NEWSBYS L

Recently, I spoke at Perinatal: A Symposium on Birth Practices and Reproductive Rights at George Mason University. The task for the featured round table panelists was to determine legal and political strategies to advance reproductive rights in childbirth. My contribution included noting that childbirth rights advocates need to involve our work into the more mainstream causes of human rights and reproductive rights, including abortion rights.

The audience, fellow childbirth advocates, ignored my comments on abortion. Apparently, the "a-word" is not acceptance language among childbirth reformers. I discussed the abortion debate from a mother's perspective in a prior post, and understand that women who devote their lives to improving birth outcomes and lowering infant mortality rates are invested in the life of the fetus. However, my comments never took a side on the abortion debate. I merely observed an unfortunate consequence on childbirth rights from this debate.

I observed that one unexpected effect of the abortion debate was to give more importance to the choices and beliefs of third parties regarding the medical care of pregnant and laboring women than to the choices of the women themselves. Doctors and hospitals have relied upon Roe v. Wade and subsequent law to impose medical treatment on pregnant women in utter disregard of their legal rights to informed consent and informed refusal. Pregnant women's rights are ignored while the fetus receives legal representation after the 26-week gestation period. The justification has consistently been that the government's interest in the life of the fetus found in Roe overrides a woman's decision in her own healthcare and medical treatments.

What do you think of when you think of reproductive rights? Abortion? The recent octuplet birth? Infertility treatments?

If you believe in abortion, you may believe that any restriction on abortion is illegal (e.g., against the Constitution's guarantee of privacy). If you do not believe in abortion, you may believe that any leniency of such laws are illegal (e.g., against the moral, ethical, and criminal principles of murder). With infertility treatments, the same arguments exist; believing on one side that it falls under your right to privacy, or believing on the other side that it falls under the state's right to protect life. Both sides misstate and misuse Roe v. Wade, but before beginning with the law, let us view one mother's perspective.

On March 5-7, the Coalition for Improving Maternity Services (CIMS) held its annual meeting in San Diego, California. Its long list of presenters, included the following: Henci Goer, the author of The Thinking Woman's Guide to a Better Birth; Maureen Corry, the Executive Director of the Childbirth Connection, and Debra Pascali-Bonaro, the filmmaker for the award-winning Orgasmic Birth.

The entire conference was energizing and illuminating, and I believe that the participants were at least as wonderful to meet, as the speakers were to hear. However, I would like to highlight three plenary session speakers. First, Dr. Michael Lu, UCLA Professor of Obstetrics & Gynecology, spoke about racial and ethical disparities in birth outcomes. Even in a room filled with experts on birth, Dr. Lu broke down stereotypes about causes of premature birth, showing that the major cause in the African-American community is not smoking, education, or nutrition, but stress. Second, Dr. Laurence M. Grummer-Strawn, Chief of the Nutrition Branch at the Center for Disease Control (CDC), shared the results from a first-ever comprehensive, nationwide survey of hospitals and birth centers on breastfeeding trends. Although the facility-level results are not public, Dr. Grummer-Strawn, hopes that the information will help each facility improve its own outcomes. Third, Mayri Sagady Leslie, Georgetown Faculty in its School of Nursing & Health Studies, led an open forum where everyone in the audience had individual remotes to respond to her polling questions. The audience-response system generated significant buzz during and after her session; it both allowed audience members to better understand our colleagues' experiences, and it allowed CIMS to gather important data for future conferences.

Breastfeeding in public is not illegal in any state. Moreover, there are 40 states, the District of Columbia, and the Virgina Islands which all have laws specifically protecting a woman’s right to breastfeed in any public and private location. Furthermore, there are thousands of benefits of breastfeeding, including reducing risk of cancers, diabetes, and other life-threatening diseases. There are no risks of breastfeeding except in very unusual circumstances (for instance, when the mothers has AIDS). Finally, through laws and education, breastfeeding is no longer shocking to most of society.

In November, actor Brad Pitt took photographs of his current partner Angelina Jolie breastfeeding for the cover of W Magazine. Just today, Time Magazine reported that Salma Hayek nursed a starving baby (not her own) in Western Africa while being filmed by ABC News.

When "Mommy Wars" originated, it related to the disputes between work at home mothers and stay at home mothers. Then came the Mommy Wars on breastfeeding, which was just fueled again by The Washington Post on Monday, finding that moms who don't breastfeed are more likely to neglect their children.

One of the main weapons of the "war" is the use of misinformation and misleading statistics. Most women agree that a mom's choice to either work or not work often has more to do with the financial situation of the household (either they can't afford to stay at home, or they can't afford childcare) and less to do with personal choice. Even when it is a personal choice, however, mothers' have earned a right to make that decision to go to work (as men have done for centuries) or stay at home. A young infant (under one year) has some attachment difficulties if they are in daycare for longer than 20 hours per week, but there are many options for that first year, including a nanny, a relative, or the father. Similarly, moms are starting to understand that while breastfeeding is better, some mothers cannot handle the emotional, mental, and physical effort exclusive breastfeeding requires, and are more caring moms because they recognized their limits - a reality that is often misunderstood.

Research Supports Birth Choices as Insurance and Hospitals Limit Them

Most women's rights advocates know the phrase "back alley abortions."This phrase was popular before the passage of Roe v. Wade, when anti-abortion laws were not effectively reducing the number of abortions. Instead, the restrictions were, in effect, putting women's lives at risk by increasing unsafe abortions in "back alleys" or other unsanitary locations with no assistance from medical professionals.

Today, abortion is legal in every state. But today, a new problem has arisen as now birth is being highly restricted.

Birth advocates are trying to garner media attention regarding the rise of "back alley births." For a long time, insurance companies have deemed pregnancy a "pre-existing condition." For women who switch insurance mid-pregnancy, this switch can leave the pregnant women without the ability to pay for needed medical assistance during her labor. In June 2008, the New York Times reported that insurance companies are refusing to cover women with prior c-sections whether they are pregnant or not, leaving those women uninsured unless they submit to a hysterectomy surgery to remove their uterus.  See also the ICAN press release.

Even when pregnant women are able to obtain insurance, the insurance companies may limit the care they receive. For example, Kaiser refuses to compensate home births despite the fact that home births average costs less than $2000 and the typical cost for a cesarean birth (c-section) without complications can range between $14,000 and $25,000 or more! Just last fall, Aetna insurance announced that they also will not cover home births, and in addition, that they will not cover birth center births unless the birth center is attached to a hospital. Recently, Blue Cross Blue Shield made the only birth center in the Northern Virginia area an "out-of-network" provider, which will increase the costs to patients who choose to birth at home. These insurance companies are essentially limiting the women's right to choose to birth at home.

The problem, of course, lies in the fact that many women do not discover the restrictions by their health insurance company until it's too late. But, even for informed pregnant women who use a mother-friendly health insurance company, they may not be able to find a doctor to support them in their birth choices. In 2004, The International Cesarean Awareness Network (ICAN) exposed that over 300 hospitals in the United States completely ban Vaginal Birth After C-section (VBAC) even though VBACs are safer for most women than a repeat c-section. And, the entire state of Oklahoma has basically stopped giving pregnant women the option for a VBAC due to the medical malpractice insurance company , which will not cover doctors who offer VBACs to their patients.

With these multiple, severe restrictions on pregnant patients' established right to informed refusal, there is a clear violation of women's rights that we need to fight. But, in these cases, the injury goes significantly further than just the theoretical right. C-sections, while a life-saving surgery sometimes, are to blame for higher maternal and infant mortality rates, as well as long-term harm, like increased risk of infection and decreased breastfeeding rates besides countless other more minor dangers. Women who do not want to be subject to these restrictions - either because they underwent a painful c-section birth with their first child or were informed before their first birth - are often forced to seek a "back-alley birth." This means that they either have no assistance ("free birth") or they use an unlicensed midwife or a midwife practicing outside the scope of her license. These choices are more dangerous for high-risk women with previous c-sections than attempting a VBAC in a hospital setting.  For women who cannot find a provider who supports VBACs, however, this is their only choice.

Just last week, the Wall Street Journal reported that a study in the New England Journal of Medicine shows that one-third of c-sections are done too early, putting the mother and infant at increased risk. With more and more studies showing that hospital interventions are dangerous, while more insurance companies limit coverage of out-of-hospital births, more and more women will be left to do "back-alley births."

Last month, Jen blogged about pay gap between women and men. She shared the campaign "Out of the Way of Fair Pay" by the Center For American Progress, which argued that there needs to be more laws to protect equal pay for equal work, and blamed the wage gap on discrimination of women by employers. In doing so, this followed the century-old rhetoric from women's rights advocates, starting before the 1960s. Equal pay has become a timely topic again as many political pundits think that it will be the top of President-Elect Barak Obama's agenda when he takes office next week. In fact, during the campaign, CNNMoney.com reported "It's baaaack!!" in reference to the "wage gap" debate.

Obama campaigned as a stout advocate of equal pay for women: He argued that women "women still make only 77 cents for every dollar a man makes." He pointed out that he supported the Fair Pay Restoration Act and promised to "close the wage gap between men and women." He blasted Senator John McCain's infamous remark that women need more "education and training" to close the pay gap.

Mothers in particular are affected by the pay gap. As MomsRising.org states: "Non-mothers earn 10 percent less than their male counterparts; mothers earn 27 percent less; and single mothers earn between 34 percent and 44 percent less." In other words, mothers are affected four times more than non-mothers.

Despite these alarming facts, more equal pay legislation is not the solution for the pay gap. First, there already exist many laws to guarantee equal pay for equal work, including the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Title I of the Americans with Disabilities Act of 1990. Second, the U.S. Department of Labor, and many other economic experts, has already shown that the pay gap is not based on equal work at all, but instead due to so-called "fair" factors.

In fact, the "pay gap" is not a comparison of one woman and one man doing the same job, but just an average of all women and all men who work full-time doing unequal, very different jobs. For instance, in education, men often choose higher-paid majors than women choose. Eighty percent (80%) of engineering majors are men. Men also receive more-marketing training and experience for future promotions, as well. Men then take higher-paid jobs in the private sector where many women choose to become teachers in the public sector. In addition, men are also in the workforce longer and more constantly. Women tend to leave the workforce for a certain number of years to focus on child rearing. Men are also willing to take jobs that require longer-hour days. While many women choose "full-time" jobs that require 30-40 hours per week, men mostly fill the jobs that require 60 hours and more per week. Therefore, the "77 cents on the man's dollar" myth (which is now statistically 79 cents on the dollar) has been debunked. Blogger Glenn Sacks pointed out "When men and women of matched qualifications are working in matched jobs, women earn as much as men do." The Bureau of Labor Statistics (BLS) of the U.S. Department of Labor publishes the statistics on women's earnings every year.

However, that does not mean that the pay gap is not a major problem for mothers' and women's rights. Indeed, the pay gap is even more alarming because it cannot be solved by simple anti-discrimination laws. A truth that may disturb some Obama fans is that Senator McCain's solution, while incomplete, is a better answer. In fact, unnecessary equal pay legislation may just create a bias against hiring women in the first place, or to increased unsuccessful litigation. If the pay gap is not due to discrimination, anti-discrimination laws will not lead to any actual increased pay for women. These unintended consequences have already been seen in the UK and in Germany and were reported by the Washington Post last October.

Instead, there needs to be a new way of solving the pay gap through a combination of the methods below. First, during elementary school, there needs to be more math programs for girls to help them learn and gain interest in the higher-paid science-based vocations as compared to the lower-paid arts-based vocations. Second, at the high school level, women need to receive the salary data for various careers to make informed decisions on their college major or technical training.

Most importantly, there needs to be better protection for all workers so that there is less of a gap between all workers - men or women. By better protection, I mean that there needs to be: 1) higher minimum wages; 2) paid sick leave; and 3) stated maximum hours in a work day for overtime purposes without exceptions. By doing so, we will increase the benefits for the employees with the lowest paying jobs with no benefits - namely, moms - and make the choice to higher men who can work longer hours less seductive for employers since overtime pay will include all workers, including salaried workers.

Finally, although slightly less important, we need more funding for school loans so that women can afford the "education and training" that Senator McCain correctly pointed out that women need, and a universal childcare system. Without subsidized childcare, in the same manner that states subsidize state university systems, women are sometimes forced to leave the workforce to rear children since they cannot afford the childcare.

In other words, lets stop treating the symptoms (wage gap) and start treating the root cause (worse, lower-paid jobs for woman who cannot work as many hours as men or who do not have the training to take higher-paid jobs). This solution does not mean that men and women would have equal pay - and it shouldn't. It just means that the "wage gap" would be due to educated choices that women, or men, may make to take lower paid jobs for the simple reason that those jobs interest them more.

Major changes to the Family Medical Leave Act of 1993 (FMLA) will take effect on January 16, 2009. The U.S. Department of Labor published amended FMLA regulations for the first-time in the Act's 15-year history in changes released in the Federal Register on November 17, 2008. The FMLA effects mothers particularly as it covers leave for the birth or adoption of a child, as well as leave to cover a sick child.

Although the enactment of the FMLA was an important success for moms' rights advocates, the law has always been arguably limited. For instance, the FMLA does not cover moms who work for a company with less than 50 employees, or moms who have been working with the employer for less than one year. Therefore, if a woman discovers she is pregnant soon after she changes jobs (when she would already be one-month pregnant), the new employer is not required to provide maternity leave under the FMLA. This case holds true even if the woman would have been covered by FMLA under her former job and did not know about the pregnancy at the time of starting her new job. New mothers with new jobs have no job protection since there are no exceptions for women who did not know they were pregnant or would become pregnant during the 3-month crack in the FMLA.

Furthermore, the leave granted by the FMLA is completely unpaid, so that many women are forced to return to work immediately after the birth of their newborn, simply because they cannot afford to take unpaid leave like these two bloggers: I am ohsoblessed and Historiann.

Beyond these prima facie problems, new mothers have also had further problems in application of the law. Employers have denied FMLA rights to new mothers who qualified for the leave, and have retaliated against new mothers for taking the leave. These amendments to the FMLA were drafted to correct some of these issues, which caused confusion and resulted in litigation. However, certain aspects of the new regulations will clearly hurt mothers in need of maternity leave to care for their newborns or newly adopted children. Among them:

• Employers will be allowed to require "fitness-for-duty" evaluations to decide whether employees who took FMLA leave are fit to return to their specific jobs.
• Employers will be allowed to consider FMLA absences to disqualify employees from bonuses or other incentives when the employee has not met a specified job-related goal due to FMLA leave.
• An employer can force the employee to use all or part of her accumulated vacation, personal, family, medical, or sick leave concurrently with the FMLA leave, potentially eliminating an employee's ability to take any additional leave for the next year.

The changes do not guarantee any pay during maternity leave, and therefore will not guarantee women will be able to take the leave for childbirth. In addition, the new regulations apparently do not help with the problems of retaliation against employees who take leave, a problem compounded by maternal profiling. Indeed, the changes will arguably be more beneficial to employers than employees, since fewer people will qualify for leave under the new amendments according to the U.S. Department of Labor. The result: supposed clarifications with the new FMLA may actually cause increased confusion and litigation.