By Seema Mohapatra*
In the midst of a global pandemic and horrifying examples of police injustice, the Supreme Court added to the pain by delivering several blows to reproductive justice in the last few weeks. Although June Medical v. Russo was a technical victory, the dissenting and concurring opinions, written by five men, make it clear that the majority of the Court seeks to restrict access to abortion care, regardless of how it affects pregnant people’s lives. Legal scholars, including Melissa Murray, Leah Litman, and Caroline Mala Corbin, note that June Medical actually may make abortion easier to restrict. Chief Justice Roberts upheld Whole Woman’s Health v. Hellerstedt in name only. According to Roberts, courts can only overturn abortion regulations that place a substantial obstacle for people seeking abortions, even if those laws do not benefit pregnant people’s health and safety. This is a departure from a faithful reading of Whole Woman’s Health, which would require the court to balance the burdens on pregnant people with health and safety benefits. Although some commentators interpreted Roberts’ concurrence as being good news for abortion rights, there are some worrying signs, such as the Court ordering the Seventh Circuit to reconsider, in light of June Medical, two Indiana abortion regulations they had previously invalidated. That doesn’t feel like a win.
Little Sisters of the Poor v. Pennsylvania was a definite loss for reproductive justice with seven Justices upholding the Trump Administration’s legal authority to issue broad exemptions to the Affordable Care Act’s (ACA) contraceptive requirement based on moral or religious objections. This was the third time the policy was before the Supreme Court, and the seven Justices did not appear to care that up to 125,000 women (by the government’s own admission) would lose their contraceptive coverage if Trump’s rules went into effect.
These cases show how the Supreme Court is largely indifferent to people’s reproductive realities, particularly the lives of poor, Black women. Amicus briefs filed in June Medical and Little Sisters tried to focus the Court’s attention on how the decisions regarding abortion care and contraception affect poor people of color, especially Black women, the most. Yet, there was no mention of race at all in either case.
This willful omission of race has always undercut the goals of racial justice, but it is inexcusable in the present moment. The COVID-19 pandemic has laid bare deep racial inequities in healthcare, and COVID-19 related restrictions on reproduction and lack of support for childbearing and childrearing disproportionately burden Black women and other women of color. The Supreme Court seems unwilling to take into account who their decisions impact most. Additionally, even with a different composition of the Court, courts alone cannot achieve justice. With input from communities of color, legislative action and policy decisions that ensure access to health care and financial support would be better able to support reproductive justice. This essay views the COVID-19 pandemic through a reproductive justice (RJ) lens to demonstrate how a comprehensive health justice approach is needed to address these issues.
I. Reproductive Justice
The RJ movement was started by Black women who felt unseen by the reproductive rights movement, which had focused mainly on abortion rights and the concept of choice. Black communities faced (and continue to face) involuntary sterilizations and criminalization of their pregnancies. The RJ framework focused on three tenets: 1) the right not to have a child, 2) the right to have a child, and 3) the right to parent one’s child safely. As the National Network of Abortion Funds puts it, “Reproductive justice is as much about raising our children without fear of being killed by a police officer as it is about accessing an abortion.”
II. Reproductive Justice and COVID-19
The COVID-19 pandemic has been devastating to people of color, especially Black people, who are more likely to have lost a job, work as low wage essential workers, and are more likely to die from COVID-19. Looking at the COVID-19 pandemic through an RJ lens shows how facially neutral laws and policies disproportionately harm Black women and why relying on only courts for help is inadequate. Not only are courts often unwilling to address who is harmed by their decisions, but courts are primarily limited to interpreting laws. Directed legislative action and policies that are consciously designed to help achieve equity for communities of color is needed to achieve health justice in these areas.
A. The Right Not to Have a Child
RJ requires affordable, safe access to abortion care and contraception. Being denied abortion care is not only an affront to one’s dignity, but it is also unhealthy. Among people with unwanted pregnancies, “those who experience childbirth report worse overall health five years later than those who underwent an abortion.” When one compounds that with the fact that Black and Native American individuals are already sicker and live shorter lives than white people, the negative health consequences of not having access to abortion are stark.
During the pandemic, many states restricted medical services deemed as non-essential while stay-at-home orders were in effect. Twelve states led by officials already hostile to abortion care opportunistically deemed abortion as non-essential in order to restrict access. The penalties for violating such orders included steep fines and jail time.
Even as states started allowing non-essential services, roadblocks for abortion remained. For example, Arkansas instituted a requirement that a pregnant person must test negative for COVID-19 two days in advance of an abortion. One woman had to drive to Little Rock seven times before she was able to obtain an abortion, which almost cost her a job as a result. She is one of many who experienced increased costs and unnecessary delay. Multiple trips and lost wages are not minor inconveniences, and not everyone has the ability to travel, due to lack of money, transportation, childcare, or time off from work.
Low-income people have the highest rates of abortion, in part because a person living in poverty is more than five times as likely as someone not living in poverty to have an unintended pregnancy. Thus, abortion restrictions overwhelmingly impact poor women given that a staggering 76% of people who have abortions are at or below 200% of the federal poverty level. And poverty is racialized in America. According to the Kaiser Family Foundation, Black, Native American, and Latinx women are disproportionately poor: 22% of African Americans and 19% of Latinx individuals live below the poverty level, compared with only 9% of whites and 11% of Asian Americans
Two of the most common reasons to seek abortion care are economic insecurity and an inability to financially care for a child, and both stressors have been exacerbated by the economic effects of COVID-19. Due to worsening employment conditions since the pandemic began, people are concerned about their own economic well-being and adding the expenses of a child may be more difficult than before. Unlike any other type of health care, abortion is specifically carved out by Medicaid via the Hyde Amendment and the appropriations bills that incorporate the Hyde Amendment each year. This means poor pregnant people who are covered by Medicaid have to pay out of pocket for abortion care in most states
B. The Right to Have a Child
The second tenet of an RJ approach moves beyond abortion rights and delivery to support for people during pregnancy and at birth. Carrying a pregnancy to term has long been fraught for people of color and low-income individuals. The pandemic has only deepened the disparities in prenatal care and post-birth assistance for Black and poor women.
Consider that the United States has the worst maternal mortality rate among similarly situated countries, and Black women are up to four times more likely to die from a pregnancy-related death than white women. Due to the pandemic, many pregnant people have received care via telemedicine, rather than in in-person visits. Although telemedicine has the potential to improve access to prenatal care, studies that have demonstrated that it does not result in worse birth outcomes included “mainly white, usually wealthy, and privately-insured populations.” Given that Black, Latinx, and Native American pregnant people receive less prenatal care than other racial groups, and that many Black women’s prenatal and postnatal complaints are dismissed even in pre-pandemic times, it is important to ensure that telehealth is not exacerbating the divides that already exist. In one recent case in New York City, where Black women die in childbirth at rates twelve times that of white women, a pregnant Black woman died due to complications that could have been detected with in-person visits. The issue of what is adequate prenatal and postnatal care during the pandemic for people of color needs more attention, especially when physicians report that pregnant patients are delaying care due to fear of contracting the virus.
Pregnant people experience acute effects of COVID infection and can pass the virus to their infant via nursing or other contact. To protect healthcare workers or preserve equipment, two New York hospital systems prohibited visitors to delivery and labor departments. After an outcry, the Governor issued an order preventing hospitals from barring all visitors. Some medical facilities now permit just one person to visit. People who rely on the care of a doula or birthing support person then have to choose between that their birth assistant person and a partner or family member to be present during labor. Having in-person support is especially important for pregnant people of color. The Giving Voices to Mothers study found that poor Native American, Black, and Latinx women report much higher rates of mistreatment by providers during birthing than white women. Although safety in a pandemic is certainly important, we need to ensure that even protective measures passed with good intentions do not have disparate racial impacts.
C. The Right to Parent a Child
The third tenet of RJ is recognition of a right to parent one’s children with dignity. With disturbing recent reminders like George Floyd and Ahmaud Arbery caught on video, the crisis of over-policing and punishing the Black community could not be clearer. Black men are disproportionately incarcerated; in addition to the injustice they face, their children bear the consequences of having their fathers unfairly in the criminal justice system. Over-policing is associated with a higher infant mortality rate. Black women also suffer financial, emotional, and childrearing burdens related to mass incarceration. In addition, Black mothers are more likely to work in low wage jobs and need affordable childcare options.
Many child care facilities are closed due to the pandemic but, as discussed above, many women of color are essential workers who cannot work from home. The lack of affordable child care is a challenge during normal times. But with schools closed and a shortage of child care, single mothers, who are disproportionately Black, Latinx, and Native American, are particularly vulnerable. Financial instability could result in greater involvement by child welfare officials, who have long targeted Black single mothers. As Dorothy Roberts has documented, Black mothers disproportionately have their parenting decisions questioned and subject to “extraordinary scrutiny and vilification” by the state, which in turn leads to the overrepresentation of Black children in the foster care system. Khiara Bridges critiques how poor mothers are more likely to be subject to child welfare investigations and how “the fact of poverty itself gives the state reason to suspect child maltreatment.”
As an overarching, and concluding, concern, Americans are facing unprecedented economic uncertainty with high unemployment rates and loss of income, loss of health insurance, and lack of ability to pay rent or mortgage. These economic realities are worse in states that did not expand Medicaid. The dim economic outlook makes it difficult to raise children for all people, but especially people of color, who are facing more dire financial consequences from this pandemic. These problems are outside the ambit of the courts and we need to refocus the conversation on policymakers, not courts.
III. Much Work Left to Do
Though there are numerous reproductive injustices exacerbated by the pandemic, the purpose of this essay is to survey some of the most salient, particularly as they impact communities of color.
In taking up these injustices, advocates cannot look to courts alone to address the RJ challenges posed by COVID-19. In Policing the Womb, Michele Goodwin suggests that a “RJ Bill of Rights” may be helpful, at least conceptually, to focus on the broad RJ challenges facing women. David Cohen and Carol Joffe, in their book, Obstacle Course, note that “addressing the massive income inequality that characterizes American society” could improve the lives of people who seek abortion. Community-led policies, long term financial and legislative support, universal health insurance, and dismantling structural discrimination are vital to restoring reproductive justice.
* Seema Mohapatra (J.D., M.P.H.) is a tenured associate professor of law and Dean’s Fellow at the Indiana University Robert H. McKinney School of Law.