Janet Benshoof’s Remarks Upon Receiving the Edith I. Spivack Award

March 26, 2007

INTRODUCTION

Thank you Marcia, Judge Rakower and the County Lawyers’ Association for honoring me with this award. The Women’s Rights Committee is to be commended for establishing this annual recognition of Edith Spivack. By pursuing a legal career in 1932, Edith Spivack demonstrated how, with dedication and perseverance, a woman could not only be a lawyer but, in her case, one singularly distinguished among fellow jurists. This annual award stands not just as a reminder of how far women have come but, more importantly, how change always starts with the courage of one. I am particularly grateful to receive this award while I am still alive. In fact, I accept this “Edith” award as a challenge; in the spirit of the “Oscars.” Hopefully, in 25 years, you will have me back here, for a second “Edith” for my current work through the . This award is precious to me for two reasons. First, it validates the often iconoclastic path my career has taken. But, most importantly, you have given me this opportunity to speak – well – really “enlist” you, among the most influential lawyers in America.

Redefine equality and justice My central message is simple in principle but profound if practiced. The United States has lost its moral authority as a model of the rule of law. We must seek to regain that authority by actions not words, starting with affirming that gender justice and Global Justice are inseparable. And such global justice starts at home, right here, in this room, tonight.

Over the last 30 years, the United States Supreme Court, while paying lip service to advancing women’s equality, has simultaneously radically redefined what constitutes sex discrimination excluding all laws, based on physical differences mainly pregnancy and abortion. It is imperative that we find the political will to repudiate this twisted definition of women’s equality rights, which embeds rather than rejects the “biology is destiny” stereotype. We need the United States to lead or at least join the global movement for women’s equality under law—not undermine it.

But, first let me go back a step.

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PAST AS PROLOGUE: MY EARLY LIFE

This award recognizes a legal journey, mine, which, in the spirit of Edith Spivack, has more often than not forged ahead where others think better than even to tread. Some very formative early influences left me no alternative but to beat the drums I continue to beat. It is these experiences from my Midwestern childhood I want to share with you because they are in no small measure the reason I am here before you.

Early Influences How I became a lawyer in the first place is in some way more remarkable than how I got here tonight. I was born in 1947 in Detroit Lakes, Minnesota, a small town in Northwest Minnesota near Fargo, North Dakota. It was—and still is—a town of 7,007 persons. Originally populated by northern European immigrants, their ethos still prevails: hard work is a virtue and getting up early is a measure of ones character. My parent’s lives were greatly influenced by the Depression. My father was the Becker County Attorney for over 45 years along with a private law practice and my mother, a former history teacher, was—not necessarily by choice—a homemaker. Both my older sister and I were expected to do well in school, go to the University of Minnesota and be equipped to “earn a living” in the event our “husbands might die.”

Books as Friends Books were my first and best friends. They opened all doors, which took me out of Detroit Lakes, and even past Fargo. Every week starting at age six I would take my red wagon to the public library, half a mile away from my house and load it up with books. Now, my selections were random-sometimes literally as I would just close my eyes and select books in order to be surprised. Or sometimes, I would check out only the very thickest books— Leon Uris comes to mind—because they would last longer.

My first role models were the book heroines who were able to move their lives along by acting in slightly aberrant ways. Of course these young women were old fashioned by today’s standards, do any of you remember the Nancy Drew detective series, Cherry Ames, Student Nurse, Little Women, Anne of Green Gables and, of course, Francie Nolan in A Tree Grows in Brooklyn? These books instilled in me the conviction that in order to have a rewarding life, that is, one outside of Detroit Lakes, you can (must) act differently than the crowd (not too different) and you must follow your own moral compass even if this makes you unpopular for a little while.

The Holocaust The greatest influence on my life, however, was and is, the Holocaust. I remember very distinctly the day in 1957, when I was ten years old, when I first read about the Holocaust in Life magazine.

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I remember feeling both disbelief and horror. How could this massive systematic evil - this extermination of Jews (and others) have actually happened? Why didn’t anyone stop it? And why wasn’t everyone in Detroit Lakes talking about it? Where was everyone? The fact that places like Auschwitz existed in recent history and the fact that Germany was where many of my town’s people were from, including the high school foreign exchange student, made it even more inexplicable. It is from that day in 1957 that I can trace my personal imperative, albeit imperfectly executed, not to stand by but to speak up. Of course, the hardest lesson from studying collective evils and genocides is that you cannot reduce this to being about “them.” It is about what is in all of us. As a reminder of this centrality, every year on the anniversary of Kristallnacht, November 18, I do not work. It was on this day in 1938 that Nazi gangs killed and terrorized Jews and Jewish homes and temples while Germans stood by. For a Christian, it is a day of humbling remembrance, a day to ask myself “where were we,” and “where am I now?” Out of these early influences came the three lessons which have propelled my legal career. And well, propel me in general: 1. View risks as life opportunities 2. Don’t let your life be a footnote 3. Don’t fight the phony wars—after all, if we don’t speak truth to power, who will?

LESSON #1: VIEW RISKS AS LIFE OPPORTUNITIES

Law School When I graduated from the University of Minnesota in 1969, I had never had a woman professor, met a woman lawyer or had even known a married woman who worked. Despite the utter lack of models, I applied to 18 law schools and to my puzzlement got in all 18. I chose Harvard, not because of its prestige - no one I knew was even impressed - but for the sheer exotic idea of going “east” to Cambridge, which I envisioned would be like an artist going to Paris in the 1920’s. I was utterly clueless.

First Case My first women’s rights case was in 1971 when I was a second-year student. One of the female law librarians pulled me aside and showed me a trademark application which had just been filed by Longchamps restaurant in New York. Their proposed logo, which they were already using, was a big poster of a naked woman with lines carving up her body to advertise the different cuts of beef on the menu: ribs, loin, etc., making “New York Strip” take on a new meaning. Unimpeded by any knowledge of trademark law or advice from any real lawyers, I took this on. After immersing myself in the Trademark Commission regulations I found trademarks could be opposed on public interest grounds and we had ten days left to draft an opposition. With great rhetorical flourish (and little real knowledge), I set out to establish that Longchamps, by their “depicting” said woman as said cow,” was at the center stage of perpetuating women’s oppression. Justice , then a visiting professor that semester at Harvard, was very supportive and offered up her husband, Marty, who was in D.C., to file it for us with the Trademark Commission. So, the Harvard Law Students’ women’s association, which I had just co founded, signed it, off it went and we won - Longchamps backed down.

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Now this ‘bold is better’ experience leads to Life Lesson 2:

LESSON #2: DON’T LET YOUR LIFE BE A FOOTNOTE

Early on in my legal career I fought against the “footnote” phenomenon—which you all will recognize. You have a brilliant or at least novel—legal theory that fits your case, but it has not been argued before or applied in this situation. Your colleagues act as a Greek chorus of caution: “yes, you are right” but “it will never fly,” or worse, “it will turn the judge off.” Then, you are offered the compromise; “Well, put it in a footnote.” Let these words stand as an early alert system not just in law but in life. Don’t relegate what you really want to do or what you really believe in, as a footnote to your life. The legal precedents of which I am most proud have all followed the same trajectory. First, I obsess about a social problem, a terrible precedent or an inequality which seems to be so embedded that it is not even part of political conversation. Then, encouraged by everyone saying nothing can be done, there usually occurs a “eureka” moment, an idea. It may be applying a novel legal theory or trying to develop a unique factual pattern, gather together prominent plaintiffs or publicly position the issue in a way that frames the debate and catches the public imagination. Next, is the hardest part, trying to sell the theory even to my own like-minded colleagues. The reactions? First, they ignore you, then they laugh at you and then— it might take years—you are proven right. Here are four examples starting the first year of my legal career, 1973.

Example 1: Day care as a constitutional right, why not?

My first job after law school, in 1973, was at South Brooklyn Legal Services, where my clients were mostly poor, single mothers on welfare. When the city of New York began to de-fund some subsidized daycare centers, it was my clients, mothers struggling to work or go to school, who were hit the hardest. My colleagues all said to me, “well, there is no right to day care.” Yet, day care was–and is- critical for these women and the loss of day care even briefly could derail their already fragile efforts to get ahead. Thus encouraged by a “right” waiting to be recognized, I filed a class action in the SDNY which resulted in a landmark, but no doubt now obsolete decision by Judge Ward. He ruled that fair hearings had to be given to the woman prior to any day care closing because for this class, day care was no less a ‘brutal need’ than the opportunity to receive direct welfare payments. For this decision, I was awarded an honorary degree from the “Little Peoples Nursery” in Bed Stuy. Gasaway v. McMurray, 356 F. Supp. 1194, (S.D.N.Y 1973)

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Example 2. Vacuum cleaners and the Sherman Anti trust act.

Just a year later, I was faced with another group of poor clients, this time mostly men, who were solicited by door-to-door salesmen to purchase expensive vacuum cleaners by enticing them with a “free’ membership in a spurious “buying service.” At the time, I vaguely remembered from law school that conditioning the sale of one product upon the purchase of another was illegal and violated federal antitrust statutes. Again, against all advice, I decided to be bold and challenged the parent companies in a class-action and won—setting a new precedent applying the Sherman and Clayton Acts to the poor. Perry Hill v. A-T-O, Inc., 535 F. 2d 1349, (E.D.N.Y 1976)

Example 3. Challenging criminal abortion bans: strategic élan

My third examples are my cases challenging state laws criminalizing abortions, illustrating how extreme laws call for extreme reactions. In 1989, the Supreme Court, reconstituted with new Justices, was first presented with the chance to overturn Roe v. Wade in the Webster case. The Court, under intense pressure, side stepped the issue but the plurality left the door open by inviting states to pass new abortion bans. The territory of Guam and the states of Utah and Louisiana all scrambled to pass the first and the worst laws. Of course, the worst laws make great cases. I challenged all three, starting with Guam.

Guam Now, to be honest, I did not even know Guam was a U.S. territory much less that it was part of the 9th circuit and could well overturn Roe. At the invitation of the local women leaders in Guam, I jumped on a plane from New York and flew there. Guam, to my surprise, turned out to be in the South China Sea near Japan and not in the South Pacific. Two days after I arrived in Guam, the criminal abortion ban went into effect and doctors cancelled all abortions. Now, this law prohibited certain abortion speech including referrals, which to me was a personal affront to the First Amendment. I went on Guam TV that very day and read the yellow page ad on abortions services offered at the Planned Parenthood clinic in Hawaii. The Attorney General of Guam promptly had me arrested, arraigned and released on my own recognizance - where I remain today. Needless to say, the women on Guam rose like a mighty force and their speech was heard round the world—or at least on the front page of and in People magazine. While Guam was “new territory” to me; it did allow for a creative landscape and the Supreme Court sustained the powerful decisions striking down the law both in the federal district court and 9th circuit.

Utah The Utah legislature in 1990 quickly passed a ban law signed by Governor Bangetor defining abortion as starting as early as with a one cell fertilized egg. We had 30 days to try to enjoin it

Human Rights Through The Rule Of Law 12 East 33rd Street Suite 1200 • New York, NY 10016 • P 212.725.6530 • F 212.725.6536 www.globaljusticecenter.net from going into effect, but in studying the new law I was puzzled by where and what exactly were the criminal penalties. Well, the abortion ban cross referenced to another section of the penal code and here, we hit gold. As it turned out, just two years earlier, Governor Bangetor, when he was in the Utah legislature, had sponsored amendments expanding the crimes covered by the death penalty. And “illegal abortion” was listed as a death penalty crime, which at that time went unnoticed as Roe prevailed. The very idea that the new Utah abortion ban imposed the death penalty, not only on doctors but also on women-even ones who were sick or dying, pregnant women, was so unbelievable. I kept checking the statutes over and over with my staff, rereading the various penal sections and examining the legislative history. It was clear. The death penalty applied and no one had caught this—least of all the legislators. I immediately called a donor and I am forever grateful to him for this - he provided the money for a full-page ad in the New York Times, which soon flashed over nightly news in Utah. This ad read: “They really know how to treat a woman who has an abortion in Utah—shoot her” (with pictures of state sharp shooters and a pregnant woman facing execution). Governor Bangetor, with egg (unfertilized) on his face, was then forced to call a special session of the Utah legislature at great expense and amend the penalties. This set the stage for our legal challenge, captioned: Jane Liberty v. Bangetor or Liberty v. Bangetor. Governor Bangetor, outraged, then had the State’s attorney seek to reform my caption—and best of all, had to explain why his name opposing “liberty” was embarrassing.

Louisiana In Louisiana, for over 20 years, I pretty much always had abortion restriction challenge in the Courts as the legislature automatically and unanimously passed any anti-abortion laws put before them. In 1995, their broad ban criminalized any interference with a “child” defined as a fertilized egg at conception. My idea was that we should not even frame this as an abortion case since by its terms it would outlaw most contraceptives—there is not even a pregnancy (or abortion) until implantation. Since the FDA preempts the field of regulating contraceptives and since courts are to address the statutory issues first, FDA preemption argument could be our whole case. All my colleagues said, “Yes, you are right, but it’s not what they meant to do, you should put your FDA idea in a footnote.” However, I insisted on putting it as my first and longest argument and argued for it vigorously before the 5th Circuit. Well, we won and a large part of the opinion in this case— sojourner t-- was the Fifth Circuit explaining defensively as to why in this case they were not going to rule on the statutory issue because the law was clearly unconstitutional. They were petrified they might have to rule on birth control.

Example 4: Emergency contraception, why were American women denied this critical medical option?

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By 1996, I had become increasingly frustrated by the fact that emergency contraception—heavy doses of birth control within 72 hours—was increasingly available around the world but not in the U.S. The three main drug companies in the U.S. selling prescription contraceptives repackaged them as emergency contraception and sold it that way in Europe, so I wrote them and asked them to apply to the FDA here to make it an approved off-label use—no studies or anything was necessary for this. They refused. T was “too political” and although this was not abortion it might still get the anti-abortion people upset. They would rather stop manufacturing birth control at all. This was outrageous because it was estimated that emergency contraception in the U.S. is readily available, which it was not, could prevent nearly 1.5 million unwanted pregnancies a year. Again, everyone said, “You can’t do anything”; the FDA has never recognized an “off-label” use except by the petition from a drug company. I studied the FDA regulations and actually remember the “Eureka!” moment while I was sitting on the floor waiting for someone at the American Airlines terminal. Undeterred, I assembled a massive client base of health groups, filed a citizens petition with all the legal arguments and, in 1997, for the first time, the FDA approved emergency contraception as an “off-label” use. Options to prevent pregnancy were opened up for American women overnight. Now, emergency contraception is global and even in the United States offered over the counter. Of course I tried to put that in the 1996 petition but everyone just laughed.

You may ask, well, what about your losses? What losses? Life is too short for us not to have a long term vision. Don’t think of unfavorable precedents as “binding”, see them as interesting challenges. And don’t view great legal arguments as “losing”, just “premature.” No injustice—like not having 50% women running the Pentagon—is in the long-term—immune from legal remedies.

If you want to think outside the box, “the case is never closed.”

This is the real fight and leads me to my most important point:

LESSON #3: FIGHT REAL NOT PHONY WARS

The most important lesson I have learned is not to fight phony wars, which, at best, can lead only to pyrrhic victories. Worse are some ongoing “phony wars” for women’s rights which are starting out with rights so compromised that winning them would be worse than losing. We are at a critical juncture in the fight for establishing legal rights for women’s rights worldwide. The crabbed definitions of sex discrimination our Supreme Court has developed are pernicious precedents at odds with and a threat to evolving global standards for women’s rights.

PHONY WAR #1: THE FEDERAL ERA: Forget about any move to resuscitate the Federal ERA. It is so riddled with political baggage that it is better to sink it once and for all. Proponents of the

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ERA along with their academic backup teams deliberately drafted a very limited ERA in 1971, which takes women as a class out of their own equal rights amendment.

The federal ERA deliberately excludes laws based on physical differences, mainly pregnancy and abortion, from the ambit of laws to be considered factually discriminatory laws and illegal under the ERA. In fact, even without having been ratified, the very fact ERA proponents proposed this limited definition was used to frame the first Supreme Court decision finding discrimination against pregnant women was not sex discrimination (Geduldig 1974). And this has been expanded to encompass not even considering anti-abortion restrictions—no matter how life threatening or humiliating—as sex discriminatory. For example, in 1991, in the Brey case, Justice Roberts, then Deputy Solicitor General, cited Geduldig to support his argument that women blockaded from seeking abortion services were not protected by federal civil rights remedies. The Supreme Court adopted this argument, making clear that this harassment had nothing to do with women as a class, just the subset of those “persons” who would seek out abortions. And the rationale goes, this is not a sex classification— if men could get pregnant they would be harassed too.

You might ask, why not just amend the federal ERA to make it clear it covers physical differences like pregnancy? Well, it is too late for this ERA because too many states ratified it based on the clear statements by its proponents it would not apply to any abortion restrictions. If the ERA were ratified tomorrow, we would be tied up in courts endlessly arguing about the legal relevance of its convoluted legislative history.

Any constitutional protection of and prohibitions against sex discrimination must accept without question that legal restrictions on a woman’s ability to control decisions around pregnancy and abortion are sex-based classifications and violate basic human rights, specifically the human right to be free from discrimination.

The federal ERA is a Faustian bargain, one we cannot afford in this country and we certainly cannot afford to export.

PHONY WAR #2: THE U.S. RATIFICATION OF CEDAW: The U.S. version of CEDAW is not worth ratifying. To date, 185 countries have ratified the treaty, called “the international bill of rights for women,” and officially, the Convention for Elimination of all Forms of Discrimination against Women or CEDAW. Although the United States signed CEDAW in 1980, it was not until 2002 that the Senate Foreign Relations Committee voted to approve after hearings which imposed a bundle of “conditions and understandings” on CEDAW. This U.S. version, CEDAW “lite” or CEDAW lie as I call it, has so limited the scope of equality rights that it could undermine rather than further women’s rights globally.

The U.S. CEDAW conditions include an anti-abortion “understanding” sponsored by Senator Helms in 1994, which states:

“nothing in this Convention shall be construed to reflect or create any right to abortion and in no case should abortion be promoted as a method of family planning.”

Now, you might ask, what is wrong with that, what exactly does it do? Although this phrase may sound neutral—or even benign—it most decidedly is not. In fact, the language strikes at the

Human Rights Through The Rule Of Law 12 East 33rd Street Suite 1200 • New York, NY 10016 • P 212.725.6530 • F 212.725.6536 www.globaljusticecenter.net central premise—and promise—of CEDAW, which is the equality definition in Section 2. Under CEDAW, all laws must be given the strictest scrutiny as to whether they act to impede women’s rights to full citizenship and dignity. If any law fails this test, women have the right to have it invalidated as sex discriminatory. Yet the U.S. version would exclude abortion and only abortion from even this scrutiny. The phrase “abortion as a method of family planning” is a euphemism, which has a legal definition that would mean CEDAW supports criminal abortion laws with the exception of those few for life, rape and incest. This is a replay of the entire ERA debacle only worse.

This U.S. anti-abortion interpretation of CEDAW is at odds with developing jurisprudence globally. The UN treaty monitoring bodies have repeatedly held countries responsible under both CEDAW and the ICCPR for the harms ensuing to women from restrictive abortion laws.

On May 10, 2006 the Constitutional Court in Colombia struck down Colombia’s criminal abortion law on the ground it violated women’s rights under a “bundle” of laws, with CEDAW at the centerpiece. The Court’s language is noteworthy:

“Sexual and reproductive rights also emerge from the recognition that equality in general, gender equality in particular, and the emancipation of women and girls are essential to society. Protecting sexual and reproductive rights is a direct path to promoting the dignity of all human beings and a step forward in humanity’s advancement towards social justice.”

Proponents of CEDAW in the U.S. vigorously deny that CEDAW could ever be what I think it could be-our strongest legal tool for women to fight abortion restrictions and redefine equality. Already, Senator Barbara Boxer testified that CEDAW “has nothing to do with abortion”; Rep Carolyn Maloney testified to the Senate that “the CEDAW treaty has been identified as abortion- neutral by the State Department, Senator Helms lead the way in making this explicit…”. Over 180 groups have joined this chorus including the American Bar Association.

FEAR: CEDAW supports abortion through its promotion of access to "family planning." [from the ABA]

FACT: Actually, CEDAW does not address the matter of abortion and, according to the U.S. State Department, is "abortion neutral." Many countries in which abortion is illegal--such as Ireland, Burkina Faso and Rwanda--have ratified CEDAW.

PHONY WAR #3: “SAVE ROE!” WHAT ROE? The political bandwagon supporting politicians who pledge to “save Roe” is meaningless without more. The constitutional protections of Roe have been so chipped away over the past 30 years that in no way is the abortion choice a fundamental constitutional right in law or in fact. The “Roe v Wade” as it stands today is no right to fight for. The legal standard is not only weak but actually encourages discriminatory, humiliating laws, which reinforce stereotypes. Our Supreme Court jurisprudence on privacy in 2007 singles out women seeking abortions and permits the law to “burden” her but not “unduly.” This strategic legal standard–undue burden-is one that gives less judicial scrutiny to criminal laws imposed on women seeking abortions than it gives laws regulating trucking under the Commerce Clause. In fact, over 300 state criminal laws restricting various aspects of abortion that would have been

Human Rights Through The Rule Of Law 12 East 33rd Street Suite 1200 • New York, NY 10016 • P 212.725.6530 • F 212.725.6536 www.globaljusticecenter.net invalid under the 1973 Roe decision are now “constitutional” under our 2007 “Roe.” Yet, what politicians are out there pledging to restore full abortion decisional rights, equal funding and elimination of restrictions on teenagers?

The 4th phony war is not phony but incomplete. The global censorship of abortion speech orchestrated by the United States has fully saturated the U.N. and reaches over 170 countries. There are two restrictions, but only one has been subject to criticism, the gag rule. Under the gag rule, over 400 nonprofit groups worldwide will loose all U.S. health and democracy grants if they discuss abortion, even with their own funds. Women’s groups in Iran are freer to discuss abortion (and their law has been liberalized) than women in , where AID money to women’s groups preclude them from legal or public health discussions regarding abortion law. However pernicious this gag rule is, its repeal would not stop the problem. We must kill the virus that foments it, the Helms amendment. The 1973 Helms Amendment to the FAA prohibits US funding of any abortion services or speech except in cases of life or rape or incest. Although such funding is allowed in those cases, the U.S. has never permitted it. For example, right now we could help the women in Sudan who suffer rape and forced pregnancy as war crimes. Abortion for rape is legal in the Sudan, it is legal under Helms, but who is speaking up for this medical service to survivors? The Helms censorship has meant that all U.N. agencies now follow its strictures. For example, UNFPA alone imposes censorship on abortion speech in all its projects, ones funded by some 171 donor countries totaling over $350 million annually.

In conclusion, I urge you to join me on the next steps. We can all make our way to pursue the same ends in different ways, but we cannot achieve any goal unless it becomes part of our present day conversation. No one gains rights by calling them something else or watering them down.

Eleanor Roosevelt so wonderfully reminded us that the future belongs to those who believe in the beauty of their dreams. I would take that one step further. The future belongs to those who dare to dream, not follow, who dare to believe a dream can come true and, who accept that defeat is part of victory. To act on these beliefs is vision, it is leadership and it is life.

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