With the Supreme Court possibly poised to overturn Roe v. Wade, many observers are noting that such a decision would hit marginalized communities hardest. But even with Roe in place, accessing abortion and other reproductive-health care has long been difficult for many people, especially women of color, low-income women and women in rural areas.
For decades, these communities’ ability to find care has been increasingly stymied by restrictions that have forced the closure of clinics in many communities, counties and states, resulting in reproductive-health-care “deserts.” That difficulty has escalated with the proliferation of state-level restrictions on abortions, such as the so-called heartbeat bills like Mississippi’s 15-week abortion ban being considered in the Dobbs v. Jackson Women’s Health Organization case. Several studies find that many women have to cross county or state lines to access abortion services. Cost can be another barrier. Others have to find alternative means to pay for abortion services or forgo abortion altogether because their Medicaid plans or federal health insurance plans do not cover those costs. Some states even limit private insurance plans’ ability to cover abortion services.
What counts as an ‘undue burden?’
The Supreme Court redefined Roe’s scope in its 1992 decision Planned Parenthood v. Casey, saying that states could not place an “undue burden” on those seeking abortion. An “undue burden,” the court explained, was “ … a state regulation [that] has the purpose and effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
What exactly does that mean? Over the years, the Supreme Court has struck down only a few restrictions, such as spousal consent and requirements that abortion facilities meet the same strict standards as ambulatory surgical centers.
Most restrictions have withstood the test, including waiting periods and parental consent or notification for teens. Some states have introduced bills or passed laws that prohibit “sex selective” and “race selective” abortions. Since 2008, Republican members of Congress have repeatedly introduced a similar bill, the Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act (PRENDA), which could return if Republicans take over Congress. Such laws make it a criminal offense to perform or seek to abort a fetus based on its race, color or sex.
While this seems straightforward, part of its underlying premise is that abortion providers have been deliberately targeting people of color, and that abortions involving fetuses of color are a form of racial genocide. Anti-abortion policymakers and advocates cite the higher rates of abortions among African American and Latina women as evidence of this. Although reproductive-justice activists are also concerned about the disproportionate abortion rates among women of color, they argue that that’s because women of color endure the consequences of overall health disparities, including higher rates of unintended pregnancies. Reproductive-justice activists also say that bans on “sex selective” abortion are actually veiled attacks on Asian American communities, based on stereotypes that both East and South Asians prefer male children. In other words, while such bans may superficially appear to oppose discrimination, in fact they only further stigmatize and penalize women of color for their reproductive decisions.
Why women of color launched the reproductive-justice movement
In the mid-1990s, a new social movement emerged: the reproductive-justice movement, created and led by women of color for women of color, aimed at enabling these communities to have access not just to abortion but to the full range of reproductive-health care and autonomy, including access to contraception and freedom from forced sterilization. This large coalition of national and community organizations includes SisterSong, Black Women’s Health Imperative, California Latinas for Reproductive Justice, and Forward Together. SisterSong defines reproductive justice as “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.”
Reproductive-justice activists felt that their needs were not being adequately addressed by the mainstream reproductive rights movement, particularly its focus on abortion, individual rights, and gender and its “pro-choice” rhetoric. Reproductive-justice activists and scholars argue that the choice framework is inadequate for responding to historical and current inequities, practices, and policies that have harmed the reproductive lives of women of color.
Those include systematic sterilization of women of color and immigrants, punitive welfare policies, environmental racism, race-based immigration policies, homophobia, and mass incarceration — all of which have affected marginalized communities’ abilities to make decisions about their reproduction, sexuality, and overall well-being. Reproductive justice examines how the intersections of gender, gender identity, race, ethnicity, class, sexual orientation, nation, disability, and other aspects of identity differently affect the reproductive experiences of social groups and individuals.
Reproductive activists and scholars are not arguing that abortion access is not important. Rather, they are arguing that abortion is part of a continuum of reproductive issues that concern women of color, poor women, and other marginalized groups. For example, Centers for Disease Control and Prevention (CDC) data shows that infant mortality rates among African Americans and Native American/Native Alaskans are between two to three times the rate of White infants. African American women are 3½ times more likely, and Native American/Native Alaskan women twice as likely, to die of pregnancy-related complications as White women. African American and Latina women have higher rates of unintended pregnancy. Low birth weights and preterm deliveries are also common concerns for women of color.
Health surveys have found that women of color, queer women, and trans people are less likely to get routine preventive health screenings because they’re concerned about how they will be treated by health-care professionals. Researchers Lynn Paltrow and Jeanne Flavin have documented the increasing criminalization of poor pregnant women of color. These women are the most likely to be arrested and prosecuted for homicide, manslaughter, and child endangerment simply for terminating pregnancies, enduring miscarriages or stillbirths, refusing to consent to medically unnecessary Caesarean sections, or using drugs.
As Americans consider the implications of Roe being overturned, reproductive-justice advocates would remind us to remember the most vulnerable in our society — people who have always faced the most obstacles to abortion and reproductive-health services and are most likely to be targeted by punitive public policies.