Reproductive Rights and the Reproduction of Gender

Abstract

Traditionalists, whether working within a religious or a scientific framework, have regarded subordination as universal, God-given, or natural, hence immutable.... The traditionalist explanation focuses on reproductive capacity and sees in motherhood woman's chief goal in life.... Thus the division of labor based on biological is seen as functional and just. (1) --Gerda Lerner, The Creation of Patriarchy, 16-17 INTRODUCTION President Barack Obama has asked Senator John Kerry, Chair of the Senate Foreign Relations Committee, to move forward on the Convention on the Elimination of All Forms of Discrimination Against Women (2) (CEDAW or the Convention), (3) which President Jimmy Carter signed in 1978. (4) This Article focuses on the consequences of ratification for reproductive rights. Under CEDAW, I argue, the United States would be required to fully assure these rights, including subsidized family planning services and abortion. Part I of this Article describes CEDAW's broad prohibition against what I call 'the reproduction of gender,' including the sexual division of labor based on biological differences that historian Gerda Lerner (5) and other feminist scholars identify as the bedrock for subordination. (6) Part II explains why the denial of reproductive rights necessarily reproduces gender hierarchy, whether by the state or by non-state actors. Part III explains how this plays out, internationally and in the United States. It does so by drawing on recent work regarding the fragmentation of international law. This fragmentation has led to the proliferation of national applications. It then situates this law in U.S. constitutional jurisprudence, showing how the argument set out in this Article resonates with the arguments of Justice Ruth Bader Ginsburg, and Professors Sylvia Law, Reva Siegel and others, to ground reproductive rights in equality, rather than privacy. Efforts to do so under the U.S. Constitution have failed. As this Article demonstrates, CEDAW provides equality on steroids, equality that can do the work necessary to assure reproductive rights. It should be noted that many American proponents of CEDAW oppose my argument. Rather, it is their view that CEDAW does not require support for family planning services and is abortion neutral. (7) Indeed, pro-life opponents of ratification argue, as I do, that CEDAW requires support for family planning services and abortion. (8) I agree, although in my view this is another reason why the United States should ratify CEDAW. Both positions reflect their proponents' strategies regarding ratification of CEDAW. (9) They may be right, but I am not arguing that the United States should or should not ratify CEDAW, or that relying on CEDAW is or is not a useful strategy for furthering reproductive rights in the United States. It may well have the opposite effect. (10) Rather, my argument is that the Women's Convention bars the reproduction of gender, which, as a matter of law, requires the assurance of women's reproductive rights in the United States and everywhere else. I. THE REPRODUCTION OF GENDER (11) A. Reproductive Rights Under International Law Women's rights are relatively new in international law. While the International Bill of Rights (12) requires states to treat women and men 'equally,' this assumes and confirms a male norm. (13) The Covenants and the Universal Declaration protect rights in the public sphere, that is, the rights of individuals in their relations with the state. Some family rights are recognized, (14) but even here the focus is to protect the family from the state, rather than to protect women within the family from men. (15) As the Committee responsible for monitoring CEDAW notes, historically, human activity in public and private life has been viewed differently and regulated accordingly. In all societies, women who have traditionally performed their roles in the private or domestic sphere have long had those activities treated as inferior. …