On the
40th anniversary of Roe v.
Wade, I am struck by the narrow vision of reproductive justice that the
case has often come to signify. Roe,
which ensured access to safe and affordable contraceptive care and abortion
services, is a significant milestone in the ongoing struggle for women’s equity
and autonomy in the United
States . But while the decision itself
emphasized the broad liberty, privacy and dignity interests associated with
procreation and parenting, many mainstream feminist organizations have focused
on the freedom not to bear children
(via abortion and contraception). An equally important aspect of reproductive
justice involves the right to parent.
For women of color, this right continues to be burdened through policies and
discourses that deny their reproductive capacity and denigrate their identities
as mothers. Indeed, notwithstanding the significance of Roe, women of color continue to struggle to have the full scope of
their reproductive autonomy respected by the state, particularly with respect
to their choice to have children or become parents, and all too often this
struggle has gone unremarked or unnoticed in mainstream feminist organizing.
The failure to truly center the concerns of women of color is not
insignificant; it not only constrains the reproductive autonomy of the most
vulnerable, but constrains a more expansive articulation of reproductive
autonomy and justice as well.
In cases preceding Roe, the Supreme Court held that privacy, autonomy and dignity are
rooted in the liberty interest protected by the Fourteenth Amendment’s Due
Process Clause. The Court found that this liberty interest protected
individuals from government interference in the areas of procreation and
contraception. This right was extended in Roe
v. Wade to include the right to decide when and whether to procreate
through the use of abortion.
While early
organizing saw abortion as one of many facets of women’s liberation and
reproductive autonomy, in the
decades following Roe, this more expansive
view has somewhat narrowed. More recently, mainstream feminist organizing
around choice has focused predominately on contraceptive services and abortion.
In many respects this shift has marginalized the panoply of ways in which
reproductive choice and autonomy is constrained in the lives of women of color
in a number of discursive spaces and institutional settings.
Indeed, feminists of color have long resisted
this narrow definition of reproductive choice and autonomy. While emphasizing
the central importance of access to contraception and abortion services, women
of color activists have also highlighted the ways in which the denial of
reproductive capacity and the denigration of their identities as mothers has
been central to their subordination in the context of slavery, colonialism and
Jim Crow. Women of color also contested the idea that they were unable or
incapable of controlling their reproductive destinies. In so doing they
mobilized to fight sterilization and other practices that burdened the choice
to bear children.
Yet for many poor women of color, full
reproductive choice and autonomy has remained elusive. Indeed, the reproductive
capacities of women of color are often targeted for suppression or derision
within contemporary political discourses and official policymaking within a
number of institutional settings including the criminal justice and welfare
systems. The injuries suffered by women of color in this context, however, are
seldom articulated as part of the broader attacks on reproductive rights of
women. This targeting of women of color
and their families, and the silences that often accompany this targeting,
combine to form what I am calling “reproductive profiling.”
I use the term “reproductive profiling” to draw
upon the ways in which people of color are profiled in the policing or law
enforcement context. Similar to the failure of the Fourth Amendment’s privacy
rationale to fully extend to victims of racial profiling, individuals subject
to reproductive profiling are denied the autonomy and privacy interests
guaranteed by the Constitution. As Dorothy Roberts and others have noted, the
lives of poor women of color are often public due to frequent interactions with
government agencies. Consequently, those who choose to become parents do not
benefit from the privacy or dignity rationales represented by Roe and its progeny. In various
institutional contexts, such as immigration, prisons and social welfare, poor
women of color are subjected to behavior policing policies that limit
reproductive autonomy or punish the choice to become a parent. As Michele
Goodwin has noted, this “brings private, intimate spaces into the public theatre,
creating spectacles of poor, pregnant women and their children; and this public
humiliation functions to visually inscribe these women's place in the social
hierarchy.”
Moreover, like victims of racial profiling in
the policing context, women of color are singled
out for suspicion because they are deemed to be in places that they do not
belong. Indeed, poor women of color have historically been denied identities as
mothers, which are informed by the normative values of the white middle-class.
In this way, constraints on their choices to become parents are a reflection of
social views that women of color who seek to parent are attempting to access a
space that is inappropriate or one that they are not equipped to navigate. The
race, gender and class identities of women of color, when attached to their
choice to become parents, often raises a suspicion of wrongdoing. Consequently,
they confront significant regulation of those choices and are subject to
pervasive surveillance.
There are three institutional settings where
“reproductive profiling” is most salient:
(1) Criminalization and Incarceration. Women of
color have been prosecuted for their choices to bear children and raise
children in difficult circumstances. For
example, women of color have been prosecuted for suffering miscarriages that
are alleged to be connected to drug use or for attempting to access quality
education for their children. Once
incarcerated, women of color are disproportionately subject to an array of
demeaning and degrading practices, including sterilizations, lack of quality
care during pregnancy, shackling during childbirth, and the loss of parental
rights during periods of incarceration.
(2) Immigration. Undocumented immigrant women have been blamed
for exacerbating the immigration problem by having children. In particular,
they are demonized within political discourse and accused of coming to the United States
in order to fraudulently have “anchor babies.” As a consequence of these and
other narratives, undocumented women have been excluded from public health
programs in many states. Moreover, undocumented women often experience family
separation during times of immigration detention, which can span months or
years.
(3)
Social welfare. Poor women of color are
subjected to a variety of limitations on their reproductive capacity within
social welfare institutions. The limitations include family caps for welfare
assistance, intrusive searches of their homes and monitoring of their families.
Poor women of color are disproportionately represented in social welfare
institutions such as the juvenile dependency system, where the threat of the
loss of their children looms large.
Despite these troubling trends and policies, if
one were to examine the reproductive rights platforms of many mainstream
feminist rights organizations, these areas where reproductive autonomy is
constrained receive scarce mention. As
we embark upon the 40th anniversary of this landmark decision,
mainstream feminist organizations must confront these forms of “profiling” and
embrace the robust vision of reproductive autonomy and justice that is
represented by Roe. Embracing a more
expansive view of privacy, dignity and reproductive autonomy that speaks to the
needs of the most marginal among us will open the door to broad-based coalition
building that can more effectively resist ongoing assaults on reproductive
rights and the legacy of Roe.
Priscilla A. Ocen is Associate Professor of Law at Loyola Law School. You can reach her by e-mail at priscilla.ocen at lls.edu