From March 2 until March 13th the Commission on the Status of Women (CSW) held their meeting at the United Nations Headquarters in New York. An annual event that coincides with International Women's Day (March 8), it brings together hundreds of feminists (in theory) to improve the lot of women and (in fact) to advance a radical anti-life, anti-family agenda. One way in which delegates and NGOs seek to accomplish the latter is the yearly ritual excoriation of the United States for not having ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
CEDAW is one of two ostensible human rights treaties that the "international community" has been trying to coax the United States Senate into ratifying for years. The other treaty, the Convention on the Rights of the Child (CRC), has been ratified by every country on earth except for the United States and Somalia (which does not imply that the treaty is good; to the contrary, it is at least as bad as CEDAW). International feminists remind us that CEDAW non-ratification puts us in similarly august company, again joining the failed-state of Somalia, along with genocidal Sudan and mullah-run Iran. (Typically not mentioned is that by not ratifying CEDAW we also stand with the Holy See and scenic, island nations such as Tonga and Palau.) The final document of this week's CSW session will almost certainly sing endlessly the praises of CEDAW, and likely will call on the holdouts like the United States to ratify it.
This hectoring from the UN will come on the heels of Senator Barbara Boxer's insistence during UN Ambassador Susan Rice's nomination hearings that the United States must ratify CEDAWsince the senator is "so embarrassed that we have not done that." Sen. Boxer bemoans the fact that "very ideological" people have managed to block CEDAW because they asked, "will that mean that women will have a right to abortion?" Sen. Boxer happily informs us, "No. Abortion has nothing to do with it." The abortion question is simply "used as an excuse" (by the radical right, of course) to prevent CEDAW ratification, thus "embarrassing" American diplomats.
Contrary to Sen. Boxer's claim, CEDAW has a great deal to do with abortion. The United States is right never to have ratified it, and should not do so in the future.
It is impossible to understand the impact of CEDAW simply by looking at the treaty language itself. Like most UN human rights treaties, its implementation by state parties is overseen by a compliance committee, the Committee on the Elimination of Discrimination against Women, which issues "General Comments" meant to guide our understanding of the provisions contained in the treaty, and which conducts periodic reviews of state parties, instructing them how to change their laws in order to comply better with the treaty, as understood by the Committee. In its implementation oversight, the CEDAW Committee has betrayed a consistent and unsubtle pattern of supporting legalized abortion. While the Committee may lack the authority to overturn state party abortion restrictions itself, its "comments" are used by state courts to justify such liberalizations.
The treaty proper doesas Sen. Boxer insistsfail to mention "abortion," instead ensuring (in Article 12) that women will not be discriminated against "in the field of health care" and ensuring "on a basis of equality of men and women, access to health care services, including those related to family planning." Immediately problems arise: "health care service" is a fairly nebulous term. How is a health care service different than mere "health care"? What, in particular, is a health care service related to "family planning"? Contraception? Prenatal care? Sterilization? Fertility medication? Abortion? While the treaty may not specify, the Committee has been perfectly clear that in their view abortion is a health care service related to family planning.
In order to flesh out Article 12, the Committee issued, in 1999, General Recommendation No. 24 on Women and Health. While many of the clarifications offered by the recommendation are sound and sensible, its similarly opaque references to "sexual and reproductive health services" lay further groundwork for a CEDAW right to abortion. The recommendation also insists that "laws that criminalize medical procedures only needed by women and that punish women who undergo those procedures" should be repealed (paragraph 12). While this also does not engage abortion by name, it does so obliquely: It frames the clarification so that abortion qua abortion is not the matter at hand, but rather abortion-as-discrimination can be. The implication is that male abortion does not exist and thus cannot be criminalized, therefore any criminalization of abortion is only the criminalization of female abortion, and thus discriminatory and in violation of CEDAW Article 12.
The danger behind CEDAW is that terms like "sexual and reproductive health services," while not really implying any "right" to abortion, wind up doing just that when understood in the bizarro-world of the Committee. Thomas Jacobson of Focus on the Family has counted 58 countries that were pressured to liberalize their abortion laws between 1997 and 2007. In 2008 the Committee expressed its concern to Bolivia about "the difficulties in obtaining a legal abortionboth therapeutic and ethical," basing this concern in Article 12 and General Recommendation No. 24. In 2007 the Committee used the same justification to attack Honduras' restrictive abortion laws, recommending "that the State party consider reviewing the law relating to abortion with a view to identifying circumstances under which abortion could be permitted, such as therapeutic abortions and abortions in cases of pregnancies resulting from rape or incest, and removing punitive provisions imposed on women who undergo abortion, in line with the Committee's general recommendation 24 . . . "
Numerous other examples abound of the Committee pressuring state parties, and in some cases they have clear negative impacts on the countries to which they're directed. The most well known of these incidents is Colombia, whose Constitutional Court in 2006 liberalized its restrictive abortion laws. The decision to do so referenced CEDAW and the CEDAW Committee numerous times. In particular it notes General Recommendation No. 24 which "established that the criminalization of medical practices which only apply to women, like abortion, constitute a violation of equal rights," (6.5.2) and the Committee's 1999 comments to Colombia calling their abortion laws a violation of Article 12. Not withstanding this decision by the Constitutional Court, the CEDAW Committee in 2007 continued to express "concern" over the lack of "access" to "legal abortion services." It recommended that the state clarify "the responsibilities of public health service providers," which read in light the Committee's long-standing disgust at conscientious objection to abortion means something like "force your doctors to perform and refer for abortions."
Attacks on physicians' conscience rights are quite common in CEDAW Committee reports. In 2008 the Committee congratulated Portugal on liberalizing its abortion laws, but still expressed concern "that some women may encounter difficulties in availing themselves of the new regulations given the fact that health-care personnel may decide not to perform an interruption of pregnancy on the basis of their conscience." In 2007 it urged Poland "to ensure that women seeking legal abortion have access to it, and that their access is not limited by the use of the conscientious objection clause." Similarly to Slovakia (2008), "The Committee recommends that the State party adequately regulate the invocation of conscientious objection by health professionals so as to ensure that women's access to health and reproductive health is not limited. The Committee calls the attention of the State party to its general recommendation No. 24, which states that it is discriminatory for a State party to refuse to provide legally for the performance of certain reproductive health services for women."
In other words not only does the Committee insist that abortion is a right guaranteed by CEDAW, but also that it is a right whose access cannot be diminished through the exercise of conscience by physiciansa proposition even in clear violation of federal law in the United States.
With America's meager pro-life protections under daily assault by the Obama administration, why give such a dismantling the imprimatur of an international "human rights body," staffed by ideologues and committed to policies more radical than those of the most liberal Democrats? The Senate is right not to ratify CEDAW and should continue to ignore the hysterical entreaties of Sen. Boxer, the liberal comity of Ambassador Rice, and the tiresome bullying of the CSW, by refusing to do so in the future.
Michael Fragoso is a researcher for the Center for Human Life and Bioethics.