For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries
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
. 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. United
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
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. United States
(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