Reproduction and the Rule of Law in Latin America

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Fordham Law Review

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If race and the “color line” were the pivotal problems of the twentieth century, sex discrimination and reproductive justice are their companions in the twenty-first century. Scholars, activists, and lawmakers frequently perceive the “rule of law” as essential to eliminating discrimination and promoting various forms of egalitarianism, including gender equality. That is to say, hard legal rules in the form of legislation presumptively serve a fundamental role in effectively addressing and eliminating social inequalities, because legal rules are thought to be transparently written and enacted, equally enforced, and independently adjudicated.

Legislation prohibiting discrimination against women and laws establishing formal equality among the sexes, such as affirmative action in education, business, and accommodations, advance the perception that the rule of law is critical to social equality. Yet, a growing concern among human rights advocates suggests that the rule of law must be rigorously implemented and enforced for it to be effective. They persuasively argue that changes in the law are simply insufficient to change deeply entrenched discriminatory social norms. Simply put, some activists and scholars perceive the rule of law as broken or lacking the capacity to address systemic, persistent discrimination in societies.

This raises an important question: If the law does not command it, can there be equality? In this Article, we offer an examination and critique of the rule of law as a method for advancing women’s rights. We take up two points of inquiry in the broader political and social discourses: reproductive rights and political capacity building. These issues intersect to raise other compelling questions: Is minority-group political representation essential to achieving equality? More specifically, is the representation of women in political leadership essential to achieving sex equality? Substantively, does the representation of women in political office correlate to reproductive justice? Normatively, are women more reliable than men in promoting sex equality and advancing reproductive liberty? Will broader representation of women in political office translate into the reproductive rights improvements that the majority of women favor?


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Recommended Citation

Michele Goodwin & Allison M. Whelan, Reproduction and the Rule of Law in Latin America, 83 Fordham L. Rev. 2577 (2015).





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