Posted on November 27th, 2022

From Reproductive Choice to Reproductive Justice

The Supreme Court Roe v Wade decision gave the very minimal right to abortion care. However, we see 50 years later that it did not actually provide meaningful access to abortion for everyone who needed it. We know that Roe worked for white, cisgender women with the means to get childcare, time off work, and so on, but it never truly helped the people who found themselves too remote, endangered, or poor to access care. What good is a right if it can’t be exercised?

Now that Roe has fallen, the mission now cannot be to reinstate it. You may have heard people say, “Roe was the floor, not the ceiling.” What does that mean exactly? The basis for the 1973 landmark Supreme Court 7-2 decision was that a fundamental "right to privacy" was implied in the Due Process Clause of the Fourteenth Amendment to the United States Constitution. According to those justices, a pregnant person's right to an abortion was protected under that interpretation of the constitution. Interestingly, the court also held that the right to have an abortion needed to be balanced against the government's interests in protecting the pregnant person's health and prenatal life. They went on to resolve these interests by introducing a pregnancy trimester timetable to govern all abortion regulations in the United States. Did this blow your mind? As an obstetrician/gynecologist that graduated residency and completed a Complex Family Planning Fellowship in 2007, I just learned in 2022 that pregnancy trimesters were not a medical, but a legal construct.

The Supreme Court Justices made a monumental ruling on January 22nd, forty-nine years ago, but they also tempered that decision by leaving the door open for governmental intrusion on pregnant people’s lives for “health and safety”. If not all, then most of the 1300 plus abortion restrictions passed across the country in the past five decades were under the guise of health and safety. Abortion is overwhelmingly safer than childbirth, with the risk of death from childbirth approximately 14 times higher than that with abortion. Likewise, the overall illness and injury associated with childbirth exceeds that with abortion. When conducted under safe conditions, abortion is as safe as or safer than most common outpatient medical procedures. Sadly, almost half of all abortions that take place in the world occur in unsafe conditions, mostly in countries where abortion is illegal or highly restricted. Tragically, the United States has become one of those countries with 13 states having outlawed abortion with few or no exceptions, more states having bans on the books blocked by courts, and others having restricted how far into pregnancy people can access abortion care. These unsafe abortions are a major cause of maternal death and disability around the world. Barriers to safe abortion are many, but include legal barriers, health policy barriers, shortages of trained healthcare workers, and stigma surrounding abortion. Laws and policies that restrict abortion access, making the care more difficult and costly to obtain, devalue our human rights and harm our ability to sustain our families, our communities, and our lives. They are also unethical attempts to control our lives and dictate who among us can have, keep, and raise children.

Reproductive oppression refers to the regulation and exploitation of individuals’ bodies, sexuality, labor, and procreative capacities as a strategy to control individuals and entire communities. While much of mainstream discussion and organizing about women’s reproductive lives are centered on issues of choice and access to safe and legal abortion, Black women’s reproductive lives are impacted by multiple social conditions that interfere in their right to not have children, but also in their right to have children, and raise them with dignity in a safe, healthy, and supportive environment. When we see issues through this lens, we acknowledge that some people don’t have choice, because they and their communities are being oppressed.

Reproductive oppressions can include:

Forced pregnancy

Forced sterilization

Health neglect

Violence

Mass incarceration

During a keynote address for the Black Maternal Health 2022 conference Loretta Ross stated that Reproductive controls transcend the fertile body to include a range of policies – consistently, over time, controlling the fertility of women has obsessed men since the Greek and Roman empires. Think about how some of these policies lead to the health neglect and incarceration of Black women and the overpolicing of Black communities. Today, Black women make up only 13 percent of women in the country but represent 30 percent of the women's prison population and 44 percent of women in jail. Black women’s incarceration exacerbates structural conditions their families are already experiencing. The overpolicing of Black communities and the police murders of Black children deny Black women’s right to raise their children in healthy and supportive environments. Black women caretakers are in a constant state of worry, subject to the emotional turmoils that come with the fear of their children not being allowed to come back home and the pain of mourning the children who were taken away from them. The disregard for Black motherhood is also evident in the ways in which Black mothers become targets of violence when protecting and fighting for the lives of their children.

The history of involuntary, non-consensual and coerced sterilization in the US had and continues to have profound impacts on the lives of Black women. Throughout the 20th century, eugenic ideologies that positioned non-whites, people with disabilities, and poor people as intellectually and morally inferior aligned with controlling images that positioned Black women as promiscuous (the jezebel) and Black mothers as lazy (the welfare queen), provided social and scientific rationale that legitimized medical practices, policies, and laws aimed at controlling the population growth in Black communities. Eugenics state laws that legitimized the involuntary sterilization of people with disabilities and institutionalized individuals, disproportionality impacted young and poor Black women often diagnosed as mentally ill because they were seen as promiscuous, had children outside of marriage, or engaged in interracial sex.

Because reproductive oppression affects women, girls, and femmes in multiple ways a multiple approach is needed to fight this exploitation and advance our wellbeing. There are 3 major frameworks.

Reproductive Health which focuses on the provision of services to individuals.

Reproductive Rights where the goal is to protect the legal right to reproductive health care services, particularly abortion.

Reproductive Justice attends to movement building and intersectionality -- how systems of oppression intersect to create unique issues for people situated at multiple margins.

Although distinct frameworks in relation to their approaches, together they provide a comprehensive solution. With the Reproductive Health Framework particular attention is paid to expanding access to preventative care and culturally-competent services. The Repro Rights/Choice Framework specifically organizes women, and then others, to participate in legislative and electoral processes on the state and federal level, and targets policy makers, legal experts, and elected officials. The achievement of Reproductive Justice requires a paradigm shift in consciousness for many people and radical transformation of society. Focusing on justice, oppressions, and community creates a narrative and language that’s emotional enough, and touches enough daily lives, that the average person who really didn’t know what Roe was, will pay attention. It shifts the conversation from abstract rights to everyday justice. The way forward is to see the human right to an abortion through the lens of Reproductive Justice.

Reproductive Justice:

The right to bodily autonomy

The to bear children

The right to not bear children

The right to parent in safe and sustainable communities

The Reproductive Justice framework analyzes how our ability to determine our own reproductive destiny is linked directly to the conditions of our community and these conditions are not just a matter of individual choice and access. It’s time to move beyond a demand for privacy and respect for individual decision making to include the social support necessary for our individual decisions to be optimized. We also must hold our governmental agencies and officials accountable to their obligations to provide the conditions for our choices to be safe, affordable, and accessible.

Reproductive Justice focuses on the social forces that are outside of a person’s individual control. It takes the blame and responsibility off the individual person and puts it squarely where it belongs: on society and its values. We don’t live in a society in which every child born is loved and has the resources to grow and thrive. People aren’t making the decision to have an abortion in a vacuum, but in the context of their lives. We need to start seeing it that way, talking about it that way and creating solutions that account for people’s whole lives. Reproductive Justice shows us the way.

About the Author

Dr. DeShawn Taylor, MD is a Gynecologist and Family Planning Specialist, Gender Affirming Care Provider, and Reproductive Justice Advocate whose work advances reproductive health care access through direct services, education and training, advocacy, and leadership. As founder and CEO of Health Justice MD, Dr. Taylor guides organizations through transformational social change with a focus on bodily autonomy, abortion, and gender.

Footnotes

Nowak, John E.; Rotunda, Ronald D. (2012). Treatise on Constitutional Law: Substance and Procedure (5th ed.)

Chemerinsky, Erwin (2019). Constitutional Law: Principles and Policies (6th ed.)

Raymond, Elizabeth G. MD, MPH; Grimes, David A. MD. The Comparative Safety of Legal Induced Abortion and Childbirth in the United States. Obstetrics & Gynecology: February 2012 - Volume 119 - Issue 2 Part 1 - p 215-219

Cameron S. Recent advances in improving the effectiveness and reducing the complications of abortion. F1000Res. 2018 Dec 2;7:F1000 Faculty Rev-1881.

Talitha L. LeFlouria, an African-American studies professor at the University of Virginia, is the author of “Chained in Silence: Black Women and Convict Labor in the New South.” Wrote in “Criminal justice reform won’t work until it focuses on Black women: Black women are a huge part of the mass incarceration story.” published in the Washington Post Feb 12, 2021.