Not in Our Country? A Critique of the United States Welfare System through the Lens of China's One-Child Law

By Love, Christie N. | Columbia Journal of Gender and Law, Summer 2005 | Go to article overview

Not in Our Country? A Critique of the United States Welfare System through the Lens of China's One-Child Law


Love, Christie N., Columbia Journal of Gender and Law


I. INTRODUCTION

The United States has not shied away from speaking out about human right abuses that take place across the globe. (1) However, in assuming the role of human rights crusader globally, the United States has neglected human rights violations that take place in its own backyard. Women and the poor have a long history of having their rights violated in this country. This violation is starkest at the intersection of the two groups, which can be seen in the development of welfare law. Racial stereotypes, traditional notions about gender roles and the role of the family, and political aspirations have shaped the development of welfare law in the past and continue to have a strong influence in the current law. United States welfare policy arguably is not in alignment with current human rights instruments (2) or constitutional law regarding privacy. (3)

The United States considers itself a human rights defender abroad, but the manner in which the United States has dealt with China in the context of human rights is enlightening. The United States has criticized China's one-child law for resulting in coerced abortions and forced sterilizations, and as a result of these findings the United States has pulled much-needed funding from the United Nations Family Population Fund (UNFPA), which supports the family planning endeavors of the Chinese government. (4) However, despite the disapproval that the United States has exhibited toward Chinese law, current American welfare law uses similar methods and has effects similar to those occurring in China. The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 (5) is credited with overhauling the welfare system, and, although it fell short of President Clinton's promise to end "welfare as we know it," it did radically change welfare as we knew it. (6)

PRWORA replaced the welfare assistance program, Aid to Families and Dependent Children, with the Temporary Aid to Needy Families Program (TANF). (7) Women comprise ninety percent of the TANF adult caseload, (8) which means that women bear the brunt of having their family planning choices influenced and scrutinized by the new welfare laws. The United States has not taken the drastic measures sometimes used in China, such as forcibly requiring sterilization or abortion, (9) but the fact that human rights violations within United States borders are less conspicuous does not mean that they are less serious. The vigor with which the United States criticizes China's policy should not be any less vigorous when evaluating policies inside the United States. (10)

This Article will argue that the structure and effects of United States welfare law and China's Family Planning Law are similar; that the United States needs to be as responsible as it demands China to be; and that the United States must remedy the injustices that are present in its own system. Part II of the Article will provide a summary of the historical development of welfare law in the United States and of family planning law in China, and offer a comparison of the two histories. Part III will examine specifically how the laws of the two countries are similar, looking in particular at three general areas: the methods used to implement and enforce policies, the groups harmed by the policies, and the effects of the policies. The final Part will conclude by suggesting that the welfare system needs to be re-evaluated to incorporate more fully the needs of women and that this incorporation must extend beyond their reproductive capabilities. The incorporation of women's rights would require the government to adopt a "rights-conscious" anti-natalist population policy which would allow for women's reproductive rights to be respected. (11)

II. TWO HISTORIES, A SINGULAR TALE

A. History of the United States Welfare State

Welfare in the United States grew out of the desperate circumstances that were produced by the Great Depression precipitated by the stock market crash of 1929.

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