DON'T FIGHT THE PHONY WARS: EXCERPTS FROM JANET BENSHOOF'S SPEECH UPON RECEIVING THE EDITH I. SPIVAK AWARD
Redefine equality and justice
My central message is simple in principle but profound if practiced. The United States has lost its moral authority as a model of the rule of law. We must seek to regain that authority by actions not words, starting with affirming that gender justice and Global Justice are inseparable. And, such global justice starts at home, right here, in this room, tonight.
Over the last thirty years the United States Supreme Court, while paying lip service to advancing women's equality has simultaneously radically redefined what constitutes sex discrimination excluding all laws, based on physical differences mainly pregnancy and abortion. It is imperative that we find the political will to repudiate this twisted definition of women's equality rights which embeds rather than rejects the "biology is destiny" stereotype. We need the United States to lead or at least join the global movement for women's equality under law-not undermine it.
The most important lesson I have learned over my thirty-year career is not to fight phony wars, which, at best-can lead only to pyrrhic victories. Worse are some ongoing "phony wars" for women's rights which are starting out with rights so compromised, that winning them would be worse than losing. We are critical juncture in the fight for establishing legal rights for women's rights worldwide. The crabbed definitions of sex discrimination our Supreme Court has developed are pernicious precedents at odds with and a threat to evolving global standards for women's rights.
PHONY WAR #1: The federal ERA
Forget about any move to resuscitate the Federal ERA. It is so riddled with political baggage that it is better to sink it once and for all. Proponents of the ERA along with their academic backup teams deliberately drafted a very limited ERA in 1971 which takes women as a class out of their own equal rights amendment.
The federal ERA deliberately excludes laws based on physical differences, mainly pregnancy and abortion, from the ambit of laws to be considered factually discriminatory laws and illegal under the ERA. In fact, even without having been ratified, the very fact ERA proponents proposed this limited definition was used to frame the first Supreme Court decision finding discrimination against pregnant women was not sex discrimination (Geduldig 1974). And this has been expanded to encompass not even considering anti-abortion restrictions-no matter how life threatening or humiliating-as sex discriminatory. For example in 1991, in the Brey case, Justice Roberts, then Deputy Solicitor General, cited to Geduldig to support his argument that women blockaded from seeking abortion services were not protected by federal civil rights remedies. The Supreme Court adopted this argument; making clear that this harassment had nothing to do with women as a class, just the subset of those "persons" who would seek out abortions. And, the rationale goes, this is not a sex classification- men could get pregnant they would be harassed too.
You might ask, why not just amend the federal ERA to make it clear it covers physical differences like pregnancy? Well, it is too late for this ERA because too many states ratified it based on the clear statements by its proponents it would not apply to any abortion restrictions. If the ERA was ratified tomorrow we would be tied up in courts endlessly arguing about the legal relevance of its convoluted legislative history.
Any constitutional protection of gender equality and prohibitions against sex discrimination must accept without question that legal restrictions on a woman's ability to control decisions around pregnancy and abortion are sex-based classifications and violate basic human rights, specifically the human right to be free from discrimination.
The federal ERA is Faustian bargain, one we cannot afford in this country and, we certainly cannot afford to export.
PHONY WAR #2: The US ratification of CEDAW
The US version of CEDAW is not worth ratifying. To date 185 countries have ratified the treaty called "the international bill of rights for women" officially, the Convention for Elimination of all Forms of Discrimination against Women or CEDAW. Although the United States signed CEDAW in 1980, it was not until 2002 that the Senate Foreign Relations Committee voted to approve after hearings which imposed a bundle of "conditions and understandings" on CEDAW. This US version, CEDAW "lite" or CEDAW lie as I call it, has so limited the scope of equality rights that it could undermine rather than further women's rights globally.
The U.S. CEDAW conditions include an anti-abortion "understanding" sponsored by Senator Helms in 1994 which states:
"nothing in this Convention shall be construed to reflect or create any right to abortion and in no case should abortion be promoted as a method of family planning."
Now, you might ask, what is wrong with that, what exactly does it do? Although this phrase may sound neutral-or even benign-it most decidedly is not. In fact, the language strikes at the central premise-and promise-of CEDAW which is the equality definition in Section 2. Under CEDAW all laws must be given the strictest scrutiny as to whether they act to impede women's rights to full citizenship and dignity. If any law fails this test, women have the right to have it invalidated as sex discriminatory. Yet the U.S. version would exclude abortion, and only abortion from even this scrutiny. The phrase "abortion as a method of family planning" is a euphemism which has a legal definition that would mean CEDAW supports criminal abortion laws with the exception of those few for life, rape and incest. This is a replay of the entire ERA debacle only worse.
This U.S. anti-abortion interpretation of CEDAW is at odds with developing jurisprudence globally. The UN treaty monitoring bodies have repeatedly held countries responsible under both CEDAW and the ICCPR for the harms ensuing to women from restrictive abortion laws.
On May 10, 2006 the Constitutional Court in Colombia struck down Colombia's criminal abortion law on the ground it violated women's rights under a "bundle" of laws, with CEDAW at the centerpiece. The Court's language is noteworthy:
"Sexual and reproductive rights also emerge from the recognition that equality in general, gender equality in particular, and the emancipation of women and girls are essential to society. Protecting sexual and reproductive rights is a direct path to promoting the dignity of all human beings and a step forward in humanity's advancement towards social justice."
Proponents of CEDAW in the US vigorously deny that CEDAW could ever be what I think it could be- our strongest legal tool for women to fight abortion restrictions and redefine equality. Already, Senator Barbara Boxer testified that CEDAW "has nothing to do with abortion"; Rep Carolyn Maloney testified to the Senate that "the CEDAW treaty has been identified as abortion-neutral by the State Department, Senator Helms lead the way in making this explicit". Over 180 groups have joined this chorus including the American Bar Association.
FEAR: CEDAW supports abortion through its promotion of access to "family planning."
[from the ABA]
FACT: Actually, CEDAW does not address the matter of abortion and, according to the U.S. State Department is "abortion neutral." Many countries in which abortion is illegal--such as Ireland, Burkina Faso and Rwanda--have ratified CEDAW.
PHONY WAR #3: "Roe v Wade" as it stands today is no right to fight for.
"SAVE ROE!" What Roe? The political bandwagon supporting politicians who pledge to "save Roe," is meaningless without more. The constitutional protections Roe have been so chipped away over thirty years that in no way is the abortion choice a fundamental constitutional right in law or in fact. The legal standard is not only weak but actually encourages discriminatory, humiliating laws which reinforce stereotypes. Our Supreme Court jurisprudence on privacy in 2007 singles out women seeking abortions and permits the law to "burden" her but not "unduly". This strategic legal standard -undue burden- is one which gives less judicial scrutiny to criminal laws imposed on women seeking abortions than it gives laws regulating trucking under the Commerce Clause. In fact, over three hundred state criminal laws restricting various aspects of abortion that would have been invalid under the 1973 Roe decision are now "constitutional" under our 2007 "Roe". Yet, what politicians are out there pledging to restore full abortion decisional rights, equal funding, and elimination of restrictions on teenagers?
PHONY WAR #4 is not phony but incomplete.
The global censorship of abortion speech orchestrated by the United States, has fully saturated the U.N. and reaches inside over 170 countries. There are two restrictions, but only one has been subject to criticism, the gag rule. Under the gag rule over 400 nonprofit groups world wide will loose all U.S. health and democracy grants if they discuss abortion, even with their own funds. Women's groups in Iran are freer to discuss abortion (and their law has been liberalized) than women in Iraq where AID money to women's groups preclude them from legal or public health discussions regarding abortion law. However pernicious this gag rule is, however, its repeal would not stop the problem. We must kill the virus which foments it, the Helms amendment. The 1973 Helms Amendment to the FAA prohibits US funding of any abortion services or speech except in cases of life or rape or incest. Although such funding is allowed in those cases the U.S. has never permitted it. For example, right now we could help the women in Sudan who suffer rape and forced pregnancy as war crimes. Abortion for rape is legal in the Sudan, it is legal under Helms, but who is speaking up for this medical service to survivors? The Helms censorship has meant that all U.N. agencies now follow its strictures. For example, UNFPA alone imposes censorship on abortion speech in all its projects, ones funded by some 171 donor countries totaling over $350 million annually.
In conclusion I urge you to join me on the next steps. We can all make our way to pursue the same ends in different ways, but we cannot achieve any goal unless it becomes part of our present day conversation. No one gains rights by calling them something else or watering them down. Eleanor Roosevelt so wonderfully reminded us that the future belongs to those who believe in the beauty of their dreams. I would take that one step further. The future belongs to those who dare to dream, not follow, who dare to believe a dream can come true, and, who accept that defeat is part of victory. To act on these beliefs is to have vision, it is exercising leadership, and it is living life.