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have also considered bans on sex selection to address the perceived behavior of migrants. The transnational feminist legal approach sheds light not only on sex-selective abortion, but on other practices of migrant women that implicate women’s rights concerns, such as veiling. Additionally, the contextual lens is relevant to judges who have jurisdiction over cases across many different countries, such as those who sit on the European Court of Human Rights. Finally, this work will also be useful for the many United Nations bodies that issue policy recommendations across diverse country contexts.
Chapter Overview and Methodology
It is not an easy task for people in migrant-receiving countries to determine whether or not a practice violates human rights when there are competing human rights claims involved. Banning a practice can impinge on women’s right to religion, for example, but permitting it may be contrary to women’s equality more broadly. The problem is that national debates often rely on decontextualized information about the scope, causes, and consequences of practices of immigrants without examining the practice within their own context.
The deep contextual examination that I propose would require scholars and policymakers to undertake the following task: First, scholars and policymakers should evaluate the practice in their own country context and resist the tendency to decontextualize. Second, they should seek to understand the magnitude and motives of the practice in the country of origin of the relevant immigrant communities. Third, they should compare and appropriately distinguish the causes and consequences of the practice in their own country from the causes and consequences in the country of origin of the immigrant. Fourth, they should examine the practice from a perspective that places women’s rights at the center of the competing claims. This book follows this methodology in examining sex-selective abortion bans in the United States.
In Chapter 1, I explain the limitations of feminist legal theory and international human rights in evaluating the women’s rights implications of bans on certain practices of immigrant women. These theories are not generally open to the possibility that practices that are oppressive to women in one country context may not have a negative impact on women in another country context. I also analyze the discourse around sex-selective abortion bans to demonstrate how decontextualized arguments have been deployed by supporters of bans in the United States. As a result of decontextualized arguments, legislators, voters, and judges inaccurately evaluate and weigh the competing harms at stake and, consequently, make decisions that harm women’s equality while intending to promote it. I draw from more recent feminist legal scholarship that fixes its gaze on the global.
In Chapter 2, I use the insights about context to develop a framework that is specifically aimed at evaluating sex-selective abortion bans across multiple countries. I present the wide spectrum of moral and ethical positions on sex selection and explain how my legal approach builds upon and differs from existing viewpoints. Predominant approaches to sex selection focus on the harm to the female fetus, but fail to focus on the harms that sex selection causes (or does not cause) to living women. On the other hand, I argue that when jurisdictions ascertain whether or not banning sex-selective abortion will promote women’s equality, they should weigh the restrictions on women’s reproductive rights against the harms that sex-selective abortion of female fetuses causes to living women and girls.
Chapter 3 provides more background information on sex-selective abortion bans in the United States. Why are state legislators considering and passing the bans? Are the bills adopted in response to the fact that Asian Americans are the fastest growing immigrant community in the United States? Why are the laws difficult to enforce? This chapter maps the views of pro-choice legislators, pro-choice organizations, and voters to explain why some people who oppose other abortion bans support sex-selective abortion bans or remain silent about them. Although sex-selective abortion bans gained momentum in state legislatures, I explain why their close relative, race-selective abortion bans, have fallen out of favor.
Chapter 4 explains how empirical data and its misuse has driven the flurry of sex-selective abortion laws in state legislatures. I demonstrate that some authors of key studies on sex ratios of Asian Americans have decontextualized behavior and motives. I question why the sex ratios of Caucasian Americans are used as the baseline to measure whether or not Asian American sex ratios are “normal.” Studies have found that there are natural variations in sex ratios across geographic regions and among racial groups. I present new and original empirical research on the sex ratios of Asian Americans from 2008 to 2012. While prior studies use data that is more than fifteen years old, our study of new data suggests that Asian Americans desire both girls and boys and not just boys. Survey data from a national survey confirms that Asian Americans are more likely to desire families with gender variety than any other racial or ethnic group surveyed.
I provide a detailed examination of the sex ratios, the causes of sex selection, and the consequences of sex selection in India in Chapter 5. I demonstrate how “culture” is used as a blanket explanation for sex selection, while other factors such as changes in fertility and economic changes are often neglected. Through this country study, it is clear that most factors that lead to sex-selective abortion in India are not present in the American context.
Having laid out the U.S. context in Chapters 3 and 4 and the Indian context in Chapter 5, I apply the legal approach to sex-selective abortion that I outlined in Chapter 2 to analyze the validity of sex-selective abortion bans in both contexts. Using this feminist legal approach, I argue in Chapter 6 that sex-selective abortion bans restrict rather than enhance women’s rights in the United States.
In Chapter 7, I demonstrate the relevance of the transnational feminist legal approach to another practice arising in a different migrant-receiving country—veiling in France. I examine the debates around France’s ban on wearing full-face veils and the European Court of Human Rights decision that upheld that ban. I analyze how debates about the full-face veil ban decontextualized behavior and motives.
CHAPTER 1
Transnational Legal Feminist Approach to Cross-Border Practices
The transplantation of people from one country to another has given rise to hotly contested questions about women’s human rights. When Muslim women migrate to France, some may wear a veil to cover their bodies and faces. Many in France view the veil as a symbol of inequality. France presently bans the full-face veil. Yet, some veil-wearers in France argue that the veil is emancipatory. The debate raises a number of questions: Just because the practice of veiling in another country reinforces women’s inequality, should we assume that it has the same impact in France? Some immigrants from Asia in the United States may abort fetuses because they do not want a child of that sex. While sex-selective abortion is thought to violate human rights in India, should we assume that it also contravenes women’s equality in the United States? Should sex-selective abortion, which is banned in some countries, also be prohibited in the United States? How relevant is the context where the practice arises in making that decision? Using sex-selective abortion as a case study, I propose a methodology to evaluate similar practices that emerge across borders.
Practices such as veiling and sex-selective abortion are often examined by scholars and advocates through the lens of feminist legal theory and international human rights law. In the United States, feminist legal theories worked dynamically to push for legal and policy changes to further women’s equality.