This post is by Judith Avory Faucette, who writes a monthly column at GAB on gender, sexuality and the law.
In an article recently published in the Harvard Journal of Law & Gender, Aziza Ahmed uses a feminist perspective to address the legal treatment of sex work and its public health consequences in the context of the HIV/AIDS epidemic. Reading this article, I was struck by a parallel between how the law and those advocating for legal change treat sex work, and how they treat abortion. In both these areas of the law, a sex-positive feminist perspective brings me to the same basic conclusion: when your legal strategy is to criminalize a woman’s behavior towards her own body, you neither succeed in stopping the behavior nor meet public health goals. Instead, you push that behavior underground, make it more dangerous, and endanger a woman’s health by limiting the field in which public health advocates can work. Whatever your goals, curbing women’s behavior in this way is not a legitimate objective for the law.
The laws in these two realms, of course, do not exist in a vacuum. Domestic laws, international laws, policy priorities of organizations such as USAID, and the policies of smaller organizations all interact along with other factors and cover a broader scope than just sex work or abortion. Laws can have very broad implications–affecting, for example, not just sex work but the strategies available against human trafficking, HIV/AIDS, and violence against women. Laws meant to target abortion similarly have an impact on funding for general health care and other reproductive services, especially health care for women.
The way I see it, any law needs to serve some legitimate policy objective. Many of those who want to criminalize sex work or abortion have a moral objective, which can be legitimate. However, if the objection to these activities is simply moral, and the purpose of the law is to stop activities that are “wrong,” then criminalization isn’t effective because it doesn’t stop these activities. Where abortion and sex work are illegal, we know that they still take place. They take place underground, often in unsafe conditions, which means that another possible objective–keeping women safe and healthy–is not met by criminalization. The objective of health and safety for women would be much better met by paying attention to health and policy best practices and listening to the voices of the women whom the laws actually affect.
In her article, Ahmed makes three points about criminalizing sex work that also apply to abortion, and any activity in which a woman engages with respect to her own body. First, criminalizing sex work exposes sex workers to greater sexual violence, and violence in general, by the state. Laws that “rescue” sex workers by placing them in rehabilitation programs put sex workers in closer contact with police officers, prison guards, and other officials who tend to abuse and terrorize sex workers. Second, criminalizing a sex worker’s client doesn’t work because it drives sex work underground, making it more dangerous and harder for public health advocates to reach sex workers. Third, criminalization often results in de-funding best practices on HIV because those practices engage sex workers directly and focus on reducing violence against sex workers by the state.
In the context of abortion, criminalization causes similar issues. Women who choose abortion, like sex workers, are often framed as victims or childlike, with the benevolent state presumably knowing what’s best for women’s bodies. The idea is that the state should be trustworthy or more reliable than other actors, whether it’s “taking care of” sex workers or giving scripts to abortion providers. Like the model of criminalizing the client in the context of sex work, a model that criminalizes the provider just makes abortion more dangerous. Everyone has heard the terrifying story of the back alley abortion, or the woman who died from trying to induce her own abortion with herbs. The same problems come up when a government tries to restrict the use of abortion without criminalizing outright–women who cannot afford abortion services given additional costs and the withdrawal of state funding, often poor women and women of color, end up having dangerous abortions outside of a health care facility. Evidence-based medicine and best practices seem to go out the window in the face of an anti-choice legal regime.
The rule of law should not impede women’s empowerment, health, or safety. The law needs to make space for policy and public health priorities and allow them to function, rather than needlessly restricting the creativity of public health advocates and the voices of women in the name of morality. This is true whether we’re talking about laws in a particular country, UN policies, or foreign aid. In the latter case, restrictions on abortion and sex work have had devastating implications for public health, making it impossible for advocates to provide basic services including reproductive care, general health care, and HIV/AIDS prevention and treatment. Legal advocates at every level need to focus on these issues and encourage law makers to make sane decisions that focus on public health and policy objectives that are realizeable, not controversial moral goals that are not.
Judith Avory Faucette studied international human rights law at the University of Iowa and currently blogs on topics such as queer issues, genderqueer identity, and feminism at Radically Queer. She also enjoys doing web design for activists and is currently webmaster at Girl w/ Pen.