No right to privacy if you’re poor?

KHIARA M. Bridges’ second book The Poverty of Privacy Rights is a work of impeccable legal scholarship on the status of privacy rights for poor women. Unlike typical scholarly works, however, Bridges’ book advances an argument that, she says, “might demand rebellion.”

Bridges examines the extent to which poor women can be said to enjoy rights to privacy — family privacy (the right to bring up one’s children and make decisions about their upbringing); informational privacy (the right to control and withhold information about oneself and avoid interrogation without cause); and reproductive privacy (the liberty to decide to have or not have children).

Bridges illustrates the lack of a right to privacy with examples of their interactions with the state. If a woman requires medical care or income support, and turns to the state, she will face interrogation about her history, living circumstances, behavior and relationships.

If she chooses not to undergo interrogation and doesn’t apply for support, she may well face intervention for neglecting her children and failing to meet their material needs. If she obtains employment, she may face interrogation over her inadequate childcare arrangements, and if she takes care of her children full time, she may face interrogation over why she’s not working outside the home.

She will primarily occupy space in which surveillance and interrogation is unavoidable — public housing, public health care facilities, public transportation and poor neighborhoods generally.

Bridges holds that poor women do not enjoy privacy rights, largely because “the moral construction of poverty” makes poor women a suspect class. She argues that the extent to which a society guarantees rights to particular individuals is dependent on whether it perceives value in the use they will make of these rights.

If, as Bridges asserts, there is a dominant discourse that poor women are “the immoral agents of their own misfortune,” little value (or negative value) will be perceived in giving them the right to keep information about themselves private or insist on the right to make their own decisions.

As a result, it is entirely possible for judges and policy-makers to construct a right to privacy for other individuals — for instance middle-class or affluent women — who can be trusted to exercise that right in a manner that is beneficial or at least not detrimental to society.

As long as poor women are perceived to be sources of immorality and dependency within the larger culture, the law will be capable of resolving tests of competing interests against poor women and in favor of the state.

WHILE BRIDGES’ argument relates to poor women as a class, it is not a class determinist argument.

She highlights the importance of race in the sense that, while she recognizes that class privilege may allow some Black women to enjoy privacy rights denied to poor women, she also recognizes that racist stereotypes and narratives are intertwined with the moral construction of poverty.

Institutional racism places Black women with gross disproportionality in the position of being disenfranchised of privacy rights as poor women, and the moral construction of poverty gives the cover of colorblindness to some manifestations of racism. Nor does Bridges make the claim that poor men have or don’t have privacy rights.

She limits her claim to poor women because The Poverty of Privacy Rights is based in large part on research she did in her first book in 2011, Reproducing Race: An Ethnography of Pregnancy as s Site of Racialization. She makes no claim about poor men simply because she lacks ethnographic data on which to base such claims.

She convincingly makes the case that poor women do not enjoy privacy rights, but goes further to ask whether they have such rights under the U.S. Constitution which are being denied (no effective rights), or whether they are informally disenfranchised of these rights, and therefore can be said to have no claim to privacy which the courts and government institutions are obliged to recognize (no rights).

Bridges calls the first position (no effective rights) the “moderate claim” and the second (no rights) the “strong claim.”

She acknowledges that the data she cites will support either the moderate or strong claim, but argues for the strong claim, that, to the extent the courts have recognized a right under the Constitution to privacy, they have either denied its application to poor women or they have acquiesced in public policy that takes these general rights away from poor women.

At first glance, the no rights or no effective rights question might seem like a distinction without a difference which has significance only to persnickety academics, but Bridges explains why it matters in vivid language.

The moderate claim suggests that we are “almost there” — that we just need to make a couple of small changes in order to bring our nation in line with values to which we profess to be committed.

The moderate claim makes us self-satisfied, convinced that no great injustice is being wrought and that no radical transformations need to occur. The strong claim, on the other hand, might demand rebellion.

What Bridges is saying, essentially, is that the law in this area is too important to be left to lawyers and judges. Incremental reform will not and cannot deliver to poor women the freedom to live their lives, make procreative decisions and raise their children without monitoring, interrogation and intervention.

Instead, accepting that these rights have been taken away and not merely violated, strategies and tactics are needed that have been employed by other disenfranchised groups to create changes in the culture which eventually forced the courts to recognize their claims.

BRIDGES TALKS about the experience of Black people in winning the right to vote. Self-emancipatory activity before, during and after the Civil War was crucial in changing the culture to make it possible to win the right to vote for Black men under the 15th Amendment, but the right was subsequently taken away through informal disenfranchisement in the form of poll taxes, unrestrained terrorism, white primaries and other mechanisms.

The courts upheld these mechanisms of disenfranchisement, so the 15th Amendment notwithstanding, the right no longer existed in much of the country. It was not incremental reform, but self-emancipatory activity through the civil rights movement that compelled the courts and Congress to restore the rights, not as an act of ruling class enlightenment or largesse, but in order to relieve destabilizing pressures and reconcile to cultural changes.

She describes a “dialectic relationship between law and culture,” in which “culture, and politics, jumpstart the dialectic.”

Bridges also discusses the ongoing struggle of sexual minorities for equality. She points out that after decades of low-profile, largely ineffective reform efforts, a movement coalesced after the Stonewall Rebellion, which was possible because it resonated with other challenges and tensions in the culture.

As these changes in culture took root and supported further self-emancipatory activity, pressure began to bear on courts and legislatures. That the Supreme Court could uphold Georgia’s anti-sodomy law criminalizing same-sex sexual activity in 1986 and strike down Texas’ in 2003 is not because of more enlightened judges or patient lawyering or professional reform efforts.

Instead, it was because of activism, insistence on being represented in the culture, and the simple act of coming out. This activity enlarged the number of people who knew that others in their lives were affected by legal inequality of sexual minorities, and eventually created a cultural pressure that judges could no longer resist or ignore.

Bridges’ point here, I think, is that the legal form of the change — constitutional amendment, statute, Supreme Court decision — is less significant than what impels the dialectic between law and culture.

In the examples she examines, she discusses the importance of context. Thus, she cites the Cold War posturing of the U.S. as leader of the “free world” counter-posed with Black citizens of the U.S. brutally oppressed for attempting to vote, police arresting gays and lesbians in the name of morality while using the same tactics against young people protesting an imperialist war, etc.

Calls to change the cultural discourse more readily find an audience when that discourse is being challenged in other ways.

BRIDGES DOES not definitively identify what pressures could help jumpstart the dialectic between the law and culture to overcome the moral construction of poverty and facilitate a movement to establish a legal right to privacy for poor women.

She speculates that the Great Recession — during which a large segment of society became aware of the precarious nature of their separation from poverty — was a missed opportunity. Nevertheless, she provides a framework for activists to think about the issue and reach some conclusions.

First, a general right to privacy in our lives, choices and data will not be extended to poor women simply because they are not formally excluded. Bridges makes the case convincingly that the law will continue to tolerate informal disenfranchisement as long as the culture supports a narrative that justifies it.

For example, Bridges argues that restrictions on abortion funding through Medicaid became a way in which pro-life legislators could tolerate the procreative freedom of middle-class and affluent women — “by weakening poor women’s abortion rights, wealthier women’s rights are strengthened (or allowed to go undisturbed.)”

Second, arguments against intrusions into the privacy of poor women will not succeed solely on the basis that they are compelling based on the logic and language of the Constitution. Compelling legal arguments existed for voting rights and marriage equality existed long before they were enshrined in law, but what was needed was self-emancipatory activity and pressures within the culture.

What is needed, therefore, is a movement that builds on existing pressures within the culture to defeat the moral construction of poverty and challenge the disenfranchisement of poor women from privacy rights.

IT’S VERY much to her credit that Bridges stays in her lane as a scholar and doesn’t try to prescribe a path to the construction of movement to realize privacy rights for poor women. A movement to free poor women from interrogation, intrusion and intervention will have to be a poor women’s movement, with solidarity and support from other activists, lawyers and scholars.

Bridge’s arguments should convince those who are used to professional-led moderate reform efforts to think in terms of a broader, more radical movement, and should convince everyone who wants to become part of such a struggle to think in terms of a narrative that separates poverty from morality.

Perhaps such a narrative will find ground fertilized by growing inequality, and perhaps by the failure of a bankrupt brand of right-wing populism, but it should both support and draw support from narratives relating to other struggles.

It’s noteworthy that, while Bridges does not invoke theory from the Marxist tradition, most of what she says is entirely consistent with formulations developed within this tradition. Her description of how the reinforcement of ideology through civil society finds expression in informal disenfranchisement by institutions of the state illustrates and is enhanced by Antonio Gramsci’s theory of the extended state.

Further, her arguments about making a break from the moral construction of poverty is consistent with Gramsci’s concept of a counter-hegemonic narrative, as is her assessment of what external factors will need to be in play for that break to prevail.

Her description of “a woman’s inability to thrive within the capitalist economy — and her failure to attach herself to a man who has” as the fundamental indictment of her fitness as a parent is entirely consistent with the modern development of the Marxist theory of social reproduction.

If capital’s interest in reproducing the next generation of workers justifies monitoring and regulating poor and working-class families to ensure compliance with norms and minimize instability and disruption, then intrusion, interrogation and intervention directed at those who are perceived to have failed capital’s interests serves a purpose beyond its stated moral objective.

The Poverty of Privacy Rights is an important book, and Khiara M. Bridges deserves to be read alongside works by Angela Davis, Dorothy Roberts, Frances Fox Piven and Richard Cloward and Lise Vogel. Each has something to contribute to an understanding of how class, race and gender intersect to deprive poor women — particularly women of color — of autonomy.

Bridge’s unique contribution is a deepened understanding of how these intersections play out in legal status, and in how cultural change relates to changes in law. It is moreover, an academic work that seeks not simply to understand and explain the world, but to change it.