Why the US Needs CEDAW: Abortion as a Human Right in the United States

By Jessica Pierson

This year marks the 42nd anniversary of the Hyde Amendment, a legislative provision barring the use of federal funds to pay for abortion except in extreme circumstances. The Hyde Amendment has been a key way in which conservative lawmakers have been able to systematically deny a large portion of women their constitutional right to an abortion. Even though the right to abortion is the law of the land, U.S. constitutional law does not affirmatively guarantee that every person must be able to access an abortion. A case in point being that the Supreme Court has ruled twice that the Hyde Amendment is constitutional, even though its effects have been detrimental to American women.

A human rights framework, on the other hand, requires that government respect, protect, and fulfill the right to an abortion. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is the international treaty on women’s rights that has been ratified by nearly all the United Nations member states except for the U.S. In contrast to the U.S. Constitution, CEDAW imposes an equality standard that requires all laws that disparately impact women be scrutinized to secure de jure and de facto equality for women. The CEDAW Committee, the monitoring body for the treaty, has repeatedly made clear that it considers restrictive abortion laws incompatible with the human rights of women. Therefore, the Hyde Amendment would violate a human rights framework, which would require that the state ensure that every woman, regardless of her income or race, could access the same rights. As the founder of the Global Justice Center, Janet Benshoof, has argued, ratification and full implementation of CEDAW in the U.S. would radically change the basic equality rights of American women, including the right to an abortion.

I Won’t Stop Fighting for Title X—Because it Transformed My Mother’s Life

GJC Grants and Development Manager Danielle Stouck published an op-ed in Ms. about the impact of Title X funding on young women's reproductive health and rights.

My mother can recall in vivid detail the day she went with her friends to buy birth control in 1970. She planned the excursion meticulously: Her high school nurse wrote notes excusing her and her friends from class that day, and she secretly borrowed the family car while her parents were out of town. Soon, they were on the road to a Planned Parenthood clinic in Newark, New Jersey.

Before her trip, pregnancy was, in my mother’s words, her “greatest fear.” The stigma associated with teenage pregnancy was suffocating. Roe v. Wade was still a few years away. Two of her closest friends had become pregnant, but New Jersey laws strictly prohibited abortion.

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The Devastating Consequences of Inadequate Medical Care Within ICE Detention

By Katya Kolluri

While Attorney General Jeff Sessions publicly introduced the “zero tolerance” immigration policy in May that caused children to be separated from their families, another Department of Homeland Security policy was quietly instituted five months earlier. In December, Trump signed off on a new directivewhich allows the detention of pregnant women, except those in their third trimester of pregnancy.

One of the directive’s listed responsibilities is: “Ensuring pregnant detainees receive appropriate medical care including effectuating transfers to facilities that are able to provide  appropriate medical treatment”.

However, numerous pregnant detainees claimed this directive was not being followed. A recent journalistic investigation by BuzzFeedrevealed that pregnant women held in Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) custody under the Trump Administration were abused and denied medical care during their first few weeks of detention, with almost all of them miscarrying while still in custody. In addition, pregnant women were shackled tightly around the stomach when being transported between facilities, and were physically and psychologically abused while in detention. Five women who were pregnant while in ICE and CBP custody described jailers being unresponsive to their medical emergencies including while they were clearly miscarrying, and physical abuse from CBP officers who knew that they were pregnant. In the report, one woman claimed she had been pushed onto the floor by officers even after her telling them that she was pregnant. The officers were quoted as having said that they did not believe the woman, and that it was not their problem.

Proposed "Domestic Gag Rule" Violates Americans’ Right to Free Speech

FOR IMMEDIATE RELEASE – July 31, 2018

[NEW YORK, NY] – Today marks the deadline for public commentary on the changes to the Title X Family Planning Program proposed by the Department of Health and Human Services (HHS). If adopted, this domestic “gag rule” would ban health centers that receive Title X funding from providing their patients with information, referrals, access or support regarding abortion services. This rule is yet another attack by the Trump Administration on low-income and minority communities.

Refugee Detention and the Law, Episode 8 of "That's Illegal!"

In this episode of That's Illegal, GJC President Akila Radhakrishnan and Legal Fellow Kristin Smith discuss the United States' policy of refugee detention at the border, Trump's executive order on family separation, and how it all fits in the context of international law. 

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Statement on the US Decision to Withdraw from the UN Human Rights Council

FOR IMMEDIATE RELEASE - June 19, 2018

[New York]– Today’s decision to withdraw from the UN  Human  Rights  Council  is shortsighted and will further marginalize the United States in the international arena.

The Council is an important venue to address the human rights records of all countries, including the United States. Just yesterday, the UN High Commissioner for Human Rights called the Trump Administration’s family separation policy “unconscionable” and demanded its immediate cessation. The UN Special Rapporteur on extreme poverty and human rights is scheduled to present a report to the Council this Thursday that criticizes US policies as “cruel and inhuman,” and driven by a “contempt for the poor.” 

As the Trump Administration continues its abhorrent racist, xenophobic and misogynist policies, withdrawal from the Human Rights Council will not shield the United States from being held accountable under the human rights framework.

President Trump Puts Women At Risk With U.S. Abortion Gag Rule

FOR IMMEDIATE RELEASE – May 23, 2018

[NEW YORK] – The Trump administration proposed a domestic “Gag Rule” last night, banning health centers that provide, refer, support, or assist women in accessing abortion services from receiving Title X funding. This dangerous policy will deny women their fundamental human rights.

Like the Global Gag Rule reinstated by President Trump in 2017, the Domestic Gag Rule will coerce doctors into staying silent about the option to terminate a pregnancy (except in extremely limited circumstances) under threat of losing their government funding. In effect, the Domestic Gag Rule will prevent doctors from providing complete and accurate medical guidance to women. Even if a patient asks directly where she can obtain an abortion, a Title X provider will not be able to provide her with direct information in order to allow her to access her constitutionally protected right.

Read Akila Radhakrishnan's Speech at the Feminist Majority Foundation's 2018 National Young Feminist Leadership Conference

2018 National Young Feminist Leadership Conference
March 17, 2018 Washington, DC
Text of Preparted Remarks

"I think we all remember the image of Donald Trump, on his third day in office, surrounded by a group of white men, with Mike Pence looking anxiously over his shoulder, signing an executive order stripping women and girls around the world of their access to safe abortion services. And he didn’t just do it like Presidents before him—like Regan and George W. Bush—he did it bigly. 

US Abortion Restrictions on Foreign Aid and Their Impact on Free Speech and Free Association

The United States (US) imposes restrictions on its foreign aid that limit both services and speech related to abortion. They attach to nearly all recipients of foreign aid—limiting the activities, speech, and information that can be legally provided by doctors, health professionals, experts and advocates. These restrictions violate the US’s fundamental human rights obligations to protect free speech and free association.

This brief explains the restrictions on free speech and association imposed by the US Congress (the Helms and Siljander Amendments) and by the executive branch (the Global Gag Rule [“Gag Rule” or “GGR”]). It then details the US’s human rights obligations to respect freedom of speech and association, focusing on obligations under the International Covenant on Civil and Political Rights (ICCPR). The ICCPR only allows for the restriction of these rights in narrow circumstances: where the restriction is adequately provided by law, where it serves a legitimate aim (such as national security or public health), and where the state demonstrates that the restriction is necessary and proportionate in achieving that aim. This brief demonstrates that the Helms and Siljander Amendments and the GGR all fail that strict test, and therefore violate US obligations to ensure and protect the rights to free speech and association guaranteed under international human rights law.

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Listen to the sixth episode of "That's Illegal"

In this episode of That's Illegal, GJC's Executive Assistant Merrite Johnson explains the process of requesting information from the US Government via the Freedom of Information Act (FOIA). 

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The Winding History of the Global Gag Rule

By Julia d'Amours

On September 7th, Senate lawmakers presented “a twofold rebuke” to the Trump Administration’s abortion policy. The proposed legislation would reinstate funding to the United Nations Population Fund and overturn the Global Gag Rule, a hallmark Republican presidential policy that bans US support for international organizations that offer or promote abortion services.

The first segment of the bill regards support for the UN Population Fund (UNFPA), which has a winding and tumultuous relationship with the United States. The UNFPA aimsto promote family planning, maternal health resources, and improved childcare in developing countries. It was founded at the urging of President Nixon in 1969, with the US being one of its core leaders. By 1984, however, President Reagan became one of the UNFPA’s greatest adversaries, accusing it of supporting the Chinese “one-child” policy.  He pulled funding from UNFPA through the Kemp-Kasten anticoercion law, which revoked US support from any organization that “supports or participates in the management of a program of coercive abortion or involuntary sterilization”. Since then, funding for the UNFPA has waxed and waned with the party of presidential leadership, with Democrats offering support for the organization and Republicans being quick to rescind it.

The second facet of the proposal is an amendment presented by Jeanne Shaheen (D- New Hampshire) to undo the “Mexico City Policy”. The Mexico City Policy, also known as the Global Gag Rule, bars federal aid to foreign organizations that provide or promote abortion. Under Trump, however, the policy has been expanded to all organizations that receive global health funding, such as those offering maternal health, anti-Zika, and preventative HIV/AIDs programs.The proposed legislation would undo Trump’s reforms, limit future efforts to reinstate the Mexico City policy, and restore US funding to UNFPA. The Amendment narrowly passed in a 16-15 vote with Republican Senators Susan Collins (Maine) and Lisa Murkowski (Ark) casting the final votes in favor.

The proposal has been praised across party divides. Shaheen applauded the bipartisan support for the new policy, claiming it would “preserve and restore funding levels for international organizations that help to prevent over 50 million unintended pregnancies around the world, and reduce the number of maternal deaths we see from those accessing unsafe abortions when the lack of family planning leaves them without options.” Family planning proponents hailed the move for “sending the message that the lives of girls, women, and families who rely on reproductive healthcare matter here and abroad,” said Brian Dixon, Senior Vice President of the Population Connection Action Fund.

Despite the acclaim, the future of the amendment remains uncertain. Unlike previous efforts to reinstate UNFPA funding and repeal the Global Gag Rule, the amendment has to pass through a Republican Senate, House, and Executive branch. Social conservatives in the House have controlled the US reproductive health agenda since 2011. Typically, the Senate has rebuked their more radical proposals, but now that social conservatives have more control there, the fate of the bill is even more uncertainRemarked Dixon, “[the bill] has to be passed by the full Senate… It’s hard to know what they’re going to do… At some point, these two bills are going to get negotiated into something that both houses will pass.” Senator Lindsay Graham (R- S.C.) commented that the GOP-dominated house would insist on keeping Trump’s policy in place. “This is the same debate we have every year, probably with the same outcome,” he claimed.

Another indication of the amendment’s uncertain future is that the House spending plan includes no financial provisions for it, hinting that the proposal is unlikely to pass or at least will be watered-down before becoming law. Historically, Capitol Hill has opted to retain a traditional budget that preserves the status quo, and the foreign aid required to enact an amendment restoring funding for the UNFPA and rescinding the Gag Rule could amount to as much as $8.8 billion.

This bureaucratic push-and-pull between Republicans and Democrats on the Global Gag Rule may appear strictly political, but it has a very real effect on people’s lives and health throughout the developing world. For example, the Lesotho Planned Parenthood Association received 426,000 condoms from USAID over two years during the Clinton Administration. Once the Gage Rule went back into effect upon the election of Geroge W. Bush, the shipments ceased because the association was the only accessible conduit for condoms in the entire country, in which one in four women was HIV/AIDS positive.

Nor do Republicans’ intentions to curb abortions through rescinded funding seem productive. The claim that cutting family planning funding will make “abortion more rare” has never been supported with data. Studies by Stanford University and a survey of abortion rates in Ghana have shown the contrary to be true. Moreover, cuts to family planning services means abortions are more likely to be performed unsafely, a leading cause of maternal death. 

The global trend towards liberalizing family planning services throughout the world indicates the common understanding that access to family planning services and abortion is a right and essential dimension to healthcare. Limiting maternal health and family planning resources does not reduce rates of abortions, but raises the death tolls for women and their children, meaning Republicans’ “pro-life” policy is actually the contrary. 

 

Global Justice Center Applauds Senate Committee Vote Against Global Gag Rule

FOR IMMEDIATE RELEASE - September 8, 2017

[NEW YORK, NY] – On Thursday, the Senate Appropriations Committee moved to reinstate funding for the United Nations Population Fund and overturn Trump’s reinstatement and expansion of the Global Gag Rule. Sen. Jeanne Shaheen from New Hampshire proposed an amendment to the 2018 State and Foreign Operations Appropriations Bill that would overturn Trump’s expanded version of the Gag Rule, reinstate US contributions to UNFPA and limit the power of any future president to reinstate the Gag Rule. The amendment was approved with the votes of two female republicans, Senator Collins from Maine and Senator Murkowski from Alaska, but still needs to pass the full senate to become law.

Trumps's First UN General Assembly Week: What to Expect

By Julia d'Amours

The 72nd UN General Assembly will start on Tuesday, September 19th. This year’s theme is “Focusing on People: Striving for Peace and a Decent Life for All on a Sustainable Planet,” as chosen by this year’s GA President Miroslav Lajčak of Slovakia. Lajčak has designated six themes for this year’s GA: improving the lives of ordinary people; prevention and mediation to sustain peace; migration; achieving SDG and climate standards; human rights and equal opportunities for both genders; and improved quality of events hosted by the UN General Assembly Presidency.

The UNGA always garners international attention as the “hottest ticket in diplomacy,” but this year’s is leaving delegations in heightened anticipation as President Trump makes his UN debut. According to State Department officials, the US delegation will be smaller than earlier years, scaling down attendance from 1,000 to about 300 US personnel.  US diplomats will also reportedly need permission to attend the myriad side events and debates hosted throughout the week. This diminished presence is partly due to Secretary of State Rex Tillerson’s aims to scale down departmental spending. It’s also sending the message, however, that the US is disengaging from its international obligations and the UN as a whole.

President Trump will be present for three days of the UNGA, more time than most US Presidents have traditionally spent, beginning his participation with an address to the General Assembly on Tuesday, September 19th. From there, he will proceed to several key events, such as a luncheonhosted by UN Secretary General Antonio Guterres. The Trump Administration has indicated counterterrorism, conflict in Syria, North Korea, and UN reform as its priorities during this GA session.

Another change in this year’s GA will be the venue of the negotiations. Typically, the US hosts meetings at the UN or in nearby hotels. Trump has opted instead for his New Jersey golf club. It is rumored that his daughter Ivanka Trump and son-in-law Jared Kushner will play significant roles in these discussions.

Recent tensions between the Trump Administration and UN have left foreign diplomats with apprehension. At the White House in April, Trump remarkedthat he has “long felt that the UN is an underperformer but has tremendous potential”. Ambassador Haley toldthe UNSC in April, “You don’t see the United Nations, like, solving conflicts.” The relationship between the White House and the UN has only grown more contentious over the summer. Last month, Zeid Ra’ad al-Hussein, the UN Human Rights Chief, said that Trump’s repeated denouncements of the press and incitement of violence was “poisonous.”

Historically the US has used the UNGA to demonstrate its commitment to global leadership and indispensable role in the UN. This year, however, many expect touting an “America First” agenda. On September 18th, Trump will chair a meetingon streamlining UN services which will give him and Haley the opportunity to present themselves as big UN reformers. It is anticipated Trump will threaten to revoke funding in certain reforms are not made.

With the increasing hostility with North Korea, the ongoing conflict in Syria, global terror attacks and countries all over the world dealing with the ravaging effects of climate change, the world needs national level leadership to meaningfully address international crises.  Unfortunately, the signs are pointing to Trump’s visit to the UN further fraying global tensions.

Photo by Gage Skidmore

U.S. Lacks Concrete Domestic and International Modes of Legal Protection for U.S. Women

By Marie Wilken

Most Americans—80%—believe women’s rights are guaranteed by the Constitution. Most would likely similarly assume that the U.S. is one of 189 countries to have ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). But the United States neither constitutionally protects women’s rights nor is a state party to the treaty considered an international bill of rights for women. The Equal Rights Amendment (ERA) and CEDAW share similar stories of failed ratification: both passed the initial stages of adoption in the 1970s but, despite decades of activism, have yet to be ratified, denying women in America access to rights they are entitled to and deserve.

The United States has a current set of laws protecting women’s individual rights, so why are CEDAW and the ERA necessary? Both serve as tools to advance gender equality by codifying women’s rights and providing stronger legal frameworks to combat discrimination. CEDAW is an international human rights treaty that pursues equality between men and women in all areas of life. The UN General Assembly adopted CEDAW in 1979, and a committee to ensure compliance was established in 1982. While Jimmy Carter signed the treaty in 1979, it did not get the necessary two-thirds vote from the Senate to ratify it. This puts the United States in the company of a small number of countries—Somalia, Iran, the Holy See, Sudan, Tonga and Palau—that have not ratified CEDAW.

Ratification would positively influence both policy and court case decisions. When the United States previously considered CEDAW and other human rights treaties, it watered them down with reservations, understandings, or declarations (RUDs)—conditions that limit the applications of the treaties by preventing them from being more stringent than standing domestic law. Assuming that the United States didn’t adopt prohibitive RUDs, CEDAW could significantly strengthen protections of women’s rights.

By ratifying CEDAW, the United States would agree to periodic reviews by the independent experts on the CEDAW Committee to evaluate its implementation of the treaty. Other countries’ reviews have prompted public debate, policy decisions and national equality action plans. CEDAW’s provisions cover many areas in which the U.S. is still lacking, such as equal pay, parental leave, domestic violence and healthcare access. In the courts of countries that have ratified CEDAW, it has been used to strike down a number of laws criminalizing abortion and other laws that contradict the Convention. CEDAW has also often been applied in domestic court cases (see the examples in GJC’s CEDAW Casebank).

Ratification of the ERA would similarly benefit women’s rights. The ERA was introduced by suffragette Alice Paul in 1923 after women won the right to vote. In 1972, pushed by the women’s movement, Congress passed the ERA, but it was three states short of the 38 states needed to ratify a constitutional amendment before the deadline (last year, 35 years past the deadline, Nevada ratified the ERA).

The ERA would constitutionally guarantee women’s equal rights. The main section of the short amendment simply states: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Other than the right to vote, the Constitution currently does not explicitly guarantee equal rights for men and women. The 14th Amendment, created to ensure freed slaves equality, is often interpreted as also including equal rights for women—but it hasn’t been and still isn’t always interpreted this way. The amendment was ratified in 1868, but it wasn’t until 70 years later that women won the right to vote and not until 1971—almost a hundred years after ratification—that the 14th Amendment was applied against sex discrimination in Reed v. Reed. The 14th Amendment does not provide the same uniform protections that the ERA would, and its ambiguity endangers women’s rights. The late Justice Antonin Scalia said explicitly that the Constitution does not prohibit sex discrimination. He applied this specifically to the 14th Amendment, saying, “Nobody thought it was directed against sex discrimination.”

The ERA would defend advancements in women’s rights from such ambiguity in judicial interpretation and changes in legislation. While there are rights for women protected under individual laws, such as Title IX, the Equal Pay Act, etc., these could just as easily be reversed. Only by enshrining these rights in the Constitution will cases on sex discrimination be subject to strict scrutiny, the highest level of judicial review. This would shift the burden of proof to those charged with discrimination, and it would heighten the level of justification, making it equal to the level applied to cases related to race and religion.

Both CEDAW and the ERA remain viable options for women in the United States. Ratification of CEDAW would require the support of 66 senators, and there are two possible strategies for ratification of the ERA—restarting the traditional amendment process or extending the previous deadline to gain the support of the two additional states needed for ratification. In the meantime, progress has been made on both CEDAW and the ERA at the local level, with a Cities for CEDAW movement growing and many states adopting versions of the ERA in their constitutions. In a political climate where women’s rights are increasingly under threat, we should not leave them vulnerable to changes in legislation or judicial interpretation. It's time that the United States justified the majority of Americans' belief that women’s rights are guaranteed by making it true.

U.S. Continues to Prioritize Anti-Abortion Policy Over The Wellbeing of Women

By Marie Wilken

The United States recently rejected a United Nations Human Rights Council resolution on violence against women because it contained language calling for access to abortion in countries where it is legal. This is yet another example of the Trump administration using international aid and laws to limit access to abortion around the world. Like the Global Gag Rule, this rejection ignores that in addition to infringing on reproductive rights, these actions have many negative ramifications that are unrelated to abortion.

After a resolution aimed at eliminating violence and discrimination against women, introduced by Canada, was adopted by consensus, the United States dissociated from the consensus because of a sentence about abortion.  While abortion was not a primary focus of the resolution, it stated that all women should have access to “comprehensive sexual and health-care services” including “safe abortion where such services are permitted by national law.” U.S. First Secretary to the U.N. in Geneva Jason Mack delivered a statement saying that the U.S. agrees with the “spirit” of the resolution but cannot endorse the paragraph on reproductive services because the U.S. does “not recognize abortion as a method of family planning, nor do we support abortion in our reproductive health assistance.”

This is not a singular action; its motivations and effects parallel other Trump administration policies. Congress’s new health care bill defunds Planned Parenthood—a policy that, though driven by anti-abortion sentiment, will have a much broader impact on women’s health care. This year President Trump reinstated and greatly expanded the Global Gag Rule. The administration refuses to fund international aid even loosely related to abortion, and its rejection of the UN resolution suggests it is adopting a similar approach toward international law. Because of the Gag Rule, organizations are afraid to even reference abortion out of fear of losing their U.S. funding. There is now fear that the same chilling effect to mentions of abortion and other reproductive rights will spread to international law. The Global Gag Rule, health care bill, and rejection of the UN resolution not only violate women’s reproductive rights, but all also deny women unrelated services and protections.

The United States’ resistance to international reproductive rights is dangerous. By denying women around the world safe and accessible abortion, it risks the lives of women and girls. Approximately 830 women die from preventable pregnancy- and childbirth-related causes per day. U.S. policy forces some of the world’s poorest women to choose between giving birth to a child they cannot afford to care for and seeking an unsafe abortion. The World Health Organization estimates that approximately 225 million women in developing countries want to prevent pregnancy but are not using contraception, mostly due to the limited reproductive health services available.  The administration’s policies are also dangerous because of the message they send the international community about abortion and U.S. ideals. Abortion is a reproductive right, and reproductive rights are an essential aspect of women’s rights—but Mack’s statement separated abortion from other rights and reproductive health services and demonized it. He wielded United States influence over international norms to push them backwards, away from progress toward equal protection of rights.

Because of one sentence on abortion, the United States obstructed the entire resolution. In addition to attacking women’s reproductive rights, the U.S. missed its opportunity to show commitment to improving the lives women through preventing violence and eliminating discrimination. By doing so, the Trump administration reaffirmed its willingness to sacrifice women’s rights, health care, and even lives.