The Women’s Convention, Reproductive Rights and the Reproduction of Gender

61 Pages Posted: 28 Jul 2012

See all articles by Barbara Stark

Barbara Stark

Hofstra University - Maurice A. Deane School of Law

Date Written: 2011

Abstract

President Barack Obama has asked Senator John Kerry, Chair of the 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”). 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 1 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 others identify as the bedrock for women’s subordination. Part II explains why the denial of reproductive rights necessarily reproduces gender, whether by the state or by non-state actors. Part III explains how this plays out, internationally and in the United States. It concludes by situating CEDAW in U.S. constitutional jurisprudence, showing how the arguments set out in this Article resonate 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 my argument here is opposed by many American proponents of CEDAW. Rather, it is their view that CEDAW does not require support for family planning services and is “abortion neutral.” Indeed, pro-life opponents of ratification argue, as I do, that CEDAW requires support for family planning services and abortion. I agree, although in my view this is another reason to ratify CEDAW.

Both positions reflect their proponents’ strategies regarding ratification of CEDAW. 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. 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.

Keywords: Domestic Relations, Human Rights Law, International Law, Jurisprudence, Women

Suggested Citation

Stark, Barbara, The Women’s Convention, Reproductive Rights and the Reproduction of Gender (2011). Duke Journal of Gender Law & Policy, Vol. 118, No. 261, Spring 2011. Available at SSRN: https://ssrn.com/abstract=2118076

Barbara Stark (Contact Author)

Hofstra University - Maurice A. Deane School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States

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