Pregnancy, Poverty, and the State
The Poverty of Privacy Rights
by khiara m. bridges
stanford university press, 2017
authors. Michele Goodwin is Chancellor’s Professor of Law and Director, Center for Biotechnology and Global Health Policy, University of California, Irvine School of Law. Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law. The authors are grateful for the research assistance of Mariah Lindsay and Julia Jones. This work was presented at Chicago-Kent College of Law, the University of California, Berkeley, the University of California, Irvine, Boston University, and Southern Cross University in conjunction with the Byron Writers Festival. The authors would like to thank the faculties and participants at those workshops and events for their insightful comments.
Rev. Dr. Martin Luther King Jr., Family Planning—A Special and Urgent Concern (May 5, 1966), http://www.plannedparenthood.org/planned-parenthood-gulf-coast/mlk -acceptance-speech [http://perma.cc/7TV2-22L5] (delivered by Coretta Scott King). Of Margaret Sanger, King noted that there is a “striking kinship” between the fight for reproductive rights and civil rights, particularly because “[Sanger], like we, saw the horrifying conditions of ghetto life.” Id. He explained, “[l]ike we, she knew that all of society is poisoned by cancerous slums.” Id. King noted that Sanger sought, like he, to expose truth “to the millions.” Id. Recent scholarship provides a nuanced and complicated view of Sanger, who founded what is now the Planned Parenthood Federation of America. On one hand, she was a courageous advocate of women’s rights and family planning, having been arrested numerous times in her advocacy to provide poor women access to birth control. Conversely, she is also described as a sympathizer of U.S. eugenics efforts of the early twentieth century. See, e.g., Adam Cohen, Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck 56-57 (2016); Iris Lopez, Matters of Choice: Puerto Rican Women’s Struggle for Reproductive Freedom 16-18 (2008). This Review does not unpack that literature.
Rachel Benson Gold, Lessons from Before Roe: Will Past Be Prologue?, 6 Guttmacher Pol’y Rev. 8, 8 (2003) (“One analysis, extrapolating from data from North Carolina, concluded that an estimated 829,000 illegal or self-induced abortions occurred in 1967.”); see also Lawrence Lader, Abortion 2 (1966) (“In 1957 a conference of experts sponsored by the Planned Parenthood Federation estimated that U.S. abortions could run from 200,000 to 1,200,000 annually.”).
Id. at 213 (“The racial differences in abortion-related deaths and access to safe therapeutic abortions mirrored the racial inequities in health services in general and in overall health.”). High maternal mortality rates remain a problem in this country, especially for women of color. See infra Part III.
Pema Levy, How the Bush Family Aided Planned Parenthood’s Rise, Mother Jones (Aug. 11, 2015, 10:00 AM), http://www.motherjones.com/politics/2015/08/planned-parenthood-jeb -bush-wants-roll-back-his-fathers-legacy [http://perma.cc/268E-X8FU].
Id.; see also Meredith Shiner, Primer on Title X: The Fund Behind the Planned Parenthood Rider, Politico: On Congress Blog (Apr. 8, 2011, 2:17 PM), http://www.politico.com/blogs/on -congress/2011/04/primer-on-title-x-the-fund-behind-the-planned-parenthood-rider -034864 [http://perma.cc/BVP7-WBT7].
Ann Gerhart, Birth Control as Election Issue? Why? (Feb. 20, 2012), https://www .washingtonpost.com/national/health-science/birth-control-as-election-issue-why/2012/02/17/gIQASW6kPR_story.html [http://perma.cc/JJ4G-DLLV].
See Colin Dwyer, Trump Signs Law Giving States Option To Deny Funding for Planned Parenthood, NPR (Apr. 13, 2017, 5:07 PM), http://www.npr.org/sections/thetwo-way/2017/04/13/523795052/trump-signs-law-giving-states-option-to-deny-funding-for-planned -parenthood [http://perma.cc/93SL-CWXJ]; Julie Hirschfeld Davis, Trump Signs Law Taking Aim at Planned Parenthood Funding, N.Y. Times (Apr. 13, 2017), http://www.nytimes.com/2017/04/13/us/politics/planned-parenthood-trump.html [http://perma.cc/3JZ7-Q8XJ] (“Regardless of his misgivings about the effort, Mr. Trump appeared ready to accept congressional Republicans’ idea of using a broad health care overhaul to strip all federal money from Planned Parenthood.”); Lisa Lambert, Trump Signs Resolution Allowing U.S. States To Block Family Planning Funds, Reuters (Apr. 13, 2017, 3:28 PM), http://www.reuters.com/article/us-usa-trump-abortion/trump-signs-resolution-allowing-u-s-states-to-block-family -planning-funds-idUSKBN17F2IH [http://perma.cc/KZV2-VW4T].
Angela Napili, Cong. Research Serv., RL33644, Title X (Public Health Service Act) Family Planning Program 4-7 (2017), https://fas.org/sgp/crs/misc/RL33644.pdf [http://perma.cc/6M9K-KRZ2] (writing that the bill “would provide no funding for the Title X program”).
Casey Quinlan, House Republicans Want To Kill Funding for Family Planning Services, Think Progress (July 25, 2017, 2:52 PM), http://thinkprogress.org/title-x-funding-c0b54e2d9a2b [http://perma.cc/MD7A-7L7P]; see also Napili, supra note 21, at 5 (“The House-reported FY2018 Labor-HHS-Education Appropriations bill, H.R. 3358, would provide no funding for the Title X program in FY2018.”).
To the contrary, empirical research shows that when facilities that provide Title X health services close, the rates of unintended pregnancies and Medicaid-funded births increase. This evidence also dispels the notion that policies to eliminate or reduce Title X funding promote or enhance the government’s fiscal security. See, e.g., State Facts About Unintended Pregnancy: Texas, Guttmacher Inst. (Aug. 2017), http://www.guttmacher.org/fact-sheet/state-facts -about-unintended-pregnancy-texas [http://perma.cc/5DS3-EDN8] (“Unintended pregnancies are also costly to the federal and state governments, resulting in $21.0 billion in public expenditures in 2010. Yet, these costs could have been considerably higher: By helping women avoid unintended pregnancies, publicly funded family planning services saved taxpayers $13.6 billion in 2010, or $7.09 for every $1 spent.” (footnote omitted)); see also Amanda J. Stevenson et al., Effect of Removal of Planned Parenthood from the Texas Women’s Health Program, 374 New Eng. J. Med. 853, 853 (2016) (noting that during the period in which researchers studied the closure of facilities providing Title X services in Texas, “the rate of childbirth covered by Medicaid increased by 1.9 percentage points (a relative increase of 27.1% from baseline) within 18 months after the claim”); Deborah Netburn, After Texas Stopped Funding Planned Parenthood, Low-Income Women Had More Babies, L.A. Times (Feb. 3, 2016, 4:01 PM), http://www.latimes.com/science/sciencenow/la-sci-sn-planned-parenthood-texas-births-20160203-story.html [http://perma.cc/FHU5-98BP].
Marian F. MacDorman et al., Recent Increases in the U.S. Maternal Mortality Rate: Disentangling Trends from Measurement Issues, 128 Obstetrics & Gynecology 447 (2016); Sophie Novack, Texas’ Maternal Mortality Rate: Worst in Developed World, Shrugged Off By Lawmakers, Tex. Observer (June 5, 2017, 6:04 PM), http://www.texasobserver.org/texas-worst-maternal -mortality-rate-developed-world-lawmakers-priorities [http://perma.cc/T2ZB-99YN].
Nina Martin, Texas Is One of the Most Dangerous Places in The Developed World To Have a Baby, Pac. Standard (Sept. 1, 2016), http://psmag.com/news/texas-is-one-of-the-most -dangerous-places-in-the-developed-world-to-have-a-baby [http://perma.cc/MCP7 -Y7YW].
The number of clients served by Title X has steadily declined. In 2015, 23% fewer people were served by the program than in 2010. Reduced revenues for family planning services, staffing shortages, and increasing costs for providing services all account for some of the decrease in services available to the poor through Title X. See Napili, supra note 21, at 3.
See generally Laura E. Gómez, Misconceiving Mothers: Legislators, Prosecutors, and the Politics of Prenatal Drug Exposure (1997) (analyzing the state’s intrusion into the lives of mothers who gave birth to drug-addicted babies in the 1980s and 90s); April L. Cherry, The Detention, Confinement, and Incarceration of Pregnant Women for the Benefit of Fetal Health, 16 Colum. J. Gender & L. 147, 148 (2007) (describing how states justified interventions in women’s pregnancies based on the notion that women harbored “maternal environments” that threatened fetal health); Michelle Goldberg, Policing Pregnancy, Nation (Apr. 21, 2011), http://www.thenation.com/article/160092/policing-pregnancy [http://perma.cc/28A3-DJBX] (describing the erosion of abortion rights and consequent rise in feticide laws). Twenty-five years ago, Dorothy Roberts exposed how racial animus toward poor Black mothers resulted in criminal and civil punishments. Her chilling descriptions of government interventions and harassment of poor Black mothers exposed how race was and continues to be an intrinsic factor in the hierarchy of reproductive rights. See, e.g., Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev. 1419 (1991).
One key vehicle for this disregard for poor women is fetal protection laws, which on their face apply equally to all women (and men), but in practice almost exclusively target poor women for threatening the health of their fetuses. See, e.g., Michele Goodwin, Fetal Protection Laws: Moral Panic and the New Constitutional Battlefront, 102 Calif. L. Rev. 781 (2014) (analyzing the myriad ways in which states problematically and unconstitutionally intervene in vulnerable women’s pregnancies, ranging from pregnancy exclusion laws that override pregnant women’s medical directives, to laws that punish women for endangering their fetuses); Lynn M. Paltrow & Jeanne Flavin, Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005: Implications for Women’s Legal Status and Public Health, 38 J. Health Pol., Pol’y & L. 299, 300 (2013) (empirically cataloguing the hundreds of instances in which poor pregnant women were targeted for criminal punishment).
Martin Luther King, Jr., Letter from a Birmingham Jail [King, Jr.], U. Pa. (Apr. 16, 1963), http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html [http://perma.cc/AR7A-5U3Z].
Nina Martin, The State that Turns Pregnant Women into Felons, Alternet (Sept. 23, 2015, 9:24 AM GMT), http://www.alternet.org/drugs/when-womb-crime-scene [http://perma.cc/8S8N-W2DG]; see also Ex parte Ankrom, 152 So. 3d 397, 429 (Ala. 2013) (Parker, J., concurring) (upholding the conviction of a poor mother for “endangering” her fetus, opining, “The decision of this Court today is in keeping with the widespread legal recognition that unborn children are persons with rights that should be protected by law”).
Targeted Regulation of Abortion Providers, Guttmacher Inst. (Feb. 1, 2018), http://www.guttmacher.org/state-policy/explore/targeted-regulation-abortion-providers [http://perma.cc/EVF2-METV].
Jennifer Steinhauer, Senate Lets States Defund Clinics That Perform Abortions, N.Y. Times (Mar. 30, 2017), http://www.nytimes.com/2017/03/30/us/politics/pence-congress-family -planning-money.html [http://perma.cc/CL4F-ZRXD].
Alanna Vagianos, Kirsten Gillibrand: If You Love Women, Do Not Unwind the Affordable Care Act, Huffington Post (Jan. 12, 2017, 5:02 PM), http://www.huffingtonpost.com/entry/kirsten-gillibrand-if-you-love-women-do-not-unwind-the-affordable-care-act_us_5877e6a9e4b0b3c7a7b0544d [http://perma.cc/V38Y-2CPD].
The case of American antebellum slavery illustrates our point. In the context of slavery, the moral construction of poverty rendered Black women’s bodies as property, which could be bartered, rented, leased, and sold. Later, during Jim Crow, this construction morphed into a strong eugenics discourse to eliminate the possibility of Black women giving birth to future citizens. See, e.g., Dred Scott v. Sandford, 60 U.S. 393, 404 (1857) (“We think . . . that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”). In the immigration context, the moral construction of poverty rendered and stereotyped Chinese women as prostitutes unworthy of citizenship, an attitude enacted into law. See, e.g., Page Act of 1875, ch. 141, § 3, 18 Stat. 477 (repealed 1974) (prohibiting “the importation into the United States of women for the purposes of prostitution,” contemplating women from Asia); see also Kerry Abrams, Polygamy, Prostitution, and the Federalization of Immigration Law, 105 Colum. L. Rev. 641, 643, 698-99 (2005) (arguing that the Page Act was part of a broader effort to ban all Chinese women from the United States and noting that “[i]f a woman answered ‘single’ or if her aspired occupation seemed improbable, the consul could conclude that she was a likely prostitute”).
For example, Planned Parenthood v. Casey, 505 U.S. 833 (1992), was a significant retreat from Roe v. Wade, 410 U.S. 113 (1973), stripping the abortion right of its fundamental contours and imposing paternalistic standards that actually do not advance women’s health. See also Rust v. Sullivan, 500 U.S. 173 (1991) (upholding restrictions and conditions on Title X funding); Harris v. McRae, 448 U.S. 297, 316 (1980) (“[I]t simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”); Beal v. Doe, 432 U.S. 438, 445 (1977) (“[W]e do not agree that the exclusion of nontherapeutic abortions from Medicaid coverage is unreasonable under Title XIX.”); Maher v. Roe, 432 U.S. 464, 474 (1977) (ruling that Roe v. Wade “implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds. . . . An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut’s decision to fund childbirth”).
In the wake of Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), which many celebrate as a reproductive rights victory, state legislatures began vetting laws nearly identical to the Texas laws struck down by the Court. In Minnesota, legislators proposed bills—ultimately vetoed by the Governor—shortly after Whole Woman’s Health that closely resemble the ambulatory surgical center requirements ruled unconstitutional by the Court. See, e.g., S.F. 704, 2017 Leg., 90th Sess. (Minn. 2017) (prohibiting establishment of abortion facilities without a license); S.F. 702, 2017 Leg., 90th Sess. (Minn. 2017) (prohibiting use of state-sponsored health programs for funding abortions).
For example, despite the fact that New York was one of the first states to legalize abortion, some “New York women . . . were unable to receive constitutionally protected care because of the state’s outmoded abortion law.” Katharine Bodde & Sebastian Krueger, N.Y. Civil Liberties Union, Critical Conditions: How New York’s Unconstitutional Abortion Law Jeopardizes Women’s Health 6 (2017), http://www.nyclu.org/sites/default/files/field_documents/nyclu_criticalconditions_20170126.pdf [http://perma.cc/Z8KJ-SGDJ]. New York “criminalizes abortion after 24 weeks unless it is needed to save a woman’s life.” Id. at 5. The law, which was enacted three years before Roe v. Wade, remains unchanged since that time. Id.; see also Jordan Goldberg et al., Nat’l Inst. for Reprod. Health, When Self-Abortion Is a Crime: Laws that Put Women at Risk 1 (2017), http://www.nirhealth.org/wp-content/uploads/2017/06/Self-Abortion-White-Paper-Final.pdf [http://perma.cc 3Q62-QAN9] (“Now, even as women may be able to self-induce an abortion without attendant hazards to their health, they may face another serious complication: prosecution and incarceration. In a few states, including New York, inducing an abortion on oneself remains a crime.”).
See id. at 18, 20 (describing one woman who decided to terminate a pregnancy before getting final results regarding the fetus’s abnormalities because she could not afford to travel to another state after New York’s twenty-four-week deadline, and another woman in New York who was forced to carry a fetus that would not survive to term because she could not afford to travel to obtain an abortion).
For a broader reading of Bridges’s scholarship related to her field research, see Khiara M. Bridges, Pregnancy, Medicaid, State Regulation, and the Production of Unruly Bodies, 3 Nw. J.L. & Soc. Pol’y 62 (2008), which examines the patient enrollment process in the New York State Prenatal Care Assistance Program, a Medicaid program that underwrites prenatal care for poor women; Khiara M. Bridges, Quasi-Colonial Bodies: An Analysis of the Reproductive Lives of Poor Black and Racially Subjugated Women, 18 Colum. J. Gender & L. 609 (2009), which analyzes and compares the experiences of poor pregnant women of color at Alpha Hospital to the experience of the colonized; and Khiara M. Bridges, Wily Patients, Welfare Queens, and the Reiteration of Race in the U.S., 17 Tex. J. Women & L. 1 (2007), which examines the racialized constructions and stereotypes that attend receiving state benefits.
See, e.g., Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care (Brian D. Smedley et al eds., 2003); Council on Ethical & Judicial Affairs, Black-White Disparities in Health Care, 263 JAMA 2344 (1990); Carmen R. Green et al., The Unequal Burden of Pain: Confronting Racial and Ethnic Disparities in Pain, 4 Pain Med. 277 (2003); Vickie L. Shavers et al., Race, Ethnicity, and Pain Among the U.S. Adult Population, 21 J. Health Care Poor & Underserved 177 (2010); Michelle van Ryn & Steven S. Fu, Paved with Good Intentions: Do Public Health and Human Service Providers Contribute to Racial/Ethnic Disparities in Health?, 93 Am. J. Pub. Health 248 (2003).
Similarly, Dr. Martin Luther King, Jr., in writings subsequent to the passage of the 1964 Civil Rights Act and the 1965 Voting Rights Act, spoke to the impasse of enforcement and full actualization of “Negro” rights. King observed, “The short era of widespread goodwill evaporated rapidly. As elation and expectations died, Negroes became more sharply aware that the goal of freedom was still distant and our immediate plight was substantially still an agony of deprivation.” Martin Luther King, Jr., The Trumpet of Conscience 6 (1967).
Molly Hennessy-Fiske, Advocates Protest Latina Immigrant’s Arrest at Texas Doctor’s Office, L.A. Times (Sept. 15, 2015, 5:39 PM), http://www.latimes.com/nation/nationnow/la-na-houston-immigrant-clinic-arrest-20150914-story.html [http://perma.cc/6V7N-G447].
Michael Barajas, Woman Arrested at Gynecologist Appointment Could Face Deportation, Hous. Press (Sept. 11, 2015, 8:00 AM), http://www.houstonpress.com/news/woman-arrested-at -gynecologist-appointment-could-face-deportation-7754827 [http://perma.cc/4JZT-47EK].
Michelle Goldberg, The Trump Administration’s Power Over a Pregnant Girl, N.Y. Times (Oct. 20, 2017), http://www.nytimes.com/2017/10/20/opinion/trump-pregnancy-abortion-.html [http://perma.cc/3XTP-UKU8].
See Ashley Lopez, What Stood Between an Undocumented Minor and an Abortion? One Trump Appointee, Hous. Pub. Media (Oct. 25, 2017, 11:22 AM) (quoting Susan Hays) http://http://www.houstonpublicmedia.org/articles/news/2017/10/25/244582/what-stood-between-an -undocumented-minor-and-an-abortion-one-trump-appointee [http://perma.cc/48Z4 -CDVZ].
See id. In a memorandum written by Tota, he directed:
This memorandum directs [the Office of Refugee Resettlement] to bring the UAC [Unaccompanied Alien Child] to the emergency room of a local hospital in order to determine the health status of the UAC and her unborn child. If steps can be taken to preserve the life of the UAC and her unborn child, those steps should be taken. If it is confirmed that the unborn child has already expired due to the beginning of the abortion procedure, steps can be taken to safely remove the body of the unborn child.
Id.
Order Attaching Statement of Circuit Judge Millett Dissenting from the Disposition of the Case at 2, Garza, 874 F.3d 735 (No. 17-5236), http://www.acludc.org/sites/default/files/field_documents/garza_v_hargan_appeals_ct_millett_dissent_10-20-2017.pdf [http://perma.cc/6DXA-YNQG]. According to Amnesty International, “It is a widely held view—shared by local and international NGOs and health professionals working with migrant women—that as many as six in 10 migrant women and girls are raped.” Invisible Victims: Migrants on the Move in Mexico 15, Amnesty Int’l (2010), http://www.amnestyusa.org/wp-content/uploads/2017/04/amr410142010eng.pdf [http://perma.cc/D6WF-DWAG]; see also id. (noting that rapes are so common that some smugglers require that women “have a contraceptive injection prior to the journey as a precaution against pregnancy resulting from rape”).
Research shows that such centers are notorious for pressuring women to continue their pregnancies. See Jenny Kutner, How Crisis Pregnancy Centers Are Using Taxpayer Dollars To Lie to Women, Salon (July 14, 2015, 1:41 PM), http://www.salon.com/2015/07/14/how _crisis_pregnancy_centers_are_using_taxpayer_dollars_to_lie_to_women [http://perma.cc/CAM3-LF7P] (“More often than not, CPCs—which now outnumber abortion clinics by an estimated 3 to 1—can be misleading, manipulative or downright coercive, pushing a distinctly antiabortion agenda that relies heavily on lying to clients.”); see also As Texas Cuts Family-Planning Funding, More Goes to Crisis-Pregnancy Services, Am. Indep. Inst., http://www.americanindependent.com/193545/as-texas-cuts-family-planning-funding-more-goes-to -crisis-pregnancy-services [http://perma.cc/8JJ8-VU78] (“Ever since Texas CPCs began receiving public money, reproductive-rights advocates in the state have been noticing a pattern: When family planning funding is cut in the state budget, money that goes to this anti-abortion-rights program increases.”).
Jackie Wang, Unauthorized Immigrant Minor “Jane Doe” Has Abortion After Back-and-Forth Court Battle, Dallas News (Oct. 25, 2017, 2 :17 PM), http://www.dallasnews.com/business/health-care/2017/10/25/undocumented-teen-texas-abortion [http://perma.cc/QKM4 -3TC5].
Tex. Health & Safety Code Ann. §§ 171.011 (West 2018). In a lower court challenge to the 2012 law, District Court Judge Sparks wrote, “The concept that the government may make puppets out of doctors, provided it does not step on their patients’ rights, is not one this Court believes is consistent with the Constitution, in the abortion context or otherwise.” Tex. Med. Providers Performing Abortion Servs. v. Lakey, No. A-11-CA-486-SS, 2012 WL 373132, at *3 (W.D. Tex. Feb. 6, 2012). Despite drafting an opinion sympathetic to the plaintiffs, however, Judge Sparks ultimately upheld the law, as the Fifth Circuit had tied the lower court’s hands and “left little room for meaningful discussion.” Id. at *1; see also Jordan Smith, Ultrasound Suit Loses Ground, Austin Chron. (Feb. 17, 2012), http://www.austinchronicle.com/news/2012-02-17/ultrasound-suit-loses-ground [http://perma.cc/TE85-RAVQ] (“The law, passed this spring after Gov. Rick Perry deemed it an ‘emergency’ to do so, requires women seeking abortion to first undergo an ultrasound a day before the termination. It also requires that women view an image of the fetus and listen to the fetal heartbeat, and that doctors describe the fetal development.”); “We Have No Choice”: A Story of the Texas Sonogram Law, NPR (Jan. 22, 2013, 2:02 PM), http://www.npr.org/2013/01/22/169059701/we-have-no-choice-a -story-of-the-texas-sonogram-law [http://perma.cc/84YA-PPY5].
Order Attaching Statement of Circuit Judge Millett Dissenting from the Disposition of the Case, supra note 83, at 2 (“Forcing her to continue an unwanted pregnancy just in the hopes of finding a sponsor that has not been found in the past six weeks sacrifices J.D.’s constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason.”).
Garza, 874 F.3d at 740-41 (Millett, J., concurring) (“The government argues that it need not ‘facilitate’ J.D.’s decision to terminate her pregnancy. . . . Government officials themselves do not even have to do any paperwork or undertake any other administrative measures. . . . So on the record of this case, the government does not have to facilitate—make easier—J.D.’s termination of her pregnancy. It just has to not interfere or make things harder.”). Many in the public confused the case, believing that taxpayers were being asked to bear the financial cost of the abortion—and that the government refused to pay. See Linda Greenhouse, The Worrisome Future of Abortion Rights, N.Y. Times (Nov. 9, 2017), http://www.nytimes.com/2017/11/09/opinion/the-worrisome-future-of-abortion-rights.html [http://perma.cc/2CWS -NUK7] (“Among the precedents cited for the ‘need not facilitate’ rule are those holding that the government need not pay for abortions for women who can’t afford one. But that is a far cry from Jane Doe’s situation. There was never a question of the government paying; the cost of the abortion was borne by a private fund.”); see also Garza, 874 F.3d at 753 (Kavanaugh, J., dissenting) (“For minors such as Jane Doe who are in U.S. Government custody, the Government has stated that it will not provide, pay for, or otherwise facilitate the abortion but will transfer custody of the minor to a sponsor pursuant to the regular immigration sponsor program.”). To the contrary, the government was not asked to fund the abortion (the procedure was being paid for by a third party). See Garza, 874 F.3d at 740 (Millett, J., concurring). In our view, that should not matter either, as an immigrant does not surrender autonomy over her body simply by entering the United States. The state cannot force a girl to become a mother simply because she is an immigrant.
See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2316 (2016) (striking down two Texas laws imposing undue burdens on pregnant women who seek abortions in that state, stating that the “upshot is that this record evidence, along with the absence of any evidence to the contrary, provides ample support for the District Court’s conclusion that ‘[m]any of the building standards mandated by the act and its implementing rules have such a tangential relationship to patient safety in the context of abortion as to be nearly arbitrary’” (internal citation omitted)).
Brief in Opposition of Rochelle Garza, as Guardian Ad Litem to Unaccompanied Minor J.D., Hargan v. Garza, 874 F.3d 735 (D.C. Cir. 2017), petition for cert. filed (U.S. Dec. 4, 2017) (No. 17-654), http://www.supremecourt.gov/DocketPDF/17/17-654/22502/20171204174233978_17-654%20Hargan%20BIO.pdf [http://perma.cc/Y8HU-5KYR].
Ed Pilkington, Indiana Prosecuting Chinese Woman for Suicide Attempt that Killed Her Foetus, Guardian (May 30, 2012, 1:36 PM), http://www.guardian.co.uk/world/2012/may/30 /indiana-prosecuting-chinese-woman-suicide-foetus [http://perma.cc/57R2-WSX5] (detailing the criminal charges against Shuai following an attempted suicide that may have caused the death of her fetus).
Court To Hear Case of Woman Accused in Stillbirth, Jackson Free Press (Apr. 1, 2013, 10:39 AM), http://www.jacksonfreepress.com/news/2013/apr/01/court-hear-case-woman -accused-stillbirth [http://perma.cc/NC38-RKP4] (discussing the pending prosecutions of Rennie Gibbs and Nina Buckwalter for the deaths of their stillborn babies); see Brief of the Appellant at 36, Gibbs v. State, No. 2010-M-819-SCT (Miss. Nov. 12, 2010) (“Under the statutory interpretation advanced by the prosecution, Ms. Gibbs faces life in prison because of her combined status as a pregnant woman and drug user.”); see also Miss. Code Ann. § 97-3-19(1)(B) (West 2017).
See, e.g., Ferguson v. City of Charleston, 532 U.S. 67, 76 (2001) (finding that state hospital staff were government actors subject to the strictures of the Fourth Amendment in a case where indigent pregnant women were unconstitutionally searched at a medical university for law enforcement purposes).
See Whalen v. Roe, 429 U.S. 589, 599-600 (1977) (establishing that privacy rights encompass two distinct spheres: an individual’s interest in independent decision-making and an interest in avoiding or refusing disclosure of intimate information, including medical records); Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (“If the right of privacy means anything, it is the right of the individual . . . to be free from unwanted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”).
Bridges, supra note 1, at 118-22. But Bridges also explains that poor families “are simply more visible to the state.” She writes, “[T]he difference between wealthier and poor parents is that, as a direct consequence of their poverty, the lives of the poor are subject to more observation by third parties—parties who may have a legal duty to report possible child maltreatment to authorities. Because of dependence on public aid and public resources . . . poor families are more likely to come to the attention of child welfare agencies.” Id. at 122.
The case of the pregnant runaway slave, Garner, further illustrates not only what it means to be deprived of reproductive privacy, such as to be rendered a breeder and supply mechanism for the production of others’ property, but also to be legally and politically silenced in the process. Garner escaped slavery in Kentucky, fleeing to Cincinnati, Ohio over the frozen Ohio River. In a desperate attempt to resist her return and that of her children, she began killing them, including the ones presumed to be the biological offspring of her owner. At trial, Garner was indicted not for the killing of her daughter, but for the destruction of her owner’s property. Not even her daughter could be legally said to belong to her in any real sense of the word. Garner’s life is fictionalized in the Pulitzer-Prize-winning novel Beloved by Toni Morrison. See, e.g., Steven Weisenburger, Modern Medea: A Family Story of Slavery and Child-Murder from the Old South (1998); Julius Yanuck, The Garner Fugitive Slave Case, 40 Miss. Valley Hist. Rev. 47 (1953); see also Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 613 (1842) (invalidating a Pennsylvania law that prohibited Blacks from being removed from the state into slavery).
As a candidate, Reagan described the trope of the “welfare queen” as a cheat and fraud from Chicago:
She has 80 names, 30 addresses, 12 Social Security cards and is collecting veterans’ benefits on four nonexisting deceased husbands . . . . And she’s collecting Social Security on her cards. She’s got Medicaid, getting food stamps and she is collecting welfare under each of her names. Her tax-free cash income alone is over $150,000.
‘Welfare Queen’ Becomes Issue in Reagan Campaign, N.Y. Times (Feb. 15, 1976), http://www .nytimes.com/1976/02/15/archives/welfare-queen-becomes-issue-in-reagan-campaign -hitting-a-nerve-now.html [http://perma.cc/RLZ3-8NNJ]. To place in context President Reagan’s erroneous claim, and the anger it inspired against Black women receiving welfare benefits, $150,000 in 1976 was worth $660,849.82 in June 2017, according to the government’s consumer price index as of August 6, 2017—an unfathomable sum to earn from government benefits. Consumer Price Index Inflation Calculator, Bureau Lab. Stat., http://data.bls.gov/cgi -bin/cpicalc.pl?cost1=150000&year1=197601&year2=201706 [http://perma.cc/4KKW -GTNU]. Nor is it lost on us that President Reagan launched his campaign with a first stop at the local fair in Neshoba County, Mississippi—an event attended by possibly ten thousand people. Of all the places to launch his campaign and float the welfare queen myth, then-candidate Reagan chose a county most known for the brutal killings of three young civil rights activists in 1964: Andrew Goodman, Michael Schwerner, and James Chaney. See, e.g., Bob Herbert, Righting Reagan’s Wrongs?, N.Y. Times (Nov. 13, 2007), http://www.nytimes.com/2007/11/13/opinion/13herbert.html [http://perma.cc/CK2F-ZXVA] (“The murders were among the most notorious in American history. They constituted Neshoba County’s primary claim to fame when Reagan won the Republican Party’s nomination for president in 1980. The case was still a festering sore at that time. Some of the conspirators were still being protected by the local community.”).
Josh Barbanel, New York City’s Economy Booms, and the Poor Begin To Profit, N.Y. Times (May 16, 1988), http://www.nytimes.com/1988/05/16/nyregion/new-york-city-s-economy -booms-and-the-poor-begin-to-profit.html [http://perma.cc/64MC-4CUC] (“Some have looked to the decline in the welfare rolls, as well as a decline in the number of homeless people seeking emergency housing, as evidence that some poor people are benefiting.”).
John Blake, Return of the “Welfare Queen,” CNN (Jan. 23, 2012, 10:32 PM), http://edition.cnn.com/2012/01/23/politics/weflare-queen/index.html [http://perma.cc/U7ZR-JDFT].
Ally Boguhn, Why Everything We’re Led To Believe About People on Welfare Is Based on Lies, Everyday Feminism (Aug. 23, 2015), http://everydayfeminism.com/2015/08/welfare-is-not -living-large [http://perma.cc/U7GG-CVU6]; see also Kaaryn S. Gustafson, Cheating Welfare: Public Assistance and the Criminalization of Poverty (2011).
Bridges, supra note 1, at 55; see also hooks, supra note 151, at 77 (“As early as 1887 black woman activist Ida B. Wells wrote an article titled ‘Our Women’ which appeared in the newspaper New York Freeman, in which she emphasized the way white supremacist degradation of black womanhood served to undermine anti-racist struggle. . . . Wells declared: ‘Among the many things that have transpired to dishearten the Negroes in their effort to attain a level in the status of civilized races, has been the wholesale contemptuous defamation of [Black] women.’”).
Sven Beckert & Seth Rockman, Slavery’s Capitalism: A New History of American Economic Development 11 (2016) (“Scholars of slavery have gone further to recognize the technologies of capitalism as indispensable to transforming human beings into commodities. . . . Scholars of Atlantic slavery . . . have recognized women’s reproductive labor as the fundamental mechanism of wealth creation for American slaveholders, who appropriated generations of black children for the perpetuation of generations of white wealth.”).
Herbert Hill, Black Labor and the American Legal System 99-100 (1977) (reflecting on the low wages Black women received and the blowback and retaliation they experienced when complaining to the National Recovery Administration during the 1930s and noting that “[d]uring NRA’s short life hundreds of complaints charging racial discrimination were filed with the agency. Retaliation against those who complained was widespread. A typical case was that of 200 women factory workers in Arkansas who were summarily dismissed for ‘inefficiency’ after one of them complained to Washington that their wage was $6.16 per week compared to the $12.00 minimum set by the code”).
Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment 110 (2d ed. 2000) (“Since the 1970s, U.S. Black women have been unevenly incorporated into schools, jobs, neighborhoods, and other U.S. social institutions that historically have excluded [them]. As a result, African-American women have become more class stratified than at any period in the past.”); Editorial, Even College Doesn’t Bridge the Racial Income Gap, N.Y. Times (Sept. 20, 2017), http://www.nytimes.com/2017/09 /20/opinion/college-racial-income-gap.html [http://perma.cc/AE45-JK9Q] (focusing on women and noting that “[p]ay gaps between white and black workers have grown since 1979, even after controlling for education, experience and location, according to research by the Economic Policy Institute. In fact, racial pay gaps have expanded the most for college graduates, which makes it seem clear that discrimination is a leading cause”).
See, e.g., Nancy F. Cott, Public Vows: A History of Marriage and the Nation (2002); Martha Albertson Fineman, The Neutered Mother, The Sexual Family, and Other Twentieth Century Tragedies 177-78 (1995); Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 3-4 (1997) [hereinafter Roberts, Killing the Black Body]; Martha L.A. Fineman, Masking Dependency: The Political Role of Family Rhetoric, 81 Va. L. Rev. 2181, 2196-97 (1995); Dorothy E. Roberts, The Only Good Poor Woman: Unconstitutional Conditions and Welfare, 72 Denv. U. L. Rev. 931, 931-32 (1995); Austin Sarat, “. . . The Law Is All Over”: Power, Resistance, and the Legal Consciousness of the Welfare Poor, 2 Yale J. L. & Human. 343, 344-45 (1990).
See, e.g., Harris v. McRae, 448 U.S. 297, 316 (1980) (“[R]egardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, it simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”).
Id. (quoting Daniel Patrick Moynihan, The Negro Family: The Case for National Action, U.S. Dep’t Lab. passim (1965), http://liberalarts.utexas.edu/coretexts/_files/resources/texts/1965%20Moynihan%20Report.pdf [http://perma.cc/FT2A-PPRN]).
See, e.g., Collins, supra note 155, at 53 (explaining that the definitions of family “advanced by elite groups in the United States uniformly work to the detriment of African-American women” because “[s]ituated in the center of family values debates is an imagined traditional family ideal,” and noting that this “family ideal” is formed through “a combination of marital and blood ties,” which is heterosexual and racially homogenous, and where the children are all biological offspring).
The architectures of slavery and Jim Crow both created stratified family structures, see, e.g., id. at 49 (discussing the informal kin networks that enslaved Blacks were forced to create due to being separated at various points for the economic benefit of others, and explaining that “[Blacks] had great difficulty maintaining families and family privacy in public spheres that granted them no citizenship rights”), and dispossessed slaves of their bodies, see, e.g., State v. Mann, 13 N.C. (2 Dev.) 263, 264 (1829) (explaining that while a slave’s general owner is not liable for battery against the slave, a stranger who has hired the slave temporarily may be liable for “cruel and unreasonable battery” that devalues the slave).
See Bridges, supra note 1, at 13, 211-22; David A. Graham, North Carolina’s Deliberate Disenfranchisement of Black Voters, Atlantic (July 29, 2016, 9:30 PM), http://www.theatlantic.com/politics/archive/2016/07/north-carolina-voting-rights-law/493649 [http://perma.cc/7FMY-T35J]; Alex Lubben, North Carolina Gerrymandered Districts Suppressed Black Votes, Supreme Court Rules, VICE News (May 22, 2017), http://news.vice.com/story/north -carolina-gerrymandered-districts-suppressed-black-votes-supreme-court-rules [http://perma.cc/GP3A-5QY8].
Patricia Hill Collins recounts Fannie Barrier Williams remarking, “The colored girl . . . is not known and hence not believed in; she belongs to a race that is best designated by the term ‘problem,’ and she lives beneath the shadow of that problem which envelops and obscures her.” Collins, supra note 155, at 5 (citation omitted).
See Chemerinsky & Goodwin, supra note 129, at 1240 (critiquing the Court’s opinion in Maher that the “denial of public funding places a woman in no different position than she would have been if there was no Medicaid program or no public hospital”); Michele Goodwin & Meigan Thompson, In the Shadow of the Court: Strategic Federalism and Reproductive Rights, 18 Geo. J. Gender & L. 333, 353 (2017). See also Bridges, supra note 1, at 185-86.
Michael J. Perry, The Abortion Funding Cases: A Comment on the Supreme Court’s Role in American Government, 66 Geo. L.J. 1191, 1244 (1978) (arguing that the Supreme Court’s abortion jurisprudence “mean[s] that some indigent women, perhaps many, will be unable to have abortions. These are the very women most likely to have unwanted pregnancies and least able to accommodate additional children.”). Furthermore, empirical studies relate a decrease in abortions as a result of slashes to funding. According to James Trussell and his coinvestigators, the Hyde Amendment’s impacts in Ohio and Georgia were such that roughly 20% of the female Medicaid recipients who desired an abortion could not get one because of the absence of funds. James Trussell et al., The Impact of Restricting Medicaid Financing for Abortion, 12 Fam. Plan. Persp. 120, 129 (1980).
We believe the state may choose to avoid paying for any medical services related to pregnancy altogether, including childbirth and abortion. However, if the state, through its Medicaid program, extends itself to pay for any medically necessary services related to pregnancy, it cannot then deny services, such as abortion, based on its preference for pregnancies. In other words, the state cannot condition its Medicaid funding on a quid pro quo, coercing a woman into the life that it condemns her to have, especially a life that burdens her with hardship. See Roe v. Wade, 410 U.S. 113, 168-69 (laying out liberty arguments); King, supra note 2 (“For the Negro, therefore, intelligent guides of family planning are a profoundly important ingredient in his quest for security and a decent life. . . . There is scarcely anything more tragic in human life than a child who is not wanted. That which should be a blessing becomes a curse for parent and child.”).
See Loretta J. Ross, Understanding Reproductive Justice, SisterSong Women of Color Reprod. Health Collective 6 (May 2006), http://d3n8a8pro7vhmx.cloudfront.net/rrfp/pages/33/attachments/original/1456425809/Understanding_RJ_Sistersong.pdf [http://perma.cc/BV28-87UV]. Ross explains:
[Women of color] were also skeptical about the motivations of some forces in the pro-choice movement who seemed to be more interested in population restrictions rather than women’s empowerment. They promoted dangerous contraceptives and coercive sterilizations, and were mostly silent about the economic inequalities and power imbalances between the developed and the developing worlds that constrain women’s choices.
Harris, 448 U.S. at 316 (holding that the Equal Protection Clause does not obligate a state participating in the Medicaid program to fund abortion services even while it pays expenses incident to childbirth). Justice Stewart and the Court generally ignored the multitudinous ways that the state contributed to women’s second-class citizenship by denying them a range of economic and civic participation activities. See, e.g., Rostker v. Goldberg, 453 U.S. 57, 78-79 (1981) (“Congress’ decision to authorize the registration of only men . . . does not violate the Due Process Clause. The exemption of women from registration is not only sufficiently but also closely related to Congress’ purpose in authorizing registration.”); Hoyt v. Florida, 368 U.S. 57, 61-62 (1961) (finding that “woman is still regarded as the center of home and family life” for purposes of creating different tiers of civic participation on juries); Goesaert v. Cleary, 335 U.S. 464, 465 (1948) (“[N]o female may be . . . licensed [to bar tend] unless she be ‘the wife or daughter of the male owner’ of a licensed liquor establishment.”).
See supra Section I.C; see also Collins, supra note 155, at 81 (“A final controlling image—the jezebel, whore, or ‘hoochie’—is central in this nexus of controlling images of Black womanhood. Because efforts to control Black women’s sexuality lie at the heart of Black women’s oppression, historical jezebels . . . represent a deviant Black female sexuality.”); hooks, supra note 151, at 79 (speaking to the notion that “black women are somehow more inherently treacherous, devious, lacking in morality and ethics than male counterparts [and that] [t]hese negative stereotypes about black womanhood usually shape the way we are represented in mainstream mass media”).
McRae v. Califano, 491 F. Supp. 630, 670 (E.D.N.Y. 1980), rev’d sub nom. Harris v. McRae, 448 U.S. 297 (1980). See generally Jill E. Adams & Jessica Arons, A Travesty of Justice: Revisiting Harris v. McRae, 21 Wm. & Mary J. Women & L. 5 (2014) (arguing that Harris should be revisited in light of developments in government-provided healthcare, due process rights, and international human rights).
See Beal v. Doe, 432 U.S. 438, 453 (1977) (Brennan, J., dissenting) (arguing that “[t]he State cannot contend that it protects its fiscal interests in not funding elective abortions when it incurs far greater expense in paying for the more costly medical services performed in carrying pregnancies to term”).
See, e.g., Pauli Murray, States’ Laws On Race and Color (1951) (describing thousands of state laws that conscribed Blacks to second-class citizenship in the United States); Pauli Murray, The Liberation of Black Women, in Women: A Feminist Perspective 351-62 (Jo Freeman ed., 1975); Raj Chetty et al., The Effects of Exposure to Better Neighborhoods on Children: New Evidence from the Moving to Opportunity Experiment, 106 Am. Econ. Rev. 855 (2016) (finding that growing up in a low-income neighborhood decreases a child’s potential lifetime earnings, and negatively impacts college attendance rates).
Fannie Lou Hamer, Testimony Before the Credentials Committee, Democratic National Convention, (Aug. 22, 1964), http://www.americanrhetoric.com/speeches/fannielouhamer credentialscommittee.htm [http://perma.cc/P924-46AP].
See Buck v. Bell, 274 U.S. 200 (1927) (upholding a Virginia law that imposed nonconsensual sterilization of indigent girls, women, and men); Radice v. New York, 264 U.S. 292 (1924) (upholding a New York law that barred female waitresses from working nightshifts); Bosley v. McLaughlin, 236 U.S. 385 (1915) (upholding a California statute limiting the hours of female pharmacists and nurses in hospitals, preventing them from earning higher evening wages); Miller v. Wilson, 236 U.S. 373 (1915) (upholding a California statute limiting women’s employment hours in hospital jobs); Bradwell v. Illinois, 83 U.S. 130 (1872) (upholding Illinois law that denied female law school graduates the opportunity to become lawyers).
See Paula Giddings, When and Where I Enter: The Impact of Black Women on Race and Sex in America 256-58 (1984); Murray, The Liberation of Black Women, in Women: A Feminist Perspective, supra note 214, at 351-63; Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. of Chi. Legal F. 139, 166 (urging that “[i]f any real efforts are to be made to free Black people of the constraints and conditions that characterize racial subordination, then theories and strategies purporting to reflect the Black community’s needs must include an analysis of sexism and patriarchy”).
See, e.g., Douglas Martin, Vivian Malone Jones, 63, Dies; First Black Graduate of University of Alabama, N.Y. Times (Oct. 14, 2005), http://www.nytimes.com/2005/10/14/us/Vivian -malone-jones-63-dies-first-black-graduate-of-university-of.html [http://perma.cc/E6VF -USHC] (“[Vivian Malone Jones’s] entrance to the university came as the civil rights struggle raged across the South. On June 12, the day after Ms. Jones and James Hood were escorted into the university by federalized National Guard troops, the civil rights leader Medgar Evers was shot to death in Jackson, Miss.” She was the “first black to graduate from the University of Alabama in its 134 years of existence.”).
See, e.g., Peter M. Blau & Otis Dudley Duncan, The American Occupational Structure 241 (1967) (describing the “severe” entrenchment of racial discrimination in American employment, reporting that Blacks “suffer[] at every step in the process toward achieving occupational success”); Sally Hillsman Baker & Bernard Levenson, Job Opportunity of Black and White Working-Class Women, 22 Soc. Probs. 510, 531-32 (1975).
See, e.g., Buck v. Bell, 274 U.S. 200, 207 (1927) (holding that “it is better for all the world, if . . . society can prevent those who are manifestly unfit from continuing their kind”); Erwin Chemerinsky, The Case Against the Supreme Court 15 (2014) (commenting on Buck); Harry Hamilton Laughlin, Eugenical Sterilization in the United States 446 (1922) (outlining a “Model Eugenical Sterilization Law”); Paul A. Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell 236-79 (2008) (discussing Buck and its aftermath); Harriet A. Washington, Medical Apartheid (2006) (documenting the numerous ways in which scientists, doctors, and government officials have historically colluded in exploiting African American women’s bodies); Paul A. Lombardo, “The American Breed”: Nazi Eugenics and the Origins of the Pioneer Fund, 65 Alb. L. Rev. 743 (2002) (documenting the early economic, political, and social ties between Nazi eugenic policy and eugenics in the United States).
Lisa Ko, Unwanted Sterilization and Eugenics Programs in the United States, PBS: Indep. Lens (Jan. 29, 2016), http://www.pbs.org/independentlens/blog/unwanted-sterilization-and -eugenics-programs-in-the-united-states [http://perma.cc/WL4X-P4AL].
Valerie Bauerlein, North Carolina To Compensate Sterilization Victims: State Sets $10 Million Pool To Pay Subjects in Eugenics Program, Wall St. J. (July 26, 2013, 1:46 PM), http://www.wsj.com/articles/SB10001424127887323971204578629943220881914 [http://perma.cc/6BFM -HLHZ] (“[A]bout 2,000 of the 7,600 who were sterilized were under age 18.”).
Id.; David Zucchino, Sterilized by North Carolina, She Felt Raped Once More, L.A. Times (Jan. 25, 2012), http://articles.latimes.com/2012/jan/25/nation/la-na-forced-sterilization -20120126 [http://perma.cc/7BPR-3UCM].
Sterilization Abuse, S. Poverty L. Ctr., http://www.splcenter.org/seeking-justice/case -docket/relf-v-weinberger [http://perma.cc/RL7M-WWP7].
Hunter Schwarz, Following Reports of Forced Sterilization of Female Prison Inmates, California Passes Ban, Wash. Post (Sept. 26, 2014), http://www.washingtonpost.com/blogs/govbeat/wp/2014/09/26/following-reports-of-forced-sterilization-of-female-prison-inmates -california-passes-ban [http://perma.cc/66R6-WU5M].
For example, in 1873 the Supreme Court upheld a state law that barred female law graduates from becoming lawyers. Bradwell v. Illinois, 83 U.S. 130 (1872). In his concurrence Justice Bradley argued that “[t]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life,” insisting that instead household harmony and women’s identities should belong to their families and that anything contrary to this “is repugnant.” Id. at 141 (Bradley, J., concurring). State courts reached similar conclusions about the capacities of women.E.g., In re Goodell, 39 Wis. 232, 244 (1875) (“So we find no statutory authority for the admission of females to the bar of any court of this state. And, with all the respect and sympathy for this lady which all men owe to all good women, we cannot regret that we do not. We cannot but think the common law wise in excluding women from the profession of the law.”). State and federal courts upheld a panoply of economically discriminatory laws and practices targeted at women. Most of these laws impacted low-income workers, denying them the right to wait tables at night, Radice v. New York, 264 U.S. 292 (1924), wear pants to work, Lanigan v. Bartlett & Co. Grain, 466 F. Supp. 1388 (D. Mo. 1979), continue employment after marriage, Cooper v. Doyal, 205 So. 2d 59 (La. Ct. App. 1967) (upholding an employment contract provision that forced airline stewardesses to resign upon marriage), writ refused, 206 So. 2d 97 (La. 1968), tend bar, Goesaert v. Cleary, 335 U.S. 464 (1948),or even obtain drivers licenses in their own names, Forbush v. Wallace, 341 F. Supp. 217 (D. Ala. 1971).
Mark E. Courtney et al., Midwest Evaluation of the Adult Functioning of Former Foster Youth: Conditions of Youth Preparing To Leave State Care, Chapin Hall Ctr. for Child. (2004), http://www.chapinhall.org/sites/default/files/ChapinHallDocument_8.pdf [http://perma.cc/P7X9-F8JR]. Study demographics included:
[an] almost even[] split between male and female youth, and just fewer than 70 percent identified themselves as belonging to a racial minority group. Most youth came from single-parent families and the birth mother was the most common primary caregiver in their families of origin. Over 70 percent of the youth reported that their primary caregiver(s) experienced one or more problems that might have compromised their parenting, most commonly alcohol abuse, drug abuse, inadequate parenting skills, spousal abuse, and/or having a criminal record.
Id. at 2.
Mark E. Courtney et al., Midwest Evaluation of the Adult Functioning of Former Foster Youth: Outcomes at Ages 23 and 24, at 67, Chapin Hall Ctr. for Child. (2010), http://www .chapinhall.org/sites/default/files/Midwest_Study_Age_23_24.pdf [http://perma.cc/FN7X-89FJ].
Linda C. Fentiman, Blaming Mothers: American Law and the Risks to Children’s Health 3 (2017) (pointing out that “[n]early every day brings a news story—in a major newspaper or on the Internet—suggesting that mothers have fallen short in their obligation to protect their children’s health and well-being”).
Stevenson et al., supra note 23, at 853 (“The exclusion of Planned Parenthood affiliates from a state-funded replacement for a Medicaid fee-for-service program in Texas was associated with adverse changes in the provision of contraception.”); Netburn, supra note 23 (“The state of Texas’ sustained campaign against Planned Parenthood and other family planning clinics affiliated with abortion providers appears to have led to an increase in births among low-income women who lost access to affordable and effective birth control . . . .”).
E. Ann Carson, Prisoners in 2013, Bureau of Just. Stat. 16 (Sept. 30, 2014), http://www.bjs.gov/content/pub/pdf/p13.pdf [http://perma.cc/7N9D-6XYS] (reporting that “more than half of prisoners serving sentences of more than a year in federal facilities were convicted of drug offenses”); Eric Holder, Att’y Gen., U.S. Dep’t of Justice, Remarks at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013) (transcript available at http://www.justice.gov/opa/speech/attorney-general-eric-holder-delivers -remarks-annual-meeting-american-bar-associations [http://perma.cc/2VX5-DPH3]) (asking whether the war on drugs has “been truly effective”); Barack Obama, Remarks at the NAACP Conference (July 14, 2015) (transcript available at http://www.whitehouse.gov/the -press-office/2015/07/14/remarks-president-naacp-conference [http://perma.cc/L6A7 -DVES]) (noting that Blacks and Latinos are disproportionately incarcerated in the United States); Jenifer Warren, One in 31: The Long Reach of American Corrections, Pew Ctr. on Sts. 5 (Mar. 2009), http://www.pewtrusts.org/~/media/Assets/2009/03/02/PSPP_1in31_report_FINAL_WEB_32609.pdf [http://perma.cc/D6SQ-A4X8] (emphasizing the high incarceration rate in the United States and the disproportionate imprisonment of Black and Hispanic Americans); see also Roy Walmsley, World Prison Population List, Int’l Ctr. for Prison Stud. 3 (May 2011), http://www.prisonstudies.org/sites/default/files/resources/downloads/wppl_9.pdf [http://perma.cc/4VBV-LR7K] (comparing incarceration rates across the globe).
Thomas A. Arcury et al., Work and Health Among Latina Mothers in Farmworker Families, 57 J. Occupational & Envtl. Med. 292, 292 (2015) (citing A.J. Marín et al., Evidence of Organizational Injustice in Poultry Processing Plants: Possible Effects on Occupational Health and Safety Among Latino Workers in North Carolina, 52 Am. J. Ind. Med. 37 (2009)) (presenting research specifically relating to Latina mothers in farm-working families that found “[a]ssociations of abusive supervision with health indicators among manufacturing workers are stronger for women than for men”).
H.B. 57, 2013 Reg. Sess. (Ala. 2013); S.B. 371, 1st Reg. Sess. (Ind. 2013); S.B. 90, 2013 Reg. Sess. (La. 2013); S.B. 2795, 128th Leg., Reg. Sess. (Miss. 2013); H.B. 400, 97th Gen. Assemb., 1st Reg. Sess. (Mo. 2013); S.B. 353, Gen. Assemb., 2013 Sess. (N.C. 2013); H.B. 2, 83rd Leg. Sess., 2d Spec. Sess. (Tex. 2013).
Mich. Comp. Laws Ann. § 550.542(2) (West Supp. 2014); H.B. 1100. 89th Gen. Assemb., Reg. Sess. (Ark. 2013) (to be codified as Ark. Code. Ann. § 23-79-156 (2013)); H.B. 818, 197th Reg. Sess. (Pa. 2013); H.B. 1900, 2013 Reconvened. Sess. (Va. 2013) (to be codified as Va. Code Ann. § 38.2-3451 (2013)).
Laura Bassett, More Abortion Laws Enacted in Past Three Years than in Entire Previous Decade, Huffington Post (Jan. 3, 2014, 12:21 PM), http://www.huffingtonpost.com/2014/01/03/states-abortion-laws_n_4536752.html [http://perma.cc/MUH5-AKXJ].
States Where They Think We’re Stupid: Abortion Access Under Attack in 2013, ACLU (Aug. 5, 2013), http://www.aclu.org/maps/states-where-they-think-were-stupid-abortion-access -under-attack-2013 [http://perma.cc/V6NS-3JBN].
136 S. Ct. 2292 (2016). In that case, the Supreme Court struck down only two Texas TRAP laws: the requirement that doctors obtain hospital admitting privileges and a mandate that clinics adopt surgical center standards. Other Texas TRAP laws, including mandatory wait periods, parental consent laws, and requirements that women listen to inaccurate health scripts prior to terminating their pregnancies, remain in effect.
Unsafe Abortion: Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality in 2008, World Health Org. 14 (Apr. 2, 2011), http://apps.who.int/iris/bitstream/10665/44529/1/9789241501118_eng.pdf [http://perma.cc/WRU3-F4QN].
2016 State of the States: A Pivotal Time for Reproductive Rights, Ctr. For Reprod. Rts. 5 (Jan. 2017), http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/USPA_StateofStates_11.16_Web_Final.pdf [http://perma.cc/U43D-LLKD].
See Elizabeth Nash et al., Policy Trends, 2017, Guttmacher Inst. (Jan. 2018), http://www.guttmacher.org/article/2018/01/policy-trends-states-2017 [http://perma.cc/43WQ-Z3F8]; Restricting Insurance Coverage of Abortion, Guttmacher Inst. (Feb. 1, 2018), http://www.guttmacher.org/state-policy/explore/restricting-insurance-coverage-abortion [http://perma.cc/D2GX-4S44] (showing that “26 states restrict abortion coverage in plans offered through the insurance exchanges” and “20 states restrict abortion coverage in insurance plans for public employees”).
Nash et al., supra note 294. Two states outlawed all abortions occurring after twenty weeks. S.F. 471, 87th Gen. Assemb., Reg. Sess. (Iowa 2017); Ky. Rev. Stat. Ann. § 311.782(1) (West 2017). Several states enacted omnibus antiabortion legislation packages. S.B. 8, 85th Leg., Reg. Sess. (Tex. 2017); H.B. 1128, 120th Gen. Assemb., Reg. Sess. (Ind. 2017); S.B. 5, 99th Gen. Assemb., 2d. Extraordinary Sess. (Mo. 2017). Three states introduced bans on abortions sought due to fetal genetic anomalies, other states enacted bans on abortions due to race or gender selection, which are alleged to target women of color. Boonstra & Nash, supra note 281; Abortion Bans in Cases of Sex or Race Selection or Genetic Anomaly, Guttmacher Inst. (Oct. 1, 2017), http://www.guttmacher.org/state-policy/explore/abortion-bans-cases-sex-or-race -selection-or-genetic-anomaly [http://perma.cc/37SJ-V5NZ].
Nora Caplan-Bricker, Poison Pen, New Republic (June 5, 2013), http://newrepublic.com /article/113378/iowa-budget-would-give-governor-power-over-medicaid-abortion-benefits [http://perma.cc/8F7A-PBS5].
Mary Beth Flanders-Stepans, Alarming Racial Differences in Maternal Mortality, 9 J. of Perinatal Educ. 50, 50-51 (2000); Pregnancy Mortality Surveillance System, Ctrs. Disease Control & Prevention (Nov. 29, 2017), http://www.cdc.gov/reproductivehealth /maternalinfanthealth/pmss.html [http://perma.cc/7V2Z-LNR2].
See 2016 Health of Women and Children Report: Measure: Maternal Mortality, Am.’s Health Rankings, http://www.americashealthrankings.org/explore/2016-health-of-women-and -children-report/measure/maternal_mortality/state/ALL [http://perma.cc/MNM4-VU8T].
Meaghan Winter, A Matter of Life & Death: Why Are Black Women in the U.S. More Likely To Die During or After Childbirth?, Essence (Sept. 26, 2017), http://www.essence.com/news/black-women-mortality-rate-child-deaths-united-states [http://perma.cc/63UE-DV7R].
Elaine Schattner, Do Abortions Cause Breast Cancer? The Shaky Science Behind Kansas’ House Abortion Act, Slate (May 23, 2012, 6:16 AM), http://www.slate.com/articles/health_and _science/medical_examiner/2012/05/do_abortions_cause_breast_cancer_kansas_state_house_abortion_act_invokes_shaky_science_for_political_gain_.html [http://perma.cc/X8X6-P2WH].
Letitia Stein, USF Obstetrician Threatens To Call Police If Patient Doesn’t Report for C-Section, Tampa Bay Times (Mar. 6, 2013, 4:59 PM), http://www.tampabay.com/news/health/usf -obstetrician-threatens-to-call-police-if-patient-doesnt-report-for/2107387 [http://perma.cc/XKN3-PF73].
Anna Almendrala, U.S. C-Section Rate Is Double What WHO Recommends, Huffington Post (Apr. 16, 2015, 10:58 AM), http://www.huffingtonpost.com/2015/04/14/c-section-rate -recommendation_n_7058954.html [http://perma.cc/V8UD-DAYR].
Alexandria Sage, Associated Press, Mother Denies Murder Charges, L.A. Times, (Mar. 14, 2004), http://articles.latimes.com/2004/mar/14/news/adna-mom14 [http://perma.cc/77DG -K5SV].
1995 Wisc. Act 292 (1997). The constitutionality of this act is currently being challenged in the courts. See Andrew Chung, Supreme Court Lifts Ban on Wisconsin’s ‘Cocaine Mom’ Law During Appeal, Reuters (July 7, 2017, 5:10 PM), http://www.reuters.com/article/us-usa-court -cocaine/supreme-court-lifts-block-on-wisconsin-cocaine-mom-law-during-appeal-idUSKBN19S2YX [http://perma.cc/BSB6-HHRZ].
Daniella Silva, Shackled and Pregnant: Wis. Case Challenges ‘Fetal Protection’ Law, NBC News (Oct. 24, 2013, 9:32 AM), http://usnews.nbcnews.com/_news/2013/10/24/21117142-shackled-and-pregnant-wis-case-challenges-fetal-protection-law [http://perma.cc/8594-RVHR].
Nina Liss-Schultz, A Judge Struck Down the “Cocaine Mom” Law That Put Pregnant Women in Jail, Mother Jones (May 1, 2017, 9:58 PM), http://www.motherjones.com/politics/2017/05/tamara-loertscher-unborn-child-protection-wisconsin-pregnant-jail [http://perma.cc/SW6F-G3GD].
See Linda Burnham, Working Hard, Staying Poor: Women and Children in the Wake of Welfare “Reform” (2000); Gustafson, supra note 149; Ann Cammett, Deadbeat Dads & Welfare Queens: How Metaphor Shapes Poverty Law, 34 B.C. J.L. & Soc. Just. 233 (2014); Camille Gear Rich, Reclaiming the Welfare Queen: Feminist and Critical Race Theory Alternatives to Existing Anti-Poverty Discourse, 25 S. Cal. Interdisc. L.J. 257 (2016).