When rights get in the way of justice and equality

Morgan-with-pounamu-pendant_WebThis is the tenth in the blog series by Morgan Healey, immediate past President of ALRANZ, who has recently returned to the US. It aims to bring to life the uniquely absurd state of reproductive rights and justice in the US.

Americans love their rights. We celebrate them. In fact, we talk incessantly about how we have the ‘right’ to do ________ . Rights also provide a good excuse to get away with outrageous behavior. Perhaps no more so than when we use a rights-based discourse to harm or deny certain groups equality and justice.

For example, we have the right to “keep and bear arms” (2nd Amendment, Bill of Rights). This has been interpreted as the right to own a gun. If you are white person this seems to also include the right to point said gun at a person of colour and pull the trigger. Murder? Yeah, nah. It was self-defense.

We have the right to religious freedom (or more specifically that “Congress shall pass no law respecting an establishment of religion, or prohibiting the free exercise thereof, ” 1st Amendment, Bill of Rights). This is a good one because it allows us to deny people basic health care by refusing care and/or treatment. The ole ‘conscientious objection’ ploy, which was originally used to describe pacifists’ refusal to be enlisted in war and has now been co-opted by the antis to assert their beliefs over the health of their patients.

The beauty of this right is that it can be exercising at the individual level, enabling a medical professional’s ‘conscience’ to trump a person’s ability to access healthcare, or at the system level, by being a religious institution or employer that does not believe in providing sexual and reproductive health care.

And thanks to a Kansas jury, we now have the right to threaten abortion providers under the guise of a right to free speech. Antis won big, all in the name of ‘rights’.

Ostensibly the Kansas jury drew a distinction between the meaning of said threat: Angel Dillard never meant to threaten physical violence. Instead she meant to emotionally and spiritually wound Dr. Mila Means (I could not make this shite up if I tried)… When someone threatens that if you continue with your work you might find a bomb under your car, is the aim to maim your spiritual wellbeing alone? Um, no. It is meant to intimidate and strike fear into that person, enough to hopefully alter their actions. In this case to scare Dr. Means so much that she would give up her plans to start providing abortions in Wichita.

As Jessica Mason Pieklo argues for Rewire, context matters. This was not some random punter who disagreed with abortion and wanted to express her concern with the doctor’s actions. In the Dillard case, her threat had gravitas; it came from a known anti with ties to violent, anti-abortion terrorists like Scott Roeder, imprisoned for murdering Dr. George Tiller. Moreover, it was received in the context of increasing threats to abortion providers.

But I know what you are thinking… abortion is protected under the US Constitution as a right too: the right to privacy as protected under the Due Process Clause of the 14th Amendment as decided in the famous Roe vs. Wade case in 1973. That is true. However, as subsequent rulings by the Supreme Court and state attempts to restrict abortion have shown, this is not absolute (no right is) and can be grossly misconstrued to the aid of the antis.

LGBTQI and reproductive rights

Parallels have been drawn between discriminatory bills that seek to deny LGBTQI people their rights – like the recent spate of bathroom laws designed to vilify and constitute trans people as predators – and anti choice bills sweeping the country. In a very good article on Bustle, author Raina Lipsitz asks an important question: where is the corporate and celebrity backlash to anti-choice legislation?

The Deputy Legal Director of the ACLU, Louise Melling, had this to say when Lipsitz asked about the lack of backlash:

“I think it’s because the country has come to understand that is discrimination … we now understand that when you refuse to provide a service to a same-sex couple, that’s discrimination. We don’t ask, ‘Is there another place for you to go?’”

“People tend to think of anti-choice legislation as being about abortion, not about women.”

In other words, anti-abortion legislation is not understood as discrimination. To my mind this comes down to framing and, as Melling highlights, people’s understanding of discrimination. Bathroom bills and those seeking to deny marriage equality are understood as being directed against an entire group of people. It is clear discrimination, and not a service that can be accessed in another state. I.e. we would rightfully not tell a trans person to use the bathroom in the neighboring state because their laws allow access regardless of gender identity.

But abortion is seen as different. Abortion is often constructed as a non-necessary medical service that can legitimately be restricted. It also comes down to the idea that abortion restrictions do not discriminate against all ‘women’ equally, which is true. Wealthy women have and always will be able to access care, while abortion restrictions are frequently at the expense of the most marginalized and oppressed, further criminalizing and exposing non-white bodies to danger. I reckon that if abortion restrictions were at the expense of influential, well-off white women that we might be having a different conversation.

But, the other part, evident in the poll that shows 20 percentage points difference between the ‘moral acceptance’ of abortion and LGBTQI equality, is that there is still a huge amount of stigma surrounding the former. In the US, the antis’ success has a basis in positing the idea that reproductive rights are competing against the rights of an imagined ‘unborn’. And within our own reproductive rights organizations, we have created hierarchies of acceptability – this abortion is good, this abortion is bad. In many ways we have shot ourselves in the foot as a collective movement that tries to contest rights with rights. The antis seem to be winning at this game thanks to the ‘undue burden’ benchmark set as part of Casey vs. Planned Parenthood.

Would we get more traction if the focus was on abortion restrictions as discrimination? Would we be more successful using a reproductive rights frame if abortion restrictions were understood as discrimination? Or would the use of language that framed abortion in the context of freedom or justice be more effective? Would it help to break down the stigma?

I do not have any absolute answers to these questions. I can say that I am not 100% sold on adhering to a strict rights-based framework (although I acknowledge that at an international level and in the context of human rights, rights are a useful mechanism for advocating for change). Perhaps because I have witnessed the impact of legal frameworks like Ireland that equate the right to life of the ‘mother’ with that of the ‘unborn’. Rights can be a slippery slope.

I believe that abortion restrictions ARE a form of gender discrimination and should be articulated as such. But I think the argument is stronger when framed in terms of justice. I know I am starting to sound like a broken record here…

As I have said many times before, the reproductive justice frame allows for discrimination and equality to be discussed as an intersectional issue. One that cannot divide a person’s lived experience of gender from their race, class, gender identity or sexual orientation. We need to understand and articulate the myriad layers of discrimination in order contest them. For this reason, and quite rightfully, the reproductive rights movement has been critiqued as being traditionally white and cisgendered with a myopic focus on abortion rights and choice.

But there is this niggling doubt in my head… because as I said at the beginning, Americans really love their rights. If rights are a popular way of capturing the American imaginary, is it possible to reimagine a rights-based discourse in the US that actually protects abortion, as opposed to destroying it?