Sarah S. Willen Department of Anthropology University of Connecticut

Do “Illegal” Im/migrants Have a Right to Health? Engaging Ethical Theory as Social Practice at a Tel Aviv Open Clinic

As the notion of a “right to health” gains influence, it is increasingly deployed in ways that are diverse, contextually variable, and at times logically inconsistent. Drawing on extended fieldwork at an Israeli human rights organization that ad- vocates for “illegal” migrants and other vulnerable groups, this article contends that medical anthropologists cannot simply rally behind this right. Instead, we must take it as an object of ethnographic analysis and explore how it is invoked, de- bated, and resisted in specific contexts. Critical ethnographies of right to health discourse and practice can enlighten us, and help us enlighten scholars in other fields, to the complexity, messiness, and “mushiness” (Sen 2009) of this right, espe- cially in the context of advocacy on unauthorized im/migrants’ behalf. It can also deepen understanding of the complicated and sometimes tense relationships among human rights, humanitarianism, and other contemporary idioms of social justice mobilization, especially in the health domain. [right to health, migrant “illegality,” im/migrant health, human rights, idioms of social justice mobilization]

In seeing health as a right, we acknowledge the need for a strong social commitment to good health. There are few things as important as that in the contemporary world.

—Amartya Sen, 2008

In the context of Western democracies, health today appears to be endorsed as a kind of meta-value, and speaking in the name of health is one of the most powerful rhetorical devices. The discourse of human rights reflects the fundamental value ascribed to health, by addressing health itself as a kind of meta-right. At the same time, at a national level the notion of a “right to health” appears now more controversial and problematic than ever.

—Monica Greco, 2004

Vulnerable Migrants Have a Right to Health

—Editorial headline, Lancet, 2007

MEDICAL ANTHROPOLOGY QUARTERLY, Vol. 25, Issue 3, pp. 303–330, ISSN 0745- 5194, online ISSN 1548-1387. C© 2011 by the American Anthropological Association. All rights reserved. DOI: 10.1111/j.1548-1387.2011.01163.x

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As the 5:00 P.M. hour drew near, a multinational, polyglot crowd gathered on the stoop outside the narrow storefront housing the volunteer-run Open Clinic for Migrant Workers in south Tel Aviv. The clinic, run by the Israeli human rights orga- nization Briut ve’Zh.uyot Adam (BZA; Hebrew for “Health and Human Rights”),1

is the only primary health care institution consistently open and accessible to the estimated 150,000 unauthorized transnational migrant workers who began settling in Israel in the latter half of the 1990s. Located on an otherwise sleepy block in the heart of the city’s, and country’s, largest migrant enclave, the tiny storefront was readily identifiable from afar by its green-lettered sign in Hebrew, English, and Arabic and by the array of world flags affixed to its floor-to-ceiling streetfront windows.

By the time the director removed the heavy steel padlock from the front door and invited patients to be seated in the row of white plastic patio chairs lining the improvised waiting room, the front stoop was crowded with people hoping for a chance to see a doctor. Given the high patient volume, the unwieldy doctor– patient ratio, and each evening’s scant four hours of clinic time, patients’ waits were inevitably long, and latecomers were sometimes turned away. Each day, an unpredictably diverse assortment of patients came to the clinic with an equally varied array of health concerns. On this particular Sunday, for instance, the list included regulars like Frederick, a chatty, middle-aged Nigerian man who had stopped in for his periodic blood pressure check, along with new patients like Norma, a middle- aged Filipina woman with a stubborn rash on her arm; Constantin, a Romanian man whose girlfriend needed a gynecology appointment; and Linda, a disgruntled young South African mother who, the clinic director told me in a whisper, the doctor suspected might be HIV positive, as might her one-month-old, Israeli-born baby.

For the clinic’s patients, marginalization, “illegalization,” and criminalization are no mere abstractions. Whereas Israeli migrant advocates and activists iden- tify people like Frederick, Norma, Constantin, and Linda in descriptive terms as “unauthorized labor migrants” (mehagrei avoda le’lo ashra), in vernacular discourse they often are labeled disparagingly as “illegal foreign workers” (ovdim zarim lo khuki’im)—a term with powerful negative associations. Linked semantically to the biblical term for idol worship (avodah zara), the Hebrew term for “foreign worker” (oved zar) foregrounds these im/migrants’ Otherness, and it ascribes social value only to the labors of their “working hands” while diminishing, or even denying their humanity. At the same time, it also ignores the crucial fact that the condition of migrant “illegality” is nothing natural or self-evident, but, rather, a complex, ide- ologically charged social construction.2 For these uninvited residents, and for their counterparts in other migration settings, the forms of discursive, social, and biopo- litical exclusion that accompany migrant “illegality” often translate into adverse living and work conditions, poverty, the perpetual threat of arrest and deportation, chronic stress, and other factors that interact syndemically (Singer 2009) to heighten vulnerability to illness and injury and to increase their likelihood of abandonment by prevailing systems of public health and clinical care. Undergirding these em- bodied forms of “bio-inequality” is a fundamental denial of what Fassin (2009) calls “biolegitimacy.” Put bluntly, neither the state nor society finds unauthorized im/migrants’ health, or their lives, particularly deserving of attention or concern (cf. Willen forthcoming-a, 2010b).

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Despite Israel’s nationalized health care system, world-class systems of medical education and care, and proud position on the global cutting edge of medical tech- nology, when people like Frederick, Norma, Constantin, and Linda have health needs, they have virtually nowhere to go but the tiny, resource-strapped BZA Open Clinic. Since its establishment in 1998, this small, makeshift health center has accu- mulated well over 50,000 patient files, undergone multiple changes in professional leadership, and relocated several times. In material terms, it has little to offer its patients other than a small stock of donated medications, a few pieces of donated medical equipment (an ultrasound, an EKG), and a seemingly boundless supply of volunteer energy. With these meager resources, as I observed during my years as a volunteer receptionist and participant-observer (2000–03) and briefer return visits (2005, 2007, 2008, 2010), the clinic’s director and volunteer team struggled daily to help patients with health problems ranging from childhood illnesses and common colds to work injuries, chronic diseases like heart disease and cancer, and infectious killers like tuberculosis, hepatitis, and HIV. What leads BZA activists to recognize and respond to the suffering of people whom the Israeli state and society seem com- fortably to ignore? As I argue in this article, what unites BZA’s activists, including both their professional staff and their large team of volunteers, is a fundamental rejection of political discourses and government policies that deny unauthorized im/migrants’ biolegitimacy—that is, that categorically exclude im/migrants from the broader moral community. Significantly, however, it would not be accurate to say that all activists at BZA, which explicitly self-identifies as a human rights orga- nization, are equally committed to the proposition that “illegal” im/migrants have a right to health. A close ethnographic look at BZA reveals that this beguilingly simple assertion is actually a matter of considerable epistemological, ethical, and practical confusion and debate.

Although the anthropology of human rights has grown by leaps and bounds in the past 15 years, the notion of a human right to health—for unauthorized im/migrants or anyone else—has yet to become a robust object of anthropological study. Perhaps this paucity of attention should come as no surprise, for as recently as 1994 it was possible to say that, “The phrase ‘right to health’ is not a familiar one” (Leary 1994:24). Since these words were published (notably, in the inaugural issue of the now well-established journal Health and Human Rights), the right to health has become a prominent concern in myriad fields of scholarship including legal studies,3 bioethics,4 public health,5 clinical medicine,6 and medical anthropology.7

Beyond the academy, it has also become a crucial rallying point for communities of advocacy, activism, and practice. In these pages, I refract this burgeoning discussion about the nature, content, and implications of the right to health through the lens of my long-term fieldwork at BZA’s Open Clinic to pose several questions for anthropological consideration. First, what is meant, or implied, by the notion of a right to health? How do the meaning and significance of this right vary when it is invoked—either with enthusiasm or with disdain—by activists, lawyers, moral philosophers, public health professionals, medical anthropologists, and politicians, among others? Second, what do divergent actors seek to accomplish by invoking this right, lobbying for it, or repudiating it? Third, whose right is this? Whose is it to claim, and whose is it to enforce? Fourth, how do invocations of this right intersect with humanitarian, Hippocratic, and other impulses to mobilize in response to social

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injustice? Finally, how ought medical anthropologists to engage the right to health theoretically, empirically, and in practice?

Rather than tackling each of these questions in turn, this article instead explores ethnographically how a single human rights NGO translates—or, more precisely, struggles to translate—personal and institutional commitments to unauthorized im/migrants’ right to health into particular forms of discourse and practice. Running alongside this empirical thread is a theoretical challenge. Medical anthropologists, I propose, need to avoid simply rallying behind the notion of a right to health; in- stead, we ought to approach it as an ethnographic object and critically examine how it is invoked, debated, advanced, and resisted in specific local contexts. We need to survey and analyze the broad constellation of claims that employ this common discursive framework, and we need to explore this right ethnographically in all its guises: as a legal instrument, a social object, a rhetorical flourish, a node of con- tingent and precarious political consensus, a framework for translating theory into practice, and, finally, a recognizable, branded strategy for advancing a particular set of ethical or political commitments—what we might call a contemporary idiom of social justice mobilization. Finally, and as importantly, we need to ask ourselves what we mean when we invoke the right to health in our own research, writing, teaching, and advocacy efforts.

These are crucial questions for medical anthropology, not least because there exists a strong, indeed uncharacteristic, tendency among medical anthropologists to support this proposition almost without question. The notion of a right to health is appealing because it taps into a deep desire for social justice that many of us share. It evokes a sense of moral clarity absent from much of our professional engagement, and it implies a forceful, even immediate call to action. Specifically, it offers a pointed response to the scourge of preventable injuries that are not prevented, curable diseases that go uncured, and other forms of useless suffering that medical anthropologists witness regularly in the course of our work. It is the language of key leaders in our field—for many of us, our heroes. Few moral or political claims touch anthropologists as deeply or evoke as uniform a response. Without questioning the nobility of these aims or the legitimacy of these desires, we need to acknowledge the fuzziness or, to borrow from Amartya Sen (2009:355), the “mushiness” of this particular right and subject it—and our reflexive support for it—to critical review.

In proposing that medical anthropologists take the right to health as an ethno- graphic object, my aim is neither to impute naı̈veté to its advocates nor to undercut the growing movement to translate it into law, policy, and practice; to the contrary. Instead, I propose that critical ethnographic engagement with right to health dis- course and practice can enlighten us, and help us enlighten scholars in other fields, to the complexity, messiness, and “mushiness” of this right, both in general and for activists on behalf of unauthorized im/migrants in particular. At the same time, it can also deepen our understanding of the complicated and sometimes tense rela- tionships among human rights, humanitarianism, and other scholarly and popular idioms of social justice mobilization, especially in the health domain.8

One important step in this regard is to strengthen the bridge between medi- cal anthropology and the anthropology of human rights. A decade ago, Richard Wilson noted that human rights language had become “detached from its strictly legal foundations and [become] a generalized moral and political discourse to speak about power relations between individuals, social groups, and states” (2001:xv).

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He called on ethnographers “to look beyond the formal, legalistic, and normative dimensions of human rights, where they will always be a ‘good thing,’” and instead look “at how rights are transformed, deformed, appropriated, and resisted by state and societal actors when inserted into a particular historical and political context” (Wilson 2001:xvii). In a similar vein, Mark Goodale charges anthropologists to maintain a “skeptical distance from the exalted claims of human rights” while ana- lyzing the “different registers through which the idea of human rights is conceived” (2006:32), and Levitt and Merry call attention to the “vernacularization” of human rights discourse by local actors (2009). Analytic tools like these can help clarify what is meant, what is desired and, no less importantly, what is feared when the right to health is invoked. Medical anthropologists have asked similar questions of human- itarianism,9 but our relative inattention to right to health claims has impeded both our analyses and our understanding of the complex relationships among different idioms of social justice mobilization—including those identified as human rights– based or humanitarian. As I elaborate below, the relationship between these two idioms of ethical engagement can become especially complicated in the context of health advocacy on behalf of unauthorized im/migrants in industrialized countries.

To develop this argument, I draw on extended fieldwork at BZA, an Israeli NGO that works to advance right to health claims on behalf of “illegal” im/migrants and other vulnerable groups, including Palestinians in the Occupied Palestinian Territories (OPT), prisoners and detainees in Israeli custody, refugees and asylum seekers, and average Israeli citizens who are having difficulty realizing their right to health. The article begins by surveying the landscape of contemporary formulations and interpretations of the right to health. An overview of my research approach and methods follows. In the remainder of the article, I draw on ethnographic findings to explore how right to health commitments are expressed and negotiated by BZA activists. Here I trace the Open Clinic’s origins, activities, and internal political fissures, then introduce three BZA activists with divergent backgrounds, political inclinations, and personal motives to exemplify the organization’s internal diversity. The final section then analyzes the arc and content of a fiery intraorganizational debate revolving around the core question of this article: What does it mean to assert that unauthorized migrants have a right to health? Read in tandem, this trio of activist portraits and closely related “critical event” (Das 1995) reveal the epistemological and ethical friction between human rights and humanitarian modes of advocacy on unauthorized im/migrants’ behalf. These findings also show how the specific content of this right, as well as its potential for realization, often depend less on formal points of national or international law than on vernacular assessments of “deservingness” (Willen forthcoming-a)—that is, on questions of ideological commitment, morality, and ethics bearing a distinctly local cast.

The Right to Health: Foundations and Contestations

What exactly are human rights? Are there . . . really such things?

—Amartya Sen, 2009

According to Amartya Sen, a commitment to human rights “can be very attractive as a general belief, and it may even be politically effective as rhetoric,” yet “[m]any

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philosophers and legal theorists see the rhetoric of human rights as just loose talk— well-meaning and perhaps even laudable loose talk—which cannot, it is presumed, have much intellectual strength” (2009:355). This skepticism, Sen notes, is as old as the idea of rights itself. In a blistering 1791 attack on the recently declared “rights of man,” for instance, philosopher Jeremy Bentham declared natural rights “bawling on paper” and “rhetorical nonsense, nonsense upon stilts” (cited in Sen 2009:356). Are human rights as “loose” or “nonsensical” as critics allege?

In principle all human rights are equal and indivisible, but civil and political rights (sometimes called “first-generation rights”) have garnered much broader recognition and support, and proven more readily justiciable, than economic, social, and cultural rights (ESCR, or “second-generation rights”). In Paul Farmer’s terms, ESCR have long been “the neglected stepchildren of the human rights movement” (2005:xxiv). Yet things have begun to change because of, in part, increased attention to ESCR in diverse fields of scholarship; increased interest and commitment at the United Nations, which in 2002 created the new role of Special Rapporteur on the Right to Health; and the work of international NGOs like Partners in Health and, more recently, Amnesty International (Khan 2009).

These developments notwithstanding, human rights concepts, and especially the notion of a right to health, often are deployed in a freewheeling manner. As Gostin (2002:18) explains, this frequent overextension generates conceptual and epistemo- logical confusion, and it begs the question: What is the right to health? Is it a legal instrument, as proposed in a recent Lancet editorial (2008b)? Is it a framework for developing and implementing policy, as proposed by the inaugural UN Special Rapporteur Paul Hunt (2007)? Is it a moral imperative demanding a lifetime of committed action, as Paul Farmer frequently insists (2005, 2010)? Is it a floating assertion that neglects crucial questions of duty and priority, as bioethicist James Dwyer contends (2004)? Or is it simply a catchy slogan or bumper sticker? From a medical anthropological perspective, how might we make sense of these “differ- ent registers” (Goodale 2006) of right to health discourse and the divergent ways in which this right becomes “transformed, deformed, appropriated, and resisted” (Wilson 2001)?

Until recently, three broad orientations to the right to health predominated: (1) legal approaches grounded in post-WWII international law (incl., in particular, Article 12 of the International Convention on ESCR [Office of the High Commis- sioner for Human Rights 1976] and UN General Comment 14 [United Nations 1966]); (2) ethical approaches grounded in moral philosophy; and (3) symbolic or rhetorical approaches. A fourth approach emerged in the mid-2000s when public health leaders began translating this right into the language of policy making and evaluation, and a fifth approach may be emerging in the clinical realm, for instance among European physicians using top-tier medical journals to debate the meaning of this right in clinical practice.10

Across this range of approaches, divergent interpretations abound. Are all en- titled to the “highest attainable standard of health,” as stipulated by General Comment 14? If so, how is that “highest attainable standard” defined, and by whom? Are all entitled to the social determinants of good health? To be healthy, tout court? Some have argued that the notion of a right to health status is “obvi- ously absurd” (e.g., Leary 1994:28). Others, including Yamin (1996), argue that it is

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possible to define health in a manner that permits discussion of a right to health sta- tus. The boldest medical anthropological voice in these conversations comes from Farmer, who sees the right to health—“perhaps the least contested social right” (2005:19)—as one thread in a tightly woven fabric of economic and social as well as civil and political rights. As he declared in his keynote at the 2006 American Public Health Association convention in Boston, “if we believe in health and hu- man rights, we will need to broaden, very considerably, our efforts to promote social and economic rights for the poor. This, I would argue, is the leading human rights issue now facing public health” (Farmer 2008:8). Clearly the meaning of this right broadens, contracts, shifts, and evolves as it cycles through divergent spheres of discourse, policy, and practice.

Do “Illegal” Im/migrants Have a Right to Health?

What do these debates have to say about the health needs, rights, or entitlements of unauthorized im/migrants? Thus far, relatively little. In the past several years, the adverse health implications of migrant “illegality” have begun to garner increas- ing attention in medical anthropology and related fields, and a handful of scholars have engaged unauthorized im/migrants’ right to health directly.11,12 Yet, as several colleagues and I contend (this issue), we still lack a clear, robust theoretical frame- work for research on “illegality” and health, both within medical anthropology and writ large. In sketching the contours of a viable research agenda, we priori- tize four concerns whose cascading consequences have profound implications and raise thorny dilemmas for unauthorized im/migrants, their families, and the broader social and political communities in which they live and work. These include (1) the socially, politically, and ideologically constructed nature of migrant “illegality”; (2) the broad question of who benefits from contemporary processes of unauthorized labor migration; (3) the syndemic relationships among “illegality,” inequality, and health-related vulnerability and risk; and (4) the symbolic politics, ethical ground- ing, and discursive contours of debates about migrants’ “deservingness” (Willen forthcoming-a, forthcoming-b) and “biolegitimacy” or lack thereof. In this article, I am concerned primarily with this final point and, specifically, with the fact that moral debates about “deservingness” often take place in a human rights idiom that draws strength from the purportedly universal discourse of international law.

How do local attitudes toward human rights in general, and toward the right to health in particular, affect advocacy efforts on unauthorized im/migrants’ be- half? With this question in mind, let us now turn to Israel, where human rights are not viewed by the general public as an inherently “good thing,” but instead carry powerful connotations of a highly contentious brand of local politics: vocal opposi- tion to the Israeli occupation of Palestinian people and lands. Under circumstances like these, what does it mean to advance an argument on behalf of unauthorized im/migrants’ right to health?

Research Methods and Approach

To engage these questions, I draw on more than 30 nonconsecutive months of ethnographic research conducted between 2000 and 2010 with unauthorized

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transnational im/migrants and Israeli im/migrant advocates in the southern neigh- borhoods of Tel Aviv. In broad terms, the study aims to make sense of how “illegal” migration status is configured by the Israeli state and civil society and, moreover, how this rapidly evolving form of legal (non)classification shapes and constrains im/migrants’ embodied experiences of health, illness, pregnancy, and reproduction, as well as their broader experiences of subjectivity, morality, and being-in-the-world. Put differently, the study employs intersecting lenses of legal anthropology and the anthropology of the state, medical anthropology, and the anthropology of experi- ence in taking a “critical phenomenological” (Desjarlais 1997) approach to migrant “illegality” (see, e.g., Willen 2007a, 2007c, 2010a).

The ethnographic anchors for the study include (1) two communities of unautho- rized im/migrants in Tel Aviv (the Filipino and West African communities),13 and (2) three Israeli migrant advocacy organizations. Since my initial research questions involved unauthorized im/migrant women’s experiences of fertility decision-making, pregnancy, and reproductive health, many of the migrants I first met were pregnant women or new mothers (see Willen 2005). I accompanied a subset of these women, and sometimes their male partners, as they sought either abortions or prenatal checkups, diagnostic tests, and in three cases, labor and delivery in Israeli hospi- tals. I also participated actively in the home, family, and community lives of key research participants and attended a wide variety of community activities including church services, life-cycle events (i.e., weddings, christenings, funerals), holiday and community celebrations, and community meetings.

Of the three migrant advocacy organizations in which I conducted fieldwork, two—BZA’s Open Clinic and a hotline for im/migrants in detention—are local hu- man rights organizations (NGOs) serving migrant workers, asylum seekers, and refugees. The third organization, an Aid and Information Center that serves the same groups, is municipally funded and operated. Intensive, long-term involvement with these three very different organizations provided invaluable opportunities to meet migrant workers, to become a familiar face in the city’s im/migrant com- munities, and to set the study into motion. Furthermore, it enabled me to train a long-term ethnographic gaze on the complicated and dynamic im/migrant advocacy community itself.

Here I focus on research conducted at BZA’s low-tech, small-scale Open Clinic, where I spent approximately three evenings (15 hours) per week as a participant- observer and reception-desk volunteer during my primary period of field research (fall 2000; summer 2001–summer 2003). At BZA I also attended, audio-recorded, and took notes at weekly staff meetings, occasional clinic staff meetings, periodic executive board meetings, and annual planning retreats. Additionally, I conducted a 68-item, self-administered survey in 2002–03 with a multinational convenience sample of 170 English-speaking clinic patients. Survey questions covered basic de- mographics, migration motives, experiences of everyday life in Israel, current health status, health care management strategies, and beliefs about deservingness to health care in Israel (Willen 2005, forthcoming-a). Since 2000, I also have conducted more than 25 semistructured interviews (13 of them audio-recorded) and dozens of informal interviews with BZA staff members and volunteers (clinic directors, the coordinator of the Project on Migrant Workers, young adults performing Na- tional Service at BZA in lieu of compulsory military service, clinical volunteers, and

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reception-desk volunteers). The study was conducted with approval from BZA and from the institutional review boards at Emory University, Harvard Medical School, and Southern Methodist University.

A Shoestring Clinic—and a “Fig Leaf for Shame”?

As I learned early on from Eran Moyal,14 the first coordinator of BZA’s Project on Migrant Workers and inaugural director of the Open Clinic, the clinic was created with two goals in mind: first, to offer policymakers concrete evidence that the country’s growing undocumented population urgently needed health care, and second, to hand responsibility for the clinic, and the problem, over to the state. At no point was it meant to serve as a constant or comprehensive source of health care for this large, linguistically and culturally diverse population. Neither was it meant, as a senior Israeli physician and longtime clinic volunteer put it, to serve “as a fig leaf for the shame of the state and Israeli society” (Fried 2003). Given the scope and depth of need among the country’s migrant workers, the first goal was relatively easy to accomplish. The second, however, has bordered on the impossible, and the clinic remained open and busy as this article went to press.

During my fieldwork, t

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