By Rachel Rebouché
Over the past few weeks, the headlines have been dominated by the implementation of a Texas “heartbeat” law. The law, which prohibits abortions after detection of fetal cardiac activity, “shall be enforced exclusively through . . . private civil actions” and “no enforcement may be undertaken by an officer of the state or local government.” For that reason, the Fifth Circuit, and then the Supreme Court, declined to enjoin the law’s application because, in part, no one had yet to enforce it. The Court did not opine on the law’s constitutionality, even though the statute directly contradicts precedent protecting abortion rights before viability. Indeed, as the DOJ argued in its recent lawsuit against Texas, the state designed the law specifically to circumvent judicial review.
What does Texas’s abortion ban have to do with health justice? The answer may not seem obvious because of how the debate over Texas’s law has been framed. Commentary has focused on whether or not litigants have standing to challenge the law or whether the federal government could successfully intervene to stop enforcement of the law. And these are important questions, especially for the providers and those “aiding and abetting” them, who are subject to the lawsuits of private citizens suing for $10,000 per procedure in violation of the law.
The costs of this law, however, could far exceed these potential damages. A health justice perspective highlights those costs and how lack of access to abortion entrenches economic and racial inequality.
When people cannot obtain abortion care, they incur social, financial, and physical costs that are difficult to bear. Three-fourths of abortion patients are poor or low income (as defined by federal poverty levels) and most are people of color. A majority of those people report their chief reason for ending a pregnancy is an inability to afford the costs of raising a child. This is not surprising, given the financial insecurity that marks the lives of an increasing number of people in the United States. The COVID-19 pandemic has amplified these costs through widespread unemployment, compounded caregiving responsibilities for families, and an already overstretched health care system.
However, in the broader public discourse, abortion access’s relationship to economic and racial inequality is often lost amid debates about privacy and choice. And, to the detriment of the aims of health justice, these public debates tend to limit conversations about reproductive health to abortion alone. Greater engagement between health justice and reproductive justice, which are broadly aligned in theory and practice, could help bridge this gap.
First, reproductive justice and health justice advocates share a focus on structural barriers and structural solutions. Health justice is a framework that “addresses the social determinants of health that result in poor health for individuals and consequential negative outcomes for society at large.” Likewise, the reproductive justice paradigm emphasizes meaningful state and social support over the course of one’s life and in all areas of reproduction, from sex education taught in schools to the quality of post-partum care. This holistic approach recognizes that individuals’ and communities’ health depends on their environments and the resources at their disposal.
Accordingly, health justice and reproductive justice both support policies that would lower health care costs, make child rearing more affordable, and address the country’s failing health infrastructure. Such measures would include, but also go beyond, those specifically designed to expand access to abortion services, or even to health care services more broadly. In addition to financially supporting abortion facilities in underserved areas or lifting bans on the use of government funds for abortion, responsive policy reform for reproductive and health justice would provide meaningful state support for higher wages, secure housing, and other interventions that upend inequality.
Second, movements for reproductive justice and health justice also share commitments to empowering communities. Health justice and reproductive justice scholarship highlights collective action as key to dismantling disparities and inequalities. That work centers the class, racial, and other forms discrimination that have contributed to health and health care disparities.
Health justice and reproductive justice frameworks advance an expansive approach, which aims to protect sexual and reproductive health, provide the necessary resources to those who would like to have children and those who would not, and address the upstream social and structural factors affecting personal health and well-being. Together, both movements understand that supporting reproductive health more broadly advances health equity. Abortion access is a key part of this endeavor. Particularly if abortion is no longer protected as a constitutional right, it will be all the more critical to advance it as an issue central to people’s and the public’s health.
Rachel Rebouché is the Interim Dean of Temple University Beasley School of Law and the James E. Beasley Professor of Law.