Thursday, September 3, 2015

Texas abortion clinics file briefs in U.S.S.Ct.

Here is Adam Liptak's coverage in the New York Times today.  Liptak does not mention the particular burdens the law places on rural women, but he highlights the challenge that two provisions of the Texas law (H.B. 2) have created for women in South and West Texas, quoting from the brief:
Other parts of the law have already caused about half of the state’s 41 abortion clinics to close. If the contested provisions take effect, Wednesday’s filing said, the number of clinics will again be halved. 
The remaining clinics, the brief said, would be clustered in four metropolitan areas: Austin, Dallas-Fort Worth, Houston and San Antonio. 
“There would be no licensed abortion facilities west of San Antonio,” the brief said. The only clinic south of San Antonio, in McAllen, it added, would have “extremely limited capacity.”
My prior posts about this topic are here, here and here.  

Thursday, July 9, 2015

What "Pennsatucky" on OITNB teaches us about high structural risk of rape in rural places (and about the persistence of the white trash stereotype)

Regular readers know that I don't watch television and am generally out of touch with popular culture.  I count on friends to give me a heads up on what I need to know, and that is exactly what has happened with a character who has become prominent in this season's "Orange is the New Black."  The  character is "Pennsatucky," whose "real name" is Tiffany Doggett.  Here's how Salon writer Emma Eisenberg describes her, with some quotes from OITNB author Piper Kerman:
“a young woman from western Pennsylvania who proudly called herself a redneck” ... “Caucasian girls from the wrong side of the tracks.” Pennsatucky struggled with an addiction to crack and had lost custody of her child. “She was like a lost girl.”
Eisenberg wisely notes that "Tiffany's story is absurdly idiosyncratic"--presumably a reference to the fact that Pennsatucky is such an extreme character, by which I mean she is not really typically "rural."  What I am saying is that she and her mother are presented as "white trash" caricatures.  I guess Eisenberg understands that.

Still, Eisenberg thinks Pennsatucky's story--the part that is not idiosyncratic--has  something to teach us:
Pennsatucky and the thousands of other young women growing up in rural communities in Appalachia, and across the American South and West, are ... at high structural risk for rape and sexual assault.
Wow, this is stunning!  Very rarely do people talk about structural disadvantages in relation to white people, even poor ones.  (And to be clear, not all of the people in these rural communities are white; many, especially in the West, are American Indian; in the South, the majority are probably black).  Spot on, Ms. Eisenberg, who continues:
According to 2012 FBI crime estimates, the states with the highest rates of reported rapes per capita were, in order: Alaska, South Dakota, Michigan, New Mexico and Arkansas. With the exception of Michigan, in all of these states about half their populations or more reside in rural areas or small towns—70 percent in South Dakota. In Alaska, where the figure is 55.5 percent, the rate of forcible rapes per year is 80 per 100,000, nearly triple the national average. “We have an epidemic,” Alaska Gov. Sean Parnell told CNN, whose Sean Sutter did a series of investigative reports on rape in the state last year. New Jersey and New York had the lowest rates of reported forcible rape per capita in the nation. 
Recent analyses of rural sexual assault in Pennsylvania—where 60 percent of its counties are rural and home to about one-third of the state’s population—using data from the Pennsylvania Coalition Against Rape and the Pennsylvania Office of Children, Youth and Families found that rates of rape and child sexual assault were significantly higher in rural counties than in urban ones. They also found that the eight highest rates of rape were in rural counties, and included the three most rural counties in the state.
Eisenberg goes into great detail about what we know about rural sexual assault, including why it is even more likely to go under-reported than sexual assaults in other places.  
[I]n rural areas, police officers are more likely to be involved in the victim’s social network, say Ralph Weisheit, David Falcone and Edward Wells, authors of “Crime and Policing in Rural and Small Town America.” Other factors that may cause rural rape to go unreported include lack of cellphone reception and public transportation, substandard road infrastructure, and the long distances that must be traveled to reach law enforcement or crisis centers, which may be hours away or in another state. 
She quotes Susan Lewis who wrote a 2003 Report for the National Sexual Violence Center.
Sexual assaults in rural areas are mostly hidden crimes, hidden both intentionally and unintentionally by characteristics of a close-knit culture or an isolated lifestyle. To varying degrees, rural populations are often marginalized from the mainstream power structure, which holds the opportunities for assistance and services through resources and policy initiatives.
Interestingly, these are all issues I have discussed in relation to domestic violence in rural settings.  I have also discussed them in relation to other legal issues.  See, e.g., the lack of anonymity label on this blog.  

Most provocatively, however, is Eisenberg's observation that #OITNB--in spite of its success at generating "rich cultural conversations about a range of pressing social problems"--has not yet managed to generate a dialogue "about sexual violence against rural American women."

Eisenberg asks the reason for this failure.  

Duh!  It is because rural people are so unbelievably uninteresting and unworthy in the eyes of the chattering classes, those who do the analysis and write the books.  It's about metro centrism, urbanormativity ... (See more here) It's also about the fact that Pennsatucky doesn't represent the type of rural that make us nostalgic.  She represents the type of rurality that makes us turn away in disgust.  To quote the late cultural critic Joe Bageant, “What white middle America loathes these days are poor and poorish people, especially the kind who look and sound like they just might live in a house trailer.”

Jarring as this is for folks like me who think rural people matter, even more jarring for feminists (also including me!) is this commentary on Slate by Jada Yuan, "Orange is the New Black is the only TV Show that Understands Rape."  If you read that commentary, you'll understand the relevance of my noting that, when called for jury duty two days ago, 3 of 23 jurors questioned in voir dire for a criminal case self identified as rape survivors; another one reported her younger sister raped by an uncle now serving prison time for it.  Two of these three were very young women--perhaps 20-25 years old.  Does this mean the current generation are speaking more openly about rape than my generation did?  These women had the option of being questioned privately by the judge, but they declined.  Surely this is a good sign, though we must not become too jaded, too immune to the shock of stories like those I heard during voir dire.  

Here is the NYT's commentary on Season 3, Episode 10, "Unlucky Pensatucky."

On the incidence of sexual assault and rape in the histories of women who get caught up in the juvenile justice system and the wider criminal justice system, read this.  Here's the lede from Timothy Williams' report in the NYT, coincidentally today.
As many as 80 percent of the girls in some states’ juvenile justice systems have a history of sexual or physical abuse, according to a report released Thursday. The report, a rare examination of their plight, recommends that girls who have been sexually trafficked no longer be arrested on prostitution charges. 
The study, “The Sexual Abuse to Prison Pipeline: The Girls’ Story,” found that sexual abuse was among the primary predictors of girls’ involvement with juvenile justice systems, but that the systems were ill-equipped to identify or treat the problem.

Rehabilitating Jimmy Carter (but not necessarily rural folks)

Nicholas Kristof's tribute to Jimmy Carter, now the longest living ex-president in U.S. history, appears in today's New York Times.  This excerpt speaks to the rural identity issue that dogged Carter.
The press and chattering class have often been merciless to Carter. Early on, cartoons mocked him as a country rube using an outhouse or associating with pigs, writers pilloried him as a sanctimonious hick, and in recent years it has been common to hear that he’s anti-Israel or anti-Semitic (This about the man whose Camp David accord ensured Israel’s future!).
Here's my question:  does it take distancing Carter from the rural milieu to rehabilitate him and his reputation?  or in rehabilitating him, do we also lift up and rehabilitate (perhaps even honor) the rural roots associated with him?  

Monday, July 6, 2015

Courts must confront the burden of distance

That's the headline for my Op-Ed published this week in the National Law Journal.  In it, I criticize the Texas legislature in regard to the obstacles they place in the way of citizens' exercise of their fundamental rights--including the right to vote and the right to to get an abortion.  In turn, I criticize the Fifth Circuit for finding that these laws do not place an undue burden on the exercise of these rights, including for the rural poor.  Lastly, I criticize the U.S. Supreme Court for failing to grapple with the distance issue in a way that makes clear to states and federal courts that the burden on the rural and the poor is one that takes more than grit and determination to overcome.  In short, I challenge federal courts to engage rural spatiality in a more realistic way--and to stop articulating an urbanormative jurisprudence.  Read more here.

My earlier academic article on this topic is here, and an earlier op-ed, from January, 2015, in the Austin-American Statesman, is here.

Saturday, July 4, 2015

Is it attachment to land or place that sets rurality apart? or is it grit and determination?

I think that is what Kirk Johnson is suggesting in his "Assignment America" piece on Sandpoint, Idaho, population 7,577.  Johnson contrasts what is happening in Sandpoint--surviving--with the loss of small towns throughout the West.  Indeed, the population growth in Bonner County, Idaho (population 41,585 in 2014 according to Census Bureau estimates) may be the reason Johnson chose to feature it.  Johnson writes:
In the all-important sweepstakes of the West — where are people going, and staying — Bonner County, population 41,000, beat out Denver, Seattle, Silicon Valley and other booming urban hot spots, according to census figures. Only 13 other counties in the West did better last year in the net measure of drawing newcomers and holding on to the ones it had.
Johnson notes that the West has become the most urban part of the nation, in terms of where people live, even as "drought, climate change, and economic instability are all bearing down on rural western life."

As the headline for this blog post suggests something else that grabbed me about Johnson's story  was his analysis of what causes people to stay in Sandpoint--even those who didn't grow up in the area.  He suggests that it is attachment to the land, or perhaps more broadly to "place," and he links that to grit and determination.

Johnson shares several anecdotes--from the 1800s to the present day--of folks who have migrated West and stayed.  After sharing one story of a woman from suburban Connecticut who followed a man to  Kodiak Island, Alaska.  The man was long gone, but the woman had stayed:  

[T]he land had grabbed her, and so she stayed — held fast by fate and something still more mysterious. 
The common thread over and over? A bold act of risk. If movement was the tidal surge that filled the West with hopefuls, then the laying down of a wager after that — trying something new rather than moving again — was the illusive force that kept them. And then they kept betting, through losses and long odds that chased others off.
Migration, for some at least, was just a prelude to the grit that really defined them. 
Clearly, this is the story that Johnson wants to tell, and I admit it is an appealing one.  But he also doesn't ignore rural poverty.  
And even among the more isolated or poor, risk-taking endures. Deep in the woods outside Sandpoint, I found the Jennings family in a small house with the bumptious chaos that only small children and loose-running dogs can create. 
He quotes Denise Jennings who, along with her husband Silas, grew up in the area.  They have four children.  They have seen  many relatives move away in search of higher wages, and though both work, together the Jennings earn just about $27K.  Jennings comments:  
Things have gotten tougher.  ... But we’re still here, still trying.
Economists have observed this pattern in small communities: Individual decisions make a difference--and "the smaller the town, the bigger the potential impact."

But Johnson also gives due to the other side of the coin, the forces against the rural West.  He quotes Charles Wilkinson, a law professor at the University of Colorado who observes:   
More water will be going to the cities, [but] People still want the rural West,” he said. “That’s what you’re seeing at Sandpoint — they’ll fight to keep it.

Tuesday, June 30, 2015

Rebuffing locals—and their local knowledge—in northern NY manhunt

The New York Times reports today on the disputes between different law enforcement agencies—and scales of government—in the manhunt for two men who escaped from the Clinton Correctional Facility more than three weeks ago.  The story told by Benjamin Mueller represents many things, among htem urban hubris and a power-struggle between scales of government.  Mueller reports, for example, that Governor Cuomo ordered "a large cadre of non-state law enforcement personnel"—an apparent reference to local law enforcement personnel—out of the command center early on in the manhunt.
A friend of Clinton County sheriff David Favro relates the story thusly:  
Sheriff Favro’s frustration was compounded when Mr. Cuomo arrived at the command center and told him and all the other non-state employees to leave, said a close friend of the sheriff’s, David Andrews, the director of the local radio station WIRY. Mr. Andrews said Mr. Favro was angered at being notified of the escape so late, and was astonished that Mr. Cuomo had asked him to leave. 
“At first they were asked to leave, and he said, ‘But I’m the sheriff,’ ” Mr. Andrews recalled. “Then they were told they had to leave. He was furious and went home.”
Further,
in the swamps and forests where the inmates hid, investigators sometimes spurned the assistance of local officials and hunters.
Another local official's anecdote tells of
state and federal officials gathered around the back of a pickup truck, scrutinizing a map whose scale he said was too small to show the uneven geography.
That official commented that the "command and control did not seem in my opinion to be real firm."  

Governor Cuomo's office issued a statement on the matter:
It is customary for state officials to do confidential briefings to relay sensitive information to other state officials during the initial stages of any investigation.  However, the State Police and other state agencies have coordinated extensively with local and federal law enforcement authorities.
This reminds me of some of the power struggles b/w local and federal officials in my own home county.  Read more here.   

Oklahoma S. Ct. will allow private suits for earthquake damage linked to fracking

Here's the lede from Richard Oppel Jr.'s story in the New York Times:
The Oklahoma Supreme Court ruled Tuesday that homeowners who have sustained injuries or property damage from rampant earthquakes they say are caused by oil and gas operations can sue for damages in state trial courts, rejecting efforts by the industry to block such lawsuits from being decided by juries and judges. 
The case has been closely watched both by the energy industry and by fracking opponents across the United States, and the 7-to-0 ruling opens the door for homeowners in a state racked by earthquakes to pursue oil and gas companies for temblor-related damage.
See more coverage of similar issues here and here.  

Monday, June 22, 2015

NYT stands up for poor and rural women

The New York Times published an editorial this morning titled, "Republicans Take Aim at Poor Women."  The editorial addresses the need for good reproductive health care for women--especially poor women and rural women--and how Republican concerns to curb abortion lead to bad political decisions that undermine funding for badly needed programs to support poor women's health and well being.  It begins by pointing out the irony in the current political landscape:  
One would imagine that congressional Republicans, almost all of whom are on record as adamantly opposing abortion, would be eager to fund programs that help reduce the number of unwanted pregnancies.
 * * *
And yet since they took over the House in 2011, Republicans have been trying to obliterate the highly effective federal family-planning program known as Title X, which gives millions of lower-income and rural women access to contraception, counseling, lifesaving cancer screenings, and treatment for sexually transmitted diseases.  
The Times editorial board notes that a House subcommittee on Labor, Health and Human Services submitted a bill last week that would eliminate all Title X funding, about $300 million.  Among other things, the bill would slash funding for sex education by up to 90%.  You see, Title X is caught up in the abortion wars, the NYT explains, though needlessly so.  Title X grants get used to prevent unwanted pregnancies--more than a million in 2012--"which translates to about 363,000 abortions avoided."

Republicans, whose zeal to cut funding for essential health services seems to know no end--especially when the poor are the beneficiaries of those programs--do not seem to grasp that irony.  The NYT editorial board concludes:
This latest bill aims squarely at one of the nation’s most vulnerable groups — poorer women, many of whom live in rural areas with little access to health care of any kind.

Saturday, June 20, 2015

Iowa Supreme Court strikes law prohibiting medication abortion by telemedicine

The Iowa Supreme Court struck down a rule on Friday that would have prohibited doctors from using telemedicine to dispense abortion-inducing pills to patients in remote clinics around the state, saying the ban placed an “undue burden” on a woman’s constitutional right to an abortion. 
Planned Parenthood clinics in Iowa have been using telemedicine to provide medication-induced, nonsurgical abortions since 2008, seeing it as a way to expand access to women living in the state’s many rural areas. Under the system, the first in the nation, doctors in Des Moines, Iowa City and Ames have used videoconferencing to provide the service to more than 7,000 patients in seven clinics.
Meanwhile, Goodenough reports, sixteen states require physicians to prescribe in person the drugs involved in medication abortions.  Arkansas and Idaho will join those sixteen later this year.  For now, only Iowa and--to a lesser degree--Minnesota permit physicians to use video in prescribing such drugs.

Contrast this with the depressing news out of Texas, thanks to the Fifth Circuit Court of Appeals.  Read more here, here and here.

Thursday, June 11, 2015

Technology (time) won't (always) trump (rural) space

I argued that rural spatiality limits law and the state in my 2014 piece, The Rural Lawscape:  Space Tames Law Tames Space.  Now we have a great example of it in the news:  the escape from the high-security Clinton Correctional Facility in upstate New York, near the Canadian border.  Here's an excerpt from a piece on the manhunt, by North Country Public Radio:
Take a look at an incredibly detailed topographic map of Clinton and Essex counties, where the search is underway. It won't take long to realize just how difficult that search is. Incredibly remote communities scattered among mountain valleys, huge expanses of empty forest, old farm meadows and swampland. 
"We're covering a very large expansive area," says Capt. John Tibbets, one of the men leading the search near the town of Willsboro. "It's lot of low-lying brush. There's a lot of wooded areas. There's a lot of abandoned outbuildings." 
Along the dirt road, through the foothills of the Adirondack Mountains, men and women in body armor move almost shoulder to shoulder across a field. A helicopter prowls overhead.
* * * 
[F]ugitives could be hiding amid the brush just feet away without ever being seen. The foliage is that dense. The only solution, state police say, is to go over this terrain almost inch by inch.
Reporter Brian Mann closes with the cliche about looking for a needle in a haystack.  The helicopter (technology) may be helping, but the men are still missing seven days on… Like I said, "space tames law tames space."  Case closed.

A related New York Times story is here.  

Wednesday, June 10, 2015

Fifth Circuit abortion ruling will hurt rural women, but they don't even merit a mention in the opinion

The U.S. Court of Appeals for the Fifth Circuit ruled yesterday in Whole Women's Health v. Lakey that Texas House Bill 2 was constitutional—but with a few caveats.  This decision will bring the number of Texas abortion providers down to 7 or 8 (depending on what source you credit), whereas they numbered 44 in early 2013, before any part of H.B. 2 took effect.  Previously, in March, 2014, the Fifth Circuit upheld H.B. 2's requirement that abortion providers have admitting privileges at a hospital within 30 miles of where the abortions were performed.  Read my analysis of the cases here.   The Abbott decision took the number of abortion providers in Texas down to 18 because many abortion providers were unable to get admitting privileges for reasons the Lakey court acknowledged do not implicate the physician's skills.

Meanwhile, Texas remains the second most populous state in the nation, and the most recent data we have indicates that tens of thousands Texas women have abortions each year.  The plaintiffs in Lakey have indicated they will seek a say of the decision, pending appeal.  If that appeal is unsuccessful, just handful of clinics will serve that population.

Manny Fernandez and Erik Eckholm explain the consequences of the Lakey decision in the New York Times:
Previously, a panel of the same federal appeals court ruled that Mississippi could not force its only remaining abortion clinic to close by arguing that women could always travel to neighboring states for the procedure. But the panel in the Texas case on Tuesday held that the closing of a clinic in El Paso — which left the nearest in-state clinic some 550 miles to the east — was permissible because many women had already been traveling to New Mexico for abortions, and because the rule did not close all the abortion clinics in Texas. 
In the case of the McAllen clinic, the sole abortion provider in the Rio Grande Valley, Tuesday’s decision held that the distance of 235 miles or more to the nearest clinic did pose an undue burden. For now, at least, the Fifth Circuit panel exempted that clinic from aspects of the surgical-center and admitting-privileges requirements.
What the court seems not to realize is that—even if El Paso women can go to New Mexico for abortion services—a woman living half way b/w San Antonio and El Paso will have to travel more than 235 miles to get an abortion.   That is, she will have to travel to either San Antonio or to New Mexico.  So there is a significant inconsistency here.  Meanwhile, the court did not use the word "rural" or "nonmetropolitan," even as it acknowledged that women Rio Grande Valley would be unduly burdened by the combination of the two H.B. 2 provisions and the 235-mile journey to San Antonio.  

The Fifth Circuit rubber-stamped some very callous findings of the Fifth Circuit motions panel—including the fact that 900,000 Texas women who are more than 150 miles from an abortion provider do not matter for purposes of the "undue burden" standard because (1) 150 miles is not too far to travel/does not constitute an undue burden and (2) this 17% of Texas women do not constitute a "large fraction" of women impacted by the law.  

I have much more to say about this decision, which leaves Texas with a bizarre patchwork of abortion providers, all in north and east Texas and all along I-35 and I-45 corridors—except for McAllen  For now, however, I will comment on two other more "procedural" aspects of the opinion that I find to be of great interest.  First, this Lakey opinion was issued per curium, but was not the typical short and clear per curium opinion.  Read more here.  Second, the opinion took three months longer for the court to issue than its equally controversial opinion in Abbott in 2014.   Both Lakey and Abbott were argued in January (2014, 2015 respectively), but the Abbott opinion was issued in March 2014, while we waited until June 2015 for the Lakey decision.  I think it took Judges Prado, Elrod and Haynes some time to figure out how to achieve the result they wanted in Lakey, while not going completely over the top by saying that 235 miles is not an undue burden on the abortion right.  

Another story in the NYT, this one discussing the Lakey opinion in relation to many other cases and in relation to the undue burden standard is here.