When you’re talking about the intersection of abortion and race, it’s probably a good thing to start with the 14th Amendment, says Melissa Murray, a law scholar and law professor at New York University.
After all, it’s the 14th Amendment that the Supreme Court has interpreted as giving women bodily autonomy — the privacy and freedom to make decisions about their own bodies.
But the 14th Amendment was not included in the “original” draft US Constitution.
“It was part of that trio of three changes aimed at completely reshaping the post-Civil War American landscape and specifically introducing newly freed African Americans to the body,” says Murray.
The changes were part of an attempt to rebuild, a rejection of what had happened before, an attempt to deliver on the American promise.
“So if the 13th Amendment abolished slavery earlier and the 15th Amendment gave African American men the opportunity to be heard through the vote in politics, the 14th Amendment was about giving these newly freedmen the basic rights, that white people expected, and that was systematically denied to enslaved people,” says Murray.
These include the right to family integrity — not to have your children or spouse stolen or sold, the right to raise your children and marry whoever you choose.
“And of course the right to your own body,” says Murray.
With the abolition of slavery, there was an attempt to expand freedom and sew it into the constitution that would later form the basis for so many civil rights, including abortion, says Murray.
She remarks, “We’ve lost that thread.”
A perfect storm for pregnancy
Michelle Colon describes herself as a pro-abortion freedom fighter. As a local activist in Mississippi, she has always understood access to abortion as a racial justice issue. Colon is the founder of Shero, an acronym for “Sisters Helping Everyone Rise and Organize,” which campaigns for equal access to abortion in a state known to have only one abortion clinic. It is the clinic that is now the focus of the Supreme Court litigation.
“We’re here for all women and girls, all people, but our specific target — and we make no apology for it — is black and brown,” says Colon.
Colon clarifies that this “includes gender non-conforming individuals and trans women. That’s what Shero is here for,” she says, “because we were left out.”
These are the people, Colon says, who have already borne the brunt of America’s shrinking abortion access gap, and they will continue to be hit hardest by the upheaval Roe v. calf.
A key reason for this is simple geography and demographics.
“The states that are most likely to ban abortion have a much larger proportion of people of color,” says Ushma Upadhyay, a public health social scientist at the University of California, San Francisco. “We also know that about 60% of people who have abortions are black.”
Just look at Michelle Colon’s home state of Mississippi, whose only abortion clinic appears to have shut down afterward roe‘s downfall. The state is 39 percent black, but black people make up 74 percent of those seeking abortion. This emerges from data collected by the Kaiser Family Foundation.
“These are states where the governors have basically restricted sex education opportunities to abstinence-only education,” says NYU’s Murray.
She calls it a perfect storm for pregnancy. “And then you took the opportunity to control whether you were actually carrying this pregnancy to term or not.”
The states that ban abortion are also places where access to health care ranges from patchy to scant, Murray says. “They have to contend with the gauntlet of unequal access to medical care, poor access to prenatal care, poor access to postnatal care, high infant mortality rates and high maternal mortality rates.”
Fatal Consequences
“We’re more likely to die in childbirth,” said Tammy Boyd of Black Woman’s Health Imperative. Boyd speaks of black women like herself who are 3 to 4 times more likely than white women not to survive pregnancy. Despite these large differences, maternal mortality is a growing problem for all races in the United States.
America is the only developed country with a steadily increasing maternal death rate, and Boyd says stunning roe would only increase the number of those dying.
“Really forcing women to carry unwanted pregnancies would be deadly,” says Boyd, especially for women of color. “This would lead to an approximately 33% increase in pregnancy-related deaths among Black births.” People who don’t have access to abortion, she says, are being made to risk possible death because the state says so.
Black mothers’ mortality rates are higher by class, education and socioeconomic status, says UCSF’s Ushma Upadhyay. “The main cause is racism,” she says. “When black women experience pregnancy complications, they are not listened to, not believed, assumed to have higher pain thresholds.”
Those who survive an unwanted pregnancy are more likely to suffer in other ways, Upadhyay says. She points up The Turnaway Study, which tracked both women who obtained and those who refused abortions over the course of 5 years. “Those who were unable to have their abortion were more likely to suffer from poor physical health for years after the pregnancy,” says Upadhyay. “Five years later, they were living in higher rates of poverty, and that has economic, health and social implications for years to come.”
Monitor the womb
Black women are more likely to want abortion in states that deny it, and they are more likely to die in childbirth. They are also more likely to be arrested if something goes wrong with their pregnancy. It’s not just abortion, advocates and legal scholars say, that women who miscarry are increasingly being targeted.
“The criminalization of miscarriage is nothing new,” says Michelle Colon of SHERO. “We have to be clear about that. But when miscarriages became equated with abortions, it was almost exclusively people of color.”
There is the case of Purvi Patel, in Indiana, who was sentenced to 20 years for fetus in 2015 before the charges were overturned by an appeals court. There is the recent case of Lizelle Herrera, in Texas – charges against her have also been dropped. And then there is Brittney Poolowa member of the Comanche nation serving four years for manslaughter for a miscarriage that occurred when she was just 15-17 weeks pregnant.
A Report by the National Advocates for Pregnant Women and Fordham University entrenched in 413 arrests of pregnant women from 1973, when abortion was legalized, through 2005. The numbers broke down sharply by race and class: 71 percent of the arrested women were low-income, 59 percent were black women, and 52 percent were black women. Black women were also charged with a crime far more often than white women. And all this at a time when abortion was legal.
“Ectopic pregnancies, miscarriages, like all of these, I think are being challenged in a world where abortion is either illegal or downright criminal,” says NYU legal scholar Murray. “Who is selected for this type of treatment for this type of monitoring? It will likely be the people who are already hooked up to the criminal justice system.”
That means poor people and people of color, says Murray. Many of them do not have access to reliable, quality healthcare, putting them at greater risk if something goes wrong with their pregnancy.
“That can be a way for the state to intervene,” says Murray. “Well, I think it’s not just about criminalization, but the state is even stronger in their lives than we expect today.”
Aside from denying women the choice, according to Murray, this would lead to the end of the right to privacy, self-determination or personal responsibility when it comes to one’s own body.
“Imagine living almost every aspect of your life under some form of government surveillance. I mean, it really does feel a bit like a panopticon.”
Deep rooted racism
In his leaked draft opinion, Judge Samuel Alito wrote that abortion was not “deeply ingrained in the history of this country.”
But Murray says that’s not right. For one thing, abortion was legal in America until just after the Civil War.
That American Medical Association fought to make abortion partially illegal in order to take childbirth out of the hands of women – midwives who assisted with childbirth and abortion – and put it in the hands of white men who had proclaimed themselves experts.
Murray points out that there was another reason, a concern that privileged white women were choosing smaller families. “White women practiced what is known as voluntary motherhood, deliberately using birth control and abortion to keep their families manageable,” says Murray. “And that reduces the white birth rate.”
This drop in white births sparked a panic that sounds eerily familiar. “The immigrant birth rate is going up and the white birth rate is going down, and they are deeply concerned that ‘America’ isn’t going to look like ‘America,'” she says.
“So Tucker Carlson nuances,” adds Murray. Carlson was a rabid proponent of the racist grand replacement theory — which suggests there is a nefarious conspiracy to replace white — and implicitly “real” — Americans with immigrants. above half of the Republican Party now joins this baseless, extremist claim fueled by rising white nationalism and a greater shift in American demographics. However, racism runs deep in American history.
Which brings us back to the 14th Amendment.
Alito claims that abortion was illegal when the 14th Amendment, the place where the legal right to abortion originated, was written into the Constitution. The actual story is more complex than that, and Murray says his limited reading lacks the power and meaning that lies in complementing our nation’s post-Civil War plan.
“Even if there’s no explicit statement for abortion in the 14th Amendment or the Constitution,” she says, “there’s still this story that abortion and bodily autonomy fit neatly into, and it’s all there, waiting to be reclaimed will.”
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