Rebecca J. Cook & Susannah Howard, Accommodating Women's Differences Under the Women's Anti-discrimination Convention

• Publication year: 2007

ACCOMMODATING WOMEN'S DIFFERENCES UNDER THE WOMEN'S ANTI-DISCRIMINATION CONVENTION

Rebecca J. Cook^*

Susannah Howard^**

INTRODUCTION ............................................................................................ 1040

I. EQUALITY UNDER THE WOMEN'S ANTI-DISCRIMINATION

CONVENTION .................................................................................... 1042

II. DISCRIMINATION IN THE ABORTION CONTEXT ................................. 1048

A. Neglecting Health Care that Only Women Need ...................... 1051

1. Discriminatory Access ........................................................ 1056

2. Dysfunctional Regulations ................................................. 1063

3. Lack of Transparency ......................................................... 1066

B. Expropriating Women's Bodies ................................................ 1070

1. Forced Pregnancy .............................................................. 1072

2. Punishing Women ............................................................... 1078

3. Stigmatizing Women and Their Health Needs .................... 1081

C. Reducing Women's Moral Agency ........................................... 1082

1. Third Party Authorization Requirements ........................... 1083

2. Abuse of Conscientious Objection ...................................... 1085

3. Diminishing the Personhood of Women ............................. 1087

CONCLUSION ................................................................................................ 1090

INTRODUCTION

States worldwide have failed to eliminate the many specific forms of discrimination against women that contribute to maternal death and disability. This is nowhere more apparent than in the estimated nineteen million women compelled to resort to unsafe abortions¹resulting in the premature, preventable deaths of 68,000 women worldwide.²Criminal law restrictions on abortion contribute to these deaths³and channel women into unsafe procedures, resulting in emergency hospital care.⁴

The human problem of abortion can be characterized as societies' inability to accommodate women's biological differences and to redress the social discrimination women face based on those differences. That is, states have not adequately addressed how the differences in women's physiology have been used over the centuries to justify discrimination against women, neglect of health services that only women need, and discriminatory state enforcement of traditional roles for women as mothers and self-sacrificing caregivers. Accommodating differences in the abortion context requires learning how to reframe law and policies to construct an inclusive standard of equality that values sex and gender distinctions.

An antidiscrimination theory that adequately addresses the differences in women's reproductive functions, and the differences in the construction of women's life choices arising out of those functions, has yet to be developed. Nondiscrimination serves the ethic of justice that requires that the same interests are treated equally without discrimination. For example, women have the right to be treated as equals with men. This means being treated with the same respect, dignity, and responsibility as moral agents.⁵It also requires that we treat different interests in ways that adequately respect those differences. For example, women have a distinct interest in not being compelled to gestate and deliver children.

Developing an adequate antidiscrimination theory to address abortion restrictions concerns not only abortion per se, but also overall patterns of neglect of women's reproductive health and the detrimental impact of that neglect on women's status in society. Literature on the legal construction of norms, policies, and standards regarding abortion,⁶the epidemiological data on unsafe abortions,⁷and the social science literature on barriers women face in accessing safe abortion⁸are all instructive in demonstrating systemic patterns of neglect. These patterns also offer important insights into women's experience of discrimination in the abortion context.⁹

The purpose of this Article is to explore how the Convention on the Elimination of All Forms of Discrimination Against Women (the "Convention")¹⁰can be more effectively applied in the abortion context. This Article aims to step back from the judicial rationale for resolution of particular abortion cases and to examine how the rights of women to equality can be advanced through the Convention. The application of the right to equality in the abortion context requires examining how women experience different pathways to abortion services, the dignity-denying treatment in the clinical provision of services, and the discriminatory constructions of their life options, including their choices as to whether and when to found their families.

I. EQUALITY UNDER THE WOMEN'S ANTI-DISCRIMINATION CONVENTION

The Committee on the Elimination of Discrimination Against Women ("the Committee"), which monitors states' compliance with the Convention, has developed the concept of equality through the application of principles of nondiscrimination to the laws, policies, and practices of states. One of the Committee's means include publication of Concluding Observations on the periodic reports of states parties to the Convention in which states explain the extent of their compliance.¹¹Another is the issuance of General

Recommendations on articles of the Convention, which guide states parties in discharge of their periodic reporting duties.¹²Although the normative development of equality can be derived from both Concluding Observations and General Recommendations, this Article primarily addresses General

Recommendations.

The principal General Recommendations relating to restrictive abortion laws and their consequences are Violence Against Women,¹³Equality in Marriage and Family Relations,¹⁴Women and Health,¹⁵and Temporary Special Measures.¹⁶General Recommendations develop the content and meaning of equality by elaborating the obligations of states to eliminate all forms of discrimination against women in particular contexts, including in health, marriage, and family life.

The starting point for understanding equality under the Convention is

Article 1, which defines "discrimination against women" as any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.¹⁷

Laws and policies that are discriminatory on their face, as well as laws and policies that are sex neutral on their face but have the effect of discriminating against women, offend this definition. States are obligated to achieve formal and substantive equality through elimination of de jure and de facto discrimination.¹⁸

The definition of discrimination has to be seen in the context of the overall purpose of the Convention, which is apparent in its title, preamble, and foundational Articles 1 to 5 and 24.¹⁹The title underscores the obligation of states not only to prohibit discrimination on grounds of sex, but also to eliminate all forms of discrimination against women. In the context of international human rights law, the Convention moves from a norm of nondiscrimination on grounds of sex to a norm of the elimination of all forms of discrimination against women. The preamble states that "extensive discrimination against women continues to exist" despite various U.N. resolutions, declarations, and recommendations to prohibit sex discrimination.²⁰

"All forms of discrimination" include stereotypes about women's sex and physiology and those that are based on female gender. Article 5(a) of the Convention requires states parties to eliminate prejudices and practices that are "based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women."²¹

A state's decision to deny benefits to or impose burdens on women in reliance on gender stereotypes amounts to gender discrimination. Stereotypes generalize certain attributes to an entire class of persons and preclude assessment of individual needs and circumstances. Accordingly, they suggest limits to individual autonomy in a manner that is arbitrary and unfair. The use of stereotypes is discriminatory when the generalization implies that those persons subject to the stereotype are in some way inferior as human beings.²²

The notion that motherhood is women's ultimate and ideal role is a discriminatory stereotype that serves to disadvantage women when it is incorporated into state policies or reflected in the implementation of government programs, such as the delivery of health services. The application of this stereotype limits the ability of individual women to make decisions about their lives that may conflict with their role as mothers or future mothers. More profoundly, it insinuates that women are by nature less capable of autonomous action than men. This results in a denial of women's status as moral agents and restricts their full participation in social, political, and economic activities.

Transforming this stereotype does not mean that women's role as mothers should not be taken into account. Rather, the fact that women may at some point become mothers cannot be relied upon to prioritize motherhood for all women to the exclusion of other goals and priorities. The Committee's General Recommendation on Equality in Marriage and Family Relations explains that "[t]he responsibilities that women have to bear and raise children affect their right of access to education, employment, and other activities related to their personal development. They also impose inequitable burdens of work on women."²³

The perceived "naturalness"...