Updated June 27, 2022 at 12:31 PM ET
If you're going to talk about the intersection of abortion and race, it's probably a good thing to start with the 14th amendment, says Melissa Murray, a legal scholar and law professor at New York University.
It is, after all, the 14th amendment that the Supreme Court interpreted to give women bodily autonomy — the privacy and liberty to make decisions about their own bodies.
But the 14th amendment wasn't in the "original" draft of the U.S. Constitution.
"It was part of this trio of three amendments that were intended to completely reorder the American landscape in the wake of the civil war, and specifically to introduce newly freed African Americans into the body politic," says Murray.
The amendments were part of an attempt at reconstruction, a repudiation of what had come before, an attempt to move forward on the American promise.
"So if the 13th amendment formerly abolishes slavery and the 15th amendment gave African American men the opportunity to be heard in the body politic through the ballot, the 14th amendment was about imbuing these newly freed persons with the basic rights that whites had come to expect, and that had been systemically denied enslaved people," Murray says.
That includes the right to family integrity — to not have your children or your spouse stolen or sold away from you, the right to raise your children, to marry whom you want.
"And of course the right to your own body," Murray says.
With the undoing of slavery there was an attempt to expand and sew freedom into the constitution that would later form the basis for so many civil rights, including abortion, Murray says.
She notes, "We've lost that thread."
A perfect storm for pregnancy
Michelle Colon calls herself an abortion freedom-fighter. As an activist on the ground in Mississippi, she's always understood abortion access as a racial justice issue. Colon is the founder of Shero, an acronym for Sisters Helping Everyone Rise and Organize, which helps fight for equal access to abortion in a state that famously has only one remaining abortion clinic. It's the clinic that was at the center of the lawsuit that overturned Roe v. Wade.
"We are here for all women and girls, all people, but our specific target — and we're unapologetic about that — is Black and brown," Colon says.
Colon makes it clear that includes "non-gender conforming individuals and trans women. That's what Shero is here for," she says "because we have been left out."
These are the people, Colon says, who have already borne the brunt of the shrinking abortion access gap in America, and they will continue to be hardest hit.
One central reason for this comes down to simple geography and demographics.
"The states that are most likely to ban abortion have much greater proportions of people of color," says Ushma Upadhyay, a public health social scientist at the University of California San Francisco. "We also know that about 60% of people obtaining abortions are people of color."
Just look at Michelle Colon's home state of Mississippi, whose abortion clinic will now shutter. The state is 39 percent Black, but Black people make up 74 percent of those seeking an abortion. That's according to data collected by the Kaiser Family Foundation.
"These are states where the governors have basically limited the opportunity for sex education, limited it to abstinence-only education," says NYU's Murray.
She calls it a perfect storm for pregnancy. "And then you've taken away the opportunity to control whether or not you actually carry that pregnancy to term."
The states ramping up to ban abortion are also places where access to health care runs the gamut from patchy to bare, Murray says. "You have to contend with the gauntlet of uneven access to medical care, poor prenatal access, poor postnatal care access, high infant mortality rates, high maternal morbidity rates."
Deadly consequences
"We are more likely to die in childbirth," points out Tammy Boyd of the Black Woman's Health Imperative. Boyd is talking about Black women like herself, who are 3 to 4 times more likely to not survive a pregnancy than white women. Even with that stark disparity, maternal mortality is a growing problem in the United States across races.
America is the only developed country with a steadily rising maternal mortality rate, and Boyd says dismantling Roe only increases the numbers of those who will die.
"Forcing women really to carry unwanted pregnancies would have deadly consequences," Boyd says, especially for women of color. "It would lead to about a 33% increase in the number of pregnancy-related deaths among Black birthing persons." People who can't access abortions, she says, will be made to risk possible death because the state says so.
Black maternal mortality rates are higher across class, education, and socio-economic status, says UCSF's Ushma Upadhyay. "The root cause is racism," she says. "When Black women are experiencing complications of pregnancy, they're not listened to, they're not believed, they are believed to have higher pain thresholds."
Those that survive an unwanted pregnancy are more likely to suffer in other ways, says Upadhyay. She points to The Turnaway Study, which followed both women who received a wanted abortion, and those denied one, over the course of five years. "Those who were unable to get their abortion were more likely to experience poor physical health for years after the pregnancy," Upadhyay says. "They were living at higher rates of poverty five years later, and so it has economic, health, and social outcomes for years to come."
Policing the womb
Women of color are more likely to want an abortion in states that deny them and they are more likely to die in childbirth. They are also more likely to be arrested when something goes wrong with their pregnancy. It's not just abortion, advocates and legal scholars say that increasingly, women who have miscarriages have become targets.
"The criminalization of miscarriage is not anything new," says SHERO's Michelle Colon. "We need to be clear about that. But when miscarriage started being equated to abortion, it's almost all been people of color."
There's the case of Purvi Patel, in Indiana, who was sentenced in 2015 to 20 years for feticide, before the charges were overturned by an appeals court. There's the recent case of Lizelle Herrera, in Texas — charges against her were also dropped. And then there's Brittney Poolaw, who is serving four years for manslaughter for a miscarriage that occurred when she was just 15-17 weeks pregnant.
A report from National Advocates for Pregnant Women and Fordham University dug into 413 arrests of pregnant women, from 1973, when abortion was legalized, up until 2005. The numbers broke down starkly along race and class: 71 percent of the women arrested were low-income, 59 percent were women of color, and 52 percent were Black women. Black women were also far more likely to be charged with a felony than white women. And this was all during a time when abortion was legal.
"Ectopic pregnancies, miscarriages, like all of these are going to be questioned, I think in a world in which abortion is either unlawful or entirely criminal," says NYU legal scholar Murray. "Whose going to be singled out for that kind of treatment for that kind of surveillance? It's likely going to be the people who are already adjunct to the criminal justice system."
That means poor people and people of color, Murray says. Many of whom don't have access to reliable, quality health care, which places them more at risk if something goes wrong with their pregnancy.
"That can be an opening for the state to intervene," Murray says. "So I think it's not simply a question of criminalization, but the state even more thickly in their lives than we even expect today."
Beyond denying women a choice, says Murray, this will lead to the end of the right to privacy, self-determination or self-ownership when it comes to their own bodies.
"Just imagine living almost every aspect of your life under state surveillance in some way. I mean, it really does feel a bit like a panopticon."
Deeply rooted racism
In his opinion, Justice Samuel Alito wrote that abortion is not "deeply rooted in the history of this country."
But Murray says that is not correct. For one, abortion was legal in America until right after the Civil War.
The American Medical Association fought to make abortion illegal in part to take childbirth out of the hands of women — midwives who helped with birth and abortion — and put it into the hands of white men who had appointed themselves experts.
There was another reason, Murray points out, a worry that privileged white women were choosing to have smaller families. "White women were practicing what is known as voluntary motherhood and purposefully contracepting and aborting in order to keep their families to manageable size," Murray says. "And that's reducing the white birthrate."
That decline in white births created a panic that sounds eerily familiar. "The immigrant birth rate is swelling and the white birth rate is shrinking and they are deeply, deeply worried that 'America' is no longer going to look like 'America,'" she says.
"So shades of Tucker Carlson," Murray adds. Carlson has been a rabid proponent of the racist great replacement theory — which suggests there is a nefarious plot to replace white — and by implication "real" — Americans with immigrants. About half of the Republican party now subscribes to this baseless, extremist claim, fueled by rising white nationalism and a larger shifting of American demographics. Whatever else, racism is deeply rooted in American history.
Which brings us back to the 14th amendment.
Alito claims that when the 14th amendment, the site from which the legal right to abortion sprung, was added to the constitution, abortion was illegal. The actual history is more complex than that, and Murray says his limited reading misses the power and the meaning located within the post-Civil War addition to our nation's blueprint.
"If there is no specific pronouncement for abortion in the 14th amendment or in the constitution," she says, "there's still this history where abortion and bodily autonomy fit right in, and it's all there, waiting to be reclaimed."
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