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3. Challenges

Absence of an equality provision in the Constitution

23. The Working Group regrets that political resistance has consistently blocked efforts to pass an equal rights amendment10, which would entrench women’s right to equality in the US Constitution. Constitutional guarantee is considered by leading human rights experts as crucial in order to secure women’s right to equality and is included in almost all constitutions globally. According to a poll in 2012, 91% of US people think that the Constitution should include equal rights for men and women.11

24. An Equal Rights Amendment also is essential to demonstrate genuine political will to attain substantive equality between women and men, to pre-empt legislative reversal of gains made in the protection of women’s right to equality and to further strengthen the review power of the Supreme Court to strike down discrimination against women.

Marital status

25. Family laws are organised and passed by the states. There are therefore 50 different marriage laws across the US12. Most states set the age of marriage at 18 without parental consent and 16 with parental consent and under certain conditions. Mississippi is the only State where women can get married without parental consent from 15 years old and men from 17 years old13.

26. Although polygamy is illegal in all States since 1862 (Morrill anti-bigamy Act), some illegal cases of polygamy have been reported, especially in Utah and in Colorado, However, in December 2013, a US district court in Utah ruled in the case Brown v. Buhman that Utah’s anti-polygamy law was unconstitutional on the basis of the First Amendment of the US Constitution14.

Guns and gender based violence

27. A series of federal and state laws have aimed to keep guns out of the hands of the most dangerous domestic violence offenders. The strongest state laws prohibit domestic abusers and stalkers from buying or possessing guns, require background checks for all gun sales, and create processes to ensure that abusers and stalkers surrender the guns already in their possession. However, federal prohibitions apply to abusers who are currently or formerly married to their victims, who live with or formerly lived with their victims but do not prohibit dating partners or misdemeanant stalkers from buying or possessing guns. The experts regret that existing regulations have done little to curb the problem of guns and violence against women, in particular regarding intimate partner homicides (see para 76) but welcome the new actions announced by the Executive in January 2016 to reduce gun violence by increasing background checks for purchasers.

Rights to reproductive and sexual health

28. The experts regret to note that throughout the years, US women have seen their rights to sexual and reproductive health significantly eroded. Since the 1973 constitutional guarantee under Roe v. Wade for a woman to be able to choose to terminate a pregnancy in the first trimester prior to viability15, other Supreme Court decisions have opened the door to, inter alia, greater state regulation of abortion, barred abortion counselling and referral by family planning programs funded under Title X of the federal Public Health Service Act, established the "undue burden test," providing that state regulations can survive constitutional review so long as they do not place a "substantial obstacle in the path of a woman seeking an abortion of a nonviable foetus”, decided that lawmakers could overrule a doctor's medical judgment and that the "State's interest in promoting respect for human life at all stages in the pregnancy" could outweigh a woman's interest in protecting her health16. Women’s rights to sexual and reproductive health are constantly being challenged.

29. The Supreme Court is reviewing a major case (Whole Woman’s Health v. Hellerstedt (Texas HB217) for the future of access to essential reproductive health care in the United States. The expert group deeply hopes that this decision will reinstate the fundamental right of women to access reproductive and sexual health services in accordance with their constitutional rights. The Working Group is also concerned that the Supreme Court’s recognition, in the Hobby Lobby case18, of an exemption on grounds of freedom of religion to opt out of contraceptive insurance for employees, will deprive some women of the possibility of accessing contraceptives. Zubik v. Burwell (contraception and religious refusals) is also being reviewed by the Supreme Court.

30. Furthermore, the Working Group deplores the adoption in 1973 of the Helms Amendment to the Foreign Assistance Act19 which prohibits U.S. foreign assistance from being used to pay for the performance of abortion "as a method of family planning", but is being applied as a complete ban, even when a pregnancy is a result of rape or incest, or when a pregnancy is a threat to the life of a woman or girl. The Working Group also regrets that in 1976 the Hyde Amendment prohibited the expenditure of Federal funds for abortions, except in cases of rape, incest or preserving the life of the mother.

Social and economic rights

31. The Working Group regrets the important gaps in the legal framework which prevent women in the United States from fully enjoying their economic and social rights, including their equal right to work (see paras 46 to 62).

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