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.

Race, Class and Justice in the U.S. Legal System: Still A Long Way From the Promised Land

@RHRealityCheck

I just want to do God's will. And he's allowed me to go to the mountain. And I've looked over, and I've seen the promised land! I may not get there with you, but I want you to know tonight that we as a people will get to the promised land.

I look to a day when people will not be judged by the color of their skin, but by the content of their character.

I refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become a reality... I believe that unarmed truth and unconditional love will have the final word.

- Martin Luther King, Jr.

This week, a Belgian tourist said he believed he had been cut some slack by the New York City police mainly because he was white. (The tourist had been detained for what turned out to be a fictitious crime but was released before this was fully settled). Indeed, even a perfunctory look at US criminal justice figures reveals that something is not quite right.

For starters, perceptions play a large role in who gets suspected of crime and arrested in the first place. A 2009 study using FBI figures found that while whites and blacks engage in drug-related offenses at similar rates, blacks were three to six times more likely to be arrested on drug-related charges between 1980 and 2007.

For women victims of violence, police perceptions are equally detrimental to justice efforts. Research shows that the proportion of fake rape complaints is similar to the proportion of other fake crime complaints: three to eight percent of total complaints filed. But police officers are much more likely to mistrust an alleged rape victim than they are to mistrust other victims, particularly if the woman is a sex worker, an injection drug user, or was intoxicated during or before the assault.

And it is not just the police that base their work on perceptions. Personal experience from any frequent traveller will confirm that racial profiling in airport security is real. When I travelled with my Peruvian (now ex) husband, we were often appalled at the difference in treatment. One time, as a customs officer was just about to look through my husband’s bags for the third time that trip, he realized I was there too. “Oh, he is with you,” the officer said, waiving my husband on as if his being accompanied by a white European woman were an ironclad guarantee that he (and I) were innocent of whatever they thought he might have done.

Another issue is who dispenses justice. Studies from the United States have confirmed that racial minorities are significantly underrepresented at all levels of the legal profession, including as prosecutors and judges. There is also evidence to suggest that prosecutors in some cases use their peremptory challenges to preserve all-white juries in cases involving African American or Hispanic defendants.

Of course, race should not matter in jury composition: whites, blacks, Hispanics, and anyone else are equally each other’s peers and suggesting otherwise might be seen as playing into the racist undertones of the US criminal justice experience. However, it is not unreasonable to suggest that a certain racial imbalance in sentencing and judgement is foreseeable given the tremendous racial imbalance of the justice system in the first place, especially since human beings are biologically programmed to trust those who look most like ourselves (and mistrust those who don’t).

But sentencing might be racially-biased for another reason too. Whereas police sometimes employ too much discretion in deciding what cases are investigated and pursued, judges and juries at times find their hands tied with regard to how to mete out punishment. Federal mandatory minimum sentencing laws related to powder or crack-cocaine offenses, for example, have been identified as a key culprit in soaring incarceration rates for African American men and women alike.

And it is indeed with regard to who goes to jail that the United States really stands out. The incarceration rate in the United States is not only four times larger than the global average. In addition, the prison population is highly skewed towards Hispanic and black men. Even in white-majority cities, black and Hispanic men are much more likely to be held accountable for crime than whites.

Perhaps none of this is new or surprising. What is interesting, though, is that the same Belgian tourist could have made analogous assumptions had he been arrested and detained in most countries in Western Europe. In fact, the prison population is rarely representative of the population as a whole. In the United Kingdom—the country with the highest incarceration rate in Western Europe—individuals who used to be in the armed forces are overrepresented in prisons. In France, non-governmental organizations suggest that at least half of those incarcerated near urban centers are Muslim, though only seven to eight percent of the French population adhere to that faith.

Of course black, Hispanic, and Muslim men who have served in the armed forces aren’t inherently more criminal than the rest of the population. I think the real question is whether the problem is discretion in dispensing justice—too much in some respects and too little in others. And I think it is time for change.

The Deeply Rooted Parallels Between Female Genital Mutilation and Breast Implantation

@RHRealityCheck

Last week, a UK government review of the French breast implants that have caused panic from Australia to Uruguay concluded that there is no evidence the implants should be removed. The Australian Medical Association thinks women should at least get their implants checked out. But neither the reviews nor the media coverage of the implant panic has dealt with the real question at stake: what makes women voluntarily cut open their bodies to permanently implant foreign objects to the potential detriment of their health?

The answer to this question is potentially uncomfortable. I have often asked the students in my health rights seminars to articulate the principles that make us distinguish between voluntary female genital mutilation in adult women and voluntary breast augmentation surgery. Apart from the fact that the former makes us queasy and the second doesn’t, there really is none.

To be sure, female genital mutilation (FGM) is often performed on girls who are unable to consent to—or, indeed, understand—the violence asserted on their bodies. And, because FGM is prevalent mostly in places where health infrastructure is weak or non-existent, the intervention is often unsanitary and ultimately can be deadly.

But even if FGM were carried out in the best of clinical conditions on a consenting adult woman, we call it a human rights violation. Why? Because it is an intervention which is carried out solely to satisfy stereotyped notions of what a women could or should be, and which has:

1. no discernible health benefits;
2. a negative impact on women’s sexual health; and
3. permanent effects on women’s health more generally.

FGM is often justified with direct reference to fixed gender roles, in particular in the sexual realm. Women “should be” sexually passive and “should not” experience sexual pleasure. Or women who have not undergone FGM are “unclean” and cannot properly serve their husbands. In countries where many see marriage as a woman’s only real possibility for financial security, the intervention is less of a choice, even when performed on adult women with their outward consent.

Breast augmentation surgery is carried out for similar reasons with similar risks and results. The intervention carries no discernible health benefits and potentially has a negative impact on women’s sexual health, as well as a number of other potential serious health effects. As the panic in December 2011 has shown, it is, in fact, not entirely clear how great the chances for complications are. Moreover, breast augmentation surgery is carried out solely to satisfy stereotyped notions of what women could or should be: sexually available and attractive to men. And as with FGM, for some women the intervention might be linked to financial benefits: well-endowed women win out in dating (and marriage), and waitresses with larger breasts generally get better tips than those less well-endowed.

I am not suggesting that we deem breast implants and other selective and exclusively cosmetically motivatednipping and tucking as  human rights violations. I am suggesting, however, that we question the underlying stereotypes that lead to unprecedented growth in cosmetic surgery procedures in the United States during the worst depression since the 1930s. If the only reason for an intervention is that others think that’s what we “should” look like, and if the intervention is both semi-permanent and potentially damaging to our health, maybe what we “should” do is reconsider.

Of course, social motives and stereotypes are incredibly hard to both identify and change. When I was in Iraqi Kurdistan a couple of years back as part of a research team looking into the practice of FGM, I was struck by the individual sense of responsibility felt by the mothers, aunts, and sisters who had subjected their relatives to the practice. They were aware of the social connotations, but felt personally responsible for the consequences of the intervention on the girls in their charge. One mother said to us after her interview: “You must think we are monsters.”

Not long after, I had to physically restrain my own daughter while her dentist extracted a rotten tooth. As I was holding down my scared child, both of us crying, I felt connected to that woman through the same absolute belief that what I was doing was for the best of my child, even if it hurt her.

And so I know that nothing is solved by directing guilt or shame at those who, in a specific social context, feel that FGM (or breast implants) is for the best of their child (or themselves) because it is the only way to be accepted by their group or society.

The government, however, can help to change such perceptions. In the case of FGM, much has been said about supporting criminal prosecutions with community action for change. In the case of breast augmentation surgery, the road might be less clear though it is discernible. Research has shown that where girls enjoy and like their bodies, they are more likely to postpone their sexual debut and less likely to be in abusive relationships. Presumably, when these self-aware girls grow into women they would also be less likely to want to alter their bodies, in particular in a way that would affect their sexual health.

So if a government wanted to avoid another silicone implant panic, mandating comprehensive sex education in all schools would be a good start. That, and ensuring that women don’t depend on tips, dates, and marriage for their financial wellbeing. We are not there yet.

Americans Demonstrate Changed Attitudes Towards Poverty Since the 2008 Economic Crisis

@RHRealityCheck

If you are poor, chances are it is your own fault. At least that’s what Americans thought in 2001. In a National Public Radio poll from that year, about half of those surveyed said the poor are not doing enough to pull themselves out of poverty.

Now, one would think that since the recent economic crisis predictably has led to increased poverty people would start blaming circumstances more than the poor. This has not been the case in the United Kingdom. A recently published survey shows that Brits over time have become more likely to blame poor people themselves for their financial trouble. From 1986 to 2009, the proportion of people who attribute poverty to laziness and lack of willpower has grown to a little under 30 percent, with the proportion blaming “injustice in our society” conversely falling.

People’s attitudes towards poverty to some extent determine sentiments about health care, welfare benefits, and other collective interventions. Not surprisingly, the UK study found that more and more Brits believe government benefits are too high.

In the United States, the picture is, perhaps surprisingly, a bit more nuanced. The 2001 NPR poll shows that attitudes about welfare at that time were determined by the income of the person asked. Those who made more than twice the poverty level were almost twice as likely as those closer to being poor to say that welfare recipients had easy lives and could do very well without the benefits if only they tried.

This difference is significant. Since household income has been declining over time (and proportionally fewer individuals earn more than twice the poverty level), the silver lining of the 2008 crisis might be that more Americans start seeing poverty for what it is: not something anyone “deserves.” This could even help bring about more coherent anti-poverty policies when politicians, many of whom seem to want to appeal to the “poor people are lazy” sentiment as a way to obtain votes, realize their constituents understand reality better than they do.

And poverty is, in fact, becoming reality for more and more people in the United States.

In 2010 more people were recorded as living in poverty than in any of the previous 52 years for which rates have been published: 46.9 million (representing 15 percent of the population). About 17.2 million households were registered as food insecure for that same year, meaning they didn’t have consistent dependable access to enough food. This, again, is the highest number ever recorded in the United States. Even percentage-wise, poverty rates in 2010 were the highest they had been since 1993.

And poverty is not just something people “are,” something that might be inconvenient and often frustrating (though it surely is both of those things in copious amounts).

Poverty is a very real obstacle to exercising human rights, bringing with it substandard housing, under-resourced schooling, lack of health care, and at times unsafe neighbourhoods, as well as many other disadvantages. Children are particularly affected, since years of poorer quality education and potentially unhealthy living has consequences that to some extent continue even after a family pulls out of poverty—which only some ever do.

And not only is poverty an obstacle to exercising rights. It is also, in many cases, caused by rights violations. Four million more women than men live in poverty, and both African-Americans and Hispanics are over-represented amongst the poor. In 2010, women earned 77 cents to every dollar earned by men. For black women that figure is 68 cents, for Hispanic women 59. Unemployment rates fluctuate enormously according to sex, race, and marital status. Women constitute 65 percent of all part-time workers.

To be sure, everyone is ultimately responsible for how they deal with their circumstances, and some individuals pull out of poverty despite multiple odds stacked against them. But many more do not. This is not because poverty is inevitable. It is because it generally requires support for health care, education, housing, anti-discrimination initiatives, and other interventions at least partially sponsored by the government. Without addressing the growing poverty in the United States through collective action based on human rights, chances are that if you are poor you will stay poor. Through little fault of your own.

The FBI, Sandusky, and How We Think About Rape

@HuffingtonPost

On Tuesday December 6, the Federal Bureau of Investigation's Criminal Justice Advisory Policy Board voted in favor of changing its rape definition, which currently dates back from 1929. The old definition covered only female victims and archaically -- and imprecisely -- referred to intercourse as "carnal knowledge," whereas the proposed change is gender-neutral, contains a relatively objective description of sex, and does not require physical force. If the director of the FBI approves this change, it has the potential to change how we think about rape.

At least in part. Another equally important part is the definition of rape in the American Law Institute's Model Penal Code which remains unchanged.

Here is why that matters.

As a society, the way we think about most social phenomena -- including sexual assault -- is influenced both by facts and morals. Neither is immovable or entirely objective. Facts depend on how you study and define them, and morals depend on who you are. But in the United States, the way we think about rape has, for decades, been operating with an outdated version of both.

With regard to the facts, the FBI's rape definition determines what gets counted as rape in national crime statistics. These figures are used, among other things, to decide on government use of resources for rape prevention, and to determine the success of government efforts to prosecute this crime. A restricted definition is likely to lead to underestimates, which, in turn, leads to the assignment of insufficient resources to deal with rape. And, because government efforts to prosecute for rape often are judged by comparing number of rapes to numbers of cases filed, investigated, and prosecuted, FBI's definition also affects the evaluation of justice system effectiveness in this regard.

Of course, even if we use the current, potentially underestimated, figures for rape, resources allocated for prevention and prosecution of rape are insufficient and sometimes misused, and prosecution percentages appallingly low. However, a more accurate count of when and how rape happens can at least provide arguments for policy change.

With regard to criminal law -- the ultimate guide on what society believes is "right" and "wrong" -- our moral compass has been equally obsolete. The U.S. Model Penal Code, which was adopted in 1962 by the American Law Institute to provide guidance for state criminal law reform, does not reflect what we have learned over the past 4 decades about rape through service delivery and care. Unlike FBI's rape definition, unfortunately, change to the Model Penal Code is not imminent (though explorations of a potential project to do so are underway) and the deficiencies are potentially more glaring.

Over the years, scholars have explored many problems with the various sexual offence definitions in the model code. The four most conspicuous are these:

• The need for an "objective manifestation" of force - -that is, visible signs of physical force -- before forced intercourse counts as rape in the eyes of the law (we now know that threats, verbal violence, and other forms of non-physical coercion are equally if not more effective in subduing a victim).
• The definition of rape as always having a male perpetrator and female victim (the recent allegations of rape of boys by Penn State coach Sandusky have made abundantly clear that rape can happen across the board);
• The deliberate exclusion of marital rape from any criminal sanctions (it is now hopefully beyond discussion that spouses don't owe each other sex--even the Mexican Supreme Court has now acknowledged this); and
• The focus on the victim's sexual past and previous behaviour towards the perpetrators and others.

This latter part is particularly worrisome.

The Model Penal Code explicitly excludes date rape and rape of former partners or even those the perpetrator has casually dated or maybe just kissed or held hands with (the victim must not be the "voluntary social companion" of the perpetrator at the time of the crime, and should not have "previously permitted him sexual liberties.") This would also exclude rape against sex workers, which is a relatively frequent occurrence in part because many people believe sex workers automatically have consented to having sex with everyone because they make a living out of having sex with some.

At a time where the use of date rape drugs reportedly are on the rise, and where police officers already believe women are much more likely to lie about rape than victims of any other crime, there is no room for legal ambiguity.

Forced intercourse is rape whoever committed it, whatever the victim wore or said, and wherever it occurred. The American Law Institute should follow the lead of the FBI and update its definitions to reflect reality.