[News] No, Justice Alito, Reproductive Justice Is in the Constitution

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Tue Jun 28 17:11:12 EDT 2022


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<https://www.nytimes.com/2022/06/26/opinion/justice-alito-reproductive-justice-constitution-abortion.html>
Opinion | No, Justice Alito, Reproductive Justice Is in the Constitution
Michele Goodwin - June 26, 2022
Credit...Illustration by Sergio Lasso, images by David Fenton and Chicago
History Museum via Getty Images

Michele Goodwin

Ms. Goodwin is a chancellor’s professor of law at the University of
California, Irvine, and the author of “Policing the Womb: Invisible Women
and the Criminalization of Motherhood.”

Black women’s sexual subordination and forced pregnancies were foundational
to slavery. If cotton was euphemistically king, Black women’s
wealth-maximizing forced reproduction was queen.

Ending the forced sexual and reproductive servitude of Black girls and
women was a critical part of the passage of the 13th and 14th Amendments.
The overturning of Roe v. Wade
<https://www.nytimes.com/live/2022/06/20/us/roe-wade-abortion-supreme-court/roe-wade-overturned-supreme-court>
reveals the Supreme Court’s neglectful reading of the amendments that
abolished slavery and guaranteed all people equal protection under the law.
It means the erasure of Black women from the Constitution.

Mandated, forced or compulsory pregnancy contravenes enumerated rights in
the Constitution, namely the 13th Amendment’s prohibition against
involuntary servitude and protection of bodily autonomy, as well as the
14th Amendment’s defense of privacy and freedom.

This Supreme Court demonstrates a selective and opportunistic
interpretation of the Constitution and legal history, which ignores the
intent of the 13th and 14th Amendments, especially as related to Black
women’s bodily autonomy, liberty and privacy which extended beyond freeing
them from labor in cotton fields to shielding them from rape and forced
reproduction. The horrors inflicted on Black women during slavery,
especially sexual violations and forced pregnancies, have been all but
wiped from cultural and legal memory. Ultimately, this failure disserves
all women.

Overturning the right to abortion reveals the court’s indefensible
disregard for the lives of women, girls and people capable of pregnancy,
given the possible side effects and consequences of pregnancy, including
gestational diabetes, pre-eclampsia, hemorrhaging, gestational
hypertension, ectopic pregnancy and death. State-mandated pregnancy will
exacerbate what are already alarming health and dignity harms, especially
in states with horrific records of maternal mortality and morbidity.

To understand the gravity of what is at stake, one need only turn to the
Supreme Court’s own recent history. In 2016, Justice Stephen Breyer
<https://www.supremecourt.gov/opinions/15pdf/15-274_new_e18f.pdf>noted in
Whole Woman’s Health v. Hellerstedt that women are 14 times more likely to
die by carrying a pregnancy to term than by having an abortion. The United
States bears the chilling distinction of being the most dangerous place
<https://www.commonwealthfund.org/publications/issue-briefs/2020/nov/maternal-mortality-maternity-care-us-compared-10-countries>
in the industrialized world to give birth, ranking 55th overall
<https://cddep.org/tool/worldwide-maternal-mortality-rates/> in the world.

Disproportionately, those who will suffer most are poor women, especially
Black and brown women. Black women are over three times as likely
<https://www.cdc.gov/mmwr/volumes/68/wr/mm6835a3.htm> to die by carrying a
pregnancy to term as white women. In Mississippi, a Black woman is 118
times as likely to die by carrying a pregnancy to term as by having an
abortion. According to the Mississippi Maternal Mortality Report
<https://msdh.ms.gov/msdhsite/index.cfm/31,8127,299,pdf/MS_Maternal_Mortality_Report_2019_Final.pdf>,
from 2013 to 2016, Black women accounted for “nearly 80 percent of
pregnancy-related cardiac deaths” in that state. At present, there is only
one clinic in the entire state of Mississippi to serve hundreds of
thousands of women that might need to terminate a pregnancy.

In 1942, in a unanimous decision delivered by Justice William Douglas
in Skinner
v. Oklahoma <https://www.law.cornell.edu/supremecourt/text/316/535>, the
court explained that “This case touches a sensitive and important area of
human rights,” because Oklahoma sought to sterilize a man who committed
petty crimes, including stealing chickens, under its “Habitual Criminal
Sterilization Act.”

Justice Douglas wrote that reproductive autonomy and privacy, associated
with “marriage and procreation,” are “fundamental,” and a state’s
interference with such rights “may have subtle, far-reaching and
devastating effects.” The justices were concerned about the inequality at
the heart of the law, which singled out poor and vulnerable classes of
American men.

Now, 80 years later, Mississippi has already made a “clear, pointed,
unmistakable discrimination,” as if it has “selected a particular race or
nationality for oppressive treatment,” which the court specifically struck
down and condemned in Skinner*.*

What today’s Supreme Court strategically overlooks, legal history reminds
us with stunning clarity, specifically the terrifying practices of American
slavery, including the stalking, kidnapping, confinement, coercion, rape
and torture of Black women and girls. In a commentary reprinted in The New
York Times on Jan. 18, 1860,
<https://www.nytimes.com/1860/01/18/archives/the-issue-in-the-united-statesthe-north-and-slavery.html>slavery
was described as an enterprise that “treats” a Black person “as a chattel,
breeds from him with as little regard for marriage ties as if he were an
animal, is a moral outlaw.”

Such observations were hardly unique or rare; the Library of Congress
offers a comprehensive collection of newspapers, almanacs, daguerreotypes,
illustrations, and other materials that comprise the “African-American
Mosaic: Influence of Prominent Abolitionists
<https://www.loc.gov/exhibits/african/afam006.html>.” Laws that date back
to the 1600s expose the sexual depravity and inhumanity of American
slavery. In 1662, the Virginia Grand Assembly
<https://www.nps.gov/ethnography/aah/aaheritage/chesapeake_pop2.htm>
enacted one of its first “slave laws” to settle this point, expressing,
“Whereas some doubts have arisen whether children got by any Englishman
upon a Negro woman should be slave or free, be it therefore enacted and
declared by this present Grand Assembly, that all children born in this
country shall be held bond or free only according to the condition of the
mother.”

Thomas Jefferson kept copious receipts and documents
<https://www.c-span.org/video/?426148-1/slavery-thomas-jeffersons-monticello>
related to the births of enslaved children at his Monticello plantation
<https://www.nytimes.com/2018/06/16/us/sally-hemings-exhibit-monticello.html>,
including those who were ultimately discovered to be his own
<https://www.monticello.org/sallyhemings/>. Not surprising, at the heart of
abolishing slavery and involuntary servitude in the 13th Amendment was the
forced sexual and reproductive servitude of Black girls and women. Senator
Charles Sumner of Massachusetts, who led the effort to prohibit slavery and
enact the 13th Amendment, was nearly beaten to death
<https://www.senate.gov/artandhistory/history/minute/The_Caning_of_Senator_Charles_Sumner.htm>in
the halls of Congress two days after giving a speech that included the
condemning of the culture of sexual violence that dominated slavery.

Black women also spoke out about their reproductive bondage. In 1851, in
her compelling speech known as “Ain’t I a Woman,”
<https://www.nps.gov/articles/sojourner-truth.htm>Sojourner Truth implored
the crowd of men and women gathered at the Women’s Rights Convention in
Akron, Ohio, to understand the gravity and depravity of American slavery on
Black women’s reproductive autonomy and privacy. Reported by newspapers and
recorded through history, Ms. Truth stated that she had borne 13 children
and seen nearly each one ripped from her arms, with no appeal to law or
courts. Wasn’t she a woman, too? By the accounts of those gathered,
including famed feminist abolitionist Frances Gage, the room stood still
and then erupted in applause.

Similarly, in “Incidents In The Life of A Slave Girl,
<https://docsouth.unc.edu/fpn/jacobs/jacobs.html>” published in 1861,
Harriet Jacobs describes the herculean efforts made to avoid the inevitable
sexual assault and rape by her captor. She wrote, “I saw a man forty years
my senior daily violating the most sacred commandments of nature. He told
me I was his property; that I must be subject to his will in all things.”

And yet, slavery’s vestiges persisted in Southern states, including within
the domains of privacy, child rearing and marriage. The Bureau of Refugees,
Freedmen, and Abandoned Lands, better known as the “Freedmen’s Bureau
<https://www.archives.gov/research/african-americans/freedmens-bureau>,”
founded March 1865, collected letters written by Black mothers despairing
over vile “apprenticeships” whereby their children were kidnapped and
returned to bondage under the guise of traineeships.

Congress followed in 1868 with the ratification of the 14th Amendment,
which further secured the interests of Black women who had been subjected
to cruelties inflicted on them physically, reproductively, and
psychologically.

The 14th Amendment opens with the sentence, “All persons born or
naturalized in the United States … are citizens of the United States and of
the State wherein they reside” and as such would be protected by the laws
of the United States. Such language applied to infants born to Black women,
changing the provisions of law that had long denied Black children
citizenship and the protection of laws. Lawmakers were understandably
concerned about overturning states laws that had denied children the
dignity of personhood.

Justice Samuel Alito’s claim, that there is no enumeration and original
meaning in the Constitution related to involuntary sexual subordination and
reproduction, misreads and misunderstands American slavery, the social
conditions of that enterprise and legal history. It misinterprets how
slavery was abolished, ignores the deliberation and debates within
Congress, and craftily renders Black women and their bondage invisible.

It is no hyperbole to say that the Supreme Court’s decision
<https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf> in the Dobbs
case is in league with some of the darkest rulings — Plessy v.
Ferguson*, *which
opened the floodgates to “separate but equal” laws that ushered in Jim
Crow, and Buck v. Bell <https://www.oyez.org/cases/1900-1940/274us200>, which
sanctioned states’ eugenics laws permitting forced sterilization of poor
women.

The court’s central role — and sadly its complicity — in the harms that
predictably will result from this decision cannot be overlooked. The court
will be giving its imprimatur to states set to “trigger” laws
<https://www.washingtonpost.com/politics/2022/06/24/abortion-state-laws-criminalization-roe/>
that will criminally and civilly punish girls and women who want and need
to end pregnancies, including victims of rape and incest, while ignoring
the deadly traps in which most of those states have historically placed
Black women.

Michele Goodwin is a chancellor’s professor of law at the University of
California, Irvine, and the author of “Policing the Womb: Invisible Women
and the Criminalization of Motherhood.”
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