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<a class="gmail-domain gmail-reader-domain" href="https://www.nytimes.com/2022/06/26/opinion/justice-alito-reproductive-justice-constitution-abortion.html">nytimes.com</a>
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<h1 class="gmail-reader-title">Opinion | No, Justice Alito, Reproductive Justice Is in the Constitution</h1>
<div class="gmail-credits gmail-reader-credits">Michele Goodwin - June 26, 2022</div></div><div class="gmail-content"><div class="gmail-moz-reader-content gmail-reader-show-element"><div id="gmail-readability-page-1" class="gmail-page"><div><div><div><span><img alt="" src="https://static01.nyt.com/images/2022/06/27/opinion/26goodwin-image/26goodwin-image-articleLarge.jpg?quality=75&auto=webp&disable=upscale" class="gmail-moz-reader-block-img" style="margin-right: 25px;" width="457" height="457"></span></div><font size="1"><span><span>Credit...</span><span><span aria-hidden="false">Illustration by Sergio Lasso, images by David Fenton and Chicago History Museum via Getty Images</span></span></span></font></div><div width="600px" height="600px"><span></span></div></div><div><p><span>Michele Goodwin</span></p><p>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.”</p></div><div><p>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.</p><p>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 <a href="https://www.nytimes.com/live/2022/06/20/us/roe-wade-abortion-supreme-court/roe-wade-overturned-supreme-court" title="">overturning of Roe v. Wade</a>
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.</p><p>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.</p></div><div><p>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.</p></div><div><p>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.</p><p>To understand the gravity of what is at stake, one need only turn to the Supreme Court’s own recent history. In 2016, <a href="https://www.supremecourt.gov/opinions/15pdf/15-274_new_e18f.pdf" title="" rel="noopener noreferrer" target="_blank">Justice Stephen Breyer </a>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 <a href="https://www.commonwealthfund.org/publications/issue-briefs/2020/nov/maternal-mortality-maternity-care-us-compared-10-countries" title="" rel="noopener noreferrer" target="_blank">the most dangerous place</a> in the industrialized world to give birth, <a href="https://cddep.org/tool/worldwide-maternal-mortality-rates/" title="" rel="noopener noreferrer" target="_blank">ranking 55th overall</a> in the world.</p><p>Disproportionately, those who will suffer most are poor women, especially Black and brown women. Black women <a href="https://www.cdc.gov/mmwr/volumes/68/wr/mm6835a3.htm" title="" rel="noopener noreferrer" target="_blank">are over three times as likely</a>
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 <a href="https://msdh.ms.gov/msdhsite/index.cfm/31,8127,299,pdf/MS_Maternal_Mortality_Report_2019_Final.pdf" title="" rel="noopener noreferrer" target="_blank">Mississippi Maternal Mortality Report</a>,
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.</p><p>In 1942, in a unanimous decision delivered by Justice William Douglas in <a href="https://www.law.cornell.edu/supremecourt/text/316/535" title="" rel="noopener noreferrer" target="_blank">Skinner v. Oklahoma</a>,
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.”</p></div><div><p>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.</p></div><div><p>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<em>.</em></p><p>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 <a href="https://www.nytimes.com/1860/01/18/archives/the-issue-in-the-united-statesthe-north-and-slavery.html" title="">New York Times on Jan. 18, 1860, </a>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.”</p><p>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 “<a href="https://www.loc.gov/exhibits/african/afam006.html" title="" rel="noopener noreferrer" target="_blank">African-American Mosaic: Influence of Prominent Abolitionists</a>.” Laws that date back to the 1600s expose the sexual depravity and inhumanity of American slavery. <a href="https://www.nps.gov/ethnography/aah/aaheritage/chesapeake_pop2.htm" title="" rel="noopener noreferrer" target="_blank">In 1662, the Virginia Grand Assembly</a>
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.”</p><p>Thomas Jefferson <a href="https://www.c-span.org/video/?426148-1/slavery-thomas-jeffersons-monticello" title="" rel="noopener noreferrer" target="_blank">kept copious receipts and documents</a> related to the births of enslaved children at his <a href="https://www.nytimes.com/2018/06/16/us/sally-hemings-exhibit-monticello.html" title="">Monticello plantation</a>, including those who were ultimately discovered to be <a href="https://www.monticello.org/sallyhemings/" title="" rel="noopener noreferrer" target="_blank">his own</a>.
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, <a href="https://www.senate.gov/artandhistory/history/minute/The_Caning_of_Senator_Charles_Sumner.htm" title="" rel="noopener noreferrer" target="_blank">was nearly beaten to death </a>in
the halls of Congress two days after giving a speech that included the
condemning of the culture of sexual violence that dominated slavery.</p><p>Black women also spoke out about their reproductive bondage. In 1851, in her compelling speech known as “<a href="https://www.nps.gov/articles/sojourner-truth.htm" title="" rel="noopener noreferrer" target="_blank">Ain’t I a Woman,” </a>Sojourner Truth implored the crowd of men and women gathered at the Women’s Rights Convention in Akron, Ohio,<em> </em>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.</p><p>Similarly, in “<a href="https://docsouth.unc.edu/fpn/jacobs/jacobs.html" title="" rel="noopener noreferrer" target="_blank">Incidents In The Life of A Slave Girl,</a>”<em> </em>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.”</p></div><div><p>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 “<a href="https://www.archives.gov/research/african-americans/freedmens-bureau" title="" rel="noopener noreferrer" target="_blank">Freedmen’s Bureau</a>,”
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.</p></div><div><p>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.</p><p>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.</p><p>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.</p><p>It is no hyperbole to say that the Supreme Court’s <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf" title="" rel="noopener noreferrer" target="_blank">decision</a> in the Dobbs case is in league with some of the darkest rulings — Plessy v. Ferguson<em>, </em>which opened the floodgates to “separate but equal” laws that ushered in Jim Crow, and <a href="https://www.oyez.org/cases/1900-1940/274us200" title="" rel="noopener noreferrer" target="_blank">Buck v. Bell</a>,<em> </em>which sanctioned states’ eugenics laws permitting forced sterilization of poor women.</p><p>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 <a href="https://www.washingtonpost.com/politics/2022/06/24/abortion-state-laws-criminalization-roe/" title="" rel="noopener noreferrer" target="_blank">states set to “trigger” laws</a>
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.</p><p>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.”</p></div><div role="button" tabindex="0" aria-label="A message from The Times"><p><br><strong></strong></p></div></div></div>
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