Tuesday, July 26, 2016
by Jeremiah Ho
When I watch the news in this current election cycle and see reports that the RNC platform includes condemnation of marriage equality successes along with sentiments bolstering traditional marriage, I observe that the RNC seeks to forget the progress in LGBTQ rights from the last several summers, from U.S. v. Windsor to Obergefell v. Hodges. However, I wonder if the rhetoric isn’t a bit stale. After all, the ship is supposed to have sailed on the marriage issue. Last November, the Williams Institute reported that nationally 486,000 same-sex couples were married since Obergefell. I’m sure the numbers have risen since then. Did the RNC forget what happened in 2015?
A platform that advances the extremist American exceptionalism that social conservatives desire seeks to rehash the LGBTQ successes of the recent years—first, as a grudge and then more as an appropriation of the issue of sexual orientation anti-discrimination that stokes the base. The evidence of such LGBTQ opposition in the RNC platform points to just the sort of partisan processing that is required for the idea of marriage equality—and by proxy, sexual orientation antidiscrimination—to finally set within the national imagination. From an incrementalist perspective, this opposition is natural and must be played against the countervailing notions of progress and positive attitudes toward LGBTQ individuals in the public media right now.
Unfortunately, it is the Orlando gay latino nightclub attack that bookended the year of conversation regarding sexual minorities, stemming from Obergefell. But from Kim Davis to the debate over bathroom bills and even to the anti-marriage rhetoric in the RNC platform that brings us into the fall elections, the way to read all of this anti-LGBTQ rhetoric must be from the vantage point of human rights. Out of the countervailing perspectives on sexual minorities must be a continual understanding that all of these anti-LGBTQ ideas, rhetoric, and advances hurt the essential human rights entitlements that sexual minorities deserve. We need more media coverage on how to interpret the subtext of anti-LGBTQ rhetoric that results from the RNC platform and pulls away from human rights sentiments.
Additionally, the anti-LGBTQ rhetoric of the RNC platform provides an opportunity for social conservatives and similar anti-LGBTQ movements to harness back the surge to dignify sexual minorities. Recently, Michelangelo Signorile at the HuffPost Queer Voices section posted an article demonstrating ways in which social conservatives, politically entrenched in the presidential elections, are manipulating the media to seem more “LGBTQ-friendly”. With a published RNC platform that denigrates recent pro-LGBTQ progress, I would agree with Signorile that any LGBTQ-friendliness offers a curious disconnect. In any event, the progress in the last year has given much leverage for sexual minorities and LGBTQ groups to assert their own dignity and respect. What ultimately must happen is public recognition that anti-LGBTQ rhetoric, as currently exemplified by the RNC, is an ugly distraction, and a powerless, irrelevant stance on homophobia. Thus, the human rights angle is a powerful one, helped and advanced by every success within sexual orientation anti-discrimination laws. I hope we continue to ruminate about this critical human rights issue as both party conventions wrap up in this mid-summer, and as the nation prepares for the fall election.
Monday, July 25, 2016
Those who tuned in to the Republic National Convention last Monday were likely to hear invocations of Martin Luther King, Jr. He was quoted at length by Sheriff David Clarke early on in the night.
In quoting Dr. King, Sheriff Clarke seemed to bury the reality that the racism, segregation, and injustice that King was fighting against are the result of an intentionally constructed legal, political, and economic system, a system that must be intentionally dismantled. Clarke’s statement painted a picture that contravenes the true legacy of King’s words and beliefs, and defies our current reality. Sheriff Clarke cited King for the premise that there is a “basic morality of the rule provided that it is applied equally to both the wealthy and the impoverished, both men and women, and yes, the majority and the minority.” He went on to opine that following the law is the cornerstone of order and that the recent community protests against discrimination and police brutality in Ferguson, in Baltimore, and in Baton Rouge represent some type of “anarchy” and “collapse of the social order,” intimating they would be anathema to King.
There was no reckoning with the social conditions undergirding the protests; no recognition that Dr. King and the movement he supported promoted civil disobedience – that the aim was to change the laws because they were unjust. Not just to change the laws that discriminate on their face, but the laws that contribute to structural discrimination and inequality, regardless if they are applied equally. King’s aim was justice.
Racial equality. Equal opportunity. Economic rights. Dignity for all. The end to unjust war. The alleviation of poverty and its root causes. These are what Martin Luther King stood for. He called for the “redistribution of economic and political power” and a “revolution of values.”
To say that the references to Martin Luther King at the RNC failed to provide the whole picture is, perhaps, the understatement of the year. To say that quoting King without this context is morally dishonest is more accurate. To say it is deceptive is also true. But, more to the point, the explicit invocation of the words of Doctor King in absence of a discussion of his underlying beliefs is harmful. If we don’t deal with the deep roots and lasting legacy of entrenched racism and discrimination, we will continue to see communities divided and devastated by violence, and the racial fault lines will deepen. The erosion of trust between elected officials and the constituents they are meant to serve will likewise increase.
There is a real moral, social and political cost to inaction. If America endeavors to be a leader, our policies have to change. Global economic leadership requires robust economic opportunities for ALL. It requires pathways to education fall ALL. Political leadership requires a system where voices of dissent are acknowledged, not silenced. Human rights leadership abroad requires laws and policies at home that that take into account the voices and needs of all Americans, regardless of the origins of their parents, their gender and sexual orientation, regardless of their faith.
It is worth correcting the record today. It is worth taking a look at the whole picture, and reminding ourselves what King really meant when he reflected that “we are caught in an inescapable network of mutuality, tied in asingle garment of destiny.”
Sunday, July 24, 2016
In a weekend op-ed piece in the NY Times, Professor Mary Dudziak of Emory University offered a nuanced -- and bleak -- view of Republic nominee Trump's stance in the debate over American exceptionalism. As she points out, US exceptionalism has many facets, but it is ultimately grounded in the idea that the US is governed under baseline principals of morality. In her book, Cold War Civil Rights, she delved into the ways that the Soviet Union sought to turn these American principals against the US for global political gain, but ultimately "helped facilitate key social reforms, including desegregation." The existence of American ideals, combined with the external pressure of living up to those ideals, improved lives of all Americans.
Ideals matter and can spur positive change. At the same time, though, American exceptionalism has a negative side -- in recent decades, it has provided a rationale for US failure to ratify human rights treaties, for example, and for refusing to participate in global governance measures such as the international criminal court. American exceptionalism says that US judges should not cite judicial opinions of their counterparts abroad or in international courts. It is this version of exceptionalism -- the notion that American ideals permit it to stand apart from the rest of the world -- that was endorsed in the Republican platform.
As Dudziak explains, though, candidate Trump rejects the idea that morals and ideals matter at all to America's success as a nation. As she puts it, Trump openly rejects the idea that "American values of justice matter . . . to diplomacy" and, given his responses to recent racial tensions, "they appear to matter even less at home."
Conservative pundits have also expressed concern about Trump's apparent rejection of American ideals. As Daniel Krauthammer of the Weekly Standard put it, "Trump doesn't know what makes America great."
We face a grim and divisive few months as this election season gains momentum. But on the issue of American exceptionalism, perhaps both progressives and conservatives can agree that Trump's campaign to substitute greed and fear for longstanding American ideals -- equality, liberty, human rights -- is heading in the wrong direction.
Thursday, July 21, 2016
Despite the Obama Administration’s efforts to promote women’s rights and gender equality, women in the United States are “left behind” with respect to public and political representation, economic and social rights, and health and safety protections. This is the assessment offered by the UN Working Group on the issue of discrimination against women in its recent report on its 2015 visit to the United States. Last month, the Working Group submitted its report to the UN Human Rights Council.
During its U.S. visit, which took place November 30 – December 11, 2015, the Working Group met with stakeholders and U.S. government officials in Washington, D.C., and conducted site visits to Alabama, Oregon, and the Rio Grande Valley in Texas.
The Working Group’s report from the visit examines a remarkable range of issues confronting women in the United States -- including challenges related to employment discrimination, gun violence, access to reproductive and sexual healthcare, gender-based violence, access to justice, participation in public life, and the detention of migrant women -- and notes that these challenges fall hardest on women living in poverty, migrant women, LGBTI women, women with disabilities, older women, and women who belong to ethnic minorities. The report offers concrete recommendations to the United States for ways in which it can bring its policies and practices more in line with international human rights standards. The United States’ failure to ratify the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) pervades the Working Groups’ analysis and recommendations.
In formally responding to the Working Groups’ report, the United States pledged to “take the Working Group’s recommendations seriously as a complement to the viewpoints of American women and our committed and outspoken civil society.” Yet the U.S. also challenged some of the Working Group’s conclusions.
What can U.S. advocates do to ensure that the Working Group’s report has a real impact? Like all UN special procedures (independent human rights experts appointed by the UN Human Rights Council to be its “eyes and ears” on human rights around the world), the Working Group has limited resources and no mechanism for following up on country visits and related recommendations. That is where civil society must step in.
In ensuring that the Working Group’s report has an impact at home, women’s rights advocates can draw from examples of colleagues who have leveraged special procedures recommendations to the United States in other contexts. (Advocates planning to engage this month with the Special Rapporteur on Freedom of Association and Assembly, or with upcoming visits by the UN Working Group on arbitrary detentions and the UN Special Rapporteur on trafficking in persons, might take note of these strategies, as well.)
- Get the word out
Perhaps the most important tactic advocates can adopt to ensure that the Working Group’s report has an impact on addressing discrimination against women in the United States is to raise public awareness of the report and facilitate its wide dissemination. Many groups make strong use of social and traditional media to raise awareness of issues addressed in special procedure’s reports and statements. We’ve seen this with strong media attention given to statements by Special Rapporteurs regarding water shut offs in Detroit and contaminated water supplies in Flint. In those instances, advocates were key in getting the word out through op-eds, social media, and press events.
- Leverage the report and its recommendations in other fora
Advocates have leveraged the expertise of special procedures mandate holders in other human rights venues, in particular the Inter-American Commission on Human Rights (IACHR). For example, in 2014, the Special Rapporteur on violence against women appeared before the IACHR in a hearing examining the U.S. government’s implementation of the IACHR’s decision and recommendations in the Lenahan case, regarding the U.S.’ obligations to protect women from domestic violence. The Special Rapporteur on Torture, Juan Mendez, likewise provided testimony to the IACHR in a recent IACHR thematic hearing on solitary confinement in the Americas.
- Draw on recommendations in litigation
Advocates have drawn on special procedures’ recommendations in the litigation context, most commonly through human rights amicus briefs. For example, in litigation challenging the lack of a right to appointed counsel for children in immigration proceedings, Human Rights Watch filed an amicus brief presenting human rights law and recommendations by Special Rapporteurs and human rights treaty bodies, to inform the 9th Circuit’s understanding of the underlying rights at stake. Included in the brief were strong statements by the UN Special Rapporteurs on extreme poverty and the rights of migrants.
On occasion, the special procedures themselves have filed amicus briefs. For example, the former Special Rapporteur on torture, Manfred Nowak, submitted an amicus brief to the U.S. Supreme Court in a case concerning the prohibition on torture.
- Integrate recommendations into policy advocacy
Advocates often draw on special procedures’ reports and recommendations in policy advocacy at the federal, state, and local level.
The National Law Center on Homelessness and Poverty does this in its advocacy to address criminalization of homelessness. Several Special Rapporteurs have addressed the issue of criminalization in the context of the United States, and the Center has organized meetings between the Special Rapporteurs and federal officials, to discuss how the U.S. could implement some of the recommendations aimed at the federal government.
- Follow up on the report with specific allegations
Advocates have used special procedures’ reports as an opening to submit allegations or complaints related to particular human rights concerns. For example, after the former Special Rapporteur on extreme poverty issued a thematic report on access to justice, legal services lawyers leveraged her interest in the issue to submit allegations of human rights violations with respect to migrant farm workers’ access legal services and other community supports.
Since 2012, the Working Group on discrimination against women has received three sets of allegations regarding the United States. The Working Group has developed a set of guidelines for submitting such allegations.
Of course, U.S. advocates aren’t limited doing to what others have done previously. For example, advocates might monitor and assess whether federal officials have implemented the Working Group’s recommendations on the report’s one year anniversary, and document remaining gaps. Indeed, this is an area that lends itself to innovation. As participants suggested throughout the recent Bringing Human Rights Lawyers’ Network symposium on engaging with UN special procedures, advocates are constrained only by their creativity.
Wednesday, July 20, 2016
Spiritually empty, our dissatisfaction with ourselves and our lives is playing out in national politics.
I am not alone in finding several aspects of the current politics of disrespect astounding. One is the lack of courage within mainstream Republican leadership. Wouldn't it have been honorable if Paul Ryan simply refused to speak at the Republican convention? Ryan is in his own struggle to maintain his leadership position. Why jeopardize his position by alienating a possible future president? Because the times could have benefited from refusal to participate in the sham. Powerful Republicans have forgotten the meaning of leadership. This is an opportunity for the courageous among them to reformulate the party toward a new, more forgiving base. But courage takes practice and current leadership is incapable of reaching across the aisle in the face of opposition. So courage has not become their habit. Instead, "leadership" has largely decided to take the path of appeasement. Appeasement never works. Ask Neville Chamberlain.
Astounding is the equally base level of behavior we are witnessing among the delegates. I see no distinction between Chris Christie and his misogynistic chant "Lock her up" and those who chanted back. The delegates had a choice whether to participate in the chant just as Ryan had a choice whether to attend. Trumpers receive no satisfaction in confronting the opposition on policy matters. She must be criminalized.
And today a Trump adviser said that Hillary Clinton should be put in the front of a firing line and shot for treason. Dangerous language, particularly in light of the current wave of anti-government police shootings.
The media could assist by pointing out the hatefulness of such attacks and not simply report them as "news". For Donald Trump supporters, disagreement seems to be an act of war that calls for the destruction of the opponent.
Future sociologists, historians and economists will need to sort out for us precisely where we failed our country. But the tide seems to have shifted from disgruntled to dangerous. We are lost people.
Tuesday, July 19, 2016
The first line in the Republican platform adopted at the Convention this week sums up the party's position on US human rights: "We believe in American Exceptionalism."
In this explicitly partisan document, human rights is a standard for other countries. For other countries, the Republican platform promises a "'whole of government' approach to protect fundamental freedoms globally, one where pressing human rights and rule of law issues are integrated at every appropriate level of our bilateral relationships and strategic decisionmaking."
On the domestic front, however, human rights is not a concern. Perhaps that's because, again, "[w]e believe that American exceptionalism — the notion that our ideas and principles as a nation give us a unique place of moral leadership in the world — requires the United States to retake its natural position as leader of the free world."
Moral leadership does not, apparently, require that the US serve as a global model for domestic implementation of human rights, striving alongside other countries. We are exceptional. So, according to the Platform, "[w]e do not support the U.N. Convention on Women’s Rights, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, and the U.N. Arms Trade Treaty, as well as various declarations from the U.N. Conference on Environment and Development." Further, Presidential executive agreements that might address some of these issues must be nullified.
Under the Republican platform, marriage is only for a man and a woman. Obamacare must be repealed, and women shielded from full equality in military institutions.
And immigration is for those who are already here, or who can buy their way in. According to the Platform, "[t]hat is why we support building a wall along our southern border and protecting all ports of entry. The border wall must cover the entirety of the southern border and must be sufficient to stop both vehicular and pedestrian traffic."
This is an exceptional document, for sure, but hardly one that sets up the US as a global moral leader.
For a terrific perspective on the importance of exceptionalism to Americans on both sides of the aisle, see this blog by Hilde Restad at the LSE.
Next week in Philadelphia, we look forward to seeing how the Democratic Party Platform measures up from a US human rights perspective.
Monday, July 18, 2016
The connection between domestic violence and mass public killings has not been overlooked. The New York Times published an article on the topic which opened the conversation. While the article could be read to say that the link is casual and not correlative, the connection is supported by FBI data that 57% of mass killings involved a current or former intimate partner or other family member.
Nashville saw a near elimination of domestic violence murders, when, under the leadership of Officer Mark Wynn, every domestic violence call was addressed through a SWAT team response. From the bottom up, our culture needs to shift its focus to take domestic violence as seriously Nashville did. But that is not our culture. For example, not every state requires the surrender of firearms when a restraining order enters against a defendant. Yet federal law makes it a crime for someone subject to a restraining order to be in possession of firearms. When federal gun laws go unenforced, the state is empowering violent men to do further harm. Violence prevention is not a valued path in the U.S.
The failure of civil society to aggressively and effectively address intimate partner violence does, not coincidentally, lead to broader societal violence. Failure to curb gender violence empowers those who are violent. Violent men often hate women, gays, those of different races and others who do not match their limited sex and identity characteristics. Confusion over what it means to be a "man" is a common thread for those who harm both women and those who are gender different. Think Orlando. Religion can be the disguise these men use to execute their hate. Think ISIS and its culture of sexual violence.
As a culture we do very little to intervene when we see concerning behaviors developing in our young men. Ending violence is directly related to how we raise our boys. Traumatized boys are at risk of becoming violent men. Traumatized men who are not given the medical, psycho-therapeutic and other supports they need become dangerous to themselves and many others. Think police killings. We need to rethink our notions of privacy when it comes to children. What is now considered intrusive will later be fundamental as preventative.
What if we organized the restorative and therapeutic equivalent of a SWAT team? Imagine how effective intervention might be if children were diverted from thoughts and conditions that lead to violence by a team of loving, skilled professionals and community members focused only on providing the specific needs of an at-risk child and the child's caregivers. This may sound Utopian, but until we alter our present system of crisis only intervention for children, we should expect violence to continue in more and more dangerous forms.
Sunday, July 17, 2016
July 18 is the international holiday recognition of the life and work of human rights South African activist Nelson Mandela. Events will be held all over the world and a commemoration can be viewed online here at the United Nations.
Meanwhile, at a time when the nation is struggling with racial divisions, human rights leadership has an important role to play. The Rockwood Leadership Institute has announced a timely leadership training for Women in Racial Justice and Human Rights. The application deadline is October 3, 2016, for the November 14-18 training. More information is available here.
Thursday, July 14, 2016
No doubt many of you read Just Mercy: A Story of Justice and Redemption by Bryan Stevenson. Today I completed this powerful book authored by a remarkable man. Mr. Stevenson is the founder of the Equal Justice Initiative located in Montgomery, Alabama. Mr. Stevenson and his colleagues at EJI represent incarcerated men and women who have been mistreated by the justice system in horrific ways. Many of the Initiative's clients live on death row. The stories of the incarcerated men and women were sad, outrageous and inspiring. But the lawyering work is painful and heartbreaking.
I will not be a spoiler and give details, but in one instance Mr. Stevenson describes a personal and professional crisis moment that followed a conversation with one of his death row clients. A reflective man, Mr. Stevenson wondered if he could continue the work. He describes the moment when he realizes that not only are his clients, the legal system and its players broken, but he is as well. How does one continue the work after realizing that "We've submitted to the harsh instinct to crush those among us whose brokenness is most visible." Mr. Stevenson realizes that we are all broken. Maybe we were broken in different ways, but we are all broken.
Not only did these passages bring me to tears, but they made me feel for all of us who engage human rights work. I admire all of you. While we celebrate our victories and support each other's work, rarely do we stop to discuss the pain that accompanies our work.
Bryan Stevenson ultimately, and rather quickly, found strength in recognizing this shared vulnerability. He recognized that "When you experience mercy, you learn things that are hard to learn otherwise. You begin to recognize the humanity that resides in all of us." He imagines what the world would be like if we all acknowledged our fear, our weaknesses and our brokenness.
Dr. Brian Williams, who treated the shot Dallas police officers has begun that conversation by acknowledging his fear. In one interview Dr. Williams, who is black, said that when he sees a police officer he often thanks them for their work so that his daughter will learn not to be afraid of police. Because, he said, "I am afraid". Former Seattle Police Chief Norm Stamper addressed the way in which police officers are trained to be afraid and to view their community members as enemy.
What is missing are police officers willing to discuss their vulnerabilities that are at the heart of their biases and overreactions to perceived threats.
I think of how vital this acknowledgment is to resolving our race crisis. Both sides are filled with fear, but one side cannot engage that conversation. Until that happens, change will remain out of reach.
Wednesday, July 13, 2016
On June 2o, the Tom Lantos Human Rights Commission of the U.S. Congress came as close as it ever has to critiquing US human rights policy and, perhaps, responding to the anti-immigrant rhetoric of some presidential candidates. On World Refugee Day, the Commission co-chairs, Congressmen James McGovern and Joseph Pitts, noted that the US has accepted more refugees for resettlement than any other country -- 65,000. But, they observed, that number pales in comparison to the need, with tens of millions of refugees worldwide, including 2.5 million residing in Turkey and 1.1 in Lebanon. The co-chairs concluded that:
“The international community, including the United States, must re-double its efforts to bring to an end the political and armed conflicts that are forcing so many people to abandon their homes and livelihoods. As much as we are contributing to humanitarian assistance and resettlement, more must be done. And we must help our fellow citizens remember the great contributions that refugees have made to our own country, from Albert Einstein to Raphael Lemkin to Madeline Albright. As UN Secretary General Ban Ki-moon has said, ‘what we are seeing today is not a crisis of numbers, but a crisis of solidarity. We all must do more.’”
Read the full statement here.
Tuesday, July 12, 2016
Gun control advocates were certain that the slaughter of 20 young children in Newtown, CT would lead to some agreement on gun control. They were wrong.
When gun control advocates speak, or when gun control legislation is introduced into congress, one constituency has been silent. The police have been largely unwilling to support gun limiting legislation, either publicly or privately. Following Newtown, President Obama met with chiefs of police as well as sheriffs, seeking their support for gun legislation reform. Support was not unanimous. Largely the police chiefs supported President Obama's request for gun control, the sheriffs did not. Without having access to more data, we cannot determine if there are regional or other geographic factors dividing the two law enforcement groups. But even for those chiefs favoring gun limitations, public support is missing.
One sheriff wrote to Vice President Biden that he would not enforce any gun control legislation.
The police are the ones who in the first instance see the bodies of the dead and wounded following a mass slaughter. Now the vulnerability of the police as victims of mass killings was evidenced in Dallas. But will this change police silence on gun issues?
One police observer noted that talking about guns is like talking about race. "These are difficult conversations and people get very polarized on either side of it." Beyond being uncomfortable, it is likely that the two conversations are linked. One wonders if police resistance would be so widespread if President Reagan, who promoted gun control as governor, had been the one proposing gun control. The country is so politically divided, it is difficult to think of any politician who would appeal to conservatives and liberals on this issue.
But, the police could unite us. Police need to get beyond fear of disagreeing with fellow officers as well as beyond any cynicism that gun control will not work. Police lives are on the line as well as others. Their voice would make a difference. We won't know what works until we try.
Monday, July 11, 2016
The severe fiscal crisis facing the Inter-American Commission on Human Rights continues, but it appears that the predicted month-end layoffs may be averted. In his June 15 speech to the General Assembly, President and Commissioner James Cavallaro stated that: "If the announced funding and other contributions arrive on time, we may be able to avert the severe crisis that was announced. This is essential so as to not leave unprotected those people for whom the Commission is their last recourse and their last hope." Cavallaro reported that financial contributions have been received from Antigua and Barbuda and from Chile, and that offers of additional funding have come from Argentina, Canada, Colombia, the United States, Panama, Peru, and Uruguay, as well as a number of observer nations.
Nevertheless, the Commission cancelled its planned July session as well as sessions scheduled for October and November. Further, the Commission called on member states to expand their support of the Commission and initiated a consultation process with members designed to plan a viable path toward the continued operations of the Commission. As Commissioner Cavallaro noted, "the serious structural problem that produced this crisis continues to exist." The consultation process is intended to address these structural problems and avoid future crises of this type.
Sunday, July 10, 2016
In the first federal court decision after the U.S. Supreme Court’s strong affirmation of the right to choose in Whole Woman’s Health, et. al. v. Hellerstedt, Judge Pratt of the Federal Southern District of Indiana granted a preliminary injunction that blocked an Indiana anti-abortion statute from becoming effective. She prohibited Indiana from enforcing its bans on disability-selection, sex-selection, and race-selection abortions.
These bans would have prohibited a woman from terminating her pregnancy well before viability if she were doing so for reasons identified by the statute, namely because the fetus had a genetic abnormality or because of its race or sex. Indiana is not the only state to have adopted reason-based restrictions. Today, nine states ban sex-selective abortion, two states ban disability-selection abortion, and two states ban race-selective abortion.
The opinion garnered significant media attention because it came in the shadow of Whole Woman’s Health. But that opinion had little to do with that decision. Indeed, Judge Pratt mentions that case only once and even then in a footnote. Instead, she rests her decision on the Supreme Court’s prior abortion jurisprudence. Citing Roe v. Wade and Planned Parenthood v. Casey, she says that “the woman’s right to choose to have an abortion pre-viability is categorical, a state cannot prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” Illinois, a state that borders Indiana, similarly agreed to limit its sex-selective abortion ban to post-viability abortions after the U.S. Supreme Court’s decision in Casey in 1993.
These states not only create “obstacles” to pre-viability abortions, but are complete bans. Although women do terminate pregnancies if the child will have severe disabilities, rarely (if at all) do women in the United States terminate pregnancies because they do not desire to have a child of a certain sex. Moreover, the concept of race-selective abortion bans is “absurd” according to a member of the U.S. House of Representatives, Rep. John Conyers. This is because these laws suggest that minority women discriminate against their fetuses on the basis of race. Anti-abortion advocates argue that these bans are needed to prevent discrimination against the fetus.
Judge Pratt’s decision only temporarily suspends the law. A full trial will determine the fate of the Indiana statute and similar court battles will likely ensue in courts around the country. The U.S. Supreme Court recognized that the justification for the Texas statute in Whole Woman’s Health was nothing more than fig leaf to restrict women’s access to abortion. Courts should similarly recognize that reason-based bans do little more than burden access to reproductive care.
Thursday, July 7, 2016
On August 4th and 5th Vancouver will host the 18th International Conference on Justice, Security and Human Rights.
The conference has an impressive range of topics including science based presentations on Fish Stock Habitats, business enterprises addressed in Sustainable Entrepreneurship,and Creating Shared Values, medical approaches to Treating Diabetes; and political topics such as Rights of Refugees and Promoting Gender Equality.
For more information, click here.
Wednesday, July 6, 2016
On June 28, the U.S. Supreme Court accepted certiorari in a Morales-Santana v. Lynch, a case challenging sex-based discrimination in citizenship for out-of-wedlock, foreign born children. Under the current law -- defended by the US government --an out-of-wedlock child born abroad whose father is a U.S. citizen is given less favorable treatment than an out-of-wedlock child born abroad whose mother is a U.S. citizen.
Morales-Santana is the second case to raise this issue before the Court. In Flores-Villar v. INS, before the Court in 2011, Justice Kagan was recused. The 8 remaining justices split 4-4 and simply issued a per curiam affirmation of the 9th Circuit's decision upholding the sex-based law.
In contrast, the 2d Circuit Court of Appeals in Morales-Santana found that the sex-based law violates the Equal Protection Clause. Usually, a cert grant signals a strong possibility of reversal, but in this case, with all 8 current members of the Court now set to hear the case, the preliminary head count suggests that the law will be struck down. Even the additional of a 9th justice would not likely make a difference. Instead, the challenges in Morales-Santana will likely be focused on the remedy -- i.e., in establishing equality in the law, should the standards be tightened for women, or loosened for men?
Sex-based discrimination in citizenship has long been a central issue for women's rights activists both domestically and internationally, and it was a formative issue from the very beginning of the human rights legal regime in the 20th century. For more information on the human rights issues raised by sex-based citizenship laws, see the amicus brief filed by Equality Now, Human Rights Watch and others in the Flores-Villar case.
Tuesday, July 5, 2016
On June 24, the UN Committee on Economic, Social and Cultural Rights issued its Concluding Observations concerning Sweden. The Concluding Observations addressed a number of issues, including the investment processes governing the Swedish Pension Fund. Two of the Committee’s statements are of particular interest to US human rights advocates.
First, noting that human rights are often implemented on the local level, the Committee recommended that the Swedish government spearhead a human rights education campaign directed at subnational governments. The government has already started this process by contracting with the Swedish Association of Local Authorities and Regions to explore the idea of establishing a network of “human rights cities” around the country. The Committee’s statement provides additional support for these ongoing efforts, which might serve as a model for similar US government support for local human rights implementation in the US.
Second, the Committee expressed concern regarding the numerous evictions of vulnerable EU citizens from informal settlements, a local practice that has been endorsed and even encouraged by the Swedish government. The Committee reminded the government that such evictions should only be conducted when absolutely necessary, and that in all events, evicted individuals should be given access to long-term housing and basic services. It remains to be seen if the Swedish government will now back away from its support for such evictions, and whether local governments will rise to the challenge of providing humane solutions to these EU citizens. However, the Committee’s statements should serve as a reminder to US communities that addressing homelessness through evictions and other quasi-criminalization measures runs afoul of human rights standards.
Monday, July 4, 2016
Following up on Risa Kaufman's post on the human right to be free from gun violence, the Supreme Court on Monday declined to review two cases involving local bans on assault weapons. The declination left in tact bans on military style assault weapons enacted in New York and Connecticut. These are not the first bans the Court has declined to review. But given events of the last two weeks, the refusal to review carries greater significance.
Congress refused to take even minimal action to restrict access to weapons, including expanding background check obligations to gun shows and the internet. There appears to be no logic to rejection of this bill, other than continuing the rigidity for which the NRA and their politicians are noted.
In refusing review, the Supreme Court re-acknowledged the right of localities to make reasonable regulations regarding weapons, a power begging review post-Heller. Second Amendment jurisprudence is being shaped not by federal action, but by inaction. Local and state laws will be how gun change happens.
While some see the Court's action as evading an opportunity to discuss the boundaries of individual gun rights, in deciding not to decide, the Supreme Court has brought some sensibility to the gun issue. The New York and Connecticut bans certainly are defeats for the NRA. But with a congress unwilling to take even the most rudimentary precautions, the Supreme Court is left to bring some sensibility to the US epidemic of gun killings. The NRA might want to examine the cost of inflexibility.
Meanwhile, last week Representative John Lewis returned to his civil-rights roots and organized a house sit-in, attempting to force voting on gun legislation.
Sunday, July 3, 2016
Elie Wiesel was our conscience and our memory of the Holocaust. He was voice for millions of the murdered because of the hatred and madness of one leader and his supporters. But also the Jewish citizens died due to the overwhelming silence of others. It is both easy and difficult to understand the fear of speaking out when neighbors are disappearing. Consequences of disagreeing with Hitler, as with other dictators, were and are severe and usually fatal. But that begs the question on how dictators ascend to national control in the first instance.
Anyone who read Night was no doubt haunted by the inhumanity. But one of the lessons Mr. Wiesel taught us was not to wait in confronting hateful conditions as they are developing. Politics rooted in hate can be powerful and, if not curbed, lead to the sort of unimaginable suffering that Mr. Wiesel endured. Not confronting hatred when it first appears permits inhumanity to grow. Failure to confront hatred opens the door for demagogues.
Thursday, June 30, 2016
Even amidst the barbeques, beach trips, and sales during 4th of July weekend, most Americans are quick to declare proudly that July 4th is about our independence, our freedom. However we choose to celebrate/observe the holiday, I think we ought to spend some time asking, independent or free to do what, to be what.
To be clear, though history matters, I am not suggesting we ask what the signatories to the Declaration of Independence wanted, because we know that they permitted, and in some cases embraced, certain ideas we now reject (read: slavery, no voting rights for women, etc.). Independence means we can choose what type of society we want to create.
My wish? I want to live in and contribute to a society that elevates every child and is committed to protecting and ensuring the rights and well-being of all children. On that front, we have a long way to go, as evidenced by the newly-released State of the World's Children report, published by UNICEF. The annual report has sobering news for those who care about children around the globe. And it shows that the United States has work to do as well. Sure, the United States is performing better than many other countries, but the comparative analysis is not the full picture (after all, what parent of a sick child would willingly accept substandard health care for their child, simply because the provider said, well, in Somalia, some kids have no access to care at all). That the U.S. does better than other poorer countries is not anything to celebrate.
We shouldn’t use comparisons to make ourselves comfortable. Instead, we should see them as an indication of what’s possible. So, for example, with respect to infant and child (under-5) mortality, 43 countries with lower rates than the United States show that progress is possible. The U.S. is tied for 44th with Malaysia, Serbia Slovakia, and the United Arab Emirates. And our progress has slowed: in 1990, Cuba’s infant mortality rate was higher than the U.S. rate; they have improved and now do better than the United States.
Each year, the State of the World’s Children report centers around a theme issue; this year, it was inequity. The United States again stood out, for the wrong reasons. UNICEF reports:
- In some rich countries, children from different backgrounds face starkly unequal prospects. For babies born [in the U.S.], the odds of survival are closely linked to ethnicity: In 2013, infants born to African American parents were more than twice as likely to die as those born to white Americans.
- [D]isparities are reflected dramatically at the state level. The infant mortality rate of the state of Mississippi in 2013, for example, was double that of the state of Massachusetts.
And infant mortality is just the beginning. A child’s survival does not guarantee it will have the opportunity to develop to his or her full potential. The Declaration of Independence famously asserts that “all men are created equal.” It seems hard to believe that they intended this literally—equal only at the moment of birth, but thereafter we should be okay with significant inequity in survival rates, access to health care and education.
Of course, children are not the only area where human rights work remains. But success in ensuring children’s rights and well-being is foundational to creating a society where young people can realize their full potential and grow into adults who are empowered to realize their rights and contribute to their communities.
We’re not there yet. But as it’s been 240 years since the Declaration of Independence, it might be time to move a little faster.
Wednesday, June 29, 2016
The Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt to strike down two provisions of a Texas law that would have closed more than 75% of the state’s abortion clinics was a major victory for women’s rights. As I explain in an earlier post, the decision should deal a fatal blow to TRAP laws (targeted regulation of abortion providers), sham laws that purport to be health regulations but really are designed to impose onerous unnecessary requirements on abortion providers making it difficult or impossible for them to remain open.
Justice Breyer’s opinion makes it clear that the undue burden standard requires courts to balance the “burdens a law imposes on abortion access together with the benefits those laws confer.” The opinion also rejects the Fifth Circuit’s position that courts should defer to the legislature and not consider whether a law purporting to be a health regulation actually has any medical benefit, emphasizing that a higher level of judicial scrutiny is required when a constitutionally protected liberty is at stake.
Given the sham nature of Texas’ health justification, it’s not surprising that Justice Breyer’s opinion spends a significant amount of time showing why the Texas provisions do not provide any health benefit. Because the undue burden standard balances the burden and benefits of abortion restrictions, the lack of any health benefit significantly influenced the Court’s determination that the provisions are unconstitutional. But, perhaps as a result of this, the opinion spends less time discussing the burden imposed by the law and the impact of the provisions on women.
Notably absent from Justice Breyer’s opinion and Justice Ginsburg’s concurrence is any discussion of the significance of abortion in women’s lives and the reason why state laws designed to undermine women’s access to abortion violates their fundamental rights. Perhaps this indicates that the Court (with the exception of Justice Thomas) so accepts Planned Parenthood v. Casey’s holding that a woman’s right to choose to terminate a pregnancy is “central to [her] personal dignity and autonomy [and] the liberty protected by the Fourteenth Amendment” that the court does not feel the need to repeat it.
But it would have been nice to hear the Court reaffirm reproductive choice as essential to women’s liberty and autonomy and perhaps even recognize that access to abortion also implicates other fundamental rights. International human rights law and countries around the world recognize that access to abortion can implicate women’s right to health, right to be free from discrimination based on gender and socio-economic status, and right to be free from torture and cruel and inhuman and degrading treatment. Indeed, Mellet v. Ireland, a recent case from the U.N. Human Rights Committee, found that Irish laws criminalizing abortion in most circumstances violated the human rights of a woman who sought to terminate a pregnancy after learning that the fetus she carried had a fatal genetic condition. Ireland’s abortion restrictions forced her to travel from her home in Dublin to Liverpool England (approximately 136 miles away) to obtain an abortion. The Committee found that, under the circumstances, forcing Mellet to travel out of the country to obtain an abortion constituted cruel, inhuman and degrading treatment, violated her right to privacy and constituted impermissible discrimination.
Although the challenged Texas provisions did not make it illegal for women to obtain a pre-viability abortion, like the restrictions in the Mellet case, they would have forced many women to travel hundreds of miles to obtain an abortion. Some women forced to travel may have been the victims of rape or domestic violence, carried a fetus with a severe fetal anomaly or experienced other circumstances making it more likely that the restrictions violated their right to be treated humanely and with dignity.
In Mellet, the Human Rights Committee specifically recognized that prohibiting access to abortion and forcing women to travel great distances to obtain treatment constitutes discrimination. In a concurring opinion, Committee member Sarah Cleveland explained that interference with women’s access to reproductive health services can violate their right to equality and non-discrimination by denying access to health services like abortion that only women need.
Cleveland also found that Ireland’s law constituted discrimination based on socio-economic status because forcing women to travel to get health services results in unequal access to care based on income. Recognizing the disproportionate impact of restrictions that limit access to health care services on poor women is important because the district court in Whole Woman’s Health found that the Texas provisions “erected a particularly high barrier for poor, rural or disadvantaged women.”
Although the U.S. Supreme Court did not recognize discrimination based on socio-economic status as an independent basis to strike down the Texas provisions, Justice Breyer made it clear that the undue burden standard requires that the Court consider whether the restrictions imposed a substantial obstacle in the path of certain women seeking an abortion even if they did not have the same impact on all women of reproductive age in Texas. And lower courts have recognized that application of the undue burden standard requires consideration of the ways abortion restrictions interact with women’s lived experiences. These aspects of the undue burden test will be crucial to ensuring that the test not only strikes down sham TRAP laws, but also protects the right to abortion for all women.