The U.S. Supreme Court Can’t Avoid Sex-Selective, Race-Selective, and Disability-Selective Abortion Bans Forever

After considering the case in fifteen consecutive conferences, the Court in Box v. Planned Parenthood of Indiana and Kentucky gave us a rare window into its politics. In a carefully negotiated compromise, the Court denied certification on the U.S. Court of Appeals for the Seventh Circuit’s finding that laws that banned sex-selective, race-selective, and disability-selective abortion are unconstitutional. In addition, the Court summarily (without further briefing or oral argument) reversed the Seventh Circuit’s finding that Indiana’s law that fetal remains must be disposed of like human remains is unconstitutional.

On the question of disposal of fetal remains, Justice Ginsburg points out that the litigants used the weaker “rational basis” test rather than the “undue burden” standard articulated in Planned Parenthood v. Casey for “strategic” reasons. It is also for strategic reasons that pro-choice advocates have tried to keep what pro-life advocates call “anti-discrimination” provisions as far away from the Court as possible. While there were numerous amicus briefs from pro-life groups urging the Court to take certification in the case, no pro-choice group wrote an amicus brief.  Sex-selective abortion bans were adopted by Pennsylvania along with a host of other abortion restrictions in 1989. Planned Parenthood challenged a number of restrictions but didn’t challenge the one on sex-selection.

In the last decade, states started to ban sex-selective abortion on the false empirical premise that women, particularly Asian American women, abort fetuses when they learn of its sex. Proponents of those bans make reference to laws and practices in other countries to justify bans in the United States. Similarly, Justice Thomas also refers to countries where sex-selective abortions are widespread in his opinion. For example, he inappropriately quotes an article I wrote about sex-selective abortion in India. Vice President Pence who signed the Indiana laws when he was governor of Indiana released a statement urging the United States to follow the lead of other countries around the world and ban sex-selective abortion.

Pointing to the disproportionate abortion rate among African-American and Hispanic women, Justice Thomas suggests that race-selective abortion bans are necessary to prevent eugenics. Race-selective abortion bans prevent a woman from aborting her own fetus on the basis of its race. The text of the race-selective abortion ban was crafted to mirror the language of sex-selective abortion ban. However, the analogy becomes absurd when the actors with the purported racist and sexist intent are brought into the picture. It makes little sense to say that minority women obtain abortions because they object to the race of their own fetuses. The concept of “race” itself is socially constructed so it is not even possible to know the “race” of a fetus before it is born.

The reality is that among the so-called “anti-discrimination” bans, the only type of abortions that are known to occur in the United States are disability-selective abortions. Some women who may not want to raise a child with a severe disability might choose to abort a fetus in that situation. This issue deeply divides liberal communities with some advocates arguing that aborting fetuses with disabilities such as down syndrome devalues people with down syndrome.

For the moment, Justice Thomas agreed with his liberal colleagues to punt this complicated question to a different day, but he is right to say that the Court can’t avoid it forever. Rarely does the Supreme Court explain why it refuses to hear cases on appeal, but in Box v. Indiana, they stated that they refused to hear a challenge to the Indiana bans because the Seventh Circuit was the only appeals court that had ruled on the issue. Recently, a Federal judge granted a temporary injunction against Kentucky’s bans. That case will likely be appealed to the Federal Court of Appeals for the Sixth Circuit and their opinion might diverge from the judgment of the Federal Court for the Seventh Circuit. If that happens, it would create the circuit-split that would make granting certification more compelling. Bans on specific reasons for abortion could appeal to members of the Court that do not want to drive a truck through Roe v. Wade, but are willing to kill it with a thousand cuts.

[cross-posted on the Human Rights at Home Law Professor Blog]

Veil Bans in the European Court of Human Rights

cross-posted from the American Society of International Law’s “ASIL Insight” available at https://www.asil.org/insights/volume/21/issue/15/veil-bans-european-court-human-rights

20171212In recent years a number of European countries have prohibited women from publicly wearing veils that cover their faces.[1] The European Court of Human Rights (the ECtHR or the Court) recently found that Belgium’s veil ban did not violate the European Convention on Human Rights (the Convention).[2]

Restrictions on Muslim women’s clothing first appeared before the Court in a case from Turkey in 2004 involving bans on headscarves in educational institutions.[3] In 2014, the Court found that France’s veil ban did not violate the Convention.[4] In the most recent cases concerning Belgium, the Court also left the Turkish veil ban undisturbed.[5] In this Insight, we explain the relevant rights in the Convention that were in question in the veil bans. Thereafter, we discuss how each of the Court’s decisions have appeared to rely on its prior veil ban decisions and have reached the same legal conclusion to uphold the veil ban, despite contextual differences among the three countries that could have affected the Court’s application of the law to the facts.

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India’s Daughter, Sexual Violence and the Many Indias

2000  Meryl Streep recently opened the U.S. premier of the controversial documentary India’s Daugther about the rape victim who died in December 2012 in India. In the film by Leslee Udwin, the world learns for the first time the motive for the attacks directly from the mouth of one of the accused rapists. Mukesh Singh says that his co-conspirators wanted to teach Jyoti Singh, a medical student, a lesson that she should not be out at night with man that is not her husband. According to him, her death was an accident and that she would not have died if she did not resist. The Indian government has banned the film and asked the BBC not to air it, because the filmmaker failed to follow the guidelines of the prison where the interview of the accused was conducted.

Even before this, feminist lawyers and activists wrote a letter to a TV station in India that was planning to screen the documentary asking that they delay its showing for a host of legal reasons — that it contains hate speech, it incites violence, and interferes with fair trial rights of the defendant whose appeal is currently pending in the Supreme Court. Many Indian women’s movement leaders object to the documentary because it feeds the triumvirate troupe of the Western woman as savior, the Indian woman as oppressed, and the Indian man as rapist.

The real contribution of the documentary and the reactions to it is that exposes the vast divide between the “many Indias.” The discussion around the film neglects the important information we learn about Jyoti, she is like a new generation of Indians who have been raised with Western media, American food, and the values that follow it. She challenged societal norms and insisted that her parents allow her to pursue a medical education and worked at a call center to support herself. Following economic liberalization in 1991, a growing middle class emerged that is increasingly indistinguishable from those in many Western cities — they watch American movies, eat hamburgers, drink their version of Starbucks coffee, and date. These young Indians may work at call centers, Indian-subsidiaries for foreign corporation, banks, and other emerging businesses.

To read the full post, please visit: http://www.huffingtonpost.com/sital-kalantry/indias-daughter-sexual-violence-and-the-many-indias_b_6842334.html

The UN Committee on the Elimination of Racial Discrimination Expresses Concern Over Public Education in Chicago

by Brian Citro, Acting Director, International Human Rights Clinic, University of Chicago Law School and Bill Watson, PILI Fellow, International Human Rights Clinic, University of Chicago Law School

On August 13th and 14th in Geneva, Switzerland, an international committee of experts reviewed the United States’ compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Four committee members separately questioned a delegation of U.S. officials about the racially disparate impact of last year’s Chicago public school closings—the largest wave of school closings in U.S. history. The closings were one of the most frequently cited specific instances of racial discrimination in the United States addressed during the review process.

CERD is one of only a few international human rights treaties the United States has ratified. Unlike U.S. constitutional law—which generally prohibits only intentional discrimination based on race—CERD prohibits any government action that has a disparate impact on a racial minority. Under CERD, the United States must therefore ensure equal enjoyment in practice of several political, economic, social, and cultural rights listed in the treaty, including “the right to education and training.” The treaty is binding on all levels of government—whether federal, state, or local—and requires the federal government to “review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination.”

In advance of last week’s review, the International Human Rights Clinic at the University of Chicago Law School, the Chicago Teachers Union, the Pozen Family Center for Human Rights at the University of Chicago, the Collaborative for Equity and Justice in Education, and Blocks Together (BT) jointly submitted a “shadow” report to the Committee. The report provided the Committee with sobering statistics on the racially disparate impact of the Chicago school closings. While African American students represent only 40 percent of Chicago students, 80 percent of the students impacted by the closings were African American. Moreover, roughly 90 percent of the closed schools had a majority African American student population, and 71 percent had a majority African American teaching staff.

Although the City claimed that all students displaced by the closings would receive a better education, its promise failed to materialize. Instead, 34 percent of students affected by the closings were moved to a lower performing school and more than 50 percent were forced to attend a school on probation for poor performance. Students remained surrounded by violence as they walked to school, and there were reports of altercations and tension in the receiving schools between new and old students. Moreover, in the build up to the school closings, the City largely failed to respect African American parents’ right to participate in public affairs, protected under CERD. Recommendations from parents and experts during public hearings prior to the closings were largely ignored: the City closed eleven of the thirteen schools that hearing officers recommended stay open.

Unfortunately, these problems exemplify issues of de facto segregation and racial disparities in achievement in public education across the United States; the Chicago school closings are merely a case study in government action exacerbating preexisting segregation and achievement disparities. The fact is that, as of 2010, 74 percent of African American students in the United States attended majority-minority schools. Many of these schools are underfunded and under-resourced, with a high proportion of uncertified or out-of-field teachers. High school graduation rates for racial minorities remain lower than for White students and only 56 percent of African American high school graduates enroll in postsecondary education, as compared to 72 percent of White graduates.

The ultimate result of the CERD Committee’s review will be a series of “concluding observations” that give an official interpretation of the United States’ compliance with the treaty. Concerns raised by the Committee about public education in the United States—and specifically Chicago—will very likely find their way into these observations. It will then be up to civil society to work to ensure the United States Government and the City of Chicago fulfill their obligations under CERD to ensure all students enjoy a quality education free from racial discrimination.

Stereotyping Asian Americans as Misogynist

Co-Author: Miriam Yeung, Executive Director, National Asian Pacific Women’s Forum

Reprinted from the Huffington Post Blog: http://www.huffingtonpost.com/sital-kalantry/stereotyping-asian-americans-as-misogynist-_b_5584130.html

In recent years, politicians in almost half the states in the United States as well as a majority of the U.S. House of Representatives have tried to pass anti-abortion laws to, purportedly, address a bias against girl children among Asian Americans and eight states have passed such laws. At this moment, the Asian American population is the fastest-growing racial group in the United States, in part due to the growing number of Asian immigrants — which now surpasses the number of immigrants from Latin American countries. This legislation has been fueled by a combination of implicit bias, factual inaccuracies and harmful racial stereotypes that Asian Americans have a preference for sons. People assume that just because there are so many more boys than girls born in some Asian countries that when people from those countries migrate to the United States, they also abort female fetuses due to a preference for sons.

Setting aside abortion politicking, political ideology and religious dogma, we set out to closely examine the claims fueling legislation banning sex-selective abortion in the United States. Legal scholars from the University of Chicago Law School led a multidisciplinary team that undertook an exhaustive review of U.S. census data and conducted field-work in India, and recently published a new study that finally unravels the “evidence” fueling this anti-Asian campaign.

In our new report, Replacing Myths with Facts: Sex-Selective Abortion Laws in the United States, we find that this legislation is based on myths and misinformation. In fact, while sex-selective abortion bans have proliferated based on a supposed concern over Asian immigrant birth patterns, the reality is that Asian Americans tend to have more girls than white Americans.

The main empirical data on which legislators have relied to pass laws banning sex-selective abortion is a study of 15-year-old U.S. census data. In analyzing more recent U.S. census data from 2007 to 2011, our team of economists found that Asian Americans do not exhibit a preference for sons (or an aversion for daughters). These birthing patterns are very different than what is happening in India and China.

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Does a ban on wearing the full veil promote women’s equality? An Analysis of the European Court of Human Rights Decision

bikini-vs-burka   The European Court of Human Rights ruled last week that France’s ban on wearing the full veil in public places did not contravene the European Convention on Human Rights.   Although Article 9 of the Convention protects individual religious freedom, the freedom to manifest one’s religion can be limited if it is necessary for “public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”  In S.A.S. v. France, the Court found that the French ban was a permissible restriction on religious freedom because it was undertaken for the “protection of the rights and freedoms of others.”  The Court agreed with France that the full veil undermines the idea of “living together.” In other words, if some women wore a full veil, it would breach the rights of others to live in a space, which made socialization easier. This privileges the view that immigrants should assimilate in society over the notion that a country should embrace diversity. The dissenting opinion pointed out that that concept of “living together” is vague and should not outweigh a person’s religious freedom.

But one of the real issues motivating the ban was dismissed by the Court without much discussion.  Many argue that the hijab is repressive to women and banning it would enhance women’s equality. Others have argued that this position denies agency to individual women who choose to veil. The Court rejected France’s argument that the ban was necessary for women’s equality, because it noted that it was a woman who was challenging the ban.  Indeed, the petitioner argued that it was emancipating for her to wear the veil.

In justifying its decision, the Court relied on a 2005 decision where it found that Turkey’s ban on headscarves in educational institutions did not violate religious freedom, because it was undertaken for the purpose of promoting democracy and secularism.   However,  when considering whether or not the full veil or headscarf is repressive to women, the country context is rarely taken into account by commentators.  In other words, a ban in one country may violate human rights, but it might not in another country. Thus, just because the Court found Turkey’s headscarf ban permissible, it doesn’t automatically follow that France’s ban is also legitimate.        

Amnesty International, Open Society Justice Initiative and a host of other organizations submitted briefs opposing the full veil ban in France.   But if Saudi Arabia (a stark example) bans the hijab (which will never happen), would these groups object? Probably not.  In that country, the hijab is common practice and there is societal pressure for women to wear it.  Whereas in France, some woman have argued that the veil is an assertion of their identity as Muslim and distinguishes them from the majority group.  Additionally, when a state that is Muslim-majority bans the headscarf (like Turkey), there may be different motivations at play than when a state like France (where Muslims are a minority) bans the hijab.  When discussing the question of whether or not the veil ban promotes women’s equality, it is important to take the country context into account.  Even if we assume that the full veil is repressive to women in certain countries, when that practice is imported into another country by immigrants, its significance changes.

You Go Grrl! International Law Expert Milena Sterio Named Associate Dean

Milena_Sterio_lrg

ILG Editor and Professor Milena Sterio, a leading expert on international law, has been promoted to the position of associate dean for academic enrichment at Cleveland State University’s Cleveland-Marshall College of Law.

Sterio, the Charles R. Emrick Jr. – Calfee Halter & Griswold Professor of Law, has been a faculty member at Cleveland-Marshall since 2006, and is nationally known for her work on maritime piracy.

“Professor Sterio brings a set of competencies that are particularly well-suited to this position as it has evolved over the last few years,” said Cleveland-Marshall Dean Craig M. Boise. “I look forward to her working with our faculty to enrich both the internal and external intellectual life of Cleveland-Marshall.”

As a maritime piracy law expert, Sterio has participated in meetings of the United Nations Contact Group on Piracy off the Coast of Somalia. She is a member of the Piracy Expert Group, an academic think tank functioning within the auspices of the Public International Law and Policy Group, and is one of six permanent editors of the prestigious IntLawGrrls blog. Sterio has presented her paper on the legality of the United States’ use of drones in the war on terror to groups throughout the country, including at the International Criminal Law Interest Group Annual Workshop.

In the spring of 2013, Sterio was selected as a Fulbright Scholar, spending the semester in Baku, Azerbaijan, at Baku State University. While in Baku, she had the opportunity to teach and conduct research on secession under international law as it related to the province of Azerbaijan, Nagorno-Karabakh.