The Problematic Framing of Abortion as an Issue of Privacy

@RHRealityCheck

Over the past months, candidates for the Republican nomination for president have fallen over each other to declare their opposition to abortion rights. Research indicates that they needn't bother: states are quite capable of restricting women's access to abortion without help from the federal government. In fact, 2011 was a record year for the passage of state provisions to limit abortion access since 2003.

The success of state legislatures in restricting women’s right to choose is surprising given the fact that, when asked, slightly more Americans consider themselves “pro-choice” than those who say they are “pro-life.” But one key reason might be that the fight over abortion in the United States historically has been framed as an issue of privacy. And the right to privacy offers poor protection for what is also an issue of life, health, and—above all—discrimination.

In this sense, the opinions issued by the US Supreme Court in abortion-related cases can in some ways be seen as indicative of what is happening across the country. In the earlier cases the Court established a balance between women’s autonomy and the government’s legitimate interest in the protection of growing fetal life. This balance was successively undermined over time, culminating with the Court, in 2007, declaring it constitutional to criminalize a specific abortion procedure even for women for whom this procedure is the least likely to jeopardize their health.

To reach this conclusion, the Court explicitly placed moral concerns over a narrowly constructed right to privacy. Justice Ginsberg alone dissented, noting that the mandate of the Court was to protect the rights of all, not the morals of some. But, on the face of it, such weighting is not an entirely unreasonable conclusion. After all, universal morality would appear to be a broader and more applicable common good than guaranteeing the right of a handful of women to a specific medical procedure because of concern for their private lives.

Or not.

Because what is at stake is not just, as Justice Ginsberg also noted, some generalized notion of privacy but rather women’s ability to realize their full potential. Or, put differently, when a government unduly limits access to a medical procedure only women need, it not only infringes their privacy, it engages in blatant discrimination.

Discrimination, as it happens, is also a better rallying cry for activism. It is noteworthy that while states have imposed many abortion restrictions over these past years, the push for marriage equality (also a pet peeve of Republican candidates) is gaining momentum. True, a majority of states still have legal or constitutional provisions on the books defining marriage as between one man and one woman. But more and more states are passing laws to allow same-sex partners equitable partnership rights in circumvention of those provisions. Perhaps more to the point, the push for marriage as a matter of equality rather than a private concern for those living in same-sex couples has led to broad support for general reform. An April 2011 CNN national opinion poll found majority support for same-sex marriage.

What is striking in comparing these two issues is that abortion access is more directly relevant to a larger number of people in the United States than sex-same marriage is. More than half of American women will experience an unintended pregnancy and 30 percent will have had at least one abortion by age 45. In comparison, little under 4 percent of the American population identifies as gay, lesbian, bisexual or transgender, of whom presumably only a proportion will want to settle in a same-sex marriage.

The broad support for marriage equality is certainly a testament to the organizing power of the LGBTI movement. It is also a reflection of more motivating messaging: same-sex marriage is an issue of equality that affects us all—an early court decision in Vermont on same-sex partnership rightly referred to “our common humanity” as the central point.

By contrast, through keeping its main focus on privacy the movement for abortion access is hamstringed: it divorces profoundly private decisions from general support for parenting, women’s equality, and access to comprehensive health care. Partially because of this, many women and girls who need abortions feel they are alone in battling the restrictions that apply to their situation, be it mandatory waiting periods, the additional cost of medically unnecessary sonograms, or the ban of the abortion procedure that best serves their health.

Governments absolutely have an interest in and right to regulate the provision of and access to medical services, including abortion. But the regulation cannot be based on the personal morals of the legislator or on a poorly veiled intention to eliminate needed health care options for just some people—in this case women.

Or, as Justice Ginsberg noted: “Our obligation is to define the liberty of all, not to mandate our own moral code.” Privacy does not adequately express that sentiment. It also does not adequately express the fact that abortion is a medical intervention three out of ten women in the United States will have needed by the time they are 45. Imposing undue burdens on access is an affront to us all.

The Other Side of Reproductive Justice: How Sterilization and Other Forms of Coercion Are Used Against "Unworthy" Parents

@RHRealityCheck

Earlier this fall, a committee of the Parliamentary Assembly for the Council of Europe held a hearing entitled “Putting an end to coercive sterilizations and castrations.” This debate continues today, November 21, 2011. What is remarkable about this is not the outcome or the discussion, but rather that it was necessary at all. After all, most parliamentary debates about contraception and childbearing these days seem to be about how to make women have more children than they want, not less.

However, if we scratch the surface a bit, it becomes clear that two seemingly contradictory political discourses happily coexist. On the one hand, policy-makers push for limits to contraceptive access for women, generally speaking. And on the other, they enforce policies that criminalize, condemn, or render impossible the reproduction of specific subgroups of women (and men), who for various reasons are seen as undesirable parents: Roma women, lesbians and gay men, transgender people, indigenous women,injection drug users, women living with HIV—the list goes on.

In this connection, coercive sterilizations and castration are at the extreme end of a spectrum that also includes criminal sanctions for drug use during pregnancy and barring LBGT individuals from in-vitro fertilization services and adoption, as well as a host of other policies geared at making pregnancy and parenting difficult for those deemed unworthy. In fact, the more “unworthy” the individual or group is considered by the general public, the more explicitly coercive the measure to limit their possibility for parenting. So much so that by considering the lengths to which a government will go to prevent certain individuals from procreating, we can gauge the extent of the stigma they face.

For example, it would probably no longer be politically viable to implement quotas for the sterilization of indigenous women, as the Peruvian government did in the 1990s, yet Roma women and even just poor women are still routinely sterilized without their consent in several countries. Lesbian women are rarely forcefully sterilized, yet they are often excluded from becoming adoptive parents or from benefiting from in-vitro fertilization processes. Many countries require transgender individuals to be sterilized before they can legally change their names or papers to reflect their preferred gender, and intersex individuals are often assigned a sex—and in the process rendered infertile—as infants and certainly before they can give meaningful consent. The most restrictive and invasive intervention, forced castration, is reserved for convicted sex offenders who, in turn, arguably are seen as the most unworthy and reviled of all.

As a human rights issue, coerced sterilization and castration are in many ways no different from other limitations on individual reproductive choice: they violate a number of fundamental rights, including the rights to health, privacy, and physical integrity. Additionally, they make discrimination and public contempt visible and as such can help target policy interventions to alleviate abuse.

But a more interesting aspect of the practice of coerced sterilization is that it crystallizes the hypocrisy of the limitations to reproductive rights. When I did research on access to abortion in Mexico in 2005, for example, I found that rape victims routinely were denied services they, by law, were entitled to, whereas sex workers and women living with HIV who were applying to the same hospitals for the same services were offered abortions they did not need and that would technically have been illegal.

When Parliamentary Assembly for the Council of Europe continues its debate on forced sterilizations on Monday, it would do well to think through in what other ways it can support individual choices on when, if, and with whom to become a parent. Only just a year ago, the Assembly refused to recommend adequate regulation of conscientious objection in the medical profession, a move that probably already has contributed to the denial of care to many women across the continent.

These are not separate issues. The Roma woman who is forcefully sterilized suffers as much as the one who is denied an abortion or other needed care. Everyone must be allowed to make individual and responsible decisions about parenting and procreation.

Gay Marriage: The Issue Is Respect

@HuffingtonPost

Earlier this year, a student in a human rights seminar I was teaching declared her conviction that gay parents damage their children by virtue of being gay. I explained as gently as I could why this is a discriminatory notion, incompatible with human rights standards, and moved on. My student sat as if stunned for two minutes, then gathered her books and left the class.

She later confronted me outside the classroom, and I was astonished to see just how fervently she insisted that her opinion was both based on science and respectful of rights. Neither is true. As New York State joins the ranks of countries and other jurisdictions recognizing same-sex marriage, it's worth reflecting on rights and respect.

The fact is that thousands of human beings are subjected to violence across they globe simply because they are suspected of being gay. In Brazil alone, over 2,500 men were murdered between 1997 and 2007, ostensibly for being gay. In the United States, the It Gets Better Project has highlighted the sustained violence and bullying young people suffer just because they aren't straight. This month, the United Nations Human Rights Council for the first time condemned violence and other human rights violations based on a person's sexual orientation or identity.

Of course, those who oppose same-sex marriage in New York State and elsewhere are not saying they support violence against LGBTQ people. Nevertheless, the same basic proposition lies at the root of both: the notion that you are somehow a different -- lesser -- type of human being if you are not, or are not seen to be, straight, and that society is justified in rejecting you.

For too many people it is only a short leap from seeing homosexuality as offensive to justifying physical harm. In this way, for example, the ban on inter-racial marriage in this country coexisted with societal acceptance of violence against people of color. Many times, inter-racial couples suffered violence precisely because they dared to break the ban.

But perhaps the deepest-held notion is the one that was expressed so vehemently by my student: that all children brought up by LGBTQ persons are psychologically damaged. Fortunately, it is increasingly recognized that it is not exposure to diversity but rather to bigotry and prejudice that is damaging to kids. In 2008, the European Court on Human Rights held that France was not allowed to deny the adoption application of a women just because she was a lesbian. And in February, the High Court in the United Kingdom barred a couple from becoming foster parents because their anti-gay views were held to be potentially harmful to the children who would be in their care.

In fact, research shows that children with gay parents are just as likely to be well-adjusted as children with straight parents, and that the key to childhood adjustment is good relationships between parents and children and between the parents themselves.

Marriage, of course, does not guarantee good relationships. But where family leave and other benefits depend on marital status, children are disadvantaged if their parents are not allowed to marry. The vote in Albany this week is significant because it is another step toward guaranteeing children and adults the rights and respect they are entitled to.