Judge's gavel, handcuffs and scales on grey background, flat lay with space for text. Criminal law concept.

The Reproductive Violence of Family Policing & Separation

By Dorothy E. Roberts

In the Dobbs v. Jackson Women’s Health Organization oral arguments, Justice Amy Coney Barrett presented parental relinquishment as an alternative to abortion access. In the leaked Supreme Court opinion in Dobbs, which overturned Roe v. Wade, Justice Alito referred to this idea approvingly.

We asked Professor Dorothy E. Roberts, George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights at the University of Pennsylvania, to highlight some of the problems with that claim. 

Drawing on her recently published book, Torn Apart: How the Child Welfare System Destroys Black Families – and How Abolition Can Build a Safer World (Basic Books, 2022), Roberts explains in the conversation below how the child welfare system uses family separation (or the threat thereof) as a means of policing Black families (as well as Native families, other non-white families, and poor families). This, she adds, is a result of the state’s failure to invest in families in fundamental ways, and is a clear manifestation of reproductive violence.

Read More

baby feet

The Freedom to Choose (to Give Your Babies Away)

By Martin Guggenheim

Supreme Court Justice Amy Coney Barrett’s remarks during the Dobbs v. Jackson Women’s Health Organization oral arguments from last December reveal, as clearly as anything, the futility of continuing to debate the subject of abortion with religious zealots — whether those zealots are stalking abortion providers, harassing women outside of clinics, or wearing judicial robes. The chasm is simply too wide. On the one side is a deeply held belief that terminating a pregnancy means murdering a human being. On the other side is an equally firmly held belief that denying a woman the right to terminate an unwelcomed pregnancy treats her as an incubator and denies her agency over her own life, and, as a result, constitutes gender discrimination and allows the religious beliefs of some to control the lives of all.

We can spill all the words we want, but nothing clarifies more clearly the uselessness of bothering to continue this discourse. On one level, Justice Coney Barrett’s remarks are simply preposterous; they reveal a cluelessness about the human condition and the meaning of bearing a child and then placing a newborn for adoption at birth. 

Read More

Abortion rights protest following the Supreme Court decision for Whole Women's Health in 2016

The Danger of Forced Pregnancy

By Laura Briggs

When Amy Coney Barrett suggested that adoption and safe-haven laws were an adequate substitute for abortion care for people who did not want to be pregnant, she was essentially insisting that they do a kind of high-risk, uncompensated labor to produce a baby or child for adoptive families like hers. 

Like the anti-abortion movement that supported her nomination for the Supreme Court, Coney Barrett is not shy about acknowledging that she is in favor of forced pregnancy, and that this labor — in both senses of the term — could benefit other people who were childless or had fewer children than they wanted. 

We know this work has value; people who hire women in the United States to carry a surrogate pregnancy pay them $30,000 to $50,000. Denying abortion to women who want them, and then expecting them to relinquish the resulting baby for adoption, is asking them to do that same labor for free.

As Black feminist legal scholar Pamela Bridgewater has pointed out, there is a word for forcing people to do unpaid reproductive labor on behalf of others: enslavement. In fact, as she argues, forced pregnancy was key to the historic labor system of slavery in the United States — the children of enslaved mothers were themselves enslaved, and once the importation of African people for purposes of enslavement was banned in the United States in 1808, it was how slavers kept the system going and increased their own wealth, including by raping enslaved women. Slavery was outlawed in the United States with the passage of the Thirteenth Amendment, but Coney Barrett apparently means to reinstitute a version of it. 

Read More

Washington, DC, USA, May 5, 2022: people protest the leaked draft Supreme Court opinion overturning Roe v. Wade and the right to abortion

Adoption, Family Separation & Preservation, and Reproductive Justice

By Gretchen Sisson

When a draft of the Supreme Court decision in Dobbs v. Jackson Women’s Health was leaked last week, its content was a jarring shock for many. Over a few days, the surprise of the leak and the appall at the decision narrowed into specifics, and more people noticed what might have been missed in first reading: in a footnote, a passing citation from a fourteen-year-old report from the Centers for Disease Control that read, “the domestic supply of infants relinquished at birth… had become virtually nonexistent.” 

In coverage, this note sparked rage anew at the connection between abortion bans and increasing the supply of adoptable infants being made overt. Yet, much like those of us who study abortion in this country were not surprised by the draft of the decision, those of us who study adoption were even less surprised by this note. In the Dobbs oral arguments, Justice Amy Coney Barrett told us this was about adoption – and pre-Roe history has shown us how closely adoption and abortion are linked rhetorically, if not actually in people’s pregnancy decision-making. Yes, the Dobbs decision will also be about constraining people’s choices and controlling their lives and futures to conform to fundamentally regressive ideas about family, gender, and race. But then again: most often, so is adoption.

Read More

CABA, Buenos Aires / Argentina; March 9, 2020: international women's day. Women shouting slogans in favor of the approval of the law of legal, safe and free abortion.

Lessons from Latin America as the U.S. Regresses on Reproductive Rights

By Alma Beltrán y Puga

As the Supreme Court of the United States moves closer to overturning Roe and Casey, looking south to Latin America highlights the egregiousness of these developments.

Recently, Mexico and Colombia have provided landmark decisions that recognize a woman’s freedom to choose over her body is a fundamental right. Both rulings use strong arguments to frame abortion as protected under a constitutional umbrella that enshrines the right to equality and non-discrimination, and to health and reproductive freedom, as fundamental liberties.

Read More

WASHINGTON MAY 21: Pro-choice activists rally to stop states’ abortion bans in front of the Supreme Court in Washington, DC on May 21, 2019.

Tennessee on My Mind: Reflections on the Reinstated Abortion ‘Reason Bans’

By Cathy Zhang

In February, the Sixth Circuit Court of Appeals issued a one-sentence order allowing Tennessee’s “reason ban” abortion restrictions to go into effect. The restrictions make it a felony for a provider (or any other person) to perform an abortion if the provider “knows” the patient is seeking an abortion on account of the fetus’s sex, race, or probable diagnosis of Down syndrome.

The court below had previously enjoined the Tennessee law, which also includes a pre-viability abortion ban. This order leaves the previability ban in place while lifting the injunction on the reason bans; the reason bans will remain in effect until the Supreme Court makes a further ruling on abortion in Dobbs. In her dissent, Circuit Judge Karen Nelson Moore charged that the court’s order “subvert[s] the normal judicial process” and reflects a growing tendency of federal courts “to delay the adjudication of laws that significantly impair constitutional rights.”

Numerous health organizations, racial justice groups, and disability advocates alike have warned against the harms that the reason bans will inflict on people of color and disabled persons. Statements from these groups, along with 19 states and the District of Columbia, a host of constitutional law scholars, and other amici make clear that the law’s purported concern for marginalized groups belies an effort to restrict abortion access at the expense of pregnant people’s health and constitutional rights.

Read More

Image of a pile of contraceptive pills.

The Contraceptive Coverage Mandate Is Urgently Needed

By Gregory Curfman

Within the coming months, the constitutional right to abortion, which has been in place for nearly 50 years, is likely to be overturned.

In this light, it is more crucial than ever that women have unfettered access to contraception at no charge. Accordingly, the Biden Administration should act now to return the Affordable Care Act’s (ACA) contraceptive coverage mandate to its status originally intended by Congress in 2010.

Read More

(Institute for the feeble-minded, Lincoln, Ill. / Library of Congress)

Brittney Poolaw and the Long Tradition of State-Sponsored Control of Women and Their Fertility

By Lauren Breslow

On October 5, 2021, a 20-year-old Native American woman, Brittney Poolaw, was convicted by an Oklahoma jury of manslaughter for the death of her 17-week-old, non-viable fetus.

Her conviction stands as a modern recapitulation of the historical violations that women, especially Black and Brown women, have endured regarding their fertility.

Read More

Activists and concerned residents of New York City gathered at Union Square to demand Free, Safe and Legal Abortion on Sept 12, 2021.

Health Justice Meets Reproductive Justice

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.

Read More

Abortion rights protest following the Supreme Court decision for Whole Women's Health in 2016

Beyond Abortion: The Far-Reaching Implications of SB 8’s Enforcement Mechanism

By Cathy Zhang

The United States Supreme Court’s refusal to block Texas’s SB 8 abortion restriction earlier this month foreshadowed an uncertain future for abortion jurisprudence and put reproductive rights at the center of national discourse.

But abortion is not the only right at stake: the novel enforcement mechanism behind SB 8 may soon appear in a wide range of legislation, making it more difficult to challenge unconstitutional laws.

Read More