By Jessica Pierson
Because of social and economic inequality in the United States, restrictions on reproductive healthcare, including abortion, disproportionately harm women of color. Just over half of the seven million women subject to the Hyde Amendment, and consequently disenfranchised of their right to access abortion, are women of color.. Additionally, according to a report by Columbia Law School last year, women of color are disproportionately harmed by the Ethical and Religious Directives, a set of guidelines written by the US Conference of Bishops that prohibit healthcare providers at Catholic institutions from providing essential reproductive health care like contraception and abortion. These barriers to reproductive healthcare trap women of color in cycles of poverty. The consequences for black women are profound, as they are disproportionately likely to become pregnant unintentionally, to experience pregnancy-related health complications, and to become gravely ill or die in childbirth.
Policies such as the Hyde Amendment and religious healthcare refusals are upheld by the US Constitution because the laws, on the surface, do not have a racially discriminatory intent. However, due to the structural inequalities in the US that link racism, sexism, and economic inequality, they have had a discriminatory effect. Hence, such policies that make it difficult, if not impossible, for women of color to access the same rights as white, wealthy women violate the US' obligations under the Convention on the Elimination of All Forms of Racial Discrimination (CERD), one of the few human rights treaties that the US has ratified. Indeed, lack of access to sexual and reproductive health services has been documented in shadow reports (civil society reports that supplement the reports states are required to submit under human rights treaties) to the CERD Committee, the monitoring body for the treaty. The CERD Committee has consequently recommended that the US address persistent racial disparities in sexual and reproductive health to comply with the treaty in its Concluding Observations.
Although the US has ratified the CERD, it has never been implemented into US law despite Article VI of the Constitution which mandates that ratified treaties become the supreme law of the land. Full implementation of the CERD would vastly improve US Civil Rights Law as the CERD mandates that policies be scrutinized for their racially discriminatory effect and not only their intent.
Although the federal government has refused to fully implement the CERD, it can still be a powerful tool for social justice advocates. Indeed, the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence assured states that “[treaty] ratification, exemplifying what has been called ‘the paradox of empty promises,’ can lead to greater compliance if accompanied by various forms of advocacy.” Therefore, reproductive justice advocates can utilize the CERD to hold their local, state and federal governments accountable to the principles of the treaty. Local policy makers can pass local resolutions or implement state law that adopts the principles of the treaty. For instance, cities like Madison, Wisconsin and Seattle, Washington have initiatives to address racial and social disparities based on the US’ obligations under the CERD. Civil society should continue to produce shadow reports for the CERD Committee and advocate at the United Nations to hold the US accountable to its obligations under CERD. This sort of local, grassroots advocacy can keep the CERD from merely becoming, as the Special Rapporteur warned, a "window dressing." Instead, the CERD can be an important mechanism for improving Civil Rights law in the US, particularly when it comes to protecting equal access to reproductive healthcare.
Jessica Pierson holds an M.A. in Human Rights Studies from Columbia University’s Institute for the Study of Human Rights. Her graduate thesis research explored abortion as a human right in the United States and the role of CEDAW cities in challenging the Hyde Amendment.