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Introduction

Some of the most hotly debated issues about women’s human rights today relate to practices undertaken by immigrants in their country of destination. When someone migrates to another country, she may replicate some of the cultural traditions and customs prevalent in the country of her origin. If she decides to settle permanently in the country of her destination, her children also may decide to continue those traditions. These customs can include celebrating certain holidays, eating distinctive food, and speaking a language other than the one spoken in the mainstream society. While most of these practices are unobjectionable, some practices of immigrants seem to be contrary to women’s equality and rights. In some cases, feminists, human rights advocates, and other stakeholders push for legal prohibitions on this behavior with the goal of advancing women’s rights. But these legal prohibitions themselves raise human rights concerns.

This book uses sex-selective abortion laws in the United States as a site to develop a transnational feminist approach to sort through questions about women’s human rights. Laws prohibiting sex-selective abortion, which are spreading like wildfire in the United States, are an example of laws designed to prevent a practice that is (erroneously) thought to be prevalent among people of Asian descent living in the United States. Since 2009, nearly half of the state legislative bodies in fifty states have considered laws to stop women from terminating their pregnancies if they are doing so because of the sex of the fetus. Nine states have passed sex-selective abortion bans. In May 2016, Vice President Mike Pence signed the most recent sex-selective abortion ban while he was governor of Indiana.

In regulating practices of immigrants, advocates, legislators, and even some pro-choice feminists (erroneously) draw conclusions about the scope, motives, and impact of a practice based on their (mis)understanding of how the practice is undertaken in the country of origin of certain immigrants. In some cases, if a practice is thought to be discriminatory against women and girls in the country of origin of the migrant, it is assumed that the practice will have the same impact on women in migrant-receiving countries. Policymakers, feminists, and other stakeholders often draw conclusions about the magnitude of the practice based on their understanding of its scope in the country of origin of the immigrant. Additionally, some people in the migrant-receiving countries assume that immigrants who undertake the practice do so for the same reasons as people in the country of origin of the migrant.

This phenomenon, which I refer to as decontextualization, can be observed in the discourse around bans on sex-selective abortion in the United States. The dominant narrative used to justify these laws is that: (1) people in Asia prefer sons and that is why they abort female fetuses, (2) Asians have emigrated to the United States and many of them obtain sex-selective abortions, (3) Asian Americans obtain these abortions because (like Asians) they have a sexist preference for sons and an aversion to daughters, and (4) sex selection in both the United States and Asia is discriminatory and harms women.

In the increasingly global world of communication, news and knowledge travel quickly and at a massive scale across borders. Sometimes the knowledge about people in the migrant-receiving country may itself be distorted and lack nuance. This knowledge is filtered through media sound bites and dominant stereotypes about foreign peoples. The popular perception in the United States is that women in India who sex-select are largely physically or mentally coerced to do so. A story about one woman who was coerced by her in-laws to abort her twin fetuses, which she refused to do, circulates around the media and the legislative discussions about the bans. On the other hand, an in-depth study of India presented in this book suggests that women sex-select for many reasons other than direct coercion.

Sex-selective abortion bans are part of a larger strategy by anti-abortion groups to pass a variety of state-level bills restricting abortion. Anti-abortion groups frame sex-selective abortion bans in women’s equality terms. This puts some pro-choice feminists between a rock and a hard place. They oppose the bans because the laws burden the right to choose, but they also believe that it is sexist for a woman to terminate her pregnancy just because she does not want to give birth to a girl. As a result of this tension, it appears that some pro-choice feminists support the legislation while others express no view about it. With some notable exceptions, pro-choice organizations have not devoted significant resources to opposing the bans even though the sex-selective abortion bills were the second most often introduced anti-abortion legislation in 2012.

There appears to be a Rawlsian “overlapping consensus among some pro-choice and pro-life people in the United States in regard to” sex-selective abortion bans. Pro-life people oppose sex-selective abortion because they oppose abortion for any reason. Pro-choice people in the United States oppose sex-selective abortion because they are concerned about equality for women and girls. The title of an article by Noah Berlatsky, a writer for The Atlantic, observes this consensus. In his article, “Neither Pro-Life Nor Pro-Choice Can Solve the Selective Abortion Crisis,” he suggests that sex-selective abortion in the United States is an issue that both proponents and opponents of legal abortion rights should work together on.¹ An analysis of legislative voting records presented in Chapter 3 suggests that pro-choice legislators in a few states voted in favor of prohibitions on sex-selective abortion. Another indicator of the overlap in positions between the two factions is the fact that the term “gendercide,” coined decades ago by a staunch feminist supporter of abortion rights,² is now the rallying cry for anti-abortion movement actors.

I argue that scholarship that informs these questions—feminist legal theory and international human rights theory—has not considered questions of this nature and thus does not provide adequate tools in sorting through the competing rights. Both of these theoretical perspectives support a universal view of practices and rights. None of the many variants of American feminist legal theory have conceived of practices that so radically change meaning that they may be oppressive to women in one country, but not repressive when undertaken by women in another country. Though it should be noted that recent scholarship has been attuned to the view that different regulatory approaches may be necessary in regard to a practice based on the context in which the practice emerges.

The lines in the sand are even more firmly drawn in international human rights theory and practice on these questions. Modern international human rights theory is built on the premise that all rights are “universal”—everyone everywhere has the same substantive human rights. If a practice violates human rights in one country, it is also thought to violate human rights in another country. On the opposite pole of universality is cultural relativism. The extreme form of cultural relativism is problematic because it uses culture and religion to shield practices that are oppressive to women. The strong force of universalism of human rights is necessary to counteract the extreme forms of cultural relativism.

I endeavor to create a conceptual space between these two poles. In contrast to this universalizing messages in both feminist legal theory and international human rights law, I argue that whether or not bans on certain practices of immigrant women promote women’s rights should be ascertained using an evidence-based understanding of the practice in the context in which it occurs. I develop the framework of a new approach to evaluating regulations on the practices of migrants. This transnational feminist legal approach is a methodology that emphasizes both the context of the immigrant-sending and migrant-receiving country in evaluating bans on women’s behavior.

I argue that in evaluating whether or not a practice is oppressive to women, we should be open to the possibility that when the practice emerges in a new context, it has a different human rights impact. The universal approach to human rights is not adequately skeptical of claims that practices have the same negative human rights impact across multiple country contexts. Once a practice is thought to be contrary to human rights in one country context, it is assumed to also be discriminatory in another country context. In contrast, I suggest that policymakers in migrant-receiving countries should not leap to this conclusion.

In examining the behavior of people who trace their origin to another country, some people in migrant-receiving countries also assume that immigrants will undertake similar practices as people from their country of origin because they overemphasize the role of “culture” in shaping behavior and underestimate the role of the larger societal structures and context in influencing behavior. In contrast, I call for a careful empirical analysis that ascertains the scope of the practice in question in immigrant communities, the motives for the practice, and the impact the practice is likely to have in the migrant-receiving country.

The politics and discourse surrounding sex-selective abortion bans in the United States provide a rich case study for critiquing shortcomings in existing feminist legal theories as well as in developing a new methodology, the transnational feminist legal approach. Using the general principles of the transnational feminist legal approach that I develop in Chapter 1, I propose a specific framework in Chapter 2 that can be used to evaluate and resolve the competing rights in question when bans on sex-selective abortion are considered.

In proposing bans on sex-selective abortion, anti-abortion advocates have successfully argued that the bans are necessary to protect fetuses from sex discrimination. Pro-choice feminists and scholars have not successfully rejected this framing. Indeed, some advocates have tacitly accepted it. The context-based legal approach I propose frames the competing rights in question as women’s reproductive rights, on one hand, and the harm that sex selection may cause to girls and women living in a society, on the other. I start from the proposition that reason-based restrictions on the right to choose during the pre-viability period—including sex-selective abortion bans—do burden women’s reproductive rights, but they may be justifiable if women in any given society are exercising their rights in a way that harms women as a group.

In India, for example, many women want to have at least one male child, but they also want to have fewer children. This has led to fewer girls and women in society than there would be had women not aborted female fetuses. There is a consequent male surplus. Emerging empirical studies in India suggest that violence against women is associated with a male surplus.

On the other hand, there is no evidence in the United States that sex selection is widespread. However, the national discourse in the United States on sex-selective abortion has been driven by misinterpretations and misrepresentations of empirical studies of (now) old data on the children born to Asian American women. Indeed, the anti–sex-selective abortion bans in the United States were fueled by an article by economics professors Douglas Almond and Lena Edlund published in an influential multidisciplinary science journal in 2008. They found that when Chinese, Indian, and Korean families in the United States have one or two girl children, they are more likely than Caucasian Americans to have a boy as their next child. Their study was based on a 5% representative sample of the U.S. Census of 2000, which contained only 324 Asian American families with three children. They found that a small subset of these Asian American families select for boys. Yet, proponents of sex-selective abortion bans in state legislatures misrepresented these findings (and subsequent studies) as proof that “[s]ex-selection abortions have the effect of diminishing the representation of women in the American population.”³

It is no surprise that the anti-abortion movement was successful in exaggerating the findings of this technical article—even the media blew it out of proportion and claimed that it proved “son preference” among all Asian Americans. The article lent itself to these types of misrepresentations because the authors suggested that the magnitude of sex selection among Asian Americans was the same as among people who live in Asia.⁴ The authors attempted to contain the can of worms they unleashed by clarifying to media sources that they did not mean to suggest that sex selection occurs among “all” or even “most” Asians.⁵ But the damage was already done.

I present a new empirical analysis of sex ratios of Asian Americans, but also critique existing quantitative empirical studies using a critical race theory lens in Chapter 4. I argue that these studies rely too heavily on the ratio of girls to boys born to Caucasian American parents as a baseline to measure whether or not Asian Americans are sex-selecting. Some researchers also make unjustified comparisons to the behavior of Asian Americans and the behavior of people living in Asia. Finally, stereotypes that Asian Americans have a “son preference” foreclose interpretations of the data in ways that challenge that narrative.

I present an analysis of new demographic data about the sex of children born to Asian Americans from 2008 to 2012, which was developed in collaboration with economists Alexander Persaud and Arindam Nandi. Our analysis of this data suggests that a very small number of Asian Americans may be using some method of sex selection to ensure that they conceive a fetus of the opposite sex to the two prior children they already have. Survey data of attitudes of Asian Americans suggests that more than any other racial or ethnic group, Asian Americans desire to have gender-balanced families—families with at least one boy and one girl.

The national rhetoric on sex-selective abortion bans, including the draft federal legislation, consistently makes reference to the practice in foreign countries as a way to advance a domestic agenda. Although in understanding the significance of sex-selective abortion practices among immigrant communities, the country context of their country of origin should not be overemphasized, it is still relevant. I undertake a comparative analysis with the situation in India in Chapter 5.⁶ I examine how the practice became widespread in certain parts of India, the societal and personal factors that contribute to women’s desires to have at least one son and at the same time have fewer children, and the efforts made by the Indian government to curb the practice. Through this in-depth comparative study, it becomes clear that many of the societal institutions that contribute to sex selection such as dowry, reliance on sons for support during old age, significantly fewer economic opportunities for women as compared to men, as well as other factors are not present in the United States.

I use empirical and comparative methodologies to shed light on the practice of sex-selective abortion in the United States. From the information developed through this analysis in Chapter 6, I consider the practice of sex-selective abortion in the United States through the lens of the legal framework I articulated. Are women practicing it in society in great numbers? What are the consequences of the practice? Bans on sex-selective abortion in the United States will lead to racial profiling of Asian American women, place access restrictions on women seeking nonselective abortions, and potentially open the door to many other pre-viability restrictions. Few women abort fetuses because of their sex in the United States, and the practice is not driven by the discriminatory societal institutions that contribute to a desire to have at least one boy child (as it is in some other countries). Unlike in parts of India, where there is some emerging empirical evidence that a male surplus leads to violence against women, there is no larger societal impact of sex selection in the United States. Instead, prohibitions on sex-selective abortion in the United States do no more than harm women’s equality.

The transnational feminist approach can also provide a useful lens to examine other practices of immigrants in other countries. Finding that the full-face veil worn by some Muslim women in France was oppressive to those women, France passed a law to prohibit it. A French woman brought a claim to the European Court of Human Rights arguing that ban violated her right to religious expression (among other things) under the European Convention for the Protection of Human Rights. I examine the discourse surrounding the full-face veil in France in Chapter 7, and suggest that much like the national discourse on sex-selective abortion in the United States, many policymakers, feminists, and other stakeholders made assumptions about veiling based on their impression of its causes, motives, and consequences in foreign countries. They failed to give sufficient weight to the French context. Some women who wore the veil in France claimed it was an expression of their identity as a minority.

Multidisciplinary Approach to Sex Selection

Much of the work on sex-selective abortion has been undertaken in silos—focusing only on specific geographies (India or China, for example) or using only one methodology such as feminist theory, quantitative analysis of sex ratios, or biological perspectives. In contrast, this book examines sex selection globally and through multiple disciplinary lenses.

I present a quantitative empirical analysis of sex ratios to determine whether Asian Americans sex-select (while at the same time critiquing this methodology) and conduct a political analysis of the sex-selective abortion bills in state legislatures. I also engage in a comparative study of the politics, causes, and consequences of sex-selective abortion in India. I conduct a legal doctrinal analysis of reproductive rights jurisprudence in the United States to assess whether or not the United States Supreme Court would uphold sex-selective abortion bans if the issue were to reach the Court.

I use sex selection as a lens to enter and make contributions to several contested issues in multiple disciplines. Responses to sex-selective abortion expose a gap in feminist legal theories. None of the dominant strands of thinking are able to make sense of both sex-selective abortion practices among Asian Americans and among people living in Asia. They are unable to adequately grapple with how to react to fact that the practice as undertaken in the United States is significantly different from the way in which it is carried out in foreign countries.

I compare legal responses to sex selection around the world and examine the spectrum of ethical views on the issues from a feminist lens. While traditional approaches to sex selection pit the rights of women against the right of the fetus, my framework places women’s equality on both sides of the equation. The framework I propose can be used across multiple jurisdictions. It can be used to evaluate restrictions on sex-selective abortion both in countries where large segments of the population sex-select in favor of one sex and in countries where it is not practiced in that way.

By focusing on sex selection in both immigrant communities in the United States and among people in India, I examine questions about culture and change through the lens of critical legal theory. Explanations for sex selection that focus only on culture fail to recognize that the contextual factors (such as economic opportunities for women, a system of support for senior citizens, and fertility patterns) influence sex selection practices as well. The discourse on sex-selective abortion bans also often imagines culture as fixed rather than dynamic and changing both in India and among Indian American immigrant communities.

In attempting to assess the harms of sex selection to women as a group, I enter decades-old debates among feminists, medical ethicists, and economists regarding the societal impact of imbalanced sex ratios. Some theorists suggested that a male surplus would benefit women; others suggested that it will harm women. Today we have data to test those theories. There is a shortage of women in India as a result of the selective abortion of female fetuses, which began to occur in great numbers in the 1980s. Some believe that even if India’s sex ratio returned to normal, by 2050 the country would still have 30% more single men hoping to marry than single women.⁷ I examine empirical studies emerging from India and other countries to help determine the impact of sex selection on living women.

This work will be of interest to feminist legal theorists and will push new perspectives forward within that field. This work will also be informative to pro-choice people and others who are concerned about women’s rights in the United States and other migrant-receiving countries. Canada,⁸ Australia,⁹ and the United Kingdom¹⁰ 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.