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    The Future of Criminal Prosecution for Self-Induced Abortion & Pregnancy Endangerment

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    The intensifying avalanche of restrictive U.S. abortion laws since 2012 has made it more difficult for many people to terminate their pregnancies. These restrictions have also had the effect of increasing what are considered illegal abortions. But the face of illegal abortion has shifted since the 1973 Roe v. Wade decision by the Supreme Court. Today’s procedures rarely resemble the back-alley abortions of the past, given the availability of medications that can effectively induce abortions and the rise of the internet as a tool women can use to procure such medications and to learn how to use them. Some things, however, have not changed. Just as pregnant women were sometimes prosecuted after aborting or attempting to abort pregnancies in the pre-Roe era, pregnant women today are still sometimes prosecuted for similar acts, even if the exact methods are different.

    In the United States, pregnancy occupies a contradictory socio-legal space. For many, pregnancy and resultant parenthood are much desired (and encouraged) conditions. But being pregnant can also result in the loss of important constitutional rights, including rights to privacy, liberty, and free religious expression, along with rights to due process, freedom from cruel and unusual punishment, and equal protection. Because of the potential for such lost rights, my research argues that pregnancy legally creates a lower class of person – a situation I call “pregnancy exceptionalism.” Pregnant women hold a tenuous position under the law if they go outside legally recognized methods of abortion, either by choice or because are otherwise unable to access those methods. An examination of recent instances in which pregnant women have been prosecuted offers possible clues as to future directions of the law, insofar as reductions in pregnancy prevention services continue along with erosion of legal options for ending pregnancies.

    Prosecuting Pregnant Women

    Three states – Alabama, South Carolina, and Tennessee – have expanded criminal law through legislatures or courts to include what they define as “unborn children.” My research on these three states has identified nearly 900 cases of arrest of pregnant or formerly pregnant people for terminating, attempting to terminate, or otherwise causing harm to their pregnancies between 1973 and 2016. In all three states, arrests of pregnant women for these offenses occurred before formal definitions were entered into the code of law.

    Other states have taken similar steps. To date, every state but Vermont and Delaware has participated in the arrest and prosecution of pregnant women, allegedly in defense of their embryos and fetuses. Most of these arrests have involved pregnant women or newborns who tested positive for drugs, but cases involving attempted suicide have also been documented. One woman who attempted to evade the police was additionally charged with reckless endangerment of a minor because she was running while pregnant. Mysteriously, two women were charged with crimes against their “unborn children” but were later released when they were found not to have been pregnant in the first place. Other arrests occurred when pregnant women attempted to abort their pregnancies illegally, or were accused of doing so.

    Prosecutions of pregnant women have gotten little public attention, with some exceptions in cases where medical providers reported women who were later prosecuted:

    • In Indiana in 2013, a woman named Purvi Patel was hiding a pregnancy from her conservative Hindu parents. She expressed some ambivalence about the pregnancy and texted a friend about procuring abortion pills online. After having a miscarriage at her family’s restaurant, Patel placed the fetus in the dumpster. She eventually went to the hospital, where policy interrogated her. Later, she was arrested for causing the fetus’s death, convicted and sentenced to two concurrent 20-year sentences. An appeals court later vacated the feticide charge and reduced her sentence to 18 months.

    • In Tennessee in 2015, Anna Yocca allegedly attempted to perform a self-induced abortion using a wire clothes hanger. At 24 weeks pregnant, Yocca would have needed to travel to Washington, New York, Maryland, or Colorado to obtain a legal abortion. When she began to bleed heavily, her boyfriend drove her to the emergency room. She received medical care and her baby survived, although the baby was born prematurely and likely to have lifelong disabilities. After Yocca’s healthcare providers notified police that Yocca made “disturbing” statements about wanting to end the pregnancy, she was charged and arrested for attempted murder.

    Key Questions for Continued Research

    As nascent research proceeds on prosecutions of pregnant women dealing with new legal restrictions, many important questions remain to be investigated:

    • How and why are people pursuing illegal abortion in the United States?

    • How has illegal abortion changed since Roe v. Wade, both legally and practically?

    • How are state legislatures and courts addressing illegal abortion?

    • What are the characteristics of criminal cases brought against women who have sought or procured illegal abortion?

    • What are the legal arguments used in making these criminal prosecutions?

    No matter the answers to these questions, it is already clear that as legal abortion becomes harder to access, women will likely seek extra-legal means of terminating undesired pregnancies, even if such efforts may result in their prosecution and imprisonment. As researchers examine the safety of newer medications and technologies for self-induced abortions, they must also explore the legal risks and treatment facing people who make use of those methods. The possibility that a new Supreme Court majority may overturn Roe v. Wade or further eviscerate legal abortion rights warrants a thorough examination of the precedents that will go into adjudicating cases like those of Puri Patel and Anna Yocca that, while rare in the past, may appear more frequently in the future. More research now can help all concerned be better prepared for the new legal as well as medical world that may arrive as legal abortions become more circumscribed in the United States.

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    Howard's research focuses on constitutional law, law and society, bioethics, the politics of reproduction, criminal justice, public policy, feminist theory and critical race theory. Overarching themes in Howard's writings include pregnancy discrimination and the relevance of law. Howard serves as co-director of the Rutgers University Informed Consent Project and is an American Fellow with the American Association of University Women. This article was written in conjunction with the Scholar Strategy Network.

    Health

    Poverty, Racism and the Public Health Crisis in America

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    Although extreme poverty in the United States is low by global standards, the U.S. has the worst index of health and social problems as a function of income inequality. In a newly published article, Bettina Beech, clinical professor of population health in the Department of Health Systems and Population Health Sciences at the University of Houston College of Medicine and chief population health officer at UH, examines poverty and racism as factors influencing health.

    “A common narrative for the relatively high prevalence of poverty among marginalized minority communities is predicated on racist notions of racial inferiority and frequent denial of the structural forms of racism and classism that have contributed to public health crises in the United States and across the globe,” Beech reports in Frontiers in Public Health. “Racism contributes to and perpetuates the economic and financial inequality that diminishes prospects for population health improvement among marginalized racial and ethnic groups. The U.S. has one of the highest rates of poverty in the developed world, but despite its collective wealth, the burden falls disproportionately on communities of color.” The goal of population health is to achieve health equity, so that every person can reach their full potential.

    Though overall wealth has risen in recent years, growth in economic and financial resources has not been equally distributed. Black families in the U.S. have about one-twentieth the wealth of their white peers on average. For every dollar of wealth in white families, the corresponding wealth in Black households is five cents.

    “Wealth inequality is not a function of work ethic or work hour difference between groups. Rather, the widening gap between the affluent and the poor can be linked to unjust policies and practices that favor the wealthy,” said Beech. “The impact of this form of inequality on health has come into sharp focus during the COVID-19 pandemic as the economically disadvantaged were more likely to get infected with SARS CoV-2 and die.”

    A Very Old Problem 

    In the mid-1800’s, Dr. James McCune Smith wrote one of the earliest descriptions of racism as the cause of health inequities and ultimately health disparities in America. He explained the health of a person “was not primarily a consequence of their innate constitution, but instead reflected their intrinsic membership in groups created by a race structured society.”

    Over 100 years later, the Heckler Report, the first government-sanctioned assessment of racial health disparities, was published. It noted mortality inequity was linked to six leading causes of preventable excess deaths for the Black compared to the white population (cancer, cardiovascular disease, diabetes, infant mortality, chemical dependency and homicide/unintentional injury).

    It and other reports led to a more robust focus on population health over the last few decades that has included a renewed interest in the impact of racism and social factors, such as poverty, on clinical outcomes.

    The Myth of Meritocracy

    Beech contends that structural racism harms marginalized populations at the expense of affording greater resources, opportunities and other privileges to the dominant white society.

    “Public discourse has been largely shaped by a narrative of meritocracy which is laced with ideals of opportunity without any consideration of the realities of racism and race-based inequities in structures and systems that have locked individuals, families and communities into poverty-stricken lives for generations,” she said. “Coupled with a lack of a national health program this condemns oppressed populations such as Black and Hispanic Americans, American Indians, and disproportionately non-English speaking immigrants and refugees to remain in poverty and suffer from suboptimal health.”

    Keys to Improvement

    The World Health Organization identified three keys to improving health at a global level that each reinforces the impact of socioeconomic factors: (1) improve the conditions of daily life; (2) tackle the inequitable distribution of power, money and resources; and (3) develop a workforce trained in and public awareness of the social determinants of health.

    The report’s findings highlight the need to implement health policies to increase access to care for lower-income individuals and highlight the need to ensure such policies and associated programs are reaching those in need.

    “Health care providers can directly address many of the factors crucial for closing the health disparities gap by recognizing and trying to mitigate the race-based implicit biases many physicians carry, as well as leveraging their privilege to address the elements of institutionalized racism entrenched within the fabric of our society, starting with social injustice and human indifference,” said Beech.

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    Environmental Justice

    How American Cities Can Promote Urban Agriculture

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    In his original plan for the city of Philadelphia, William Penn declared that every home should have ample space “for gardens or orchards or fields, that it may be a green country that will never be burnt and always be wholesome.” Before militiamen or throngs of protestors, the Boston Common nourished grazing cattle. Urban agriculture has cropped up again and again in cities throughout American history – from “relief gardens” for the poor in the 19th century, to “victory gardens” of World War II – and for good reason. If embraced and encouraged, urban agriculture can create economic, cultural, environmental and educational benefits. In recent years, various cities have developed good urban agriculture programs. By distilling their successes and struggles, my colleagues and I identify a series of best practices in this area.

    Tailoring Programs for Varied Communities

    “Urban agriculture” is an umbrella term encompassing a wide array of practices. Good programs take account from the start of community preferences that vary. Beekeeping or backyard chickens, for example, might be considered progress in Portland but backwardness in Baltimore. Controversies often arise, but they offer opportunities for dialogue. When disputes erupted about the 140-acre Hantz Farms proposal in Detroit, for example, officials convened public meetings to fashion a vision of urban agriculture. Cities like Portland and Vancouver have formed urban agriculture task forces composed of private citizens, government representatives, and organizational partners to advise the cities on planning and code issues.

    In most cities, urban agriculture of some form is already practiced, whether regulations officially enable it or not. It is important to take stock of these existing operations and practices. Important elements to consider include: the number of gardens and gardeners, their demographics, the type and location of existing gardens, popular agricultural practices, and where space exists to expand urban agriculture. Numerous cities have benefited from conducting “urban agriculture land inventories,” in which mapping professionals use satellite imagery and public records to determine which publicly-owned plots are best suited to urban agriculture.

    Communities should develop an independent agency or department to manage urban agricultureBecause urban agriculture is a multi-faceted process, many city agencies currently regulate its disparate aspects; Parks, Public Works, Environmental Protection, Sustainability, Health and Sanitation, Land Banks, and other departments all have their hand in working with growers. Centralizing this authority under one department can streamline regulation and simplify the process of establishing gardens and farms. Boston’s Grassroot program, Chicago’s Neighborspace program, and New York’s Green Thumb program are all excellent examples.

    Municipalities should audit existing codes and laws. Although most relevant regulations will be found in local zoning ordinances, other codes might have unexpected effects on urban agriculture – including ordinances regulating produce sales, market stands, shade trees, and noise. In Los Angeles, a near-forgotten, yet narrowly-worded, 1946 “Truck Gardening Ordinance” threatened to limit agricultural sales exclusively to vegetables before it was amended by the city’s governing body. Municipalities should also be aware of state and federal regulations that might affect agriculture policy decisions. Right to Farm laws typically operate at the state level and may restrict localities. Notably, Detroit and other large cities in Michigan had to postpone regulation of urban agriculture until they were exempted from their state’s Right to Farm rules.

    Ways to Facilitate Urban Agriculture

    Although public sentiment should determine where urban agriculture is appropriate, there are opportunities to incorporate some form of agriculture or gardening in every land use zone. Cities from Seattle to Philadelphia have incorporated urban agriculture into existing land use codes. Small acreage projects unlikely to create nuisances include backyard gardens typical of single family homes and should be permitted virtually anywhere. Yet large acre, high nuisance projects – such as multi-acre urban farms relying on heavy machinery or animal husbandry – are better suited for the city edges or industrial zones.

    While permitting urban agriculture outright in this fashion has proven successful, other creative ways that cities have enabled urban agriculture include:

    • Creating new zones for urban agriculture specifically, as in Boston and Cleveland.
    • Permitting urban agriculture as “conditional” or “accessory” rather than primary use. This allows local planning and zoning boards to maintain control over how such uses are developed, without restricting them. However, this approach can become too cumbersome and likely to disproportionately burden applicants with fewer resources.
    • Land can be directly supplied — through adopt-a-lot programs and leasing underused spaces to citizens or qualified urban farmers. Offering flexible, medium- to long-term leases is critical, as security of land is vital to the success of urban farms.

    Good Management to Sustain Citizen Projects

    Finally, municipalities must take steps to ensure that citizens practicing urban agriculture do so responsibly. Some of the most effective approaches include:

    • Passing or revising codes that limit the use of pesticides and fertilizers
    • Enforcing time restrictions on the use of noisy farm equipment (although this is not typically an issue on small plots where hand tools are most common)
    • Providing training opportunities through city departments or local cooperative extension services
    • Requiring preliminary testing of land and monitoring of soil toxicity, soil nutrition, and any utility lines running through a property
    • Offering  access to rain barrels or municipal water hookups
    • Including urban agriculture in all future urban planning efforts, including master plans.
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    Justice

    The Covid Pandemic Increased Vulnerability to Forced Labor in Global Supply Chains

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    Comprehensive evidence points to increased vulnerability of workers to forced labor in global supply chains during the Covid-19 pandemic, an analysis published today by the Modern Slavery and Human Rights Policy and Evidence Centre (Modern Slavery PEC) has found.

    The Centre, which was created to enhance understanding of modern slavery and transform the effectiveness of law and policies designed to address it, is funded by the Arts and Humanities Council.

    The Modern Slavery PEC has carried out an analysis of evidence, including new academic research funded by the Centre, on the impact of Covid-19 on modern slavery across the world.

    The analysis has found that the pandemic has increased vulnerability to modern slavery all over the world, including in the UK, as many of the underlying wider factors underpinning modern slavery have worsened, such as poverty, inequality and unemployment. Construction, manufacturing, including ready-made garment production, as well as accommodation and food services have been the sectors most affected by the pandemic.

    It found that the increased vulnerability of workers to forced labor is often linked to long and complex supply chains, of which businesses have limited visibility. Already vulnerable groups, such as migrant and informal workers, were most affected, particularly in the lower tiers of supply chains.

    There is evidence of an increase in the risk of forced labor both in supply chains that experienced a significant reduction in demand, such as garments, and those that experienced demand spikes, such as PPE production.

    The problems were compounded by businesses struggling with the immediate impact of the pandemic making it difficult to mitigate the modern slavery risks in their supply chains, including by making it very challenging to carry out due diligence processes on suppliers on the ground.

    Additionally, some of the early response by business to the pandemic exacerbated vulnerability to modern slavery, for example by cancelling contracts and withholding payment for goods already produced.

    Modern Slavery PEC Partnership Manager Owain Johnstone, one of the authors of the analysis, said:

    “Covid-related supply chain disruption is a wake-up call for businesses. The evidence that the pandemic has worsened people’s vulnerability to forced labor in global supply chains is overwhelming.”

    “The pandemic has highlighted the complexity and fragility of many supply chains and reinforced the link between the lack of visibility over supply chains and the vulnerability of workers to modern slavery. More transparent, resilient supply chains are better for business and better for workers”, he added.

    Dr Jo Meehan, Senior Lecturer in Strategic Purchasing at University of Liverpool Management School, who led the Modern Slavery PEC project on the impact of Covid-19 on the management of supply chains, said:

    “Demand volatility has been extremely high during the pandemic. It acts as a driver of modern slavery as it erodes profits, encourages the use of temporary and precarious workers, and destabilises capacity in supply markets.”

    However, the Modern Slavery PEC’s analysis has also pointed out that the pandemic may lead to longer-term positive changes to supply chain dynamics. This includes greater visibility and awareness of supply chains that Covid has forced on businesses and increased awareness of exploitation affecting supply chains.

    Dr Meehan said: “Our study revealed that because of the pandemic, two-thirds of businesses sourced from new suppliers and undertook additional supply chain mapping. Therefore, there is an opportunity for businesses to use these new relationships as springboards to understand the impacts of their own business model and practices, and how they may change to collectively tackle, and prevent, modern slavery.”

    For example, evidence suggests that some businesses have already moved towards the ‘localisation’ of their supply chains, working to shorten them and bring suppliers closer to home to avoid future disruption, which is likely to decrease modern slavery risks. Another example includes extending inventory planning cycles to take their longer-term demand into account and enable better workforce planning.

    Johnstone said: “It’s clear that the crisis has pushed businesses to strengthen their hold on their entire supply chains, which can make it easier to address any exploitation issues potentially affecting them.

    “We urge businesses to use the pandemic experience as a platform to increase visibility and transparency over their supply chains, as well as improving collaboration with their suppliers and peer companies.”

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