The High Price of Compromise

Joanna Pozen

Domestic women's rights advocates are gearing up for a renewed CEDAW ratification fight. But do they realize what effect passing an abortion-neutral CEDAW might have on reproductive rights in other countries?

Be careful what you wish for, so the maxim goes.

Indeed, in recent years, advocates for women's rights have had much to wish for regarding the Bush administration's foreign policy. Despite a rhetorical commitment to empowering women in countries like Afghanistan, the Administration has systematically undermined women's rights at home and abroad, including eschewing international conventions that are protective of women's rights, such as the Convention on the Elimination of Discrimination Against Women (CEDAW). CEDAW, a treaty adopted by the United Nations General Assembly in 1979, is often described simply as "an international bill of rights for women." While President Carter signed the Convention and forwarded it onto the Senate in 1980, the U.S. has still not ratified the Convention nearly thirty years later. Having signed but failed to ratify CEDAW, the United States joins the ranks of the eight remaining countries, including Iran and Sudan, that have yet to ratify the Convention. In fact, the United States holds the awkward and ignominious title of being the only country to have signed, but not ratified, CEDAW.

But with the recent Democratic sweep of Congress and the upcoming election next year, political tides – and the political fortunes of women's rights as a foreign policy priority – are shifting. Sensing this shift, women's rights advocates have wisely begun trying to push Congress to revisit an old battleground. Amnesty International USA and Human Rights Watch, in particular, have launched campaigns to press Congress to resurrect the issue of U.S. ratification of CEDAW throughout the fall.

Inklings of a similar campaign have emerged within the Senate itself. When Senator Joseph Biden (D-DE) – who, as the chairman of the Senate Foreign Relations Committee, championed the cause of U.S. ratification in the Senate in 2002 – proposed legislation to designate an International Women's Day, in March 2007, he took the opportunity to re-inject the debate on CEDAW ratification into Senate discourse: "Access to education, economic security, employment non-discrimination, eradication of poverty, equality before the law, access to HIV/AIDS prevention and other health care services…are all critical benchmarks of women's progress," said Senator Biden. "That's why International Women's Day is also a perfect opportunity for the Administration to review its position and support ratification of the International Women's Rights Treaty."

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Although the renewed efforts to secure U.S. ratification of CEDAW are certainly commendable, pro-ratification advocates must tread carefully. History looms large in this debate and brings with it dangerous accoutrements – in particular, the so-called "Helms Understanding," which interprets CEDAW as expressly not "creat[ing] any right to abortion," first proposed by Sen. Jesse Helms in the 1994 hearings, and later attached to the 2002 version of the Convention reported by the Foreign Relations Committee to the Senate. In the context of the 2002 ratification debate, this abortion-neutral interpretation of CEDAW version was supported by most of the major women's rights and human rights groups in the United States.

But there is growing recognition within the international community, if not domestically, that CEDAW's language on gender equality – particularly its broad ranging anti-discrimination provision – evokes a positive duty for the state to ensure non-criminalized access to abortion services. In other words, CEDAW does suggest the right to an abortion. And as such, U.S. ratification of a watered-down version of CEDAW might actually be detrimental for women's reproductive rights abroad, by entrenching a significant international precedent for interpreting the Convention as abortion neutral. In turn, this would significantly diminish CEDAW's usefulness as a tool women's rights advocates can use to push for reproductive rights reform.

Background: Reproductive Rights in the Convention

By ratifying the Convention, countries undertake a positive legal duty to "pursue, by all appropriate means and without delay, a policy of elimination of discrimination against women." Although the term "abortion" is absent from its text, CEDAW explicitly addresses women's access to reproductive services as an important aspect of women's equality. The Convention's definition of gender discrimination is far-reaching – the Convention indicates that any distinction that has "the effect or purpose" of negatively impacting women in the political, economical, social or cultural arenas constitutes discrimination. Therefore, the Convention's definition of discrimination has been interpreted to include policies that are gender-neutral on their face but that, as applied, have a disparate impact on women. Moreover, the Convention specifically obligates State parties to guarantee women's right to determine "the number and spacing of their children."

And recently, the Convention has been interpreted as protective of women's rights with respect to abortion. In May 2006, the Colombian Constitutional Court interpreted the country's constitution in light of Colombia's legal obligations as a CEDAW signatory to overturn the country's total ban on abortion, holding that abortions were now legal in certain circumstances. Specifically, the Court held that criminalizing health services that only women need, such as abortion, violates CEDAW's non-discrimination provision. The European Parliament, meanwhile, voted for the removal of limitations on abortion by EU members citing CEDAW as grounds that there is an "international legal framework" under which EU nations should recognize abortion as a "fundamental right."

The Ratification Debate in the United States

The debate on U.S. ratification of CEDAW first arose in the Senate in 1994, when the Senate Foreign Relations Committee held hearings on CEDAW at the request of the Clinton Administration. The Convention was reported favorably out of the Committee, but was never brought to a vote in the Senate. Then, in 2002, under the leadership of Senator Biden, the Senate Foreign Relations Committee again held hearings on the issue of ratification. During these hearings, the Committee heard testimony from many women's rights advocates, including non-governmental organizations, academics, and other relevant agencies. In June of 2002, the Committee reported the Convention favorably to the Senate by a vote of 12 to 7. Even though the Convention as reported was subject to four reservations and five understandings, including the Helms Understanding, the issue of ratification was never brought to a full vote in the Senate.

In the context of the 2002 debates, pro-ratification advocates accepted an abortion-neutral rendering of the Convention for the sake of political expediency. For example, Human Rights Watch, a leading advocacy organization for women's rights, issued a statement urging the Senate to ratify the treaty, noting, "CEDAW does not take a position on abortion." Prominent law professor Harold Koh, when testifying before the Senate Foreign Relations Committee, proffered the assertion that "that CEDAW supports abortion rights by promoting access to family planning…is flatly untrue." In an article calling for U.S. ratification of CEDAW, Koh went so far as to suggest that the Convention's textual neutrality on abortion was so clear-cut that it "renders superfluous" the proposed "Helms Understanding," which clarifies that "nothing in this Convention shall be construed to reflect or create any right to abortion."

Ironically, only conservative commentators who rallied against U.S. ratification of CEDAW recognized the Convention as pro-abortion. For example, the National Right to Life organization issued a statement that CEDAW's "definition of sex-discrimination condemns any limits on abortion…because all such limits ‘apply only' to women." This is, in fact, a correct interpretation – one also adopted by the Committee on CEDAW itself-of the Convention's broadly framed anti-discrimination provision.

Weighing in on the Debate: The Danger of Compromise

With six out of the seven original pro-ratification members of the Senate Foreign Relations Committee returning, the issue of ratification and the ensuing debate are likely to reemerge. Unfortunately, certain advocates, such as Amnesty International USA, appear poised to re-endorse an abortion neutral version of the Convention. On its ratification campaign website, Amnesty derides as a "myth" the supposition that "CEDDAW supports abortion through its promotion of access to ‘family planning'" and presents as unequivocal "fact" that "CEDAW does not address the matter of abortion." Though the Working Group on the Ratification of CEDAW "has never taken a position on any of the reservations, understandings, or declarations" that have been attached to CEDAW, Sarah Albert, co-chair of the Working Group, says, "This is a basic human rights treaty, not a question of abortion or liberalizing abortion laws."

When the issue of ratification resurfaces in the Senate, advocates should pay attention to the actual costs and benefits of a U.S.-ratified, abortion-neutral CEDAW on women abroad. U.S. ratification with this condition would establish a significant international precedent for interpreting the Convention not only as silent on abortion, but rather as anti-abortion, since the Helms Understanding states that the Convention "does not create any right to abortion." In turn, anti-abortion advocates abroad could wield this watered-down interpretation to stymie growing international recognition of the Convention as a powerful legal instrument for promoting and protecting reproductive rights.

"Although the United States has long claimed to be at the forefront of the women's rights movement, failing to ratify [CEDAW] hurts women in the U.S. and diminishes the US's credibility when it critiques other countries' records on women's rights," Human Rights Watch claims. Particularly given that such pro-ratification campaigns have conceptualized ratification of CEDAW as a foreign policy initiative with which the U.S. could more effectively promote women's rights abroad, advocates need to look seriously at the costs of U.S. ratification of a watered down CEDAW. In his opening statement in the 2002 Senate Foreign Relations Committee's hearings on ratification of CEDAW, Sen. Biden explained, "For the United States, the treaty can be a powerful tool to support women around the world in the fight for equal rights. Our voice on women's rights will be enhanced by becoming a party, because we will be empowered to call nations to account on their compliance with the treaty."

Since prominent advocates have emphasized that ratification is needed as a foreign policy tool in order to increase U.S. effectiveness and credibility in protecting women's rights abroad, advocates should use any new campaign to ratify CEDAW as an opportunity to change their campaign rhetoric to better protect women's reproductive rights. Otherwise, by establishing an international standard for interpreting the Convention as silent on the issue of abortion, U.S. ratification might provide anti-choice activists around the world a tool for debunking current decisions, like the Colombia's constitutional court's landmark decision, that employ CEDAW as legal authority for liberalizing abortion laws.

Too High a Price?

U.S. ratification of a truncated CEDAW runs the risk of becoming a fixed reference point for international interpretation of the Convention. The 2002 ratification debates entrenched testimony from figures such as law professor Harold Koh supporting an interpretation of CEDAW that is silent on abortion. Thus, if the opportunity for ratification indeed reemerges in the Senate, pro-ratification advocates must weigh the cost to women's reproductive rights abroad if the U.S. were to ratify the Convention as silent on the matter of abortion against the potential benefits for women of American endorsement of the Convention.

If the true goal of proponents of U.S. ratification of CEDAW is to improve the lives of women abroad, then these advocates should shift their focus away from ratification of the so-called "abortion neutral" interpretation of CEDAW and instead push for a reading of CEDAW in its pro-abortion interpretation. Given the U.S.'s dominance in the international political arena, the precedent that would be established upon U.S. ratification of an abortion neutral CEDAW could endanger the Convention's role as a critical advocacy tool for women around the world in advancing their reproductive rights.

A renewal of efforts to ratify CEDAW as "abortion neutral" is dangerous as the Convention is, in fact, not neutral on this issue. Although the U.S. should ratify CEDAW in its pro-abortion interpretation, arguably, ratifying CEDAW without such an interpretation could pose greater harm to reproductive rights abroad than if the U.S. were to continue to not ratify it at all. Only when ratified as the pro-abortion treaty that it is can the Convention continue to flourish as an international standard that is protective of women's reproductive rights.

News Politics

Clinton Campaign Announces Tim Kaine as Pick for Vice President

Ally Boguhn

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

The Clinton campaign announced Friday that Sen. Tim Kaine (R-VA) has been selected to join Hillary Clinton’s ticket as her vice presidential candidate.

“I’m thrilled to announce my running mate, @TimKaine, a man who’s devoted his life to fighting for others,” said Clinton in a tweet.

“.@TimKaine is a relentless optimist who believes no problem is unsolvable if you put in the work to solve it,” she added.

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

Kaine signed two letters this week calling for the regulations on banks to be eased, according to a Wednesday report published by the Huffington Post, thereby ”setting himself up as a figure willing to do battle with the progressive wing of the party.”

Charles Chamberlain, executive director of the progressive political action committee Democracy for America, told the New York Times that Kaine’s selection “could be disastrous for our efforts to defeat Donald Trump in the fall” given the senator’s apparent support of the Trans-Pacific Partnership (TPP). Just before Clinton’s campaign made the official announcement that Kaine had been selected, the senator praised the TPP during an interview with the Intercept, though he signaled he had ultimately not decided how he would vote on the matter.

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Kaine’s record on reproductive rights has also generated controversy as news began to circulate that he was being considered to join Clinton’s ticket. Though Kaine recently argued in favor of providing Planned Parenthood with access to funding to fight the Zika virus and signed on as a co-sponsor of the Women’s Health Protection Act—which would prohibit states and the federal government from enacting restrictions on abortion that aren’t applied to comparable medical services—he has also been vocal about his personal opposition to abortion.

In a June interview on NBC’s Meet the Press, Kaine told host Chuck Todd he was “personally” opposed to abortion. He went on, however, to affirm that he still believed “not just as a matter of politics, but even as a matter of morality, that matters about reproduction and intimacy and relationships and contraception are in the personal realm. They’re moral decisions for individuals to make for themselves. And the last thing we need is government intruding into those personal decisions.”

As Rewire has previously reported, though Kaine may have a 100 percent rating for his time in the Senate from Planned Parenthood Action Fund, the campaign website for his 2005 run for governor of Virginia promised he would “work in good faith to reduce abortions” by enforcing Virginia’s “restrictions on abortion and passing an enforceable ban on partial birth abortion that protects the life and health of the mother.”

As governor, Kaine did support some existing restrictions on abortion, including Virginia’s parental consent law and a so-called informed consent law. He also signed a 2009 measure that created “Choose Life” license plates in the state, and gave a percentage of the proceeds to a crisis pregnancy network.

Regardless of Clinton’s vice president pick, the “center of gravity in the Democratic Party has shifted in a bold, populist, progressive direction,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, in an emailed statement. “It’s now more important than ever that Hillary Clinton run an aggressive campaign on core economic ideas like expanding Social Security, debt-free college, Wall Street reform, and yes, stopping the TPP. It’s the best way to unite the Democratic Party, and stop Republicans from winning over swing voters on bread-and-butter issues.”

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.