Re: Opposing
ratification of CEDAW (abortion-rights treaty)
Dear
Senator:
The
National Right to Life Committee (NRLC), on behalf of our 50
state affiliates and of the international pro-life
community, urges you to oppose ratification of the
Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW).
There are
excellent reasons why the CEDAW has never been ratified even
though it was submitted to the Senate 27 years ago (by
President Carter), and why it should not be ratified.
While the
word "abortion" does not appear in the text of the CEDAW
itself, this has proved to be of little significance.
Article 12 asserts, "State Parties shall take all
appropriate measures to eliminate discrimination against
women in the field of health care in order to ensure, on a
basis of equality of men and women, access to health care
services, including those related to family planning."
Since about 1995, Article 12 and other provisions have been
creatively interpreted by official bodies, ranging from the
European Parliament to the UN CEDAW Committee, to condemn
limitations on abortion, on grounds that any restrictions on
abortion are per se discrimination against women.
The
official U.N. CEDAW compliance committee has consistently
exceeded its mandate. The committee has used CEDAW as the
basis for criticizing at least 37 different U.N. member
nations and pressuring them to weaken or repeal laws
protecting unborn children. Among the targets of such
criticisms by the CEDAW Committee have been Ireland ("The
Committee is concerned that, with very limited exceptions,
abortion remains illegal in Ireland"); Poland (in January
2007); Mexico ("The Committee recommends that all states of
Mexico should review their legislation so that, where
necessary, women are granted access to rapid and easy
abortion"); and Portugal ("The Committee is concerned about
the restrictive abortion laws in place in Portugal").
A listing
of the nations affected and the dates they were cited by the
CEDAW Committee is posted
here. A selection of quotations from the CEDAW
Committee's abortion-related documents, in alphabetical
order by country, is posted
here.
The CEDAW
Committee also has explicitly held that nations should
provide public funding of abortion, and even has criticized
nations that have laws in place to allow medical
professionals to opt out of providing abortions.
Here is
how the Center for Reproductive Rights (previously known as
the Center for Reproductive Law and Policy) distilled it in
its 2002 report "Bringing Rights to Bear" (page 146-147):
"The CEDAW Committee has consistently criticized restrictive
abortion laws, often framing such laws as a violation of the
rights to life and health. It has asked states parties to
review legislation making abortion illegal and has praised
states parties for amending their restrictive legislation. .
. . The CEDAW Committee has expressed concern over the lack
of availability to abortion services due to laws allowing
for conscientious objection on the part of hospital
personnel. The committee has made it clear that it
considers it an infringement of women's reproductive rights
when a government fails to ensure access to another provider
willing to perform the procedure."
Moreover,
the CEDAW is now regularly cited as requiring abortion on
demand by groups in pro-abortion lobbying efforts in various
nations, and in legal arguments advanced by organizations
such as the Center for Reproductive Rights. As the Center
summarized the matter in its 2004 monograph, "Safe and Legal
Abortion Is a Woman's Human Right": "[A]ccording to the
Convention on the Elimination of All Forms of Discrimination
Against Women, 'discrimination against women' includes laws
that have either the 'effect' or the 'purpose' of preventing
a woman from exercising any of her human rights or
fundamental freedoms on a basis of equality with men. Laws
that ban abortion have just that effect and that purpose."
Just last
year, the Center for Reproductive Rights and others wrote
the CEDAW Committee alleging that the Philippines is not in
compliance with the provisions of the CEDAW: "Having
ratified CEDAW, the Philippines is obligated to make
abortion safe and legal."
In 2002,
the European Parliament voted to adopt a sweeping report
calling for removal of all limitations to abortion by
European Union members such as Ireland, Spain and Portugal,
and by nations then seeking membership. The report cited
CEDAW as grounds for its assertion that there is an
“international legal framework” under which all European
Union nations should recognize abortion as a “fundamental
right.”
In 2002,
when the Senate Foreign Relations Committee last debated the
CEDAW, Chairman Biden attempted to paper over the problem by
inserting into the ratification resolution certain language
purporting to declare that CEDAW should not be used to
create a right to abortion. This is mere eyewash. Such an
“understanding” would have no legal force and no effect on
any international legal obligations actually imposed on the
United States if CEDAW is ratified, nor would it diminish
the force with which the CEDAW is being employed as a
pro-abortion weapon in and against other nations.
Unlike a
“reservation,” an “understanding” does not purport to alter
the actual legal obligations imposed by a treaty. An
“understanding” by one party to a multiparty convention may
be of limited use in a case in which a future dispute arises
over some obscure new question of interpretation. However,
an “understanding” will have no effect where it directly
contradicts a line of contemporaneous contrary
interpretations on exactly the same point, by the committee
established by the convention itself, as is the case with
CEDAW and abortion. In contrast, a "reservation" announces
to the other parties, in effect, that to the extent a
convention is construed to impose a certain obligation, the
reserving party is not to be regarded as a party to the
convention for the purpose of that particular obligation.
Thus, even if the construction to which the party objects is
regarded as authoritative, the reservation will generally
exempt the party from the resulting obligation – but with a
mere "understanding" the party will be bound by the
obligation it had intended to avoid.
The
drafters of the 2002 ratification resolution recognized very
well the great distinction between an “understanding” and a
“reservation.” The resolution included four reservations,
dealing with private conduct, women in combat, “comparable
worth,” and maternity leave. That the drafters of the
resolution found it appropriate to use reservations rather
than understandings to guard against this fairly broad array
of possible CEDAW consequences, but conspicuously failed to
do so in the case of abortion, demonstrates that they have
deliberately avoided using the only method that might
provide some measure of protection from the imposition of
abortion-related obligations on the United States.
The 2002
resolution also contained an "understanding" that the UN
compliance committee “has no authority to compel actions” by
nations that ratify the treaty. This was just another
dodge. Even without the power to directly compel action by
state parties, the numerous pro-abortion decrees of the
CEDAW Committee will be regarded as far more authoritative
constructions of the legal obligations imposed by the treaty
than any contrary "understanding" by a single party.
Already,
two justices of the U.S. Supreme Court (Justice Ginsberg,
joined by Justice Breyer) have cited CEDAW to buttress a
legal point, even though the Senate has never ratified CEDAW.
[Grutter v. Bollinger, 539 U.S. 344-346 (2003.] If the
Senate ratifies CEDAW, litigants will employ CEDAW in future
legal challenges to federal and state enactments that touch
on abortion, and they are likely to find a greater number of
jurists who will give legal weight to such arguments.
In
summary: the CEDAW, if ratified, would be used to assert an
international obligation on the federal and state
governments to provide public funding for abortion, to
refrain from adopting or enforcing restrictions on
partial-birth abortions, to refrain from adopting or
enforcing laws to protect the rights of
parents with respect to
their minor daughters, to eliminate conscience-protection
laws, and otherwise to condemn any limitations on abortion.
No mere "understanding" to the contrary will preclude these
legal claims.
For these
reasons, a vote in favor of a ratification resolution is a
vote in favor of all of these sweeping pro-abortion
policies, and will be accurately so characterized in our
scorecard of key roll call votes for the 110th Congress. We
urge you to oppose any ratification resolution.
Sincerely,
