Document Type

Article

Publication Title

Duke Journal of Gender Law & Policy

Publication Date

2011

Abstract

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 ("CEDAW" or the "Women's Convention"), which President Jimmy Carter signed in 1978. 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 and other feminist scholars identify as the bedrock for women's subordination. 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.

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