The week of December 28, 2014

What we’ve won and lost in the ‘War on Women’

By S.E. Smith

The so-called “War on Women” has escalating rapidly since 2011. In 2014, for every one step forward, there were another two back, making actually progress difficult to discern.

On one hand, we had the Hobby Lobby decision, but on the other, we expanded access to healthcare for transgender women across the country, moving one step closer to equal rights for all women. We saw massive gains and significant firsts for women in politics, but we also saw a parade of anti-abortion legislation, with more ahead in 2015. When it comes to evaluating the state of the war on women, one thing is certain: It’s not over yet, and we should brace for significant turbulence ahead next year.

What we lost in 2014

The Hobby Lobby case and workplace discrimination

Perhaps one of the most significant and high-profile losses for women this year was the Supreme Court’s notorious Hobby Lobby decision, in which the court affirmed that closely held companies—those owned by a small number of individuals, often a single family, without shares available to the public—could elect not to provide birth control coverage if it conflicted with their religious beliefs. The decision imposed religious values on Hobby Lobby employees and threatened those at similar companies with the same fate, as noted by Justice Ginsburg in her robust and articulate dissent: “It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the [Affordable Care Act] would otherwise secure.”

As Ginsburg and others have noted, it’s not just about Hobby Lobby. The decision opened the doors to more abuses of religious exemptions, creating a landscape in which the refusal of other provisions and services could become routine. Were companies and individuals allowed to deny access to services like healthcare on religious grounds, a number of groups (including women, gays and lesbians, and unmarried people) could be discriminated against. A closely held company could refuse transition services to transgender employees, for example, while a company owned by Jehovah’s Witnesses might claim a religious exemption to offering insurance at all on the grounds that accepting healthcare violates fundamental religious beliefs.

It wasn’t all abortion restrictions, clampdowns on birth control, and a wage gap that just won’t go away.

In a striking example, a single Catholic hospital attempted to effectively bar access to birth control to an entire town. Thanks to permissive laws allowing for religious exemptions, it faced no legal penalties for doing so. Such laws—designed to allow people like Jewish butchers to refuse to handle animals that are not kosher, or to permit Muslims to use alternatives to canine service animals because dogs are considered “unclean” in Islam—are primarily abused by conservative Christians in cases like these.

Legislative misogyny

While Republicans and the courts attacked women, state lawmakers swung into action with a series of laws targeting abortion and other women’s rights. Clinic closures occurred across the country as a result, limiting access not just to abortion but to routine reproductive health services. In addition, the introduction of more mandatory waiting periods or repeat clinic visit requirements introduced a significant burden to women seeking abortion care—precisely the burden that, according to the Supreme Court, states are not permitted to force women to endure.

“At issue is the Supreme Court’s decision more than 20 years ago that, although states may regulate access to abortion, they may not pose an ‘undue burden’ on women who seek an abortion early in pregnancy,” writes Robert Barnes in the Washington Post. State legislatures and governors have been dancing at the edge of that decision repeatedly, and each year provides more examples of envelope pushing.

North Carolina, for example, attempted to reinstate a mandatory ultrasound law that had already been blocked earlier this year. Critics claim the law, one of many examples of such legislation, reflected pushes to humiliate and shame women for receiving abortions, in addition to introducing new barriers to the procedure. Notably, for those unfamiliar with ultrasounds conducted early in pregnancy, they don’t take on the form seen on television, with a probe passed over the stomach; instead, they must be transvaginal—inserted into the patient’s vagina—to provide a clear picture of the fetus.

In Alabama, pregnant teens seeking abortions were forced to face mock trials if they wanted a judicial override to receive the procedure. One person at the trial would advocate for the teen—the other would be appointed to represent the fetus, in a reflection of the push toward fetal personhood that’s spreading across the country. Mark Joseph Stern at Slate pointed out that “she will have to hear any witness whom the district attorney chooses to subpoena—perhaps her neighbors, or her teachers—explain to her why her fetus wants her to keep it alive.”

Looking into 2015, I’m sorry to say, prospects are grim.

Also in Alabama, another law explicitly allows care providers like ER doctors, nurses, and EMTs to refuse treatments associated with abortions—even when a patient is having a miscarriage. The law doesn’t just create a religious exemption that allows medical professionals to stand by while patients endure agonizing and potentially life-threatening pregnancy complications—it also shields them from legal penalties that might otherwise come into play when medical providers refuse emergency care.

Meanwhile, Tennessee voters empowered their lawmakers with a broader scope of authority when it comes to abortion laws. Amendment 1 passed on election night while other states smacked down abortion-related legislation. While it didn’t expressly bar or limit specific procedures, it opened the door to doing so.

In a case that attracted nationwide attention, Jennifer Ann Whalen helped her daughter obtain supplies for a medication abortion online because they weren’t available in the area, and she faced legal penalties. Whalen was sentenced to a year in prison for assisting her daughter when “Jane” decided to terminate a pregnancy and no local clinics would help. Notably, “Jane” was forced to seek medical treatment as a result of complications, an issue that could have been resolved by accessing safe abortion care in the first place.

The criminalization of pregnancy

In the name of protecting fetuses, conservatives aren’t just interested in outlawing abortion. They’re also dedicated to dictating what women do (and don’t do) during pregnancy. Multiple women in the United States faced penalties because of drug addiction or abuse, suspected drug use, or involvement in drug cases during pregnancy—even if they didn’t know they were pregnant at the time.

“Leading medical groups like the American Medical Association and the American Academy of Pediatrics have long opposed these types of laws and policies,” noted the ACLU in the case of Lacey Weld, who faced stiff penalties in connection with a drug case. “By threatening pregnant women with prosecution, these policies can drive a woman struggling with addiction away from health care and discourage her from seeking treatment, including prenatal and pregnancy-related care.”

In Montana, Casey Gloria Allen was charged with fetal endangerment—a felony—after testing positive on a drug test. Their cases were hardly unique in a landscape where pregnant women tend to receive harsher sentences than their counterparts, a situation that can be further complicated by racial profiling; women of color are more likely to be sent to prison in the first place, which puts pregnant women of color at an extreme disadvantage.

What we won in 2014

Electoral and judicial smackdowns

It wasn’t all abortion restrictions, clampdowns on birth control, and a wage gap that just won’t go away, though. 2014 also marked some important accomplishments for women, and a glimmer of hope for the future, starting with the midterm elections. While the long-term results bode ill for women, in the short term, the elections brought about huge gains for women in politics, especially in the Republican party. Colorado voted down fetal personhood—again—while North Dakota said “no thanks” to restrictions on abortion care. On a hilarious note, Scott Brown lost his race to a Democratic woman—for the second time.

Even in conservative states, the judiciary is growing weary of anti-abortion laws.

The Supreme Court ruled to reopen Texas abortion clinics and keep them open, in a case that had been key to abortion rights and reproductive health access for Texas women. The justices also declined to review a block on medication abortion restrictions in Arizona, allowing a lower court decision to stand. Oklahoma’s supreme court blocked not one but two abortion-related laws, sending a clear message that even in conservative states, the judiciary is growing weary of anti-abortion laws.

Leaps and bounds for trans women

Time magazine branded the year as the transgender tipping point, with trans women of color like Janet Mock and Laverne Cox becoming household names nationwide. The trans superstars changed social attitudes about trans women, put trans issues at the forefront, and ushered in a new era of conversation about subjects that had long been taboo. They were also outspoken on issues like the trans pay gap, violence against trans women, discrimination against trans women of color, and more, arguing that trans rights are a key component of equal rights. Activists like them put the “T” back in LGBTQ with a vengeance.

Meanwhile, Obamacare marked a critical victory for transgender people as it expanded access to trans healthcare services. Trans people, especially trans women of color, can have difficulty affording the expensive medical aspects of transition thanks to the increased risk that they will live in poverty, and such services are now covered under expanded medical programs. While the Affordable Care Act offered a number of benefits for women’s health including free physicals and screenings, for trans women, it represented a particularly important historical moment, with recognition that transition services can and should be included in routine care—and that trans people shouldn’t be denied treatment on the grounds that being transgender is a “preexisting condition.”

Feminism has its day

2014 also marked, for many, the “year of feminism,” as women’s rights hit the mainstream. There’s never been a better time to be a feminist, as such women as Beyoncé, Emma Watson, and Taylor Swift came out as members of the movement. Feminists went from the margins to the center of society and busted stereotypes about hairy legs, bra burning, and man hating.

The fight on campus sexual assault also went nationwide, a victory that comes with a bittersweet note to it. As it became a nationwide conversation, Rolling Stone illustrated how wrong rape reporting can get with its handling and subsequent bungling of the University of Virginia rape case. Even still, activists took to campuses with mattresses, marched to demand action on the issue, and advocated among legislators, while meaningful progress on the issue started to happen as colleges and universities reformed policies. In California, the fight spread to the legislature, where an enthusiastic consent bill passed with critical acclaim, putting “yes means yes” into legal action.

Activists like Laverne Cox put the “T” back in LGBTQ with a vengeance.

However, the mainstreaming of feminism may be contributing to its very downfall, as it becomes a pop culture commodity with commercial value. Even as high-profile celebrities proudly own their feminism and push for important causes like equal pay, better handling of rape cases, and an end to sexual harassment, feminist activists on the ground are tackling less popular subjects like racism, disability rights for women, and classism. Can feminism reconcile all the components of women’s rights and build an intersectional model that includes women of color, transgender women, disabled women, low-income women, and all women affected by social issues, or will it remain a movement for privileged women?

The 2015 forecast for women

Looking into 2015, I’m sorry to say, prospects are grim. Those important gains made in the midterms weren’t enough to sway politics in favor of women, as conservatives (including female candidates) seized the House and Senate as well as state and regional governments. We will be facing a retrenchment from the GOP in 2015, as politicians get to work introducing a slew of laws targeting women. In fact, many of these laws have been written already, or are being drafted right now. Proposals we’ll see from the GOP in the next session will include bans on the nonexistent threat of gender-selective abortion, restrictions on funding for reproductive health services, more abortion limitations, and other laws specifically designed to humiliate women and make it harder for them to achieve parity.

In an interview with Politico, Planned Parenthood President Cecile Richards warned that 2015 will mark an ugly year in women’s rights: “State legislative attacks on women’s health, even though the vast majority of the public wants elected officials to protect and expand access to safe and legal abortion, birth control and preventive health care” are effectively inevitable, she said.

Beyond reproductive rights access, one area where this may be particularly acute is in federal and state Medicaid cuts, which will have a significant impact on expansion of the Affordable Care Act and access to care for low-income women. Thanks to the persistent pay gap, women still make less than men and are more likely to live in poverty, an issue even more extreme for women of color. With less money available to fund primary care services, and Medicaid/Medicare compensation going down, fewer doctors will be willing to accept new patients on state-funded services, which is bad news for women.

Buckle up: 2015 will be a bumpy ride, and objects may shift during flight.

Photos via Nicholas Eckhart/Flickr (CC BY 2.0) and Steve Wilson/Flickr (CC BY 2.0) | Remix by Jason Reed