Sex Selection in the United States and India: A Contextualist Feminist Approach

Seven states in the United States have passed sex selection abortion bans, bills are pending in several other states, and a bill has been reintroduced in the U.S. Congress. In analyzing state legislative hearings, this article documents how the wide-spread practice of sex selection in other countries, particularly India and China, is being used by anti-abortion groups as a way to restrict women\u27s right to autonomy in the United States. The dominant feminist paradigm in the United States takes a universal position on sex selection bans - these bans contravene women\u27s right to autonomy and should not be permitted in any country. But engaging with the true realities of the situation in India, it is clear that sex selection in favor of boys does raise concerns for women\u27s equality. This article develops a feminist framework to understand sex selection from a global perspective. This approach prioritizes individual women\u27s autonomy, but suggests that the context in which sex selection occurs should be taken into account and the impact of sex selection on women as a group must be considered. Statutes in the United States that ban sex selection abortion are framed as protecting the fetus from sex discrimination. The contextualist feminist approach, on the other hand, focuses the conversation on the equality of women and girls who are already born. The intent of the individual woman who sex selects is no longer the focus, but the impact (if any) that it has on the equality of girls and women as a group should be the relevant criterion for determining whether or not sex selection should be limited

Intent to Benefit: Individually Enforceable Rights in Treaties

Citizens of foreign countries are increasingly using international treaties to bring claims against the U.S government. As a result, U.S. courts are being asked to determine whether treaties provide litigants with individually enforceable rights. Although courts have no consistent approach to it, they often apply the textualist methodology derived from statutory interpretation in determining whether a treaty gives rise to individually enforceable rights. Resolution of this issue in favor of individually enforceable rights is particularly beneficial for human rights and humanitarian law treaties, because without individually enforceable rights, those treaties are not likely to be enforced. Instead of using theories of statutory interpretation, I argue that courts should apply a modified version of the “intent-to-benefit” test derived from contract law in determining whether a treaty is enforceable by a non-party. Three general grounds support my agreement. First, the structural similarities between contracts and treaties (and the correlative differences between statutes and treaties) justify applying the principles derived from contract interpretation to treaty interpretation. Second, Supreme Court jurisprudence supports the view that treaties have the effect of statutes, but are actually contracts. As such, it is appropriate to apply theories of contract interpretation to understanding treaties. Third, arguments used to justify using textualism for purposes of interpreting statutes are not relevant to interpreting treaties. I apply the modified intent-to-benefit test to a case study-- the Sanchez-Llamas case, in which the Supreme Court decided last term that the Vienna Convention on Consular Relations does not provide individuals with any remedies

Symposium: The Future of Reproductive Rights: Foreign Law in \u3ci\u3eDobbs\u3c/i\u3e: The Need for a Principled Framework

This article critiques the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization for its unprincipled and superficial use of foreign law sources to overturn Roe v. Wade. It explains the surprising use of foreign law by conservative justices who had previously opposed all use of non-US law in decision-making. And it shows how international and foreign law can be used on by either side to both expand and retrench rights. The article thus argues for a more principled framework for when and how to use international law sources including a more contextual analysis of that law

Regulating Markets for Gestational Care: Comparative Perspectives on Surrogacy in the United States and India

Many newly emerging surrogacy markets imported the American-style free market model to surrogacy, but this model has led to exploitation and abuse of surrogates even though similar abuses were not observed in the United States. It is interesting that even in U.S. states where there is no legislation that directly regulates surrogacy, industry actors have developed customary terms and norms that provide a basic level of rights and protections to surrogates. However, industry norms do not similarly protect surrogates in India. I argue that industry actors in the United States are incentivized to create such protective norms because they have legitimate concerns that courts might invalidate contracts using policing doctrines or that surrogates will bring malpractice suits against them for large damage awards. Doctors, lawyers, intended parents, and matching entities operate in the shadow of the common law in the United States. On the other hand, surrogates in India generally lack access to courts, judgments take long periods of time, and large tort awards are less common. Thus, the common law rules that would otherwise protect them do not serve to force industry actors to self-regulate

Women in Robes

This article presents statistics on the number of women in the judiciary and argues for gender parity to further equality, enhance courts\u27 legitimacy, and strengthen the rule of law

Sex Selection in the United States and India: A Contextualist Feminist Approach

Seven states in the United States have passed sex selection abortion bans, bills are pending in several other states, and a bill has been reintroduced in the U.S. Congress. In analyzing state legislative hearings, this article documents how the wide-spread practice of sex selection in other countries, particularly India and China, is being used by anti-abortion groups as a way to restrict women\u27s right to autonomy in the United States. The dominant feminist paradigm in the United States takes a universal position on sex selection bans - these bans contravene women\u27s right to autonomy and should not be permitted in any country. But engaging with the true realities of the situation in India, it is clear that sex selection in favor of boys does raise concerns for women\u27s equality. This article develops a feminist framework to understand sex selection from a global perspective. This approach prioritizes individual women\u27s autonomy, but suggests that the context in which sex selection occurs should be taken into account and the impact of sex selection on women as a group must be considered. Statutes in the United States that ban sex selection abortion are framed as protecting the fetus from sex discrimination. The contextualist feminist approach, on the other hand, focuses the conversation on the equality of women and girls who are already born. The intent of the individual woman who sex selects is no longer the focus, but the impact (if any) that it has on the equality of girls and women as a group should be the relevant criterion for determining whether or not sex selection should be limited

Promoting Clinical Legal Education and Democracy in India

Clinical legal education emerged in the United States in the 1960s to give valuable skill-based instructions to law students while providing legal services to people who could not otherwise afford them. This essay proposes another reason why both Indian and American law schools should support the development of law clinics. Drawing on the works of John Dewey and Martha Nussbaum, I argue that clinical legal education promotes democracy. Both elite American and Indian universities are largely unrepresentative of the respective population demographics of their countries. In clinics, law students bridge this divide by undertaking representation for people from different racial, caste, and income backgrounds than themselves. These exchanges generate empathy and knowledge among students about the challenges marginalized groups in the society face. Consequently, they learn to recognize other citizens as equals and to formulate policies that will enhance the welfare of society as a whole. There is an urgent need to formalize clinical legal education programs in Indian law schools both for purposes of enhancing the democracy as well as providing skill-based training to law students and much-needed legal services to the poor