Human Rights at Home Blog

New Article: Do Reason-Based Abortion Bans Prevent Eugenics?

Sital Kalantry, Do Reason-Based Bans Prevent Eugenics?, Cornell Law Review Online (Oct. 13, 2021). Abstract below.

Two judges of the U.S. Supreme Court, Amy Coney Barrett and Clarence Thomas, as well as several other U.S. Federal Court of Appeals judges have argued that reason‑based abortion bans are designed to prevent eugenics. Eleven states currently prohibit doctors from performing an abortion if they know that the reason the patient is seeking one is because of the predicted gender, race, and/or disability of the fetus. These prohibitions apply from the moment the biological sex and genetic defects of the fetus can be identified, which is well before viability.

Many are closely watching to see whether the new composition of the Court will impact its abortion jurisprudence. The Court’s refusal to prevent the Texas law that allows private actors to enforce a pre‑viability prohibition on abortion has recently gained national attention.3 Another case that is being closely watched is Dobbs v. Jackson Women’s Health Organization, which could permit states to enact prohibitions on pre‑viability abortions. This Essay discusses a lesser‑known case through which Roe v. Wade could be gutted—by declaring reason‑based bans constitutional. If the Court finds that one reason‑based abortion ban is constitutionally permissible, it will open the door for states to destroy the fundamental right to abortion by enacting many more reasons for why abortion is impermissible.

News: Lessons from India on the issue of Supreme Court justice term limits

Co-Editor Sital Kalantry published an Op-Ed titled Lessons from India on the issue of Supreme Court justice term limits with The Hill on April 20, 2021. Excerpt below.

"In response to calls to reform the Supreme Court, President Biden created a new commission to study the idea of increasing its size and adding term limits for justices. The panel should avoid falling into the old trap that the United States has little to learn from other countries. The Supreme Court of India, the largest common law bench in the world with jurisdiction over one billion people, suggests that imposing term limits on justices could negatively affect independence. A Supreme Court with a revolving door could also flip flop on issues of major significance such as abortion."

New York State Modernizes its Surrogacy Laws

by Sital Kalantry,  Clinical Professor of Law, Cornell Law School and Darrell White, 2020 J.D., Cornell Law School

Until recently, New York state’s anti-surrogacy statute passed in 1992 was one of the most restrictive surrogacy laws in the United States. Over the last two decades, states have moved to modernize their surrogacy laws, but New York continued to hold out. Radical feminists and religious groups came together to resist efforts by LGBTQI+ and fertility organizations to legalize surrogacy. After the bill to legalize surrogacy, known as the Child-Parent Security Act (CPSA), failed in the state legislature last year, Governor Cuomo used his executive power to include the CPSA in the state budget. The budget was passed in April 2020.

New York initially prohibited compensated surrogacy after the nationally televised Baby M case from its neighboring state, New Jersey.  A traditional surrogate sued the intended father to nullify the surrogacy contract and the New Jersey Supreme Court ruled that surrogacy contracts were against public policy.  In 1988, the New York Task Force on Life and the Law, argued that New York should ban surrogacy, because it could disrupt traditional relationships and because the long-term effects of the fertility technology was unknown. Thereafter, the New York state legislature passed a statute that imposed fines and criminal sanctions on those who facilitated any type of compensated surrogacy arrangement.

The battle to legalize surrogacy in New York started almost a decade ago. The CPSA was first introduced in the New York State Assembly in 2012 and in the New York State Senate in 2017. While the CPSA was being considered in 2017, the Cornell International Human Rights Clinic published a report pointing out that the stringent anti-surrogacy law in New York had become an outlier in the United States and that many of the societal and technological concerns that prompted the law were no longer valid.

The CPSA remained stalled in the judiciary committee of the legislature for many years. During the 2019 session of the state legislature, the CPSA made it farther than ever before; it passed the New York State Senate. However, it was not introduced in the Assembly for vote in large part because radical feminists and Catholic groups objected. They argued that if New York were to legalize surrogacy, poor and immigrant women would be trafficked to and exploited in New York. Other concerns raised related to the safety of in-vitro fertilization and health of surrogates during pregnancy and birth.

In a literature review published in March 2020 by researchers at Cornell Law School and Weill Cornell Medical School, the authors concluded that in the United States, surrogacy “[i]s a safe process with improving outcomes” because (among other things) of medical norms that already include “[m]eticulous psychosocial and medical screening . . . . ” In regard to the psychological health of surrogates, the report concluded that the published studies in “Western medical systems overwhelmingly show[] that surrogate[s] . . . and their families have good psychological outcomes . . . and feel positively about the experience.”

Eager to ensure passage of the CPSA, Governor Cuomo included the law in the state budget for the fiscal year 2021.  Although it may seem that the inclusion of a surrogacy bill in a budget would be beyond the outer limits of executive power, that is not the case in New York. New York’s constitution and case law permit the governor to include substantive non-fiscal items in the budget.  During this legislative session, there was little resistance to the budget and CPSA as the COVID-19 crisis loomed over the country.

Twenty-two states in the United States currently have no statute that addresses surrogacy. The trend among the states in the U.S. that have adopted surrogacy laws is to legalize surrogacy, not prohibit it. Since 2000, sixteen states (including New York) and the District of Columbia have enacted statutes that explicitly permit compensated gestational surrogacy. Only four states have taken a prohibitive approach since 2000 and two of those states permit uncompensated gestational surrogacy. New York’s change leaves Michigan as the only state that criminalizes compensated gestational surrogacy in the United States.

New York’s new pro-surrogacy law is one of the most protective in the United States in terms of the rights it gives to surrogate. A section of the law, known as the “surrogate’s bill of rights” specifically enumerates the rights of surrogates in regards to: health and welfare decisions, legal counsel, health insurance and medical costs, counseling, life insurance, and termination of the surrogacy contract. The new law also resolves how courts should handle a judgment of parentage and adoption, the status of a child of assisted reproduction, the necessary features of a surrogacy agreement, and how the state plans to regulate surrogacy programs. This change in New York law, which becomes effective in February 2021, is in line with the growing trend towards recognizing surrogacy in the United States.

New York Paid Surrogacy and An India Connection

By Sital Kalantry

Editors' Note:  This piece was originally published in the NY Daily News

The New York State Legislature banned surrogacy in 1992. The only other state that similarly criminalizes and holds all surrogacy contracts unenforceable is Michigan. New York prohibited surrogacy on the heels of a nationwide debate that ensued after a surrogate in New Jersey, Mary Beth Whitehead, sought to keep custody of her biological child.

Almost exactly a year ago today, the New Jersey legislature legalized gestational surrogacy, which is to say cases in which the pregnant woman is not also the genetic mother. Yet New York still lags behind in recognizing modern families.

Last week, I testified in Albany before the New York State Senate Judiciary Committee in favor of a bill that would legalize and regulate compensated surrogacy in New York State. In speaking to state legislative representatives, I learned that one reason some worry about allowing surrogacy is because they think women (particularly poor and minority women) will be exploited.

This is exactly the argument made by some women’s rights advocates. Catholic groups argue that because surrogates face abusive conditions in Thailand, Cambodia, and other developing countries, they will also be exploited in the United States.

The problem with these arguments is that they conflate an ideological objection to surrogacy with a prediction that surrogates in New York will be abused. Those who shroud their objections to surrogacy by pointing to the abusive conditions in other countries object to surrogacy on religious grounds or because they think women’s gestational care should never be bought and sold.

Some Catholics believe that the medical technology used in surrogacy — in vitro fertilization — is problematic because embryos could be killed in the process. Some women’s rights advocates, approaching surrogacy from a view of the world similar to “The Handmaid’s Tale,” argue that we live in a sexist world and women who operate in this world, particularly surrogates, inevitably face horrendous conditions and are dehumanized.

This top-down feminism appears in debates about surrogacy in India as well. Marxists oppose surrogacy in India because they oppose the buying and purchasing of labor more generally. These viewpoints are married to create the exact same arguments being made today in New York: that women will be exploited by surrogacy.

But like the anti-surrogacy lobby in New York, many opponents of legal surrogacy in India would still oppose it even if every surrogate was paid her a million dollars and put up in the Ritz-Carlton by intended parents.

I too worry about the unfair conditions for surrogates in India. Some are forced to live in surrogacy homes; they have no life insurance, no health insurance beyond the pregnancy, and no guarantee of payment. But unlike in India, the New York bill would provide state-of-the-art protections for surrogates in New York: legal representation, life insurance and health insurance all paid for by the intended parents. Women retain the right to terminate the contract before they become pregnant and also to terminate their pregnancy.

Even in the numerous other states in the U.S. where there is no legislation, industry actors have adopted many surrogate-protective guidelines. Surrogates in the United States additionally have the ability to seek damages from doctors, lawyers or the intended parents if they have been harmed, unlike the women who are surrogates in India.

I encourage New Yorkers to distinguish ideological arguments from facts and not to be persuaded by arguments that inappropriately refer to other countries. No one can guarantee that every surrogate will feel she was treated fairly, but the proposed New York law gives surrogates a number of very important protections and rights. Legalizing surrogacy would allow for many people in New York to fulfill their dream of becoming parents.

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

By Sital Kalantry

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 cites to 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. 

 

What Are The Right Reasons For Terminating A Pregnancy?

By Sital Kalantry,  Clinical Professor of Law at Cornell Law School and author of Women’s Human Rights and Migration: Sex-Selective Abortion Laws in the United States and India.

The Chicago-based Court of Appeals for the Seventh Circuit heard an appeal from Indiana last month which will decide whether a state can specify the reasons a woman can terminate her pregnancy. The law in question, signed in March 2016 by then-Governor Mike Pence, prohibits a woman from aborting a fetus on the basis of its sex, disability (including Down syndrome), race, color, national origin, or ancestry.

The lower court, the U.S. District Court Southern District of Indiana, found that the reason-based bans are clearly unconstitutional under Roe v. Wade and Planned Parenthood v. Casey. That court found a state may not prohibit any woman for terminating her pregnancy before viability for any reason. The court also found the portion of the law that required abortion providers to inform their patients of the anti-discrimination provisions and the types of abortions those provisions prohibit and a portion of the law related to fetal tissue disposition were also found to be unconstitutional. The State of Indiana has now appealed this decision, bringing it to the Seventh Circuit.

Ten states have laws to punish doctors for performing an abortion knowing the woman is seeking it because she doesn’t want a child of a certain sex. There are injunctions in place in three of those states. For example, the sex-selective abortion ban in Arkansas was enjoined by a lower court because it was likely unconstitutional. In 1984, Illinois was the first to adopt a ban on sex-selective abortion, but the state eventually agreed to limit the statute only to abortions post-viability after the U.S. Supreme Court’s decision in Casey in 1993. Other states have other forms of reason-based restrictions: North Dakota and Ohio bans disability-selective abortion and Arizona has enacted a race-selective abortion ban.

Reason-based bans are sweeping the nation, particularly sex-selective abortion bans. If states are allowed to limit the reasons for which a woman can terminate a pregnancy, it will drive a huge hole into reproductive choice. Women will be subject to questioning about their motives, an inquiry that can be humiliating and invasive for someone already embarking upon what is likely a difficult decision. When medical professionals face criminal penalties for performing an abortion for the “wrong” reasons, this creates a strain on the doctor patient relationship, and jeopardizes the quality and accessibility of health care services overall.

The state of Indiana and other advocates for reason-based bans on abortion claim that the bans are needed to address discrimination in society. Using misinterpretations of narrow demographic data, anti-abortion advocates have even convinced some pro-choice legislative representatives that the bans on sex selection are needed to prevent widespread abortion of female fetuses among Chinese Americans and Indian Americans. This dominant (and false) narrative misrepresents data in order to play upon feminist concerns related to the desire of some people in some Asian countries to have at least one son. Playing on this stereotype has been successful: over half of state legislatures and the majority U.S. House of Representatives have voted to consider bans on sex-selective abortion.

Anti-abortion groups have also received support from some disability rights groups for bans on disability-selection abortion. An amicus brief in the Indiana case submitted by Down Pride, Saving Down Syndrome, Fondation Jérôme Lejeune, and Women Speak for Themselves, argues that permitting disability selective abortion risks eliminating entire communities of people with disabilities. This disability-selection ban would also prevent abortions for women whose fetuses have been diagnosed with severe disabilities and may require life-time medical care or whose children may die soon after birth.

Anti-abortion advocates also claim that race-selective abortions are needed to prevent the disproportionate rate of abortion among African American and Latina women. Indeed, some African American pro-life groups, such as the National Black Pro-Life Coalition, have spoken in support of such bans. Although the disproportionate rate of abortion among some minority groups is an issue worthy of examination, the notion that minority women are racially discriminating against their own fetuses is absurd, and cannot sustain a straight-faced discussion.

 The U.S. Court of Appeals for the Seventh Circuit should find pre-viability reason-based bans to be unconstitutional under Roe and Casey. The constitutional status of post-viability bans is less clear. In light of the most recent reproductive rights case, Whole Woman’s Health, the Seventh Circuit may undertake a cost/benefit analysis if it applies the “undue burden” test to post-viability sex-selective abortion bans. In such a scenario, pro-choice advocates could argue that sex-selective abortion bans in particular will create a tension in the relationship between a medical professional and her patient, could lead to racial profiling by medical professionals, and will burden the rights of women who desire to obtain non-selective abortions. Importantly, the composition of the justices and whether or not they follow the dominant narrative put forth by anti-abortion activists (for example, that such bans are necessary to prevent widespread sex discrimination amongst Asian Americans) could also have a great impact on the ultimate decision of the Court.

If the Seventh Circuit decides that the Indiana reason-based bans are constitutional, many states will rush to limit the specific reasons for women obtaining abortion. The result may well be a Handmaid’s Tale-esque dystopia, where only a few are deemed to be the “right” reasons. Perhaps we will be headed in the direction of many of our South American neighbors that permit abortion only in the case of rape and to save the life of the mother. No matter how the Seventh Circuit rules, the case is likely headed to the U.S. Supreme Court. If reason-based bans are deemed to be constitutional, it will significant restrict women’s reproductive choice in many ways.

 

Scholarly Voices: What Does Human Rights Advocacy Look Like Now? Part II

Editor's Note: This is the second post in our Scholarly Voices symposium on the current state of human rights advocacy.

Sital Kalantry writes 'On Tyrany Lessons from the Twentieth Century"

Many people have read or heard about history scholar Timothy Snyder’s popular book, On Tyranny: Twenty Lessons from the Twentieth Century.  Drawing largely from the history of the Nazi regime’s rise to power and brutal genocide campaign, he created a list of twenty concrete actions that can be taken by people living under regimes bordering on authoritarianism.  Among other things, he invites readers to seek out the truth (both online and offline), be aware of dangerous language, defend institutions, and not obey the government in advance.  

These are all pertinent lessons for us today. Most of his lessons are directed towards people in the “majority” group who would oppose an authoritarian government. For example, his Lesson #12 is that people should “Make eye contact and small talk.” Here Professor Snyder’s point is that during Nazi Germany and when fascism prevailed in Italy, oppressed groups reacted to how their neighbors treated them. Therefore, he advises his readers to “affirm everyone” because you cannot be sure “who feels threatened in the United States.”

Although Professor Snyder offers advice for the group of people who will not be the targets of the authoritarian regime, I would like to offer advice to those who will be. For immigrants, of whom I am one, I think we should “interact and educate.” Many Americans today fear that immigrants are taking away their jobs and committing crimes. Through broad executive action, many immigrants are being deported and foreigners denied entry into the United States. Most people who support the executive’s policies may never have met with or talked to an immigrant. However, many anti-immigration proponents resist deportation when their own community members are involved. Stories abound like the one involving a Trump-voting community that rallied around an undocumented restaurant owner who was threatened with deportation.  It is easy to demonize people you do not know, but harder to demonize people you do know.  While I would have resisted this burden at another point in my life, I believe today that we have to use every opportunity we can to positively interact and educate others in our communities to help breakdown stereotypes. I live in a diverse and liberal college community surrounded by rural New York. While I do not always follow this principle in my daily life, it is a goal to which I aspire. I think it will help to bridge the voids that divide our country. 

Important New Book on Sex Selective Abortion

Women’s Human Rights and Migration, has just been published as part of University of Pennsylvania's Human Rights book series. In the book, Prof. Sital Kalantry describes how the U.S. Congress and state legislatures across the country have used stereotypes Indian-Americans and Chinese-Americans to restrict women’s rights to choose. The legislators misuse information about people living in other countries to argue that certain minority groups are aborting female fetuses. Using new national census data and survey data, the book presents evidence that some Asian Americans desire to have balanced families with both girls and boys. Practices like sex-selective abortion and veiling that occur in the country of origin of a migrant but also emerge or are attributed to migrants in their country of destination call into question traditional universal approaches human rights.  Kalantry argues for a transnational approach to domestic regulation on migrant women’s practices.  Read more about the book here.  You can look inside the book and purchase at Amazon.

US Law Clinicians Respond to Human Rights Crisis

by Sital Kalantry

The 2017 International Human Rights Clinicial Conference was hosted by Cornell Law School in Ithaca, N.Y. In April 28 and April 29th of this year.  A working group consisting of Sital Kalantry, Elizabeth Brundige, Sandra Babcock, Sarah Knuckey, Jayne Huckerby, and Sarah Paoletti drafted a statement in response to the events we are witnessing in the United States
today.  Participants of the conference discussed and revised the statements in small groups. Based on the feedback of the conference participants, the working group revised and finalized the statement.  While the statement reflects the position of human rights clinicians and people who operate centers, we have opened it up for signature to anyone who supports the content of the statement.  

The statement begins: 

"We are law school educators who teach in clinics and operate centers and institutes that work with and on behalf of individuals, organizations, and communities to promote human rights. We believe in the inherent dignity and equality of all human beings. We are deeply concerned that the recent rhetoric and actions of many leaders in the United States government are harming people and damaging decades of effort and progress in promoting respect for human rights."

The statement goes on to list commitments by the signatories to preserve and promote human rights globally as well as within the US.

For example the educators pledge to "promoting the values that inspired the Universal Declaration of Human Rights and the rights and obligations set forth in international human rights treaties."

To read the full statement or to sign on, click here.

Board of Immigration Appeals, Asylum and Domestic Violence Survivors

by Sital Kalantry and Carolyn Wald, J.D. Cornell Law School Class of 2016

Although Matter of A-R-C-G-, the landmark Board of Immigration Appeals (Board) decision, gave women fleeing domestic violence a pathway to asylum, survivors continue to be routinely denied asylum by immigration judges who interpret the decision narrowly.

To address this problem, the Harvard Law School’s Immigration Refugee Clinical Program, the Center for Gender and Refugee Studies at the University of California Hastings College of Law (CGRS), and a number of prominent NGOs and immigration law experts have encouraged the Board to designate as precedent certain unpublished decisions related to domestic violence-based asylum claims. See Blaine Bookey, Gender-Based Asylum Post-Matter of A-R-C-G-: Evolving Standards and Fair Application of the Law, 22(1) SW. J. Int'l L. (forthcoming). The Board publishes only a limited number of decisions per year. For example, last year it published only thirty-five. The Board has sought comments for this request from the lawyers of record of those unpublished cases (including one of the authors of this post), suggesting it is taking this request seriously.

We have seen first-hand the consequences of narrow interpretation of Matter of A-R-C-G- at the IJ level. Catholic Legal Immigration Network, Inc. (CLINIC) referred “Jimena” to us at Cornell Law School’s Asylum and Convention Against Torture Appellate Clinic. Jimena, is a Salvadoran woman who was repeatedly raped, beaten, and stalked by her long-term partner. The severe abuse continued even after their relationship ended and Jimena fled with her children. On several occasions, Jimena’s former partner hunted her down and even managed to find her when she went to Guatemala. Even years after Jimena left, her former partner would appear on her doorstep, attack her, and tell her that she was his property. Jimena obtained a restraining order and called the police numerous times, but her abuser was never arrested. Worse still, the police often refused to intervene, telling her this was a private matter, best resolved between the couple.

Although Jimena’s story was nearly identical to that of A-R-C-G-, the immigration judge declined to grant asylum because Jimena, unlike the respondent in A-R-C-G-, was not married to her abuser. On appeal, the Board held that Jimena still qualified for asylum on the basis of domestic violence, despite being unmarried. The Board decision further clarified that the police’s failure to intervene satisfied the state nexus requirement.

But this decision came after Jimena had already been detained for more than a year. During that time, she was sentenced to solitary confinement for 30 days for a minor infraction (without proper process), which resulted in her near-mental collapse. Because of her distress, she was unable to eat while in solitary confinement. When the guards found her uneaten meals, they threatened to confiscate her clothes and her bed. The idea of having her clothes removed caused her so much anguish that she asked us to withdraw her appeal before the Board. Fortunately, the detention center placed her back with the general population after only a few days, perhaps because they realized the punishment had been overly severe and instituted without proper process. There, in a less-distressed state of mind, Jimena reaffirmed her desire to seek asylum. The Board granted a reinstatement of her case and ultimately granted her asylum. Nevertheless, a woman with a meritorious asylum claim, who faced extreme danger if returned to El Salvador, almost gave up this claim merely because her detention was so prolonged and traumatizing.

We strongly encourage the Board to publish precedent decisions that clarify and extend Matter of A-R-C-G-. Doing so would ensure that women like our client, who have meritorious claims, do not languish in prison-like detention centers because of immigration judges who are reluctant to apply the underlying principles of Matter of A-R-C-G and who instead interpret it as only giving a pathway to asylum for married women from Guatemala. It will also promote judicial efficiency.

While designating more decisions as precedential is essential, to truly secure the pathway for domestic violence-based asylum claims, one of the authors has argued elsewhere that more drastic measures are needed. A solution this author proposes is finalizing the Department of Justice regulations that have been pending since 2001. Carolyn Wald, Does Matter of A-R-C-G- Matter that Much?: Why Domestic Violence Victims Seeking Asylum Need Better Protection, 25 Cornell J.L. & Pub. Pol'y (forthcoming).

The consequences of continuing to allow immigration judges to decide domestic violence-based asylum cases without further guidance is already apparent. It is imperative that something be done to prevent more women with meritorious cases from having to endure lengthy detention while the BIA considers their appeal.

 

Do Women Racially Discriminate Against Their Own Fetuses?

By Sital Kalantry   

 

According to Arizona state legislators some minority women abort fetuses because of their race. In 2011, Arizona passed a law prohibiting an abortion provider from performing an abortion on a woman who wants to abort her fetus because of its race and/or sex. The American Civil Liberties Union (ACLU) sued Arizona arguing that this law violates the Equal Protection Clause of the U.S. Constitution, because it stigmatizes minority women by suggesting that they discriminate against their fetuses (assuming that it is even possible to do that).

But just a few weeks ago, the United States Court of Appeals for the Ninth Circuit denied the petitioners in the case, the National Association for the Advancement of Colored People (NAACP) and National Asian Pacific American Women's Forum (NAPAWF), their day in court. The Court rejected the appeal on standing even before getting to the constitutional issues, because the ACLU did not bring forth a woman who wanted to abort her fetus due to its race and/or sex. Perhaps because few (if any) such women exist.

It is true that the rate of abortion among African American women is five times higher than among Caucasian American women and for Latina women it is twice as high. Anti-abortion advocates argue that this occurs because abortion providers target minorities for abortion services in an attempt to reduce the number of people of color that are born. On the other hand, pro-choice advocates argue that the disproportionately higher rates are due to a lack of access to and failure to use contraception.

The logic of the Arizona race-selective ban is tortured because it is structured like its more popular cousin, the sex-selective abortion ban, which prohibits women from aborting their fetuses because of its sex. Sex-selective bans have been introduced in over half of the state legislatures in the United States and passed by eight states. On the other hand, Arizona is the only state in the United States that bans both race-selective and sex-selective abortion; eight other states and the United States Congress have considered and rejected race-selective abortion bans (although the majority of the U.S. House of Representatives voted in favor of both race-selective and sex-selective bans in 2012).

Proponents of sex-selective abortion bans argue that Asian Americans discriminate against the sex of their fetuses and this causes a disproportionate number of abortions of female fetuses. They further incorrectly argue that there are "missing women" in the United States. They then apply this logic to race to argue that race discrimination causes a disproportionate number of minority fetuses to be aborted.

However, the analogy falls apart when the actors with the purported racist and sexist intent are brought into the picture. In the case of sex-selective abortion bans, proponents argue that the sexist beliefs of Asian American parents cause them to obtain the abortions. To the extent sex-selective abortions are occurring in the United States, it would appropriate to argue that they occur because of a parent's desires for a child of a particular sex. On the other hand, it makes no sense to argue that women abort their fetuses because of a particular racial preference of their fetus. Yet, the Arizona law assumes that minority women abort their fetuses because they do not desire to have minority children.

The disproportionate rate of abortions among minority communities in the United States is an important concern that should be investigated, discussed, and solved. The Arizona law is not intended to do that. While it is unlikely that anyone will ever be prosecuted under the Arizona law, the statute itself is offensive. It also strains the patient-doctor relationship. By denying the appeal, the United States Court of Appeals for the Ninth Circuit has missed an opportunity to strike down state laws that use racial and gender equality as a ruse to restrict abortion rights.

Editor's Note: This piece originally appeared in The Huffington Post

Ending Sexual Assault in the Military: Finding Paths Forward

Sital Kalantry submits this post written by one of Liz Brundige's students following the  conference  “Sexual Assault in The United States Military: How Far Have We Come,”  hosted by the Avon Global Center, the New York City Bar Association’s Sex and Law Committee, the Avon Foundation for Women, Protect Our Defenders, the ACLU, and the New York City Bar Association’s Committees on Military Affairs and Lesbian, Gay, Bisexual and Transgender Rights.  

Amanda Reynoso-Palley writes:

 Last fall, I joined a project addressing sexual violence in the U.S. military as part of Cornell Law School’s Global Gender Justice Clinic.  My work focused on the use of international human rights legal tools to address military sexual assault.  On February 19, 2015, I travelled to New York City to attend an event I had been eagerly awaiting: “Sexual Assault in The United States Military: How Far Have We Come.”

Sexual violence in the military is perpetrated at alarming rates.  According to one study, one in three service women experiences some form of sexual violence while serving in the military. Though the government recently implemented reforms to improve the way the military handles sexual violence in its ranks, it has not gone far enough.  The decision whether to prosecute the accused still rests in the hands of the accused’s commanding officers rather than an independent authority. Also, due to the longstanding judicial Feres Doctrine, service member victims of sexual violence are precluded from suing the military in civilian courts.  If the military justice system fails victims of sexual violence, they have no other legal recourse.

 After seeing how our military and civilian justice systems have failed to protect those who so bravely volunteered to protect us, the Global Gender Justice Clinic decided to pursue international remedies.  I joined a team that brought the claims of 27 service member victims of sexual violence (whose cases were dismissed by federal courts) to the Inter-American Commission on Human Rights (IACHR). We submitted two petitions, one in January 2014, and another in January 2015, requesting that the IACHR hold the United States government responsible for violating survivors’ human rights.

 Meanwhile, last November, the Clinic, together with its partners, submitted a shadow report to the U.N. Committee Against Torture to inform its review of the United States’ compliance with the Convention Against Torture.  The report and related advocacy helped the Committee conclude that the United States should take further measures to ensure the prevention and prosecution of sexual violence in the U.S. military.  

 In a few weeks I will be travelling to Geneva, Switzerland to pursue a third international human rights strategy.  This May, the U.N. Human Rights Council will review the United States’ compliance with its human rights obligations as part of the Universal Periodic Review process.  In anticipation of this review, the Clinic and its partners submitted a shadow report highlighting the United States’ failure to adequately respond to military sexual assault.  In Geneva, we will engage with representatives of U.N. Member States in the hope that the Council’s report will address the United States’ response to military sexual violence.

 I was eager to hear the speakers at the event in New York City contribute to this discussion.  While presenting the keynote address, Tracy Robinson, President of the IACHR, explained that sexual violence is a human rights violation that states have an obligation to investigate, prosecute and punish.  She cited multiple cases in which the Inter-American human rights system held that sexual violence perpetrated by military members constituted human rights violations.  She stressed that the United States cannot stand apart from the other OAS Member States on grounds of U.S. exceptionalism.  She concluded by noting “international human rights law must become an important tool and mechanism for ending impunity not just in the United States but everywhere.”

 After the keynote address, four expert panelists discussed important steps that recently have been taken to address military sexual assault and the challenges that remain.  Sandra Park, senior staff attorney with the ACLU Women’s Rights Project, noted that sexual violence in the U.S. military should be seen as part of the larger issue of gender-based violence and sex discrimination in the U.S., and as part of broader concerns about the military justice system and the ways that command influence undermines the due process rights of both victims and the accused.  

 Elizabeth Hillman, Provost, Academic Dean, and Professor of Law at University of California Hastings College of Law, spoke about her experience as a member of the Response Systems to Adult Sexual Assault Crimes Panel that was given the congressional mandate to review the systems used to investigate, prosecute and adjudicate military sexual assault.  Quoting from her separate statement to the Panel’s final report, she argued that its failure to call for the removal of prosecutorial discretion from commanders prevented the military from responding fairly and robustly to sexual assault.

 Greg Jacob, Policy Director of Service Women’s Action Network and a former U.S. Marine, noted that enacting legislative change can be difficult due to lawmakers’ deference to the military. He argued that, in combatting sexual violence, we must ensure that the military records data and uses it to effect policy changes. 

 While acknowledging that more work needs to be done, Major General John Altenburg Jr., a retired U.S. Army officer who supported the Response Systems Panel as a subject-matter expert, highlighted the reforms the military has made to address sexual violence.  These include changes to the military investigation system that ensure every allegation of sexual violence is investigated by impartial members of the Criminal Investigation Command.  Major Altenburg argued that commanders’ prosecutorial discretion should not cause concern as only commanders holding the rank of Colonel or Navy Captain and above hold this discretion and these commanders are impartial by virtue of overseeing 3000 soldiers.

 By the conclusion of the event, one thing seemed apparent: everyone agrees that sexual violence in the military is a problem, but each speaker had different views on how best to solve it.  Despite the lack of consensus, it was inspiring to see a room filled with experts all working to combat sexual violence in their own way and sometimes in collaboration with each other.  After hearing the inspiring words of Commissioner Robinson and Sandra Park, I remain convinced that we must use international fora to place pressure on the United States.  However, I realize that international strategies alone may not remedy the current situation, and it was encouraging to hear the strategies being used domestically.  I am hopeful that the combined work of all involved will eventually ensure that all victims of sexual violence in the military receive the justice they deserve.

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Domestic Violence Survivors and Board of Immigration Appeals

Co-Editor Sital Kalantry addresses the difficulties that domestic violence survivors encounter when attemtpting to fit into a classification under which they might find relief through the Board of Immigration Appeals Process.

 The Jury is Out:  Do the new Board of Immigration Appeals’ Decisions Give Victims of Domestic Violence a Stronger Basis to Claim Asylum?

 by Sital Kalantry

The Board of Immigration Appeals on February 7, 2014 released a twin set of decisions—Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014) and -,  Matter of W-G-Rec. 20 26 I&N Dec.20 (BIA 2014)— in which it repackaged what constitutes a “particular social group.”  In order for someone to obtain asylum, she must prove that she has a well-founded fear of persecution based on religion, nationality, race, political opinion, and particular social group.   Survivors of domestic violence must fashion themselves into a “particular social group” to be considered for asylum since gender is not included as a separate category.  Prior to these decisions, a group such as “married Guatemalan women unable to leave their relationships” would be considered a “particular social group,” if it can be shown that (1) is composed of members who share a common immutable characteristic, (2) is defined with particularity, and (3) has “social visibility.”  The Board’s recent decisions changed the requirement of “social visibility” to “social distinction.”

 Many have pointed out that victims of domestic violence found the “social visibility” requirement difficult to satisfy, because such victims are not typically clearly visible in society.  (See for example, Fatima Marouf, “The Emerging Importance of Social Visibility in Defining Particular Social Group, 27 Yale Policy Review 47(2008)).  In adopting the “social distinction” concept, the Board rejected the UNHCR and other advocates’ position that the Board return to the test it articulated in 1985 in Matter of Acosta, which included only the immutable characteristics requirement.  In other words, they wanted the Board to remove the “particularity” and “social visibility” requirements all together.   In response to the new Board decisions, the National Immigrant Justice Center recently issued a statement saying that “the new BIA decisions undermine U.S. obligations to protect asylum seekers.” .

 Claiming asylum for domestic violence survivors is like putting a square peg in a round hole.  The standard for asylum used in the United States comes from the 1951 UN Convention Relating to the Status of Refugees, which never anticipated these kinds of claims.   Acknowledging that domestic violence should entitle someone from asylum, in 2000, the DOJ proposed regulations that articulated clearer asylum standards. However, to date no final regulations have been released.

 Whether or not the standards articulated in the new BIA decisions will benefit victims of domestic violence is not entirely clear, but there is at least one success story.  The Cleveland immigration court applied the new standards to grant asylum to a domestic victim. The opinion entered on February 24, 2014. To view the Cleveland case click here. The truth is that there will continue to be inconsistent immigration judge decisions and those domestic violence victims who appeal will be placed in limbo by the Board until the U.S. government articulates a coherent policy.