ILP Summary of Strategic Planning 2003

The following is a reproduction of a program summary of various meetings held by the International Legal Program of the Center for Reproductive Rights between September - November, 2003. This summary was submitted to the Congressional Record by Congressman Chris Smith on Monday, December 8, 2003, where it was reprinted in its entirety.

Documents Submitted to the Congressional Record

On Monday, December 8, 2003, Congressman Chris Smith of New Jersey made the following statement on the floor of the House:

"Mr. Speaker, today, I submit to the RECORD documents that reveal deceptive practices used by the abortion lobby. It is critical that both the American and foreign public are made aware of these documents because they shed new light on the schemes of those who want to promote abortion here and abroad. It is especially important that policy makers know, and more fully understand, the deceptive practices being employed by the abortion lobby. These documents are from recent Center for Reproductive Rights (CRR) strategy sessions where, according to a quote from a related interview session, one of CRR’s Trustees said, "We have to fight harder, be a little dirtier." These documents are important for the public to see because they expose the wolf donning sheep’s clothing in an attempt to sanitize violence against children. These papers reveal a Trojan Horse of deceit. They show a plan to "be a little dirtier." In their own words, these documents demonstrate how abortion promotion groups are planning to push abortion here and abroad, not by direct argument, but by twisting words and definitions. In discussing legal strategies to legalize abortion internationally they go as far as to say, "...there is a stealth quality to the work: we are achieving incremental recognition of values without a huge amount of scrutiny from the opposition. These lower profile victories will gradually put us in a strong position to assert a broad consensus around our assertions." People should know about this stealth campaign, and that is why I submit these documents unedited and for public review."

Sections

• Summary of Strategic Planning through October 31, 2003/Summary

Domestic Legal Program Summary of Strategic Planning through October 31, 2003

Staff attorneys in the Domestic Legal Program (DLP) have met with our strategic planning consultants and Nancy Northup to discuss our current work and to plan for the future. At our initial meeting we focused on the following issues:

• Abortion Litigation: Are the litigation strategies of the last 10 years still viable? If so, for how much longer? Should we be taking a different approach to some of the issues that we have been litigating?
• How can we influence the people who influence the legal landscape around reproductive rights? How does CRR influence these communities now? Are there new strategies we should adopt? What are the key issues? What would it take to resolve those issues?
• Expanding Beyond Abortion. What are the other reproductive rights issues we have not been addressing or that we should put renewed energies into?

As a result of these discussions, we formed working groups on the following four issues:

• the future of our traditional abortion litigation;
• development of systematic approaches to or "campaigns" concerning selected core issues;
• the development of non‑abortion related litigation; and
• development of new approaches to influencing the legal landscape.

A summary of our thinking to date follows:

The Future of Traditional Abortion Litigation

We believe that the traditional abortion litigation that has formed the core of our legal program in the United States has been, and is likely to remain, the most effective strategy for protecting the right to choose abortion in hostile political climates, like that we face today, as well as in friendlier times.

Even under pro‑choice Administrations, women's right to choose has always needed, and will need again, the protection of the judiciary from hostile majorities in many, if not most, states. Moreover, Supreme Court decisions in litigation arising from these hostile states have defined the contours of the right to choose. If CRR is going to continue to have an impact on legal developments in our field, we need to continue to be involved in these cases. Therefore, we will carry on in this area, informed by evolving standards in some areas, such as TRAP and biased counseling cases. We have also made a plan for reviewing our options to bring new "affirmative" litigation in areas such are Medicaid funding and parental involvement. The attached memo (#1) discusses these issues in some more detail.

Memo #1: Future of Traditional Abortion Litigation

Traditional Work

When the Center was founded in 1992, its staff was already well‑known for the litigation conducted at the ACLU's Reproductive Freedom Project. The Center built on that reputation and, through the 1990's, solidified its position as the preeminent team litigating on reproductive rights in the U.S, with the largest caseload by far of any other group. The Center's reputation developed because of its willingness to litigate issues others had discarded (e.g., waiting periods and, originally, the "purpose" prong of Casey (which has since been eviscerated by the Supreme Court)), its determination to push the envelope with legal theories that were sometimes on the edge, and because of the sheer volume of cases we have been able to handle with a fairly small staff. We have also earned a reputation as being very client focused ― often assisting clients with issues that arise in their day‑to‑day operations ― issues that other attorneys either cannot or will not handle (a recent example is the litigation in Michigan over the payment provision in the amendment to the waiting period statute, an issue the ACLU RFP declined to litigate). Although often in a defensive posture, challenging restrictive legislation enacted in the states, the Center sought to use this litigation to restrict the reach of Casey's undue burden standard and to strengthen the "state interest" inquiry in privacy and equal protection claims.

Recently, the frustration of funders with the current Administration and anti‑choice Congress, and their assault on reproductive rights and the judiciary, has led some to question the usefulness of traditional abortion litigation. What good is all our work if the Bush Administration can simply take it all away with the stroke of a pen, by, for example, enacting the federal partial‑birth abortion ban that we are currently fighting?

Therefore, we are examining whether our traditional work will continue or whether we need to anticipate a new legal landscape, either because limitations on the right to choose will be firmly established and viable legal challenges will dwindle or because Roe v. Wade will be overturned or substantially undermined, also eliminating the cases that make up much of our current docket.

Will Our Traditional Work Continue in Its Current Form?

This group examined our traditional work, particularly focusing on whether we should alter the standards we use to evaluate whether to bring a case in one of our traditional areas, such as TRAP, parental involvement, abortion bans, biased counseling/mandatory delay laws. We believe this work will continue, though in some altered forms. Two examples are:

• It is unlikely that we will bring another federal court challenge to a requirement that women make two‑trips to their abortion provider, but we will continue to evaluate whether these laws can be challenged on other grounds and whether a state court challenge is appropriate;
• We may bring limited challenges to TRAP schemes, particularly where they threaten patient privacy (the outcome of our Arizona TRAP case on appeal to the Ninth Circuit will be important here).

Additional "Affirmative" Litigation to Bring in Our Traditional Areas?

We also examined whether there is additional "affirmative" litigation we should bring. While we think there is probably only one more viable state constitutional challenge to a Medicaid funding ban left, we believe that we should do additional research on state constitutional equal protection case law to insure that this is the case. Coming off our recent successes in Alaska and Florida, we have considerable expertise in state constitutional challenges to laws forcing parental involvement in a minor's decision to have an abortion. We will determine whether to move forward in any more states as part of our Systematic Campaign discussed in Memo #2.

We are also following through with our cases challenging Choose Life license plates and the fundraising these plates do for so‑called Crisis Pregnancy Centers. We are currently seeking law firm support for new cases in two or three states

What is the Framework for Answering These Questions?

In developing our plans for new litigation, we will balance the following factors: impact on clients; impact on women; helpful to jurisprudence; distinguishing ourselves from the field by taking on issues others wouldn't; dominating specific areas to insure CRR's impact in that area; other organizations' involvement in these issues; institutional resources; and costs.

Memo #2: Report to Strategic Planning Participants from Systematic Approach Subgroup

This group met to discuss "systematic approaches" or "campaigns" that CRR might pursue. We considered five possible topics for such an approach:

• minors' access to reproductive health care;
• developing our use of equal protection jurisprudence to protect reproductive rights;
• minimizing the burdens of the undue burden standard;
• abortion funding/Harris v. McRae issues; and
• developing our use of First Amendment jurisprudence to protect reproductive rights.

These topics were suggested at the initial strategy meeting of the domestic program. For each topic, we considered whether a campaign would be useful to the field, what the positives and negatives would be to pursuing the campaign, whether the Center is well‑positioned to pursue the campaign, and how the campaign might be effectuated.

It is our opinion that our field would benefit from a systematic approach in the first two of these areas ― minors and equal protection ― and that the Center is well‑positioned to pursue such an approach in those areas. We believe that the Center needs to undertake work in the third area ― undue burden ― but that such work may not be well‑suited to the context of a campaign. Finally, it is our opinion that a systematic approach would not be productive or useful to the field with respect to the last two areas ― funding and First Amendment. This does not mean that we wouldn't do work in these areas but just that they do not lend themselves as well to a systematic campaign.

The following is a summary of our discussion of the five possible campaign areas. For each area, we have included an articulation of the possible campaign and some thoughts about the positives and negatives of pursuing that campaign. With respect to the three areas where we thought a campaign ― or, in the case of undue burden, other work ― might be useful, we have also included some possible elements for the campaign.

Minors

Articulation: A project to secure the fundamental right of minors to access all reproductive health services confidentially. This includes:

• undoing the notion that parental rights are an adequate justification for imposing additional burdens on minors seeking abortions or other reproductive health care;
• staving off efforts to require parental involvement for minors seeking contraception and abortion;
• undoing child abuse reporting requirements with respect to non-abusive sexual relations;
• ensuring minors' ability to consent to all reproductive health services; and
• establishing minors' right to comprehensive information about reproductive and sexual health

Positives:

• This has always been one of our priority areas.
• We are seeing the antis push hard to diminish minors' rights, so we should see what we can come up with to push hard back (i.e., being proactive in addition to defensive).
• The topic lends itself well to a systematic approach.
• The issue extends beyond abortion.
• This is a topic about which we can coordinate efforts with our international program.

Negatives:

• In terms of parental involvement for abortion, we have large body of federal case law against us (which makes our campaign harder), and the reasoning of that case law could be applied to contraception.
• It is very difficult to garner public and legislative support on issues concerning minors.
• We will likely have to confront the politically difficult issue of whether minors have a right to have sex (and more generally, whether minors should be treated as adults).
• This area involves difficult line drawing and subtle points that are difficult to convey to the public in an appealing way.
• There is growing opposition amongst minors to abortion and being pro‑choice (or at least a national pro‑life campaign aimed at teens that is garnering more public attention).

Possible Elements:

• Legal research and writing to (a) debunk the extent of parental rights currently recognized; (b) discuss the development of minors' legal rights generally; and (c) analyze sodomy and death penalty cases to see how courts and litigants have relied on evolving societal norms and social science evidence.
• Comprehensive survey of available scientific evidence supporting our positions (e.g. re: competency of minors, importance of confidentiality for access), to use to (a) strengthen our position and to (b) assess where we need to fill in the gaps.
• Follow up to fill in the gaps with additional studies, development of expert witnesses, etc.
• Work with major medical groups to develop and expand public policy regarding minors' ability to consent to medical care and need for confidentiality.
• Advance legislation re: minors' ability to consent to care and confidentiality of care.
• Develop litigation ― bring facial challenges to non‑abortion consent and confidentiality issues in federal court; as‑applied challenges to parental involvement for abortion laws in federal court; state courts cases to establish rights or minors.
• Public education strategy to support legislative/litigation efforts.
• Develop an international component, which looks at international norms on the rights of children.

Equal Protection

Articulation: Project to expand the use of equal protection doctrine to protect women's access to abortion and contraception. This includes:

• reversing decisions indicating that pregnancy and abortion discrimination are not sex discrimination; and
• developing the fundamental rights strand of equal protection to prevent singling out of abortion and abortion patients from rest of medicine for the imposition of special burdens.

Positives:

• This is an area of law that we could do more with.
• Because this area of law is not yet firmly established in the abortion arena, we don't have to overcome lots of precedent to be able to make progress.
• Equal protection claims get us out from under some of the proof difficulties we have with undue burden claims.
• This project is more accessible to the public than the undue burden project.
• This project gives us a way to talk about abortion in terms of fairness and discrimination principles, which are appealing and understandable to the public.
• This issue is important to our goal of ensuring access to abortion.
• This project might be able to be combined with the undue burden project.

Negatives: None articulated other than the potential for bad outcomes, which exists with all five possible projects, and the fact that federal courts have not yet been receptive to equal protection arguments where they have been advanced.

Possible Elements:

• Legal research and writing as to (a) abortion as sex discrimination; (b) abortion discrimination under the fundamental rights strand; and (c) analyze sodomy and death penalty cases to see how courts and litigants have relied on evolving societal norms and social science evidence.
• Analysis of how equal protection jurisprudence has evolved in other areas.
• Public education to talk about abortion laws (and other obstacles to repro health care) as both discrimination against women and unfair discrimination against abortion.
• Look to expand the litigation areas in which we push equal protection claims and state ERA claims (e.g. contraceptive equity, challenges to abortion restrictions as applied to medical abortion).
• Analysis of the kinds of factual development we should do in cases in which we bring equal protection claims.
• Development of studies helpful to our equal protection claims such as (a) study comparing the morbidity and mortality of abortion with that for other office surgeries; (b) study establishing that other health care decisions women make are comparable to the abortion decision in relevant respects.
• Develop strategies for advancing legislation that would add to women's protections against sex discrimination in health care (e.g. establishing that disparate impact on pregnant women is sex discrimination).

Undue Burden

Articulation: Project to limit the application of the undue burden standard and to increase its "bite" so as to bring it as close to strict scrutiny as possible. This includes:

• limiting the application of the undue burden standard (e.g. requiring a health exception and service of a legitimate state interest regardless of burdens);
• developing meaningful purpose prong challenges; and
• developing case law establishing some burdens as undue.

Positives:

• The law in this area is not yet fully developed so we have some more room to make progress than we do in other areas.
• Progress in this area would positively affect all our abortion cases.
• This issue is important to our goal of ensuring access to abortion.

Negatives:

• This project is difficult to support through public education or media (since it is so legally‑focused).
• These kinds of cases are very resource‑intensive.
• Successes in these factually‑intense cases can be difficult to apply more broadly.

Possible Elements:

• Analysis of federal courts' application of the undue burden standard and assessment of where they have improperly articulated the standard.
• Legal research and writing regarding (a) how the standard should be interpreted; and (b) areas where we can try to limit application of the standard (e.g., with health exceptions, lack of legitimate state interest).
• Analysis of which types of abortion restrictions actually have the effect of imposing the greatest burdens.
• Obtain studies demonstrating the effects of those most burdensome laws.
• Litigation challenging those most burdensome laws in favorable circuits.

Funding

Articulation: A project to overturn Harris v. McRae by building upstate court opinions, state legislation and factual bases to compel the Supreme Court to overrule its prior decision as it did in Lawrence v. Texas with respect to Bowers v. Hardwick. The strategy would be to show that the law and social standards have evolved since Harris v. McRae in recognition of the fact that, for poor women, access to public funding for abortion is part of their constitutional right.

Positives: Funding is one of our priority issues, and the Harris decision has had a very significant on women's access to abortion.

Negatives: Unlike what happened with sodomy laws, we are not going to be able to get an expansion of abortion funding rights in the states: we are running out of state courts to rule in our favor on the funding issue, and in most states we have no chance of getting the legislature to act in our favor.

First Amendment

Articulation: Project to enhance reproductive rights through the development of First Amendment theories in areas like specialty license plates and biased counseling.

Positives:

• We could try to develop this area of law, in which we have had some success;
• restrictions that are imposed on speech about abortion, and preferences given to antiabortion speech, undermine the right by contributing to an anti‑choice public dialogue about our issue.

Negatives:

• First Amendment theories have limited application to restrictions on reproductive rights;
• this area does not lend itself as well to a "campaign."

Memo #3: Report to Strategic Planning Participants from "Other Litigation" Subgroup

This group met to discuss "other litigation" that CRR might pursue in addition to areas in our current docket. We focused on three main areas: (1) contraception; (2) women of color; and (3) misleading information. These topics were discussed at the initial strategic planning meeting of the domestic program. For each of these topics, we considered some of the possible ways that we might pursue work in these areas; the positives and negatives of pursuing these strategies; and possible elements pursuing these issues might entail.

Contraception

Articulation: The Center's commitment to reproductive rights includes a woman's right to control if and when she becomes pregnant. We considered possible ways that we may be able to expand our work in the area of contraception, including potentially focusing on:

• Funding restrictions (e.g., restrictions in Medicaid, Title X, and in abstinence‑only programs);
• Government restrictions, both on a macro and micro level (e.g., statutes and or regulations; police harassment of sex workers by destroying condoms; school policies that prohibit condom distribution);
• Title VII and Title IX cases, expanding the Title VII precedents into the university setting; and
• Women of color's specific concerns in this area (e.g., steering towards certain methods; unique access issues; and implications in sentencing).

Positives:

• This is an area in which the Center has had a long‑standing commitment and it would affirm that commitment to litigate issues affecting access to contraception.
• Work in this area could have a significant impact on the lives of women.
• Increasing access to contraception is much less controversial than abortion. This could be potentially significant to donors, press, public, and courts.
• Expanding our work in this area would undercut the criticism that we are solely an abortion‑rights organization.

Negatives:

• It is difficult to find legal theories to pursue many of the areas identified.
• In those areas where legal theories are clearly articulated (e.g., Title VII and Title IX), it is difficult to find women willing to be plaintiffs and there are many groups pursuing these goals.

Possible Elements:

• Research and assess whether there are viable legal avenues to pursue in this area;
• In those areas where there are well‑articulated viable legal avenues, assess whether or how much resources the Center should direct in light of other groups' commitment to these issues;
• Collaborate with groups that are working more directly with these issues to see if we can educate ourselves to possible litigation opportunities;
• Assess whether there are non‑litigation opportunities and consider if this is an area we would consider directing resources.

Women of Color

Articulation: Laws restricting access to reproductive health services disproportionately affect women of color and women facing economic barriers. Our litigation work on funding bans is an example of our longstanding commitment to this area; however, we need to explore other ways of addressing the needs of this population head‑on. While the work of the International Legal Program deals with many of these issues, we realize that the Domestic Legal Program could place more specific emphasis in this arena. Some of the possible areas of litigation which cross‑over with ILP are:

• women in the criminal justice system;
• immigration;
• trafficking; and
• safe motherhood/pregnancy.

Positives:

• This has always been one of our priority issues;
• we cannot claim to be serving the reproductive health needs of women in the U.S. if we are ignoring issues specific to women of color;
• the issue extends beyond abortion; and
• we may be able to coordinate efforts with the International Legal Program.

Negatives:

• We are not sure that legal strategies are the most useful strategies to combat reproductive health issues specific to women of color and economically disadvantaged women;
• we have little experience (and some would say credibility) in this area, other than defense of women being prosecuted for drug use and our Medicaid cases, and, therefore, would first need to take a systematic look at the needs of women confronting racial and economic barriers, and would need to devote the resources to do this properly;
• cases in this realm might involve non‑impact litigation, which we aren't as accustomed to taking on; and
• we are a department/organization comprised largely of economically advantaged white women, which undermines our credibility in this area.

Possible Elements:

• Focus on areas in which we already have some expertise, e.g., treatment of pregnant women who use drugs or abuse alcohol, women in prisons and funding issues.
• Identify other areas in which specific issues facing women with economic and social barriers could be remedied or addressed through legal strategies, e.g., issues facing immigrants and migrant workers, and safe motherhood/pregnancy issues.
• Work in partnership and build relationships with other groups working on issues affecting the health of women of color.
• Identify legal strategies.

Misleading Information

Articulation: This area includes the following issues, which we believe contain misleading information by definition, or often incorporate misleading information:

• abstinence‑only education;
• abortion/breast cancer link;
• crisis pregnancy centers ("CPC's"); and projects by anti organizations such as Life Dynamics Inc. ("LDI") that distribute misleading information. The most noteworthy project by LDI was their campaign to public schools indicating that a school, or school employee, could be legally liable for distributing reproductive health information to students.

Positives:

• Distribution of misleading information regarding reproductive health care can have devastating effects and undermines our goal of enabling women to be knowledgeable and obtain safe and medically appropriate reproductive health care;
• this has been a more recent and successful campaign by the antis, both to the public and in the courts;
• outing the antis as liars would undermine their credibility;
• although several medical and health people and groups, as well as legislators, are outraged by these tactics, there hasn't been much success in countering these attacks; thus, we could stand out on these issues. In fact, we are the only group with significant experience litigating (and refuting) the claims of an abortion‑ breast cancer link.

Negatives:

• We have struggled for years without much success to try to develop legal theories to attack these issues proactively;
• we think that there might be viable nonconstitutional legal theories, but we are not experts in some of those areas and therefore don't even know of the existence of some avenues;
• cases in this realm might involve non‑impact litigation, which we aren't as accustomed to taking on;
• individual cases in this area often are seen as less important than the impact litigation facing us and, therefore, fall through the cracks;
• LDI has been quite careful to try to stay within legal bounds with their misleading attacks.

Possible Elements:

• Decide if this area is a priority for us and determine if that depends on whether we can litigate in the area or not. If so, proceed to the following elements;
• Brainstorm regarding litigation versus non‑litigation tactics;
• Do fact research on types of misleading information and then prioritize potential attacks on the different types of dissemination;
• Do legal research in obvious areas with which we are familiar ― i.e., First Amendment entanglement/establishment clause (see license plate cases and the Gibbons case in E.D. La.);
• Determine how to familiarize ourselves with other areas of law that we're not so familiar with ― including business torts such as interference with business, torts, false advertising ― both currently and how to keep abreast of changes in the area (have a law firm do a CLE for us and be our consultant on such matters?);
• If lawsuits are a viable option, decide how to proceed with them (alone? With a law firm?).

What are our criteria for project and site selection? Do we have "clients"? Are they our NGO partners? Women in need? UN agencies? Sister organizations in the US/Europe? How can we make these "clients" more a part of our strategic planning and priority setting?

Integrating the Center's Program Work

The Center's work in the U.S. and abroad has proceeded on independent tracks (e.g., we have not used the international human rights strategies in the U.S.). Should the new interest by the Supreme Court suggest we should be taking a human rights approach in the U.S.? What would that involve? Are there other ways in which our domestic and international work could be integrated?

Strategic Planning: Communications ― First Steps

Like the other programs at the Center, domestic and international, Communications needs to be strategic. And for Communications to be strategic, the Center must have a clearly articulated goal.

So the first question we must ask is, Why communications? What purpose does it serve for the Center?

Depending on the organization, Communications strategies vary widely. Here are two examples from two organizations whose Communications programs I directed before coming to the Center.

Two Communications Models

The Vera Institute of Justice had an entrepreneurial goal. We wanted government officials to hire us to make government justice systems fairer and more efficient. We believed that without actual government investment in the research and projects we piloted, there wouldn't be the necessary will to change. And we wanted to be known, unlike government bureaucracy, as an organization that got things done.

This goal meant that Communications strategy focused on marketing more than advocacy. We developed strong research reports and briefing papers, as well as attractive and forceful "identity" materials (that described what we do). We also established the president and other key staff and colleagues as trusted and authoritative resources. But we kept a very low media profile, with a few exceptions. For example, when we launched our citizens' jury project, which essentially acted as ombudsman for jurors in New York City courts, Judge Kaye encouraged us to publicize it as much as possible, because we wanted New York City residents to use the service. For the most part, however, we sought less to get our name in the media than to change the quality of reporting on criminal justice. So we held a seminar for editors and reporters at which they and criminal justice experts exchanged (no holds barred) views on how the media could do a better job and how researchers could help them do it.

An adjunct goal of Vera's was to encourage the next generation of government official or public interest lawyer who might become our partner in future projects or perform pro bono work for us. For example, we invited law firms to propose young partners to attend a series of after‑work seminars we held, introducing them to high‑level officials in NYC government who could explain how various parts of the justice system worked.

The International Women's Health Coalition had a very different goal: to promote and protect women's and girls' reproductive and sexual health and rights. Our strategy focused in inserting a gender perspective into international policies and agreements, either directly through our own staff's involvement with global entities such as the World Health Organization or, on a country level, through funding and technical assistance to groups trying to change national and regional policy.

Communications developed and provided written and audiovisual "tools" to these groups (case studies of successful programs, how‑to manuals, etc.), as well as policy papers, disseminating them widely through our website, and, when possible, publishing in peer‑review journals.

We also engaged aggressively with the media, partly in order to embarrass the Bush administration for its failure to support the reproductive rights and needs of women globally. This included the development of Bush and Congress Watch fact sheets detailing the actions and appointments of this Administration that held back progress on women's reproductive rights both domestically and internationally.

Because IWHC also cared about involving the next generation of leadership, we too brought together potential leaders doing cutting‑ edge work from around the world to encourage dialogue and generate momentum for change. Communications sometimes published the results of those dialogues.

Center for Reproductive Rights: Key Questions

In order to develop effective Communications strategies, we must first ask questions like these:

• Is our goal to increase our visibility or is it to change how people think about the Center? If it is to become better known, for what and by whom?
• What is different about the Center now as compared to earlier in its history? What do we want people to understand about how we've changed?
• Is our goal to make people understand reproductive rights as human rights?
• What is unique about our organization that we want people to know? What people?
• Do we want to be known as a cutting edge organization that generates innovative ideas, i.e. a think tank for litigation and jurisprudence?
• Do we have a special role to play to encourage thinking about the proper role of the courts in protecting reproductive rights?.