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Silver Anniversary of Service

by Michelle M. Maier

Summer 1999, Vol. 62, No. 2

Practical Guidance and Accessible Information

One out of every three residents in Philadelphia currently lives at or below the federal poverty line. With government-funded legal services at their lowest level since the creation of legal services agencies, poor and low-income individuals often have nowhere to turn with civil legal problems.

In an effort to provide practical information to help individuals maneuver their way through the maze of the legal system, the Women's Law Project operates a telephone counseling and consumer education service. This service, which responds to more than 7,000 inquiries per year, is unique in the Philadelphia area. It provides free, in-depth information on legal procedures and laws relating to family law and discrimination in employment, housing and credit. Its family law component provides information about child support, custody, separation and divorce, domestic violence and the legal rights of lesbian and gay parents.

The WLP has also written and published Family Violence and the Child Custody Process: A Legal Guide for Protecting Children. Written for parents and care givers, this book explains and clarifies domestic violence law as it intersects with the child custody process. For many women, issues around child custody are the key to leaving an abusive household, but the vast majority of those in need cannot afford a lawyer. As a result, more than seventy percent of families using Philadelphia Family Court are unrepresented.

This handbook includes extensive information on Pennsylvania state laws concerning family violence and child custody, as well as Philadelphia Family Court procedures and forms, and serves as a resource guide to social services in Philadelphia. It has been distributed throughout the city to individuals and social service organizations to help parents and care givers navigate through the complex legal system.

WLP's Role in the Welfare Debate

The Women's Law Project threw itself into the welfare debate in 1995, when the Pennsylvania legislature came close to enacting a "family cap" limiting welfare benefits for women who have children when they are poor. Susan Frietsche, a staff attorney for the Women?s Law Project, mobilized a broad coalition of pro-choice and welfare rights organizations to keep this provision out of Pennsylvania's welfare laws.

< The WLP teamed up with Dechert Price & Rhoads, Community Legal Services and Professor Seth Kreimer of the University of Pennsylvania and brought two class actions to challenge other welfare provisions harming women and children. Success Against All Odds v. Department of Public Welfare was a state court challenge to the welfare department's decision to eliminate the child support pass-through, the $50 per family per month child support payment that low-income families are permitted to keep. The welfare department retains the remainder of child support paid for children on welfare to reimburse itself for the cost of the welfare grant.

The WLP won a preliminary injunction in Commonwealth Court, saving millions of dollars in child support for 36,000 poor families each year. While the litigation was pending, the Pennsylvania legislature took up a bill that contained a hidden provision that would have ended the pass-through and mooted out the lawsuit. Acting quickly, the WLP and its allies descended upon Harrisburg, pointing out the harm that poor children would suffer from losing an average of fourteen percent of their total monthly income, a result never intended by the sponsors of the bill. The Pennsylvania legislature amended the bill specifically to direct the welfare department to continue to pay the child support pass-through--a victory won both through the courts and through the legislature.

Like fourteen other states, Pennsylvania adopted a one-year welfare residency requirement providing that for the first year of residence in Pennsylvania, new state residents could not receive any additional welfare benefits than the amount they would have received in the state where they previously lived. The WLP and its co-counsel filed a class action in federal court, Maldonado v. Houstoun, claiming that the residency requirement violated new residents' constitutional right to travel. After winning a preliminary injunction and successfully defending that injunction in the Court of Appeals for the Third Circuit, the WLP filed an amicus curiae brief in Saenz v. Roe, a case arising out of California involving the same legal issues. The amicus brief, submitted on behalf of sixty-six organizations across the country serving domestic violence survivors, stressed the severe harm that welfare residency requirements inflict on battered women who have fled great distances to escape life-threatening violence. To deprive these survivors of full cash benefits for their first year in their new state would condemn them and their children to a life of poverty or drive them back to their abusers.

On May 17, 1999, the Supreme Court of the United States issued an unexpectedly sweeping 7-2 decision striking down California?s one-year welfare residency requirement, and several days later, the high court denied certiorari in the Pennsylvania case. The majority opinion, written by Justice Stevens and joined by Justices O'Connor, Scalia, Kennedy, Souter, Ginsburg and Breyer, held that the Fourteenth Amendment's privileges and immunities clause guarantees the right of newly arrived citizens to the same privileges and immunities enjoyed by other citizens of their new state: "Citizens of the United States, whether rich or poor, have the right to choose to be citizens of the State wherein they reside." U.S. Const., Amdt. 14, ยง1. The States, however, do not have any right to select their citizens." The court determined that laws disadvantaging new residents must therefore be subjected to strict scrutiny and the most searching constitutional review, and that the one-year residency requirement did not survive this test.
It has been seventy-eight years since women were legally guaranteed the right to voice their political opinion in elections, and twenty-five years have passed since women were legally granted options in their reproductive lives. Today, no one could deny that women have made tremendous strides in the past century toward equality, shattering the barriers and stereotypes that restrained them for so long and gaining freedoms and rights that were only imagined a century ago.

However, against this backdrop of progress, it seems an infringement on everything that has been legally granted to women to know that in the last decade of the twentieth century, insurance companies are denying claims and coverage to victims of domestic abuse. It also appears our government officials have taken a step backward by imprisoning pregnant women for child abuse if they are struggling with addictions to drugs and alcohol. Additionally, it seems almost incomprehensible that women and girls are still fighting for equal rights in the arena of athletics.

Amidst these controversies and at the forefront of the continuing struggle to preserve and expand the rights of women across the country stands the Women's Law Project (WLP) in Philadelphia. In 1999, WLP celebrates its silver anniversary, and while there are many victories to fete, there is much yet still to be done. Spanning the areas of reproductive rights, domestic violence, welfare restrictions, insurance coverage, contraceptive equity, athletics and legal rights for lesbians and gay parents, the staff members of the Women's Law Project have their hands full.

"For many years, we were consumed with issues of reproductive rights, as generation after generation of restrictive laws were enacted in Pennsylvania. We even litigated two cases up to the Supreme Court of the United States," says Carol Tracy, executive director of the WLP. "In recent years, however, Pennsylvania legislators have been keeping us busy with other issues such as welfare."

Currently, the WLP is actively working in the area of domestic violence. Nationwide, there is a disturbing trend among insurance providers to deny or limit coverage to victims of domestic violence and the entities that provide services and shelters for these victims. Insurance companies use domestic abuse as an underwriting criterion after they learn of the abuse through the applicant's medical records, which are obtained by the insurer through a signed release by the applicant. The WLP became involved in this issue in 1994, when a Pennsylvania woman was denied life, health and mortgage disability insurance, and has since led a national advocacy effort to change the policies of insurance companies.

Examples of the bias exhibited by insurance companies abound. In one instance, a woman sought the services of Women House, a shelter in St. Cloud, Minnesota, because the abuse during her twelve-year marriage had escalated. She was hospitalized for a broken jaw and spent two weeks in the mental health unit in a hospital. Subsequently, she was denied health insurance by two companies, including one that stated it would not cover any medical or psychiatric problems that could be related to the past abuse.

As another example, in September 1995, Farmer's Insurance Companies denied a property claim to a Washington state woman whose former boyfriend broke into her home and stole more than $5,000 in personal property. The woman previously had been subject to two years of abuse, including physical assault, stalking and property damage. During the claim investigation, the insurer disclosed to the abuser that he was suspected of stealing property. He retaliated by breaking into the woman's home and beating her, shoving her head-first into the fireplace, rendering her unconscious, and threatening her life if she pressed charges. The woman fled the state with her children.

Until recently, there were no laws making such discrimination illegal, according to Tracy. Insurance companies cited a variety of reasons to use domestic violence as an underwriting criterion. Some felt that a victim of domestic abuse had made a voluntary lifestyle choice, similar to skydiving or riding a motorcycle, and likened battering to a career choice, such as washing skyscraper windows, for which an insurer should not be responsible. Other companies had argued that domestic abuse was a risk factor that needed to be considered by insurers and that by limiting their ability to take domestic violence into account, they had impaired their ability to offer affordable insurance. Further, life insurers had argued that insuring the life of a victim gave the batterer an incentive to kill and to collect on the policy and, if the insured was killed, the insurance company could be sued for issuing a policy with a knowledge of a history of domestic violence.

Terry Fromson, managing attorney at the Women's Law Project, served as a consumer representative to the National Association of Insurance Commissioners. Fromson has helped develop model laws and provided technical assistance in states where laws have been drafted prohibiting such bias against victims of domestic violence in life, health, disability and property and casualty insurance. To date, thirty-one states have adopted legislation, and more laws are slated to be introduced in other states in the coming years. Federal legislation is pending. These new laws generally prohibit insurance companies from refusing to insure someone or charging them a higher premium because that person is, had been, or might become a victim of domestic violence. Some contain provisions prohibiting insurers from writing policies that exclude coverage for injuries resulting from domestic violence, requiring that abuse-related information be kept confidential and that insurers develop protocol for employees, agents and contractors to make sure their interactions with victims do not endanger the safety of the victim or result in disclosure of confidential information. They also include definitions of necessary terms, enforcement mechanisms and remedies to assure that a person complaining of insurance discrimination can obtain appropriate relief.

The Women's Law Project is also helping to break barriers in athletics. In 1996, the WLP filed a complaint against the Pennsylvania Interscholastic Athletic Association (PIAA) and a league of schools in Delaware County, charging them with gender discrimination in the way officials are assigned to referee interscholastic basketball games in Pennsylvania. Male officials are routinely assigned to both girls' and boys' games, while female officials are assigned only to girls' games. Rooted in stereotypical attitudes, this practice limits opportunities for women from the regular season games up through the playoffs. After entering into a settlement with the Del Val Athletic Association that required its eight member schools to assign officials without regard to gender, the WLP went to trial against the PIAA. In December 1998, a jury returned a verdict for the plaintiff, Noreen Kemether, finding the PIAA liable for gender discrimination in the assignment of officials.

Another area the WLP has ventured into is one that, according to Tracy, could be considered the last bastion of white male supremacy: the country club. "Prime golf times, such as Saturday and Sunday mornings, are given to men. The assumption is that women don't work and can golf during the week," Tracy explains. Most often, the women who are excluded from full membership are the wives of the members of the country club. "If this behavior is permitted in the atmosphere of a country club, it's hard to believe these individuals are fully committed to integration in the workplace," comments Tracy. Abbe Fletman, a partner at Wolf, Block, Schorr and Solis-Cohen, is handling the issue for the Women's Law Project. "We're grateful to have such a tenacious litigator handling this," Tracy says.

Fletman is one of many attorneys in the private sector who work with the Women's Law Project. "Thanks to the major law firms, who co-counsel on cases with us, we are able to do much with a small staff," says Tracy. She adds that while the WLP actively participates and directs cases, such as the one Fletman is handling, the Project would not be as productive without the assistance of outside co-counsel from private firms. The Women's Law Project works with Dechert Price & Rhoads, Drinker Biddle & Reath, Wolf, Block, Schorr and Solis-Cohen LLP and Pepper Hamilton, LLP, along with other public interest organizations such as Community Legal Services. "The support of the partners at these law firms has been invaluable to us," Tracy says, "and it is wonderful to work with people who have such a strong social conscience about expanding the rights of women."

Perhaps one of the most disturbing trends Tracy has seen is the prosecution of pregnant women in the name of fetal rights. The most frequent targets of these prosecutions are low-income minority women with untreated drug addictions, but pregnant women have also faced prosecutions for drinking during their pregnancy, for failing to get to the hospital quickly enough during labor, for having sexual intercourse late in their pregnancy, and even for attempting suicide in despair over an unwanted pregnancy. Tracy says that recent cases coming from South Carolina, where that state's Supreme Court turned virtually all pregnant women into potential criminals through Whitner v. State of South Carolina, particularly concern her. A recent WLP newsletter states that not only does Whitner declare South Carolina's criminal child endangerment statute applicable to viable fetuses and therefore the conduct of all pregnant women, but it also turns all of the state's health care and social service providers into mandated child abuse reporters when they learn that a pregnant patient uses drugs or engages in any behavior that may endanger the fetus.
The WLP recently filed federal habeas petitions on behalf of two women with drug addiction problems who gave birth to healthy children, but were still convicted and incarcerated for endangering the welfare of their fetus. "There are lots of things that are potentially harmful to a fetus, spanning from antibiotics to a lack of vitamins," says Tracy. "Drugs and alcohol are in that spectrum, but putting women in jail is the most extreme and hostile action." Tracy believes the greatest threat to the reproductive freedom of women will emerge from cases like this. "The frontal attacks on abortion rights have not been as successful as opponents would like them to be. By prosecuting pregnant women, this is creating an adversarial relationship between fetuses and pregnant women and is a new and dangerous approach," she says.

Tracy finds it ironic that pregnant women in America are often refused treatment if they are on drugs while pregnant. "There is no logic to refusing them treatment, and my suspicion is that it is pure bias," she says. Tracy comments that there is a social construct that claims to support pregnancy and pregnant women, but in reality does not. "This is the ultimate hypocrisy of the anti-choice movement. Women are placed in jail because they choose to give birth instead of having abortions. This shows more clearly than anything how they do not want women to make choices about their bodies," she says.

Tracy, who has been with the WLP for the past eight years, says new challenges arise to women's rights constantly. "Eight years ago, I never anticipated restrictions on welfare or the punitive attitudes towards low-income women and their children. We shouldn't have to be fighting for women and girls to have equal access to athletics. We should be past that by now," she says.

Even with a solid record of twenty-five years of fighting for the rights of women behind them, the WLP looks to a future where they will no longer be needed. "I hope that twenty-five years from now we're still in existence, but that we're getting ready to close our doors because we're not needed anymore since women and girls have achieved equality by then."