As a practicing women’s rights lawyer for over thirty years, the NYU Review of Law and Social Change symposium From Page to Practice:Looking at Sexual and Reproductive Rights Through a New Lens provided me with a unique opportunity to examine the evolution of reproductive rights in the United States under the dual lens of U.S. constitutional jurisprudence and international equality guarantees.
I begin with the proposition that women’s sexual and reproductive rights are foundational to gender equality. Women’s reproductive capacity is at the core of structural inequality. Given that discrimination against women is deeply embedded in American law, in order for legal equality guarantees for women to be effective, these guarantees must include affirmative remedial measures. Although equal protection guarantees do not require positive structural remedies under the U.S. Constitution, this is not the case with international human rights laws. Most notably, the major human rights treaty for women, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), has an inclusive definition of equality that requires strict scrutiny of all laws negatively impacting women, and imposes obligations on states parties to undertake affirmative measures to eliminate systemic inequality. The strong equality guarantees of CEDAW stand in stark contrast to the truncated definitions of equality employed by the Supreme Court. Ratification of CEDAW, if taken seriously, would have a radical impact on American women’s right to equality.
Although American women enjoy strong legal protections against sex discrimination, these protections are largely created by federal statutory law rather than the U.S. Constitution.
Women seeking to invalidate sex discriminatory laws as unconstitutional are categorized into one of three groups, each accorded a different level of judicial scrutiny. This schematic view of women’s claims reflects the Supreme Court’s own stereotyping of women. Under this tripartite scheme, the claims of women seeking to challenge abortion restrictions are placed in the “least favored” category, and constitutional challenges to abortion laws are accorded a singular form of begrudging and punitive judicial scrutiny.
The Obama Administration’s commitment to CEDAW ratification provides women’s rights proponents the opportunity to challenge the Supreme Court’s tripartite scheme of constitutional equality protections in light of CEDAW’s equality guarantees. Given the current political realities in the United States, the prospects for CEDAW ratification appear grim. However, what is important is that ratification efforts, regardless of whether they ultimately succeed, reflect CEDAW’s true definition of equality. For the United States to show global leadership on women’s rights, CEDAW ratification proponents must forthrightly acknowledge that implementation of CEDAW in the United States would radically change the basic equality rights of American women, including the right to an abortion. CEDAW implementation in the United States would also require the United States to change its longstanding dismissive stance towards human rights treaties and take treaty rights seriously as the Constitution so provides.
This Article is divided into three sections. Part II discusses the role of women’s’ rights advocates in the evolution of the tripartite scheme for evaluating sex discriminatory laws by the Supreme Court. Part III sets out the current Supreme Court standards for judicial review that apply to each of the three categories. Part IV examines the disparity between U.S. constitutional equality protections and CEDAW, evaluates how the United States undermines human rights treaties guarantees, and outlines why it is critical that the CEDAW ratification process confronts head on the splintered rights of women under the U.S. Constitution