Deserving vs. Undeserving? Everyone "Deserves" Human Rights

@RHRealityCheck

Most of the issues highlighted during this year’s run-up to the US presidential election are framed in terms of separating the deserving from the undeserving. Abortion for rape victims, but not those who want to have sex. Immigration for the politically persecuted, but not those who move across borders because they need to find a job. Marriage benefits for those who have sex with the right people in the right way.

This debate misses the point in two key ways.

At the most basic level, the issues at hand are basic human rights and not dependent on who "deserves" what: we have a right to access to abortion, health care, work, and freedom and movement because we are humans, not because we deserve it.

But also as a political process, it is ineffectual to focus policy debates on whether or not specific people deserve the services and public goods they clearly need.

I was reminded of this the other day as I was boarding a plane and the flight attendant asked me about the meaning of my t-shirt which read: “Immigration is the sincerest form of flattery.”

"But does that mean you are for it or against it, though,” he asked. I was stumped for words.

Immigration is a reality, just like so many other issues people insist on declaring themselves “for” or “against.” Abortion, adolescent pregnancy, sex outside marriage, sex work, identifying as lesbian, gay, bisexual, transgender, or intersex… the list could go on.

None of these issues is fringe. One in three women in the United States will have an abortion by the age of 45. Every year, 750,000 girls between the age of 15 and 19 get pregnant in the United States. Ninety-five percent of all Americans have sex before they get married (or have sex and may never get married). While it is difficult to estimate the number of sex workers, the National Task Force on Prostitution estimates that over one million people in the United States have worked as sex workers. And a 2011 study shows that almost 9 million adults identify as lesbian, gay, bisexual,transgender, or intersex, i.e. about 4 percent of the US population. As for immigration, very few people in the United States do not trace their ancestry—even their recent ancestry—to immigration.

But more to the point, none of these issues will change through declaring them good or bad. The focus for a policy maker should be how to generate policies that most effectively guarantee the maximum level of welfare and human rights-enjoyment for everyone. And from that perspective, whether someone is “deserving” or not is irrelevant.

Abortion and adolescent pregnancy numbers depend on access to comprehensive sex education and contraception. Choices about sex work and immigration to a large extent depend on available work and whether individuals are able to provide for themselves and their families in any other way. And those who believe they can change someone’s sexual orientation or gender identity just by saying they “don’t believe in homosexuality” are more delusional than most. Even those who make a career out of not believing in homosexuality can’t change their own (completely legitimate) sexual orientation.

There is, of course, an enormous difference between the issues high-lighted here: some are medical procedures, some life experiences, some innate traits. However that may be public policy on health, sexuality, immigration, and employment should not be designed to punish us for being who we are or for doing what we feel we need to do, but rather make sure everyone is equally empowered to make the best choices for themselves.

Coleman v. Court of Appeals of Maryland: A Warning to Women

@RHRealityCheck

Last week the U.S. Supreme Court held that states cannot be sued for denying workers sick leave. An employee of the Maryland state courts, Daniel Coleman, had sued for monetary damages after he was fired for requesting time off to take care of his health.

States generally cannot be sued for damages, but one exception is in cases that involve unconstitutional treatment, including discrimination. While the case decided on Tuesday therefore was framed in terms of state sovereignty, the Court’s very understanding of discrimination was at stake.

The majority opinion handing down last Tuesday should be a warning to women: the Supreme Court most definitely does not have our backs.

Here’s how.

US federal law protects the right to sick and family leave (unpaid leave either to take care of yourself or of a family member such as a spouse, an elderly parent or a newborn child) through the Family and Medical Leave Act (FMLA).

In 2003, in the context of family leave-related discrimination against a state employee of Nevada, William Hibbs, the Supreme Court detailed the congressional intention behind the FMLA as predominantly a desire to overcome gender-based discrimination. Indeed, the 2003 ruling was very clear: “The FMLA aims to protect the right to be free from gender-based discrimination in the workplace.”

At the time, the Court held that employees of the state of Nevada were entitled to seek monetary damages for infringements of the family leave part of the FMLA. The Court felt that absent such due process guarantee, government officials would somehow lose their constitutional right not to be discriminated against on the basis of sex. The final opinion was narrowly focused on the family leave provisions of the law because those were the provisions at stake in the case at hand, but prior to last week’s case, it seemed reasonable to apply the court’s conclusions in the 2003 case to the FMLA as a whole.

Last week’s ruling limits that precedent by concluding that the U.S. Congress didn’t have gender-based discrimination in mind when it enacted the sick leave protections of the FMLA.

The court’s analysis is based on technical considerations of what evidence Congress had before it when it enacted the FMLA—“Congress made no findings, and received no specific testimony” that women might face discrimination for taking more sick leave than men.

But the result is a decision that essentially says that sick leave—taking care of oneself—is fundamentally different from family leave—taking care of someone else—in that it does not depend on gender differences or stereotypes. This is an erroneous conclusion.

Had the Court argued that men and women take equal amounts of long-term sick leave—which is true—the majority opinion in last week’s Coleman case would at least only have been a selective reading of the facts, not a retrograde interpretation of discrimination laws. However, the Court argued that even though the denial of sick leave might have a disproportionate impact on women, denying anyone the protection of such leave still does not constitute discrimination. Such a conclusion flies in the face of international human rights law and even US legal definitions of disparate impact as discrimination.

It is ironic that this sentence was handed down the same week new research on health insurance was published, showing that women still pay more than men for the same health plan. Private insurers justify the price differential by reference to the fact that, all other things being equal, women need more medical care than men, notably due to our ability to bear children and recommended routine health visits related to our reproductive organs.

Of course, PAP smears and prenatal check-ups do not automatically translate into time off or sick leave, though as most of us know, they generally do. The Court majority opinion glosses over this fact by noting that most states have other protections that allow women time off to take care of their health. Again the Court majority inexplicably insists that the denial of a right that disproportionately affects women qua women is not discrimination, all the while reaffirming the fact that the differential impact is real.

None of the three female justices of the Supreme Court held with the majority. Justices Ginsberg, Kagan, and Sotomayor were joined by Justice Breyer to resoundingly disagree with the majority opinion in Tuesday’s ruling in the Coleman case. These four Justices rightly noted that “[i]t would make scant sense to provide job-protected leave for a woman to care for a newborn, but not for her recovery from delivery, a miscarriage, or the birth of a stillborn baby."

Indeed, it makes no sense as a matter of effective policy or legitimate legal analysis.

It does, however, make the same warped sense as the many recent state initiatives to simultaneously curb access to contraception, abortion, and child benefits. The message last week’s majority opinion for the Supreme Court seems to send is that women matter only as incubators and care-givers and not as equal citizens in a modern democracy.

Women CAN Earn More Than Men - But Only In One Industry. Porn.

@RHRealityCheck

This month, one of Belgium’s women’s rights organizations, zij-kant, caused quite a stir with their annual “Equal Pay Day” message. Instead of merely high-lighting that women in Belgium, on average, earn 22 percent less than men, the organization launched a video starring porn actress Sasha Grey with the message “Porn is about the only way women can earn more than men; find a better alternative.”

The campaign has not surprisingly garnered quite a lot of interest, ranging from outrage that Sasha Grey is supposedly presenting herself as a victim, to amusement with the video’s explicit content, to applause. I find myself in the third camp, for three main reasons.

First of all, it is getting more and more difficult to garner outrage over the continued fact that women almost uniformly and in every single country in the world earn less than men for similar work. In June 2011, the US Supreme Court narrowly decided that it would not even hear a case regarding pay and promotion discrimination against women, because “women” are not a class. The plaintiffs had argued that, while there surely are many differences between women, when it comes to pay and promotion we share one key characteristic: we tend to be under-valued at work. The Belgium video short-circuits the glassy-eyedness that often follows a comment about entrenched gender pay gaps. If only because the protagonism of a porn actress titillates, at least the ad has people listening, including potentially a few who would otherwise have resisted sitting through a minute and a half of “feminist propaganda.”

Secondly, the core message—that porn is one of the very few professions where women consistently earn more than men (sex work being another)—is more likely to jolt people into action than a more generic “isn’t it awful” comment about continued pay inequity. Porn and sex work, generally, are still relatively stigmatized professions in many countries. Moreover, even for those who understand that sex work, including as a porn actress, can be a choice, the point is precisely that no one should be forced to carry it out. Therefore, the notion that women would have to have sex for money in order to overcome pay discrimination is a stark reminder that something has to be done.

Thirdly, the ad impressively strikes a balance between presenting Sasha Grey as an empowered woman who is choosing to work as a porn actress, and using the stigma of pornography and sex work to get a crucial message across. This is all the more remarkable because subtle messaging around pornography and sex work is so rare. A recent article in The Atlantic highlights how politicians’ reluctance to even talk about sex work keeps policies in place that seriously hamper the effectiveness of HIV prevention initiatives. While New York City distributes free condoms by the millions, for example, city police have destroyed or confiscated thousands of condoms found on suspected sex workers, and use condom possession to justify arrests.

The Sasha Grey ad is bound to make some people uncomfortable, even very uncomfortable, because of its explicit language and peripheral nudity. But what really should make us uncomfortable is the continued undervaluing of women in the formal workplace. I am thrilled that Sasha Grey has thrown her fame behind this message.

Fatal Consequences: Women, Abortion, and Power in Latin America

Lucila was twenty-two when I spoke with her in 2004 in the mud-floored office of a women’s group on the outskirts of Buenos Aires, while conducting research for a report on reproductive rights in Argentina. During her first pregnancy two years earlier, the doctors at the local public hospital had diagnosed her with a rare heart condition, which converted her otherwise healthy pregnancy into a potentially lethal situation. Lucila was told, in no uncertain terms, that another pregnancy could kill her.

Nevertheless, when Lucila begged these same doctors to sterilize her, they refused the operation, telling her that she was “too young” to stop procreating. Lucila suffered regular beatings and rape at the hands of her husband and was unable to prevent another pregnancy—when I talked to her, she was already showing. And though she qualified for a legal abortion, even under the very strict Argentina law, she was barred from having one due to lack of proper regulation and the extreme stigma attached to abortion.

I later learned Lucila had managed to terminate her life-threatening pregnancy illegally. I did not hear under what conditions, though chances are they were not good. The Argentine health ministry admits that illegal abortions account for approximately one-third of maternal deaths in the country.

(This post is chapter from a newly published book, The Unfinished Revolution: Voices from the Global Fight for Women's Rights)

While Lucila’s situation probably is extreme, it is by no means exceptional. Latin America is home to some of the world’s most restrictive abortion laws. Three countries criminalize abortion in all circumstances, even when the pregnant woman’s life can only be saved through terminating her pregnancy: Chile, El Salvador, and Nicaragua.

Across Latin America, most countries apply an “exceptions” model where abortion generally is outlawed but penalties are waived in specific circumstances, such as if the pregnancy threatens the life or health of the woman, if the pregnancy is the result of rape or incest, or if the fetus is so seriously damaged it is unlikely to survive birth. Only in Mexico City and Cuba is abortion freely available to all women and girls who need the intervention, as long as they seek an early termination.

The restrictions placed on access to legal abortion have not made the practice scarce. In Argentina, an estimated 40 percent of all pregnancies terminate in induced abortions. In Peru, that proportion is 37 percent, and in Chile 35 percent. Most other countries in the region, including Mexico but also the United States, maintain a 20 percent ratio—one induced abortion for every 4 live births.

In fact, if you look at criminal law as only one of many potential policy instruments to affect the social phenomenon that is abortion, it would appear to be a very ineffectual choice: where abortion is illegal, it is equally—if not more—prevalent than in jurisdictions where it is legal. Also where abortion is illegal, it is much more likely to be unsafe. “You get overwhelmed by desperation,” a thirty-five-year-old mother of ten children told me in Argentina. “You seek all the ways out, pills, anything. But if there is no way out, then you take a knife or a knitting needle.”

Despite these facts, there are harsh criminal consequences for abortion in most Latin American countries. When it comes up in political or legislative debate, the criminalization of abortion is justified with reference to a need to protect the right to life of the unborn, and to a reluctance to “promote” abortion, which is considered a moral evil. In Peru, a prominent member of congress reportedly said it is better for a pregnant woman to die—and for her unborn child to die with her—than for her to have an abortion. This same argument was aired in Nicaragua when the parliament in 2007 decided to criminalize so-called therapeutic abortion (to save a woman’s life and health), which had been legal since 1893.

Complex Notions of “Right” and “Wrong”

It is of course true that any government has a vested interest in promoting a civic sense of right and wrong. As human rights activists we routinely expect governments to promote laws that dictate certain morals, such as equality between men and women, the inappropriateness of corporal punishment, and the need to abolish the death penalty. The difference between these issues and abortion is not that abortion is too complicated. There is actually quite broad agreement in most Latin American countries that while abortion is “wrong,” so are blanket bans of the practice.

The difference is that laws that promote equality and ban violence are generally effective in doing just that. Constitutional protections of equality, for example, have led to guarantees of equal pay for equal work. And the effective prosecution of domestic violence and even jaywalking has been proven to deter those practices, at least in part.

By contrast, the morals expressed through the stigmatization and criminalization of abortion are routinely set aside by women and girls who feel they need to terminate their pregnancies. In fact, of the hundreds of women I have interviewed over the years about pregnancy and choice, many have only a rudimentary or confused understanding of the law, but they have a clear sense of what is right. I have spoken to many women from various countries in Latin America who have expressed beliefs about the moral acceptability of abortion in specific circumstances, depending on the financial, marital, or emotional situation of the pregnant woman, and her ability to love the child if he or she were ever born.

“I don’t think [abortion] is really all that criminal during the first month,” Marienela, a thirty-seven-year-old mother of six, confided in me, as we were huddling in the corner of a dark old stable that functioned as a social hall in a slum quarter outside of Santa Fe, Argentina. “But if you already are seven months pregnant, then you have to have it.”

“Sometimes abortion is the best option,” a staunch pro-life activist said to me in 2006. The same woman declared not to believe in the need for modern contraception, but readily conceded the untenable nature of the current setup in her neighborhood, a muddy slum on the outskirts of Tucumán, Argentina: “The most usual form of contraception here is nothing: people either have children or badly done abortion...It’s still something I am thinking through, but I know we have to work on making sure that no one needs to get to that point.” She then looked at me and said quietly, “You cannot even imagine what women end up putting in their uterus.”

The sentiment that abortion is not a moral evil if you didn’t want to be pregnant in the first place is both prevalent and pragmatic in the many women I have spoken to, and also surprisingly clear. “Abortion is necessary,” said one woman in Nicaragua in 2007. “You can’t just bring an undesired child into this world, especially when you didn’t try to have one.” In fact, women and girls already know what they need in order not to need abortions. The vectors that influence real choice are neither fetal rights nor physical autonomy in the abstract. It’s a very concrete sense of what is possible and what makes for a better life—mostly for the child.

Time and time again, women articulate concern about economic stability and the need to feed an existing family. They talk about apprehension with regard to bringing a child into an abusive relationship, often only commenting in passing on their own suffering and pain. They talk at length about difficulties in accessing affordable, easy-to-use, safe, and effective contraception of their choice.

And they always describe variations on a theme that sounds ideologically motivated but happens to be empirically true: that while women in Latin America are socially dependent on men, men are not held responsible for the reproductive disasters that ensue from the unprotected sex they often pressure women into having. “She got herself pregnant” is invariably the response I get from public officials to questions about why a particular woman should suffer through an unwanted pregnancy or unsafe birth. At times it is delivered with a dismissive shrug: “She is responsible for herself.”

Why Legalize Abortion?

These very real experiences should make for excellent public policy: tackling the three issues of violence against women, access to contraception, and gender-based discrimination is what will make abortion less needed. The legalization of abortion will make the practice safe. Most of these facts are undisputed. The real question is why none are adequately addressed in Latin America today.

The short answer is power. Everywhere in the region, proposals to legally limit access to abortion, and even absurd moves to extend the right to child support for all ova fertilized through rape, are used as political chips.

In Nicaragua, a 2006 vote to eliminate access to abortion for women whose lives were threatened by their pregnancy was scheduled a mere ten days before the presidential elections, and most accounts suggest that this was no accident. The fact is that in all of Latin America, churches are powerful players in national politics—in particular the Catholic church—and few candidates want to be seen as “pro-abortion” and thereby lose the support of the church and other politically influential conservative groups. In this particular election, parliamentarians from the Sandinista party were reportedly ordered to vote for the penal code reform so that their candidate, Daniel Ortega, would win, but with an oral promise from the Sandinista party leadership that the issue would be “solved” after the elections. Meanwhile, Ortega went on record saying that “abortion is murder.” More than five years after the blanket ban on abortion went into effect in Nicaragua, it is still in force with disastrous effects on women’s health and lives.

In Mexico, after the Supreme Court in August 2008 upheld a Mexico City law to legalize abortion in the first trimester, several federal states in the country moved to amend their state constitutions to ban it.

Most of these constitutional changes have little effect on women’s real access to legal abortion in those states: it was nearly impossible before and obviously not much better after. However, the fact that state legislatures were willing to spend time and energy on laws that are likely to have little effect on their stated objective is testament to how politically viable anti-choice arguments are, and how little power can be gained by raising the fact that women and girls continue to have abortions—some safe and most unsafe—regardless the legislative framework. And during the presidential campaign in Brazil in 2010, the ruling left-wing party dropped the support of sexual and reproductive rights from its draft human rights plan, perhaps in the hopes that this would ensure the support of the Catholic church which had started publicly referring to then-President Lula as “Herod,” an allusion to the king who, according to biblical accounts, ordered baby boys to be killed. During the Pope’s 2007 visit to Brazil, Lula had already publicly pledged that his government would never propose the legalization of abortion, but this further step was thought necessary to appease the church.

The point is not that morality-based arguments for the criminalization of abortion are always a cheap veneer on actions that are motivated by political gain. In fact, my interaction with activists on both sides of the apparent abortion divide suggests to me that most people who profess to be either staunchly pro-life or staunchly pro-choice in fact are deeply attached to their beliefs and the morality on which they base them. With civility and mutual respect, these beliefs should be aired in public debate.

The point is that the morality of public policy depends on both its intention and its effect. The effect of abortion bans—in particular in the Latin American context of gender inequality and limited access to contraception—is death and suffering for the women who need abortions, with no discernable effect on lowering the number of abortions. As such, abortion bans are both ineffective and immoral.

Unfortunately, the bans continue. Six years after I talked with Lucila, I interviewed another woman in the same impossible situation. Silvia, who suffers from a serious kidney disease that could make another pregnancy near fatal for her, told me she received no help or even sympathy from the doctors who would tell her almost in the same breath, on the one hand, that she couldn’t be pregnant and, on the other, that she had to carry the pregnancy to term: “I said, ‘But you told me that I shouldn’t have it! . . . I am close to needing dialysis as it is.’ . . . I said, ‘Are you going to guarantee that nothing will happen to my health?’ . . . She said, ‘I can’t guarantee that.’”

Winds of Change

Despite this grim state of affairs, there are indications that things are slowly starting to change for the better. In April 2007, abortion was decriminalized in Mexico City, and this law was later upheld as constitutional by Mexico’s Supreme Court. In 2008, Uruguay’s congress approved a law to legalize abortion in the first trimester of the pregnancy. At the time, the law was immediately vetoed by the president, but a similar proposal is currently under consideration with much better prospects. In November 2010, the Argentine Congress also started a series of hearings on the legalization of abortion.

All of these developments are fueled by a growing empathy for the plight of poorer women, in particular. Most people know someone who has had an abortion, and it is increasingly an open secret that the criminalization of abortion mostly affects women who can’t afford to go to the United States or to a private clinic for an illegal but safe intervention. The general rhetoric of the Latin America media on abortion has changed radically, even just over the past five years: questions and comments are now more about why women need abortions, not how to punish them for it.

Indeed, surveys confirm that most people in the region have a much more nuanced understanding of abortion than their elected officers: it must be legal, accessible, and rare. It is only a matter of time before policymakers catch on.



Sensationalizing Drug Use in Pregnant Women: How the Media Perpetuates Racist and Ineffective Policies

@RHRealitycheck

Well before anyone could be certain of how Whitney Houston died, several news outlets rushed to describe her as a “crack cocaine user.” And in all likelihood many will think of the popular singer as succumbing to illegal drugs, even if alcohol eventually is found to be more closely related to her demise.

This is not all that different from how the media deals with infant and child health.

Regardless of the actual causes behind low birth weight, infant mortality, and early childhood health issues, media reports are sure to blame the “crack baby syndrome” or, more recently, women’s abuse of prescription pain killers.

This kneejerk reaction is unhelpful for a number of reasons.

First of all, a pregnant woman’s use of illicit drugs is neither the only nor the most damaging pregnancy phenomenon from the point of view of infant health.

Take, for example, legal drugs, such as alcohol and cigarettes. Peer reviewed research shows that over-consumption of alcohol can cause fetal alcohol syndrome (linked with permanent mental retardation), whereas cocaine seems to act only as one contributing factor in some pregnancies to increase non-permanent risk factors such as low birth weight. Approximately twice as many pregnant women drink alcohol frequently as use illicit drugs frequently during their pregnancies.

Epidemiological research published in the mid 1990s shows that the use of tobacco products in the United States at the time was responsible, each year, for tens of thousands of tobacco-induced miscarriages, infants born with low birth weight, infants who require admission to neonatal intensive care units, as well as an estimated 1900 to 4800 infant deaths. Though smoking has gone down over the past decades, around 17 percent of adult women in the United States still smoke, and generally continue to smoke during their pregnancies.

Even drugs administered to women who are in fertility treatment have been associated with low birth weight and premature birth.

Or let’s set aside drugs altogether. Malnutrition in pregnant women is one of the main causes of low birth weight and infant mortality worldwide. In this sense, it is worth noting that food insecurity and hunger has grown steadily in the United States since the start of the latest financial crisis in 2008. (Food insecurity exists whenever the availability of nutritionally-adequate and safe foods or the ability to acquire foods is limited or uncertain). According to the latest figures, about 17.2 million households in the United States suffered food insecurity in 2010, the highest number ever registered. Yet the government’s food stamp program is increasingly under attack by pundits and politicians.

Secondly, even a superficial read of arrest and prosecution figures for drug use during pregnancy reveal such a severe race and class bias that the very legitimacy of the approach must be questioned.

Since 1985, 80 percent of the more than 200 pregnant women or new mothers in over 20 states who have been arrested and charged with crimes related to substance use during pregnancy were black or Latina. In 2000, research in Pinellas County in Florida found that while white women and women of color used illegal drugs at comparable rates, black women were 10 times more likely than white women to be reported for child abuse related to substance use during pregnancy. That same year, data from the National Institute on Drug Abuse showed that while black women had a higher overall rate of illicit drug use than white women, most women who use illegal drugs during pregnancy were white. Even so, 41 of the 42 women arrested in South Carolina under a mandatory drug testing program were black. (The program was suspended in the mid-1990s because of allegations of racial discrimination).

Meanwhile, research published in 2006 shows that newborns with white mothers are much more at risk of alcohol and tobacco exposure than newborns with black or Latina mothers.

Moreover, in many cases women with private health insurance are not mandatorily tested for illicit drug use during pregnancy. In this sense, poverty itself is what singles a pregnant woman out for persecution. It is no coincidence that the main focus for drug prosecutions for pregnant women in the United States is crack cocaine, a drug almost exclusively used by the resource-poor. As Whitney Houston herself famously said in an interview in 2002: “I make too much money to ever smoke crack.”

The point here is not that pregnant women should use cocaine, or that the government—and society as a whole—does not have a legitimate interest in ensuring infant and child health.

The point is that the prosecution of drug use in pregnant women does nothing to fulfill a legitimate policy goal and in fact seems to be racially motivated—at least in the implementation—rather than spurred by a concern for children.

In fact, if the objective is to improve infant and child health, efforts to overcome poor nutrition, alcohol addiction, lack of adequate health care, physical abuse, and/or homelessness would make for much better investments. Sadly, such policies don’t make for as sensational news.