Commentary Human Rights

Deserving vs. Undeserving? Everyone “Deserves” Human Rights

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

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.

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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.

Commentary Abortion

Standing Under Sprinklers, Missouri Activists Turn Tables on Anti-Choice Community

Pamela Merritt

Missouri legislators protect and fund crisis pregnancy centers, while ignoring how their constituents are affected by violence and health-care disparities. A new campaign is taking to the streets to refocus their attention.

When I found out in 2015 that anti-choice politicians in Missouri had formed the Senate Interim Committee on the Sanctity of Life, I was outraged that they planned to use valuable time and money to bully Planned Parenthood with yet another baseless investigation.

My second thought was that I wished someone would form a committee to investigate the real issues that threaten the lives of Missourians every day.

Erin Matson and I co-founded Reproaction because we believe in the power of direct action; that the current state of abortion access is a manmade humanitarian crisis; and that people must have the right to decide whether to parent and to live in communities free of violence and oppression.

Those core values inspired us to launch the Show-Me Accountability Campaign in Missouri on June 29. Through the campaign we are leading direct actions to hold members of the Senate Interim Committee on the Sanctity of Life accountable, and demanding Missouri politicians work on the real challenges our communities and neighbors face, such as gun violence and Black infant mortality.

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Missourians deserve access to health care and safe communities, but that’s not the focus of anti-choice legislators. Instead, our lawmakers choose to persecute abortion providers and dish out tax credits to sham crisis pregnancy centers (CPCs).

Missourians have had enough. That’s what brought local progressive activists together, led by Reproaction Missouri organizer Zoe Krause, to launch Show-Me Accountability. We gathered on the sidewalk in front of Thrive, one of at least 65 CPCs anti-choice lawmakers champion despite the fact that the centers have a history of lying to patients seeking reproductive health care. Missouri lawmakers have even pushed legislation to guarantee CPCs aren’t subject to regulation or oversight. We chose Thrive as the location of our launch to illustrate the contrast between what Missouri politicians fund, prioritize, and protect, versus what Missourians actually need them to focus on.

Someone turned the sprinklers on at Thrive just as activists started showing up, providing a nonstop shower that drenched people walking or standing on much of the sidewalk in front of the building. It was an old-school disruption move that made it clear they knew we were coming and weren’t happy about it. We shifted down the sidewalk and started to get in formation.

Several interns from Thrive came outside and tried to physically disrupt our work by repeatedly moving between activists and attempting to surround us. But when we engaged them in conversation, they didn’t appear to know much about the services Thrive provides or that CPCs get tax credits in Missouri. As our speakers began their remarks, Thrive counselors in bright orange vests held signs and guarded the walkway up to the building. I’m familiar with the vests and signs because they are usually seen stationed in front of Missouri’s only abortion provider a few blocks away.

The speakers were amazing, their topics a damning indictment of the issues that wither on the vine in Jefferson City while politicians compete for the attention of anti-abortion lobbyists. Kirstin Palovick, organizer for the grassroots LGBT equality organization PROMO, explained why it hurts our state that lesbian, gay, bisexual, and transgender people in Missouri can be fired from their jobs, evicted from their homes, and denied access to public accommodations and services. Cicely Paine, fellowship manager at CoreAlign and board chair for Community Birth and Wellness, shared her experience as a sex educator in Missouri, where access to comprehensive sex education is not a right enjoyed by all. Mustafa Abdullah, lead organizer for the American Civil Liberties Union of Missouri, passionately detailed the real-world consequences of racial disparities in policing and why police violence is a reproductive justice issue.

I was the final speaker and used my time to talk about why the Black infant mortality rate is a public health crisis worthy of attention and urgency. We ended with chants and a few dances through the shower provided by Thrive’s sprinkler system.

The timing for our campaign launch couldn’t have been better. Shortly after the action at Thrive, the chair of the Senate Interim Committee on the Sanctity of Life announced that there would be a press conference in Jefferson City to discuss a report detailing the results of their “work.” So, Zoe and I took a road trip to the Missouri capitol to witness firsthand what the committee had to say and ask some questions.

At around 1 p.m., several anti-choice members of the committee, including chair Sen. Kurt Schaefer (R-Columbia), gathered in the fourth floor mezzanine in the capitol. Neither Sen. Jill Schupp (D-Creve Coeur) nor Sen. Maria Chappelle Nadal (D-St. Louis), the only pro-choice members of the committee, were in attendance. Neither contributed to the report.

As expected, the yearlong investigation found no evidence that tissue has been illegally sold. Sen. Schaefer acknowledged that the report was not an official report of the committee. Instead, the senators used the press conference to fuss about the U.S. Supreme Court’s recent Whole Woman’s Health v. Hellerstedt decision and voice their frustration over not having uncovered much of anything.

“What is clear is there are many things that are unclear,” Sen. Eric Schmitt (R-Glendale) said during the press conference.

On that one point, I agree.

It remains unclear how much this investigation cost Missourians. We deserve a proper accounting for just how much we invested in this farce. But when Reproaction’s Zoe Krause asked that question during the press conference, the senators refused to answer.

It remains unclear why a committee formed under the title “Sanctity of Life” failed to investigate why Missourians are at risk of being killed by gun-wielding toddlers, why gun deaths surpass deaths resulting from car accidents, or why Black women are three times more likely to have an infant die before the child’s first birthday.

What is clear is that the committee’s press conference was partisan because the committee formed as a platform for anti-choice propaganda. It is clear that the anti-abortion videos used as the excuse for forming the committee have been thoroughly debunked.

Sadly, it is more than clear that some members of the committee think they can get away with wasting the people’s time trying to score political points with anti-choice groups.

We drove away from the capitol more committed than ever to the Show-Me Accountability Campaign. Missourians deserve legislators who will prioritize real-world issues, and we will demand accountability from those who fail to do so. Media coverage of our launch has already sparked long-overdue discussions about the damaging consequences of our state legislature’s misplaced priorities.

That’s the kind of fertile soil accountability can grow in, and we intend to see it grow in Missouri. We are in this for dignity, justice, and liberation. And we’re just getting started.

Analysis Law and Policy

Justice Kennedy’s Silence Speaks Volumes About His Apparent Feelings on Women’s Autonomy

Imani Gandy

Justice Anthony Kennedy’s obsession with human dignity has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

Last week’s decision in Whole Woman’s Health v. Hellerstedt was remarkable not just for what it did say—that two provisions in Texas’s omnibus anti-abortion law were unconstitutional—but for what it didn’t say, and who didn’t say it.

In the lead-up to the decision, many court watchers were deeply concerned that Justice Anthony Kennedy would side with the conservative wing of the court, and that his word about targeted restrictions of abortion providers would signal the death knell of reproductive rights. Although Kennedy came down on the winning side, his notable silence on the “dignity” of those affected by the law still speaks volumes about his apparent feelings on women’s autonomy. That’s because Kennedy’s obsession with human dignity, and where along the fault line of that human dignity various rights fall, has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

His opinion on marriage equality in Obergefell v. Hodges, along with his prior opinions striking down sodomy laws in Lawrence v. Texas and the Defense of Marriage Act in United States v. Windsor, assured us that he recognizes the fundamental human rights and dignity of LGBTQ persons.

On the other hand, as my colleague Jessica Mason Pieklo noted, his concern in Schuette v. Coalition to Defend Affirmative Action about the dignity of the state, specifically the ballot initiative process, assured us that he is willing to sweep aside the dignity of those affected by Michigan’s affirmative action ban in favor of the “‘dignity’ of a ballot process steeped in racism.”

Meanwhile, in his majority opinion in June’s Fisher v. University of Texas, Kennedy upheld the constitutionality of the University of Texas’ affirmative action program, noting that it remained a challenge to this country’s education system “to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

It is apparent that where Kennedy is concerned, dignity is the alpha and the omega. But when it came to one of the most important reproductive rights cases in decades, he was silent.

This is not entirely surprising: For Kennedy, the dignity granted to pregnant women, as evidenced by his opinions in Planned Parenthood v. Casey and Gonzales v. Carhart, has been steeped in gender-normative claptrap about abortion being a unique choice that has grave consequences for women, abortion providers’ souls, and the dignity of the fetus. And in Whole Woman’s Health, when Kennedy was given another chance to demonstrate to us that he does recognize the dignity of women as women, he froze.

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He didn’t write the majority opinion. He didn’t write a concurring opinion. He permitted Justice Stephen Breyer to base the most important articulation of abortion rights in decades on data. There was not so much as a callback to Kennedy’s flowery articulation of dignity in Casey, where he wrote that “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” are matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” (While Casey was a plurality opinion, various Court historians have pointed out that Kennedy himself wrote the above-quoted language.)

Of course, that dignity outlined in Casey is grounded in gender paternalism: Abortion, Kennedy continued, “is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedures for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted.” Later, in Gonzales, Kennedy said that the Partial-Birth Abortion Ban “expresses respect for the dignity of human life,” with nothing about the dignity of the women affected by the ban.

And this time around, Kennedy’s silence in Whole Woman’s Health may have had to do with the facts of the case: Texas claimed that the provisions advanced public health and safety, and Whole Woman’s Health’s attorneys set about proving that claim to be false. Whole Woman’s Health was the sort of data-driven decision that did not strictly need excessive language about personal dignity and autonomy. As Breyer wrote, it was a simple matter of Texas advancing a reason for passing the restrictions without offering any proof: “We have found nothing in Texas’ record evidence that shows that, compared to prior law, the new law advanced Texas’ legitimate interest in protecting women’s health.”

In Justice Ruth Bader Ginsburg’s two-page concurrence, she succinctly put it, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements.”

“Targeted Regulation of Abortion Providers laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection,” she continued, hammering the point home.

So by silently signing on to the majority opinion, Kennedy may simply have been expressing that he wasn’t going to fall for the State of Texas’ efforts to undermine Casey’s undue burden standard through a mixture of half-truths about advancing public health and weak evidence supporting that claim.

Still, Kennedy had a perfect opportunity to complete the circle on his dignity jurisprudence and take it to its logical conclusion: that women, like everyone else, are individuals worthy of their own autonomy and rights. But he didn’t—whether due to his Catholic faith, a deep aversion to abortion in general, or because, as David S. Cohen aptly put it, “[i]n Justice Kennedy’s gendered world, a woman needs … state protection because a true mother—an ideal mother—would not kill her child.”

As I wrote last year in the wake of Kennedy’s majority opinion in Obergefell, “according to [Kennedy’s] perverse simulacrum of dignity, abortion rights usurp the dignity of motherhood (which is the only dignity that matters when it comes to women) insofar as it prevents women from fulfilling their rightful roles as mothers and caregivers. Women have an innate need to nurture, so the argument goes, and abortion undermines that right.”

This version of dignity fits neatly into Kennedy’s “gendered world.” But falls short when compared to jurists internationally,  who have pointed out that dignity plays a central role in reproductive rights jurisprudence.

In Casey itself, for example, retired Justice John Paul Stevens—who, perhaps not coincidentally, attended the announcement of the Whole Woman’s Health decision at the Supreme Court—wrote that whether or not to terminate a pregnancy is a “matter of conscience,” and that “[t]he authority to make such traumatic and yet empowering decisions is an element of basic human dignity.”

And in a 1988 landmark decision from the Supreme Court of Canada, Justice Bertha Wilson indicated in her concurring opinion that “respect for human dignity” was key to the discussion of access to abortion because “the right to make fundamental personal decision without interference from the state” was central to human dignity and any reading of the Canadian Charter of Rights and Freedoms 1982, which is essentially Canada’s Bill of Rights.

The case was R. v. Morgentaler, in which the Supreme Court of Canada found that a provision in the criminal code that required abortions to be performed only at an accredited hospital with the proper certification of approval from the hospital’s therapeutic abortion committee violated the Canadian Constitution. (Therapeutic abortion committees were almost always comprised of men who would decide whether an abortion fit within the exception to the criminal offense of performing an abortion.)

In other countries, too, “human dignity” has been a key component in discussion about abortion rights. The German Federal Constitutional Court explicitly recognized that access to abortion was required by “the human dignity of the pregnant woman, her… right to life and physical integrity, and her right of personality.” The Supreme Court of Brazil relied on the notion of human dignity to explain that requiring a person to carry an anencephalic fetus to term caused “violence to human dignity.” The Colombian Constitutional Court relied upon concerns about human dignity to strike down abortion prohibition in instances where the pregnancy is the result of rape, involves a nonviable fetus, or a threat to the woman’s life or health.

Certainly, abortion rights are still severely restricted in some of the above-mentioned countries, and elsewhere throughout the world. Nevertheless, there is strong national and international precedent for locating abortion rights in the square of human dignity.

And where else would they be located? If dignity is all about permitting people to make decisions of fundamental personal importance, and it turns out, as it did with Texas, that politicians have thrown “women’s health and safety” smoke pellets to obscure the true purpose of laws like HB 2—to ban abortion entirely—where’s the dignity in that?

Perhaps I’m being too grumpy. Perhaps I should just take the win—and it is an important win that will shape abortion rights for a generation—and shut my trap. But I want more from Kennedy. I want him to demonstrate that he’s not a hopelessly patriarchal figure who has icky feelings when it comes to abortion. I want him to recognize that some women have abortions and it’s not the worst decision they’ve ever made or the worst thing that ever happened to him. I want him to recognize that women are people who deserve dignity irrespective of their choices regarding whether and when to become a mother. And, ultimately, I want him to write about a woman’s right to choose using the same flowery language that he uses to discuss LGBTQ rights and the dignity of LGBTQ people.  He could have done so here.

Forcing the closure of clinics based on empty promises of advancing public health is an affront to the basic dignity of women. Not only do such lies—and they are lies, as evidenced by the myriad anti-choice Texan politicians who have come right out and said that passing HB 2 was about closing clinics and making abortion inaccessible—operate to deprive women of the dignity to choose whether to carry a pregnancy to term, they also presume that the American public is too stupid to truly grasp what’s going on.

And that is quintessentially undignified.