What anti-choice activists didn’t factor in when they decided to bring back another abortion ban even after voters resoundingly rejected a similar measure in 2006 is that South Dakotans are fiercely private people. They value the importance of family and with that comes an understanding that families are best left to make complex and personal decisions without government intrusion. I spoke with one woman who described herself as pro-life and then went on to say, “I am pro-life. And I think that if something horrible happened, if my daughter were raped that I would do this and that. But you just don’t know until you’re in another person’s shoes what you will and won’t do. I’d like to think that I would support her in having the baby but I just don’t know. And I can’t tell another person what they have to do.”

I heard iterations of this theme over and over again: people feel strongly that government should not tell families what they ought to do when faced with such complex and personal decisions.

Instead, people talked about wanting our government to help build a strong and healthy economy— one where gas prices aren’t through the roof and where wages keep pace with the price of a gallon of milk. Folks here are anxiously watching what Wall Street and Washington do next, and understand that those decisions will affect their families.

But abortion? Honestly, a lot of South Dakotans are busy trying to survive and raise healthy families. They’re not interested in telling their neighbors what they should and should not do when faced with an unintended pregnancy.

Let’s hope that the anti-choice advocates who have spent so much time and money bringing this issue back to the ballot here will listen to the voters of South Dakota this time and let families decide what’s best for them, without government interference.

In Lesson One: Your Gender is Your Destiny, Bonnie Scott Jones and Michelle Movahed offer creative and insightful analysis on the constitutionality of teaching gender stereotypes in federally funded abstinence-only-until-marriage programs.As the authors of the Issue Brief recently released by ACS note, the gender stereotypes found in many of these programs indoctrinate students with a retrograde vision of relationships between males and females and teach students that their abilities and aspirations are circumscribed by their gender.

In addition to being vulnerable to attack under the federal Equal Protection Clause, as the authors meticulously detail, these programs are also subject to challenge under state constitutions and state anti-discrimination statutes.For example, some state constitutions contain explicit equal rights amendments that require state courts to engage in a higher scrutiny of sex-based classifications than what is demanded under the federal Constitution.Moreover, many states prohibit sex discrimination in schools under either a statute that applies specifically to the public school setting, or under a statute that prohibits discrimination in public accommodations.

This gender discrimination is part and parcel of an overall discriminatory scheme:by definition abstinence-only-until-marriage programs exclude lesbian, gay, bisexual, and transgender youth because the federal definition of marriage is limited to a man and a woman.

A federal district court judge in Florida recently acknowledged that fact in a case involving a challenge to a school district’s refusal to allow a gay-straight alliance (GSA) student organization.The court held that prohibiting the GSA to meet after school violated the federal Equal Access Act, which requires schools to allow student groups to meet on an equal basis.In reaching that holding, the court dismissed the school district’s nonsensical argument that recognizing a GSA would conflict with the well-being of students because it conflicts with the school’s abstinence-only program.

In fact, the court found that it is the abstinence-only programs that ignore students’ well-being.For example, the court noted that abstinence-only-until marriage programs “do not provide information of a kind usable by non-heterosexuals to prevent disease.”The court also recognized that though LGBT individuals have a right to form intimate relationships and raise children, abstinence-only-until-marriage programs that teach the benefits of marriage and the benefits that accrue to children of married parents are of “little use” to these students who “may aspire to parenting but lack the prospect of a legally sanctioned marriage.”The court concluded by saying that abstinence-only-until-marriage programs are therefore of “limited utility to . . . non-heterosexual students, the well-being of whom must also be considered.”

Beyond perpetuating harmful stereotypes and fostering discrimination, these programs are ineffective and dangerously inaccurate. Teens who participate in these programs initiate sex at the same mean age and have the same number of sexual partners as teens who do not participate (PDF). Moreover, these programs are rife with misinformation about such important topics as condoms and sexually transmitted infections (PDF).We need to not only eliminate these programs through legislation, organizing, and litigation, but we also need to replace them with what students need: comprehensive, medically accurate, age-appropriate, sexuality education that will give young people the information and skills they need to make healthy and responsible decisions throughout their lives.

Last Thursday, the 30-day public comment period closed on a controversial rule proposed by the Department of Health and Human Services (HHS) that would expand the ability of institutional and individual health care providers to refuse to provide services to which they have a religious or moral objection.If implemented, the rule could severely undermine access to reproductive health care, as well as other health care services for traditionally marginalized communities.

The proposed rule has generated a tremendous amount of controversy since it was released in late August — an astounding 200,000 comments were submitted to the Department during the comment period demanding that it be withdrawn.With good reason, too:not only is the rule unnecessary, but it also seriously jeopardizes patients’ access to essential health care services and vastly exceeds the Department’s authority under existing law.As the ACLU pointed out in its own comments (PDF), for more than four decades, Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of religious belief, has required employers to attempt to accommodate current and prospective employees’ religious and moral objections to the provision of any health care service.

Title VII has long been understood to protect individual religious belief so long as patients’ needs are also met in a safe and timely fashion.Alarmingly — but perhaps not surprisingly for an administration that has routinely put politics and ideology before science and patient health — the proposed rule threatens to take patients’ needs out of this equation.

To begin with, the proposed rule dramatically expands the reach of existing refusal laws in ways Congress never intended.For example, the rule broadly re-interprets federal laws to allow providers to withhold basic information and counseling from their patients, absolving them of their legal and professional responsibility to the patient, and essentially abandoning patients in the face of a health care provider’s refusal.As a direct result of the rule, patients may never be able to access the refused health care — or even know about their right or option to do so.The rule could also create a blanket, unqualified right for individuals to refuse to participate in any health service or research conducted in programs supported with federal funds.

Thus, nothing in the proposed rule appears to prevent a provider from failing to inform a woman for whom pregnancy may seriously endanger her health or life about the option of sterilization; from failing to tell a rape survivor about the existence of emergency contraception; or from refusing to tell a gay adolescent about the importance of using condoms to protect himself against HIV.Likewise, nothing seems to prevent the rule from being invoked by a physician who offers treatment to Medicaid patients living with HIV/AIDS, but refuses to provide such treatment to gay men because of her religious beliefs about homosexuality; or a nurse at a Title X clinic who refuses to provide contraceptives to a white woman whose husband is African American because of the nurse’s moral opposition to interracial marriage.

The rule is perhaps best known, however, for its attempt to confuse abortion with contraception. The proposed rule comes on the heels of a draft version, which was leaked to the press approximately one month earlier.In the draft, the Department deliberately conflated contraception — which is widely understood to prevent a pregnancy from occurring — with abortion — which is widely accepted to terminate an already existing pregnancy.The Department did so in order to explicitly target those state laws designed to increase contraceptive access and to guarantee that reproductive health services are treated on par with other health care services. This attempt to treat some of the most common forms of contraception, such as birth control pills, as abortion is and was virtually unheard of in existing law, including the Department’s own regulations.

Faced with strenuous opposition, this exceptional definition was removed from the latest version of the rule.Yet the Secretary has repeatedly suggested that the current proposed rule has been purposefully — and ambiguously — designed to continue to allow health care entities to argue that some of the most commonly used forms of contraception should be treated as abortion. Thus, as a result of the overly expansive definitions in, and confusion created by, the rule, the delivery of reproductive health services could be significantly disrupted to the severe detriment of patients.This could present a substantial step backwards for the health of the more than 17 million women in this country who rely on publicly funded contraceptive services.

Patients of all faiths and no faiths need health care.The Department — the federal “government’s principal agency for protecting the health of all Americans and providing essential human services, especially for those who are least able to help themselves” — should have the needs of all Americans at the forefront of its agenda.But instead, in the midst of a growing health care crisis in this country, the Department has chosen as one of its parting acts to propose a rule that’s express purpose is to increase the ability of providers to deny accurate, comprehensive, and unbiased treatment to their patients; a rule that works to limit access to health care as opposed to working to expand it for those who need it most.

At a time when more and more Americans are either uninsured or struggling with the soaring costs of health care, the Department should listen to the public outrage and revoke these proposed regulations.

While the decision of whether and when to have children is the immediate question undergirding the right to reproductive freedom, as Justice Ginsburg signals above, at the core of this right lies even broader concerns: the rights of equality and opportunity. Until the recent Carhart decision, the Court understood that constitutional protections for reproductive freedom were also constitutional protections aimed at ensuring women’s ability to participate fully in the "economic and social life of the Nation." At the core of the right to reproductive freedom is opportunity: the opportunity to obtain a good education, to shape one’s economic circumstances, to participate in the democratic process, to find love, to build families, to decide what makes for a good life, and to have the opportunity to live that life.

The Roberts Court recklessly veered away from these important constitutional principles when it upheld for the first time in the history of the Supreme Court an abortion restriction that failed to include protections for women’s health. This could be a troubling sign of what’s ahead. This November, voters in South Dakota will face a ballot initiative to ban nearly all abortions in that state. If the ban becomes law, the ACLU will join Planned Parenthood Federation of America in bringing a legal challenge to stop this assault on abortion rights. The case could end up before the Supreme Court. The Court will then have the opportunity to reaffirm the right — or severely curtail it and with it women’s equality and opportunity.

We hope that the next president, if given the chance, will restore the Court’s commitment to freedom, equality, and opportunity for all. Our destiny as a nation is what is at stake in this election. Be a Constitution Voter.

Score a victory for reproductive justice in the Illinois Appellate Court on Friday! Ruling that an unimplanted, fertilized egg is not a “human being” for purposes of a wrongful death action, the Illinois Appellate Court today reversed a 2005 decision by a Cook County Judge.

The decision is a victory for scientific sanity and access to reproductive health care. Had the lower court’s decision been allowed to stand, the ability of women to make personal decisions about birth control, abortion, genetic testing and pregnancy would have been put in jeopardy.

The case involved an Illinois couple suing their fertility clinic for tens of thousands of dollars because the clinic inadvertently had destroyed unimplanted eggs stored at the facility. The lower court had accepted the argument that a human being is created when an egg is fertilized, regardless of whether the fertilized egg is implanted in a woman’s body or left in a Petri dish. Left undisturbed, the lower court’s decision could have limited the ability of women in Illinois to access contraceptive services and genetic testing. Moreover, the decision would curb the ability of couples in Illinois to use reproductive technologies, such as in vitro fertilization, in starting a family.

In reaching its conclusion, the Appellate Court properly noted that the Illinois law cited by the Cook County Judge was never intended to grant rights to an unimplanted, fertilized egg. This built on an argument that the American Civil Liberties Union of Illinois advanced in a friend-of-the-court brief (PDF) filed in the case. Specifically, the ACLU noted that the lower court’s decision relied on antiquated, scientifically invalid Illinois abortion laws that long ago were blocked from enforcement by federal courts. Federal courts blocked these laws because defining a fertilized egg as a “human being” would have banned abortion, some forms of birth control and many forms ofassisted reproduction and genetic testing.

The importance of this case can be measured in the reactions of abortion opponents. Many anti-abortion extremists hailed the lower court’s decision in 2005 as an important step in their concerted campaign to block access to reproductive health care and contraceptive services in our state.

The rhetoric used in Illinois around this decision fits a disturbing trend that we have seen across the nation — namely, that anti-abortion extremists now are focusing their attention increasingly on limiting access not simply to abortion but to contraception as well. In Colorado, for example, a ballot measure set to be decided this November would grant “personhood” to a fertilized egg, meaning that many forms of contraception that could prevent a fertilized egg from attaching to the uterus could be targeted for legislative bans. This effort seems to reveal the real agenda of the anti-abortion activists — to allow government bureaucrats — not women — the power to make decisions about birth control, abortion, genetic testing and pregnancy.

In this effort, the anti-abortion extremists seem to be getting a big assist from the out-going Bush Administration. Recently, the Department of Health and Human Services issued a proposed regulation that would expand the ability of health care institutions to refuse to provide medical care. A close reading of the proposed regulations reveals that they could permit a health care institution that objects to contraception or other reproductive health care to deny meaningful information and care to their patients about important reproductive health options. We are pleased that the Illinois court put the brakes on this movement in Illinois today.

Last Thursday the Department of Health and Human Services (HHS) released proposed regulations (PDF) that could seriously undermine women’s access to reproductive health services, including birth control and abortion. Now the public has 30 days to let the Bush administration know precisely what we think of these regulations. Click here for our Action Alert, which will allow you to send comments to HHS.

The Bush administration is trying to spin the proposed regulations as a necessary means of protecting health care workers who refuse to participate in abortions. But federal law has long carefully balanced protections for individual religious liberty and patients’ access to reproductive health care. It’s disingenuous to suggest otherwise.

What’s really new about these proposed regulations is that they appear to take patients’ health needs out of the equation. They expand the ability of health care workers to refuse to provide complete and accurate information and counseling to women who seek services. Moreover, both the regulations, and Secretary of HHS Michael Leavitt’s public comments about them, leave the door open as to whether institutions and individuals can refuse to provide contraception.

Make no mistake: that lack of clarity is intentional. As the Washington Post reports, "…when pressed about whether the regulation would protect health-care workers who consider birth control pills, Plan B and other forms of contraception to be equivalent to abortion, HHS Secretary Michael Leavitt said: ‘This regulation does not seek to resolve any ambiguity in that area.’" Indeed, the Wall Street Journal notes Leavitt’s admission that some medical providers may want to "press the definition."

Not reassuring.

Ditto for Leavitt’s justification for issuing the proposed regulations, which is based on his willful misinterpretation of last November’s statement (PDF) from the ethics committee of the American College of Obstetricians and Gynecologist. ACOG said that doctors should either be prepared to perform "standard reproductive services" or else refer those patients to someone who will. Leavitt claims that ACOG’s statement could potentially strip noncompliant doctors of their board certification, never mind that both ACOG and the executive director of the certifying board have explicitly told him otherwise.

But these regulations aren’t about responding to facts. This administration has, time and again, put its political and ideological concerns above the best interests of the American people.

They are, however, a very serious threat to women’s health and to existing patient protections that ensure that even in the face of religious refusals women can get the health care they need.

Click here to go to our Action Alert, which will allow you to submit comments to HHS. The deadline is September 20 and volume counts, so please act quickly and tell your friends.

Ruling in favor of students who wanted to start a gay-straight alliance club at Okeechobee High School, a conservative judge found that school officials had violated the federal Equal Access Act, which guarantees the right of students in public schools to form clubs. And he clearly didn’t buy the school’s excuse that it should get off the hook for blocking the GSA because it receives federal funds for its “abstinence-only” program. A gay-straight alliance, the school had argued, is a “sex-based” club — which was news to the students who only wanted to talk about how to cut down on anti-gay bullying at their school and have the occasional pizza party.

In the ruling, the court recognized what those of us who advocate for comprehensive sex education have known for years: In addition to being a colossal failure for heterosexual teens, federally-funded abstinence-only-until-marriage programs by definition exclude LGBT teens. Recipients of this money ($1.5 billion to date and counting) must teach that “a mutually faithful monogamous relationship in the context of marriage is the expected standard of human sexual activity” and that “bearing children out-of-wedlock is likely to have harmful consequences for the child, the child’s parents, and society.” Now take the federal definition of “marriage” that applies to these programs — that marriage is limited to a man and a woman — and combine it with the fact that same-sex couples cannot marry in all but two states, and voila: the result is that abstinence-only-until-marriage programs discriminate against LGBT students.

The judge in this case — again, the kind of judge that no one would call an "activist" — gets this concept. The court dismissed the school district’s nonsensical argument that recognizing a GSA would conflicts with the well-being of students because it conflicts with the school’s abstinence-only program. In fact, the court found just the opposite: It’s not the GSA that would harm the well-being of students but the abstinence-only programs that do so by excluding them.

For example, the court noted that abstinence-only programs “do not provide information of a kind usable by non-heterosexuals to prevent disease.” And it implicitly recognized that LGBT individuals have a right to form intimate relationships and to parent, noting that teaching about the benefits that accrue to children with married parents is of “little use to . . . non-heterosexual students who may aspire to parenting but lack the prospect of a legally sanctioned marriage.” The court concluded by saying that abstinence-only-until-marriage programs are therefore of “limited utility to . . . non-heterosexual students, the well-being of whom must also be considered.”

You’ve got to wish that the lawmakers in Washington, D.C., would get it too — that they’d stop the flow of abstinence-only-until-marriage dollars into discriminatory, ineffective programs. But no, it’s politics as usual in D.C., and while there’s some empty rhetoric about how useless ab-only is, it isn’t accompanied by the political will to actually pull the funding from this costly failed experiment.

Maybe this will be the last we see of this latest, desperate tactic used to bar students from fighting LGBT harassment in schools by forming GSAs. As for the students in the GSA, they’re just excited that they’ll finally be getting the club off the ground when school starts later this month. Pizza, anyone?

Much of the ACLU’s legal docket in Arizona is devoted to challenging Maricopa County Sheriff’s Office (MSCO) policies that violate the constitutional rights of women, prisoners, and immigrants — for starters. Arpaio has spent hundreds of thousands of local taxpayers’ money defending his indefensible and unconstitutional practices.

Late yesterday in Phoenix the bell rang on round II in the ACLU’s fight to force “Sheriff Joe” to follow the law. We asked a state court judge to find him in contempt for refusing to comply with a 2005 court order that clearly requires him and his staff to provide transport for the women incarcerated in his jails who are seeking abortions.

That 2005 order was the end result of four years that the ACLU’s Reproductive Freedom Project and the ACLU of Arizona spent in court challenging an unwritten MSCO policy. Jail officials were prohibited from transporting an inmate for an abortion (note: the women foot the bill for the abortion) unless the inmate first obtained a lawyer, asked for a court hearing, and convinced a judge to grant her an order to end her pregnancy.

In August 2005, the Superior Court of Arizona, Maricopa County, struck down the unwritten policy, holding that it violated women’s reproductive rights and served “no legitimate penological purpose.” The Arizona Court of Appeals upheld that decision; both the Arizona and the United States Supreme Court refused to hear the case.

But that hasn’t stopped the guy who loves being known as “America’s Toughest Sheriff” from flouting the law; imposing his morality on the women in his jails; advancing his political agenda; or burnishing his public image using taxpayer dollars. After the US Supreme Court refused to review the case, Arpaio told the Republic’s Michael Kiefer that he disagreed with the decision and would “see what happens if the situation comes before me again.”

It didn’t take long. This past spring, an inmate we’re referring to in our motion as “Mary Roe” and her attorney pleaded with Arpaio and his staff to transport her for an abortion appointment. Deputy Chief John MacIntyre, an Arpaio crony who’s one of the architects of the policy, had been involved in the original case and knew the court’s decision. Still, MacIntyre said — yes, you guessed it — that the quickest way for her client to be transported would be for her to get a court order.

Roe was eventually able to get the abortion, but the four-week delay resulted in her having to endure a much longer and more emotionally difficult procedure.

So now we’re heading back into court to spell out the law for Sheriff Joe and his staff, yet again, and ensure that other women don’t get this kind of runaround. Our motion asks the court to require the jail to post signs in both English and Spanish informing prisoners of their right to be transported. All employees would be required to sign a statement acknowledging that they have been informed of the law. And we’re asking the court to assess penalties for this violation and for future violations of the court order should they occur.

For all of his law-and-order bluff, Arpaio clearly has no intention of abiding by his oath to uphold the law when it isn’t doesn’t suit him. So we’ll do what it takes to force him to respect the constitutional rights of women, even if it means hitting him in one of his most sensitive spots … his pocketbook.

The ACLU believes that a woman needs medically accurate information to make the best choices for herself and her circumstances, without undue pressure. She should be able to trust that the advice she receives from her physician reflects what her physician believes is in her best interest, not something that her physician has been forced to say by the government.

Clearly those in the South Dakota legislature who voted to pass the law,and the 8th Circuit judges who voted to uphold it, disagree.

The law also forces a doctor to tell his or her patient that she “has an existing relationship with that unborn human being” and if she has an abortion, “her existing relationship and her existing constitutional rights with regards to that relationship will be terminated.”

The court’s decision comes in the midst of a challenge to the law the South Dakota legislature passed in 2005 that requires a physician performing an abortion (those three rotating doctors at that one clinic that performs abortions one day per week) to recite to their patients all of those opinions masquerading as fact. The court determined that the law could go into effect while Planned Parenthood continues its challenge, and the court specifically said that it is unlikely that Planned Parenthood will succeed on its claim that the law violates doctors’ First Amendment rights by forcing them to deliver an ideologically-driven message with which they disagree.

If the law’s language sounds like anti-choice rhetoric, it’s because it was written by an anti-choice activist — the lawyer Harold J. Cassidy. He tried a similar tactic in New Jersey a few years ago by bringing a medical malpractice lawsuit against a physician who performed an abortion and who didn’t tell his patients what those three rotating doctors in South Dakota are now forced to tell theirs: that abortion terminates the life of a separate, unique human being.

Last September the New Jersey Supreme Court — in a unanimous decision — threw out the case, noting:

We know of no common law duty requiring a physician to instruct the woman that the embryo is an ‘existing human being,’ and suggesting that an abortion is tantamount to murder.There is not even remotely a consensus among New Jersey’s medical community or citizenry that plaintiff’s assertions are medical facts, as opposed to firmly held, moral philosophical and religious beliefs.

A similar case is pending in Chicago.

Women’s heath is best promoted when a woman has the information and access to make healthy life decisions based on her own values and her own unique circumstances. Ensuring this principle means stopping anti-choice activists like Cassidy and South Dakota’s lawmakers from playing politics with our lives.

Vestal notes that 17 states considered more than 30 ultrasound bills this year, "a record level of legislative activity on any abortion issue," and that we should expect to be seeing even more of them in the next legislative session.

Trevor Lippman, State Strategies Fellow for the ACLU’s Reproductive Freedom Project, correctly nails the Oklahoma law’s real intent, and the harm it poses to women’s health:

The Oklahoma law is about political interference, not about medical information. We think a woman should be able to trust that the advice she receives from her physician reflects what her physician really believes is in her best interest, not something that her physician has been forced to say.

What the article fails to note, however, is that the Oklahoma law doesn’t stop at mandatory ultrasounds. It also permits health care institutions and individual health care workers to refuse to provide certain health services without ensuring that patients can access the care they need elsewhere. And it restricts a woman’s access to medication abortion (also known as mifepristone or the early abortion pill), despite the fact that it is a safe and effective non-surgical method of terminating early pregnancy, by limiting a doctor’s ability to administer the drug and hampering a doctor’s discretion to determine appropriate and necessary medical care.

In the face of Oklahoma’s law, and its copycats, the ACLU will continue working to ensure that every woman has medically accurate information, access to the medical care she needs, and is able to make the best decisions for her health and her individual circumstances without political interference.