(By Dr. John Mathiason, Board Chair)

The US Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, as noted in Jennifer Rubin’s Washington Post Opinion piece on June 26, 2023 “stripped women of nearly 50 years of constitutional protection to make their own health-care decisions”.  In fact, the United States has not given women equal human rights at all and if they had, Dobbs could not have been decided.  Let me explain the sad connection of the US to international human rights about women.

The conservative way of looking at this is through what is called “originalism”, “a theory of the interpretation of legal texts, including the text of the Constitution. Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law.”^[1]  If that interpretation is used, women did not have any rights in the constitution, since they were not mentioned (unlike men) in the text, until the 19^th Amendment in 1920 gave women the vote.  On that basis, women’s only equal right in the Constitution is to vote.

In 1923, an effort began to have an equal rights amendment added to the Constitution.  It took until 1972 for the amendment to be passed by the required two-thirds vote of both the US House and Senate to be then considered for ratification by the states.  The text of the amendment was simple:

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

For reasons that are still unclear, the Congress imposed a seven-year deadline for ratification by three-quarters of the States, which would be required for it to become law.  By 1978, only 35 states had ratified, three short of the necessary number.  After considerable activist actions, the Congress extended the deadline to June 30, 1982.  As no new states ratified, 15 states (Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia) had failed to ratify.^[2]  With the exception of Illinois, these are all southern and western states.

There is, however, a larger context.  Since 1945, women’s rights in the United States have had a connection with the United Nations.  The first international treaty giving women equal rights with men was the United Nations Charter, which stated in its preamble that

“WE THE PEOPLES OF THE UNITED NATIONS DETERMINED

• to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and
• to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and
• to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
• to promote social progress and better standards of life in larger freedom,

The Universal Declaration on Human Rights adopted in 1947, reflected this in its preamble and proclaimed that:

• This Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Converting this principle into detailed progress took considerable work.  In fact, in 1972, when the women’s rights amendment was adopted by the US Congress, the United Nations made a decision to name 1975 as International Women’s Year and organize the first United Nations Conference on Women in Mexico City.  One consequence of this was the adoption, by the General Assembly, on 18 December 1979 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).  The United States signed the Convention, which is a first step towards ratification making it part of US law. The Convention entered into force on 3 September 1981 as an international human rights treaty.  Eventually, 187 countries have ratified the Convention, but the United States is not one of them.  In fact, there are eight international human rights treaties and the United States has only ratified three, making it one of the worst countries in terms of ratification of human rights treaties.

One reason for the reluctance of United States is that under its Constitution, Article VI:

• This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

This means that once a treaty has been ratified (by two-thirds of the Senate), it becomes federal law.  The problem with United Nations treaties, like CEDAW, is that they would overcome state laws.  Of the three human rights treaties that were ratified, one (the International Convention on Civil and Political Rights) was based on the US’s Bill of Rights (the first ten amendments to the Constitution), a second, on racial discrimination was based on the 13^th, 14^th and 15^th amendments to the Constitution, and a third, on torture, was based on the eighth amendment which prohibits cruel and unusual punishment.  All of the other five human rights treaties do not have a basis in the Constitution since the issues are both federal and state, and this includes women other than in terms of voting.

The United States signed CEDAW under President Jimmy Carter who sent it to the Senate for ratification. The Senate did not ratify then, due to conservative opposition and has not done so since.  One of the arguments against ratifying CEDAW was related to reproductive rights.  In fact, Article 16 of CEDAW states that:

1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

…

e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;

Had the United States ratified CEDAW, the US Supreme Court would not have been able to reach the Dobbs decision, since reproductive rights would have been a federal matter under the Constitution, and, in fact the Equal Rights Amendment, even though not part of the Constitution, would have in effect been in force.

Only five countries have not ratified CEDAW:  Iran, Niue, Palau, Somalia, Sudan, the Holy See and the United States.  The US is in strange company.  It is only worse in the Convention on the Rights of the Child, where it is the only non-party.

It is time for the United States to get back to leadership in human rights and believe in women’s equal rights.

^[1] Steven G. Calabresi, “On Originalism in Constitutional Interpretation”, National Constitution Center,

^[2] http://feministmajority.org/wp-content/uploads/2017/01/ERA-Factsheet.pdf

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