell them that we must protect physicians' lives, protect our own? No, I didn't. I was getting by quietly, and perhaps I have contributed to the complacency that has allowed this heinous act to occur in Wichita.

"It's about a woman's dreams, goals, and potential." Our complacency has let these women down.

Jennifer H. Chuang, M.D.

Philadelphia

Freedom Index by State

I am not endorsing this, but it is too interesting not to share. I also have not had the free time this morning to thoroughly review it and summarize it for you. I know I'm shirking my duty as a blogger here, but civil liberties take work, people!

Anyway, the Mercatus Center at Georgia State University has compiled what they call "Freedom in the Fifty States," an index of personal and economic freedom (check the study for their definitions and standards of measure for each) in each of the 50 States. It's an interesting read.

According to this study, folks in Alaska are running wild as wolves, while New Yorkers are living under lockdown in a statewide gulag. Or something like that. Pennsylvania falls in the "second quintile," with higher than average economic freedom and slightly lower than average personal freedom.


The full study is available here. Thanks to Boing Boing for bringing this to my attention.

Update: Commenter Anonymous (I've looked around the internet and he's quite prolific) supplied a link to a similar page, except this one allows the viewer to customize "freedom" according to his or her own definition. Thanks for the link, A. It's the kind of thing that can entertain some of us ACLU-types for hours on end. And that is in no way depressing.

Chris in Philly

On the anniversary of Roe v. Wade, anti-choice group targets...Krispy Kreme?

What is more American than a big, beautiful, toasty, tasty Krispy Kreme doughnut? Not much I can think of. However, that’s probably because all that I can think about now is getting a doughnut. The chain store is one of many that sought to show its patriotism on Inauguration Day by offering one free doughnut to each customer. Another All American doughnut franchise, Dunkin’ Donuts, chose to celebrate the day as well, featuring a limited time only, red white and blue frosted “Stars and Stripes” doughnut. What a great day to be an American, right?

So why is Krispy Kreme now facing a litany of protests for their generous offer? Who are these protesters? I mean who has a problem with FREE doughnuts? That is just crazy to me. Well, apparently, the American Choice League does. Their problem is not the doughnuts themselves, but rather, Krispy Kreme’s promotional ad for the event. Here is the catalyst of their objection:

“Krispy Kreme Doughnuts, Inc. (NYSE: KKD) is honoring American's sense of pride and freedom of choice on Inauguration Day, by offering a free doughnut of choice to every customer on this historic day, Jan. 20. By doing so, participating Krispy Kreme stores nationwide are making an oath to tasty goodies -- just another reminder of how oh-so-sweet 'free' can be.”

The American Choice League’s problem with the ad has nothing to do with the idea of pride or freedom, but the word “choice.” Apparently, in their minds, “choice” is now synonymous with access to abortion. There goes most franchises featuring “your choice of…” on their menus and in their campaigns.

“Choice” doesn’t have four letters, but at this rate it is well on its way to being known as the “Ch-word”. This is the problem with fanatics of any kind. They take seemingly harmless situations and contort them into something they can build a platform on. In doing so, they strive to ruin simple things like words. Words that the Constitution guaranteed to be used by all. I understand not wanting to offend others, but I like to think Choice is a great word. Our country is run on choice. The choice to decide what to eat in the morning, what to do for a living, where to live, and to make one’s own decisions and ideas. Maybe Krispy Kreme was celebrating the Anniversary of Roe v. Wade a couple of days early, or maybe they were celebrating the fact that we freely elected another president, or maybe they were just celebrating the ability to eat the doughnut of your choice for free. We just don’t know what they were trying to convey. It is an individual’s decision to decide how they perceive such a vague statement. It is their prerogative if the far-right chooses to see this as an abortion issue, but it does not make it true.

Despite the groundless nature of their claims, members of the American Choice League are allowed to exercise their constitutional right to choose not to purchase from the franchise. They should, however, realize that the constitution grants Krispy Kreme the right to free speech and may say what they wish. The franchise has issued a statement on their website announcing, “The Inauguration Day promotion was not about any social or political issue.” While this may abate some, the real fanatics will probably still complain. They will do what they do best; contorting words, issues, and situations, to better support their cause. It is the strategy of a weakly established institution, and one that only exacerbates social animosity. I am sorry they choose to do so.

While we can make fun of incidents such as this one, it is a sobering reminder of just how far we still have to go since the Supreme Court’s ruling on Roe v. Wade 36 years ago today. Before abortion was made legal many women died as a result of botched back-alley operations. The founder of the Clara Bell Duvall Reproductive Freedom Project, Linn Duvall Harwell, was the daughter of one such woman. Clara Bell Duvall, a married woman and mother of five, lost her life because she was unable to obtain a safe surgery and had to resort to an unsafe, self-induced abortion. Had the laws been different Linn could have enjoyed growing up with her mother by her side, but instead she lived most of her life motherless. It is a tragic story but a good reminder as to how important Roe v. Wade is to women’s rights. On the anniversary of such an important judicial ruling we should celebrate but also remember to remain vigilant in the face of continued opposition to women’s reproductive rights.

Cassidy in Philadelphia

ACLU Files Suit on HHS Rule

Today, January 15, 2009, the ACLU has filed a suit in opposition to the Bush administration's Health Care Denial Rule on behalf of the National Family Planning & Reproductive Health Association (NFPRHA). Bush’s most recent attack on women’s reproductive rights is scary. Under the guise of protecting health care workers’ rights, these new rules would allow anyone in the health care field, from pharmacists to nurses to doctors to clerks in the drug store, the right to refuse medical procedures, referrals, or even unbiased counseling on any procedure they are opposed to, either morally or through their religious beliefs.

While we believe in the right to express one’s religious or moral beliefs, this rule fails to take patient rights into account. The HHS Department has stated that the rule will not interfere with patients’ abilities to obtain the health care they desire, saying, “It is one of the reasons for the common practice of patients meeting with several health care providers in order to find the one in whom they are most confident about entrusting their care.” This statement ignores the fact that many people do not have access to “several health care providers.” This is especially true of the poor, who may lack insurance as well as transportation to see “several health care providers.” Those in rural areas may also be limited in their choice of provider, especially where there are one or maybe two doctors in town. If the only doctor in town is morally opposed to a specific service, the patient is plain out of luck. This rule is perhaps the most frightening in the context of emergency care, where, for example, a provider may be opposed to providing an abortion necessary to save a woman’s life.

Since the rule was introduced in December, it has been widely opposed by medical organizations such as the American Medical Association and the American College of Obstetricians and Gynecologists, as well as numerous women's health organizations, members of Congress, state governors and attorneys general, the Equal Employment Opportunity Commission, religious advocates, and the general public. These groups, along with the ACLU, are working to stop this rule’s chances at becoming the law of the land. Once officially implemented, it is more difficult to revoke, leaving a large span of time when patients will be at risk of receiving inadequate care that may endanger their health.

We are proud to be joined in this effort to protect access to reproductive health care by numerous states and women’s health organizations. In addition to our legal challenge brought on behalf of NFPRHA, two other lawsuits were filed today in the U.S. District Court for the District of Connecticut: the state of Connecticut filed a challenge along with California, Illinois, New Jersey, Oregon, Rhode Island, and Massachusetts; and Planned Parenthood Federation of America with Planned Parenthood of Connecticut filed its own legal challenge to the Bush rule.

Cassidy in Philadelphia

http://edocket.access.gpo.gov/2008/pdf/E8-30134.pdf

Are you pre-pregnant? Read this!

To any who would cry foul at the idea that sexism is still alive and well today, I would point to the latest tactics of th so-called “pro-life” movement. By shifting the attention to the fetus, they are trying to drive home the fact that the woman has, since conception, become a mere vessel for the child. Her life becomes secondary to that of the fetus she is now carrying. In fact, regulations by the CDC suggest that all women should consider themselves “pre-pregnant,” basically preparing her body, or baby factory, to be ready at all times to be taken over, her will or consent notwithstanding, by pregnancy.

Well, as a pre-pregnant female, I now spend my days crocheting baby booties and reading What to Expect When You’re Expecting (In The Next 10-20 Years) and signing up for Google alerts on fetal health, which is how this article found its way to my hands.

The author, Annie Murphy Paul, writes about recent developments in our understanding of fetal pain, namely, that it’s controversial. The article begins by citing how treatment of premature infants has changed since experiments measuring infant stress levels show that levels are significantly lower when they have been administered anesthesia.

Many leading scientists caution, however, that the way they measure pain is an imperfect science. We can never compare the way a fully developed human process brain signals to the way a fetus might. After all, as one scientist cautioned, “A fetus is not a baby who just hasn’t been born yet.”

But, of course, hanging over neonatal health developments is the specter of the pro-life movement, which appears to have latched on to this new and controversial science like a dog to a bone. While some scientists have decided that fetal pain, as much as we can understand it, develops at 20 weeks, others insist that it occurs “relatively late” in the pregnancy. Opponents to this “pain at 20 weeks” idea call such a concept “a shoddy, sentimental argument.”

Yet, shoddy and sentimental is just the kind of science the conservatives in Congress love. After all, need we reminisce long on Bill Frist’s air-tight diagnosis of Terri Schiavo from hundreds of miles away? Already, states, as well as the U.S. senate, have introduced legislation that, before an abortion, requires the doctor tell his patient the fetus can feel pain and offer (or require) the administration of anesthesia for the fetus.

The message from the Right is clear: the pain they are worried about is not the woman’s. The life they are worried about is not the woman’s. Hijacking science, they are trying to alter society’s perceptions of the fetus in dangerous ways.

Marshall Bright is a freshman at the University of Pennsylvania and an intern at the Clara Bell Duvall Reproductive Freedom Project, ACLU of Pennsylvania

Because we think you might care...

There have been a few noteworthy items in the papers the last few days.

• Yesterday's The Patriot News of Harrisburg featured a front page story on a local high school that has created an alternative program for teen mothers and other students who have personal struggles that keep them from attending the traditional school day. You may recall last spring we took on a case in which a teenage mother in the Central Dauphin School District was being disciplined for missing school to care for her child. Kudos to Susquehanna Township School District for finding an avenue for teen parents who both want to complete their education and care for their child.
• In Sunday's The Morning Call of Allentown, a murder victim's son and daughter-in-law wrote a moving tribute to their loved one and an explanation for why they asked the Lehigh County DA to stop pursuing the death penalty for the perpetrator. The torturous process for victims' family members is yet another reason why Pennsylvania should at least take the time to do a serious examination of the death penalty, with a two-year suspension of executions. If the legislature passed and the governor signed Senate Bill 850, the study commission created by the bill could include victims' families as one of the areas of study. In a related note, the Pennsylvania Moratorium Coalition, of which ACLU-PA is a part, has officially launched its new website.
• For years, the ACLU and our allies have been advocating for alternative programs to reduce incarceration rates and recidivism. The politicians have finally caught on. Governor Rendell has introduced a plan for easing our overcrowded jails, which is modeled after a program that New York implemented ten years ago.
• And finally, immigration. *sigh* From the "I've officially heard it all" category, the author of a letter to the editor in today's Patriot News claims that immigration law is discriminatory. Against white people. "Until 1965 Caucasians were 90 percent of the population. Now we're 66 percent. In 1965 when immigration laws were changed radically, sponsors of the legislation said the U.S. ethnic mix wouldn't change. However, Hispanics went from 1 percent to 14 percent and Asians from 1 percent to 8 percent. The fact is that current immigration law is designed to reduce the percentage of Caucasians by this immigration policy. So anyone supporting legal immigration is supporting a discriminatory law." And the anti-immigrant crowd wonders why we think they're a) nuts and b) racist.

Andy in Harrisburg