Washington, DC, USA -- March 4, 2020. Wide angle photo of a throng of protesters at an abortion rights rally in front of the Supreme Court.

June Medical v. Russo Reflects Ongoing Struggle with Black Women’s Constitutional Equality

By Michele Goodwin

The Supreme Court’s June Medical v. Russo case was more than just another cog in the wheel of the intensifying battle against the constitutional right to terminate a pregnancy.

Though, on its face, the case was about access to abortion, just beneath the surface, the law at issue represented a continuation of Louisiana’s historic resistance to sex and race equality.

After all, the Louisiana law mirrored Texas legislation struck down by the Court only a few years ago in Whole Woman’s Health v. Hellerstedt.

That Louisiana legislators chose to relitigate the issue represented more than another strategic roll of the dice with a newly reconfigured Supreme Court (in the wake of Justice Scalia’s death, Justice Kennedy’s retirement, and the additions of Justices Gorsuch and Kavanaugh). Rather, Louisiana lawmakers challenged the value of precedent upholding women’s rights, revealing an unambiguous indifference toward women’s health and lives, especially poor women of color.  As they well know, wealthier white women have the option to leave the state for medical care if necessary. That’s much harder, if not impossible for women in poverty.

As Marcela Howell, the Strategic Director for Our Own Voice: National Black Women’s Reproductive Justice Agenda recently explained, Louisiana’s clinic closures would have harmed Black women the most.

However, Louisiana has a long history of ignoring the constitutional rights and dignity of Black people in its state. After the Civil War, Louisiana lawmakers swiftly implemented so called “Black Codes,” which heavily regulated newly emancipated Black people, limiting where they could live, what they could own, and where they could travel. Louisiana lawmakers even argued that the federal government lacked authority to provide protections for former slaves.

In the landmark Plessy v. Ferguson case, the state argued that segregation—its “separate but equal” policies–did not constitute unlawful discrimination. Sadly, the Supreme Court agreed, which legitimized cruel Jim Crow laws in Louisiana and throughout the United States, ending Reconstruction. The effects of Louisiana’s harmful “separate but equal laws” lasted decades. Even after the Supreme Court struck down such laws in Brown v. Board of Education, Louisiana lawmakers and local parishes continued to resist desegregation in schools and beyond.

Remember six-year-old Ruby Bridges, escorted every day to school by federal marshals after years of state resistance to integration? That wasn’t 1860, but rather 1960.

Sadly, the indelible residue of Louisiana’s segregationist policies remain today, reflected in racial wealth gaps throughout the state, race disparities in poverty, historic patterns of housing segregation and discrimination made visible by the horrors of Hurricane Katrina, and extreme health disparities throughout the state.

The remains of this shameful past magnify in New Orleans, its largest city.  One study shows a 25-year difference in life expectancy between Blacks and whites in two different New Orleans zip codes. Those hardest hit are Black women—the population most affected by the Louisiana abortion law. As Louisiana’s health records show, Black women are four times more likely than white women to “experience pregnancy-related death” in that state.

In many ways, Louisiana’s repeated efforts to shackle abortion rights reflect its historic “separate but equal,” Confederate past: the normalcy of controlling Black women’s bodies, their movements, opportunities, and decision-making.

Antiabortion proponents described the latest law in question as a benign matter; it simply barred doctors without hospital admitting privileges from performing abortions in Louisiana. They claimed that it protected women from the potentially harmful reaches of doctors who perform abortions.

Wisely, the Supreme Court struck down the law, ruling that it imposed an undue and therefore unconstitutional burden on a woman’s access to an abortion. According to the Court, the law imposed obstacles so significant that they would otherwise render the abortion right meaningless—essentially more illusory than real in Louisiana– leading doctors to abandon their practices, clinics to close, and women to be without access to abortion.

This was not a case where Louisiana fought to challenge precedent that subordinated or oppressed women’s health, rights, or safety. This was not an effort to expand protections for poor women or uplift women of color from Louisiana’s notorious history of racial and class inequality. Nor was the state’s effort to protect women from the deadly rise of maternal mortality in that state.

Viewed though this historic lens, Louisiana’s battle over women’s wombs reflects its ongoing struggle regarding meaningful constitutional equality and liberty for African Americans, especially women, in that state.

 

Michele Bratcher Goodwin is a Chancellor’s Professor at the University of California, Irvine and founding director of the Center for Biotechnology and Global Health Policy. 

Michele Goodwin

Michele Goodwin

Michele Bratcher Goodwin is a renowned scholar, advocate, and author who has devoted her career to uplifting the voices, social conditions, and rights of women and children around the globe. A widely cited legal authority in constitutional law, health law, and women’s rights, her writings have been consulted by courts, legislators, government agencies, and civil society organizations. She has advised or given testimony before Congress and state governments as well as the United States’ Uniform Law Commission on privacy, the regulation of the human body, and reproductive health.

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