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 Abstract

Excerpted From: Caroline Raines Greenfield, The Right of Women to Child Care in the United States, 63 Boston College Law Review E-Supplement I-13 ( February 15, 2022) (91 Footnotes) (Full Document)

 

CarolineRainesGreenfieldCOVID-19 has laid bare the underinvestment in child care in the United States. Individual parents and the labor market are now having to reckon with the absence of accessible and affordable child care. Some daycares are closed and many are in distress. This crisis has devastating implications for women's ability to participate in public life on an equal footing with men. Women disproportionately shoulder the responsibility of child care. Minority women, who are more likely to have low-paying jobs, lack access to child care, and be single heads of households, are hit particularly hard by the child care crisis. Against the backdrop of these challenges, Senator Elizabeth Warren, during her bid for the Democratic Party's nomination for president, put forward a comprehensive plan providing a right to accessible and affordable child care.

This essay locates the right to child care as a right of women under international law. The United States is a party to the American Declaration, the International Covenant on Civil and Political Rights (ICCPR), and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). These treaties prohibit discrimination and require the United States to take steps to achieve effective equality for women, while addressing impacts on minority women. Child care policy is necessary to these goals. Despite being an outlier for not ratifying the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the International Convention on Economic, Social and Cultural Rights (ESCR), the United States must comply with the customary international law obligations embodied in these treaties, including the right to child care.

The first Part of this essay examines the lack of adequate child care, its effect on women's equality, and Senator Warren's proposal. The second Part of this essay argues that international law creates a right of women to affordable and accessible child care and examines countervailing concerns, including perpetuating the stereotype of vulnerability, de-emphasizing quality of care, and resource allocation. This essay does not offer an in-depth policy analysis of Senator Warren's proposal, nor does it map the practical pathway to accomplishing this legislative agenda. This essay contributes to scholarship in this area by arguing that the United States has an international law obligation to women to adopt adequate child care policy and that Senator Warren's proposal meets this obligation. Where a right creates an affirmative obligation, states must act with due diligence. The United States should adopt comprehensive child care policy because doing so is both the right thing to do under international law and advances the United States' own societal interests.

[. . .]

The United States should move to adopt Senator Elizabeth Warren's plan (or one like it) to align with its positive obligations to eliminate discrimination and enable women's equal participation in society. While the United States currently provides some protection against discrimination, the United States has failed to value caregiving responsibilities and enact policy that makes parenting compatible with success in public life. This disproportionately impacts and discriminates against women, especially minority women, and undermines the moral imperative of equality. Furthermore, it is unwise to structure a modern society to deny the most educated population segment full participation and to hamper those taking care of others in providing even for themselves.


Caroline Raines Greenfield is a Judge Advocate Officer in the United States Air Force.


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