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By Michele Goodwin*

In 2000, nations throughout the world agreed to participate in the United Nations Millennium Development Goals (MDGs). One of the key objectives specifically targeted reducing pregnancy-related deaths. Nearly two dozen international organizations and 191 member state nations publicly committed to achieve eight goals, among them reducing maternal mortality. All but a few nations showed demonstrable progress. The United States was among the few nations to fail and dramatically regress.

Maternal mortality rates actually increased in the United States at a rate of nearly 140 percent since 1990. As one reporter noted, “Just as the world turned its attention to this matter with marked success, the United States stopped offering data and began moving backward.”

What accounts for this? Texas holds some clues. Texas has the regrettable distinction of the deadliest state in the developed world in which to birth a child. As one commentator explained, “the Texas maternal mortality rate ‘now exceeds that of anywhere else in the developed world.’” It is also a state with an overwhelmingly male legislature, which prides itself on enacting the most restrictive abortion laws in the nation. As the Texas Tribune reported in 2017, “Once again, the Texas Legislature is mostly white, male, middle-aged.” At that time, men held nearly “80 percent of the Legislature’s seats.” Members of the Texas legislature filed nearly twenty antiabortion bills in 2017 alone.

Perhaps this shouldn’t be surprising, because Texas lawmakers pride themselves on efforts to criminalize and suppress reproductive rights. This is exemplified by the Texas targeted regulation of abortion providers (TRAP) laws the U.S. Supreme Court struck down in Whole Woman’s Health v. Hellerstedt. Even with such a victory, many abortion clinics had already shuttered. What Texas legislators failed to account for is that Texas abortion clinics also provided contraceptive and maternal care for the overlooked and underserved poor women in their state.

However, Texas is not alone. Alabama, Kentucky, Georgia, and other states similarly engage in efforts to eviscerate reproductive rights. Behind their antiabortion legislating are staggering rates of maternal mortality. A common thread in these abusive practices is the impact they have on Black women. For example, Louisiana, which enacted the TRAP law at issue in June Medical Services, exceeds the nation’s maternal mortality rate by a dramatic proportion. While maternal mortality is dire among Black women in the United States generally, in Louisiana the incidences of death are far greater. The average maternal mortality for white women is 18.1 deaths per 100,000 live births in the United States and 27.3 in Louisiana. For Black women, the U.S. incidence of maternal mortality is 47.2 and in Louisiana 72.6.

Policing the Womb shows history and power matter to any contemporary discourse regarding reproductive health, rights, and justice, including the legacies of slavery and Jim Crow in making complex, enduring chattel of Black women and girls. As DNA evidence confirms, during the antebellum period Black girls and women endured forced sexual bondage and well as physical labor imposed by people who claimed power over them. Simply put, American capitalism relied not only on their physical labor, but also literally their reproductive capacities. Yet, the cruelties of slavery also rendered Black women and girls expendable, making fungible, vulnerable chattel of them. In the past, self-described (private) masters claimed dominion over Black women’s reproductive capacities. Today, the state does so.

In other words, robust legislating that chips away at reproductive rights and encroaches on women’s reproductive healthcare is about more than abortion. It is about a fundamental lack of respect for the humanity, dignity, and citizenship of girls and women. It shows how conservative movements, combined with the rise and influence of a religious orthodoxy, successfully express themselves at the legislative level, particularly in the realms of reproductive autonomy and privacy. The book sharpens its gaze on the sex and gender asymmetries in legislatures, which more likely than not lead to the enactment of TRAP laws.

Policing the Womb considers how these strategic moves undermine fundamental constitutional rights. The book issues a cautionary tale to highlight the weaknesses in current Supreme Court’s jurisprudence, particularly the framework articulated in Casey, which revived paternalistic ideologies associated with women’s capacity to reason, consent, and make autonomous reproductive healthcare decisions, because historically the state and courts have been complicit in undermining women’s economic capacities and liberty interests.

Given what is at stake, it is critical to bring attention to how the recent robust lawmaking that restricts when and under what circumstances people may access reproductive healthcare rights not only functions to undermine constitutional rights, but also leads to the surveillance of reproduction, criminalization of conduct during pregnancy, and ultimately the burdening of health. In the abortion context, antiabortion lawmaking purposefully and strategically operates in the shadow of Supreme Court decision-making to intentionally thwart the spirit of the Court’s guidance in Roe v. Wade and Planned Parenthood v. Casey, which articulated that “a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”

As scholars, we should commit ourselves to reflecting on the personal costs associated with states policing women’s pregnancies and bodies. In doing so, our task must be to highlight how states’ selective interest in and punishment related to reproductive rights often targets women of color and the poor. As states enact measures to prosecute women for drug dependence during pregnancy or any conduct that endangers their pregnancies, what becomes clear is that such rules are not intended to be universalized and applied to all women, but rather to profiled, vulnerable subgroups.

The intergenerational suffering of Black women in former slave states remains visceral and part of the horrific legacies of institutionalized chattel bondage. For Black women in Texas, Louisiana, Alabama, Georgia, West Virginia, and elsewhere, not only is their reproductive freedom illusory, but staying alive during pregnancy is not a guaranteed, foregone conclusion. Private reproductive bondage in these former slave states is now public. That is, where planters once controlled Black women’s reproduction on their plantations and elsewhere, now the state controls what Black women (and others) may do with their bodies during pregnancy. In neither case has the regard for Black women resulted in the autonomy, independence, or privacy deserved.

Policing the Womb provides an important intervention, elevating the concerns of women too frequently ignored, disregarded, and overlooked in an ongoing domestic reproductive chattel system, which has outlasted the Antebellum period and morphed into present-day state surveillance of pregnancy. And, just as with slavery, states impose their reproductive interests and demands on poor women who are left to bear the weight of those legislative decisions lest they experience cruel civil or criminal punishment.

*Michele Bratcher Goodwin is a Chancellor’s Professor at the University of California, Irvine and founding director of the Center for Biotechnology and Global Health Policy. She is renowned nationally and internationally for her work in health policy, constitutional law, reproductive health, rights and justice, and cultural politics. She is the author/editor of six books, including Policing the Womb: Invisible Women and the Criminalization of Motherhood. Her commentaries appear in Ms. Magazine, the New York Times, Washington Post, Forbes, Salon, and the Chicago Sun Times, among others.

By Mary Ziegler*

The Supreme Court’s decision in June Medical Services v. Russo was more than a little ironic. Chief Justice Roberts’s controlling concurrence read as a celebration of stare decisis, the principle that the Court should usually defer to its past decisions. And yet Roberts upended precedent. If Roberts’s concurrence becomes the standard for testing the constitutionality of abortion regulations, the courts will not have to consider whether abortion restrictions have any benefit for patients, as Whole Woman’s Health v. Hellerstedt required. In short, Roberts’s proposed rule will make it easier for states to regulate abortion. Although the Chief Justice made a point of noting that no one had asked the Court to reconsider Roe v. Wade or Planned Parenthood v. Casey, he may well be game if that invitation eventually arrives.

June Medical could be bad news for anyone committed to abortion rights. Nevertheless, it is not easy to figure out where the anti-abortion movement goes next. At first, the Court’s decision might seem to discourage patient-protective anti-abortion laws. These statutes—which claim to prevent the psychological and physical harm done by abortion—have a poor win-loss record in the Supreme Court. The Court has used patient-protective reasoning in upholding laws focused on fetal life, such as the federal Partial-Birth Abortion Ban Act. But before 2016, the Court had struck down only one restriction, a husband-notification measure, under the undue burden test. Since then, the Court has rejected every patient-protective measure it has considered. The anti-abortion movement has no shortage of options if patient-protective restrictions have backfired. Sweeping bans, like so-called heartbeat laws, focus on fetal life rather than patients. So do several restrictions that focus on procedures later in pregnancy.

As I show in my new book, Abortion and the Law in America, patient-centered arguments against abortion may be here to stay. The dissents in June Medical foreshadow some of the arguments that will likely be key to efforts to reverse Roe, many of which suggest that abortion hurts patients. The dissenters accepted Louisiana’s argument that doctors should not have third-party standing to challenge abortion restrictions on their patients’ behalf. Justice Alito agreed that there was “a blatant conflict of interest between an abortion provider and its patients.” Justices Alito, Thomas, Gorsuch, and Kavanaugh also concluded that Louisiana’s law should stand precisely because it protected pregnant people against real dangers tied to abortion. Had the dissenters prevailed, their opinion would have made it much harder to challenge any abortion restrictions.

The dissenters’ views tell us as much about what at least four members of the Court think about the reality of abortion care in the United States—and how those views may lay the groundwork for reversing Roe. Justice Alito described abortion providers as profit-driven businesspeople who barely know their patients. He invoked Kermit Gosnell, a provider convicted of killing one patient and three infants who were born alive, in detailing the risks of abortion to all pregnant people.

These descriptions reflect an anti-abortion argument that has been decades in the making. Since the 1970s, abortion opponents have tried to undermine abortion rights not by advocating for fetal rights but by contesting what abortion in the United States is really like. This approach made considerable strategic sense. The Court had not been receptive to arguments seeking to establish constitutional rights for fetuses, but incremental restrictions have fared much better. To defend these laws, abortion foes detailed the supposed benefits of abortion restrictions (and condemned the purported dangers of abortion).

Since Casey, anti-abortion leaders have focused particularly on the consequences of abortion on patients’ health and wellbeing. The Casey Court declined an invitation to unravel abortion rights. The plurality reasoned that Roe was not only a workable decision but also one that had created substantial reliance interests. “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives,” Casey reasoned. In the years after Casey, leaders of the anti-abortion movement concluded that the Court would never reverse Roe unless the public and the Justices believed that pregnant people should not rely on abortion to lead more equal lives. Anti-abortion lawmakers introduced laws intended to show that abortion made patients sick. Targeted regulations of abortion providers, like the one struck down in June Medical, relied on this patient-protective justification. So did laws claiming that medication abortions could be reversed, that abortion caused breast cancer, or that specific abortion techniques could be banned without a health exception. These arguments have played a key role in anti-abortion advocacy for nearly thirty years. June Medical is unlikely to change that.

If anything, anti-abortion leaders increasingly emphasize claims that abortion access undermines racial justice as well as equality for women and pregnant people. This summer, new states, including Mississippi and Tennessee, have joined the list banning abortion for reasons of race, sex, or disability.

These laws, like the patient-protective statutes at issue in June Medical, thrive because of growing distrust of public-health authorities, medical experts, and even the media. A focus on the reality of abortion in the United States has undermined any consensus about the basic facts and deepened polarization. Now, the courts are asked to decide whether pregnant people often have abortions for racist, sexist, or ableist reasons, whether abortion providers are irresponsible, or whether abortion has serious side effects.

Polarization of this kind has serious costs. During the COVID-19 pandemic, the kind of distrust of medical authorities that has long defined the abortion struggle has sparked conflict about everything from mask mandates to the safety of a possible vaccine. In the context of reproductive justice, polarization has made it all but impossible for those with clashing views on abortion to work together on any reproductive justice issue, including maternal mortality to pregnancy discrimination at work.

Despite the damage they have done, we should not expect anti-abortion leaders to give up on arguments about the reality of abortion. After all, these claims just might be working. June Medical is proof of that.

*Mary Ziegler is the Stearns Weaver Miller Professor at Florida State University College of Law and the author of Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020).