Beyond Bondage: Reframing the Legal Right to Bodily Autonomy for Black Women
This year marks 50 years since the United States Supreme Court affirmed the constitutional protection of abortion through Roe v. Wade (1973), operating as both a beacon of light and an unexpected prequel to the far-reaching fight for reproductive rights and justice for years to come. As we approach the year and a half mark since the Supreme Court’s historic decision to overturn Roe, threats against access to abortion services and reproductive healthcare continue to proliferate nationwide, shedding light on the lost narratives of this inherently legal, social, and political battle.
As nearly 40% of abortion seekers in the U.S., Black women receive the brunt of restrictive abortion law as other factors, such as lack of access to comprehensive reproductive care and an increased risk of pregnancy-related health complications, serve as additional barriers to Black women’s health [1]. Holding a uniquely socialized identity at the intersection of race and gender, conversations surrounding equitable reproductive justice fall flat from both an activist and legal standpoint without considering the history of Black women’s relationship with reproductive freedom and the law.
The genesis of the women’s rights movement as a legal campaign centering access to abortion and contraceptives during the 1960s effectively disregarded the racialized experience of Black women, instead prioritizing the freedoms and rights of White women [2]. This meant that while the larger women’s movement made strides for perceptions of White femininity, Black women were deprived of this same victory. However, the exclusion of the Black female identity from gendered activism—and gendered law—dates back to the era of American slavery.
During the 1800s and further beyond, African American women took on the physical and federal burden of enslavement. Several Supreme Court cases asserted the identity of enslaved people as property, thereby disavowing any rights to humanity or true citizenship. In the span of a decade and a half, two specific cases cemented the legal position of enslaved people.
In 1852 in Prigg v. Pennsylvania (1842), the Supreme Court interpreted the Fugitive Slave Act of 1793, which allowed slave owners to seize and arrest fugitive slaves and present written or oral proof to an official in order to reclaim their property [3]. Edward Prigg had been convicted of kidnapping for taking an alleged fugitive enslaved person across state lines. Using the Fugitive Slave Act IV of the Constitution as justification, the Supreme Court reversed Prigg’s conviction, concretizing a slave owner’s “right to seize and repossess the slave, which the local laws of his own State confer upon him, as property.” In Dred Scott v. Sanford (1857), formerly enslaved Scott sued for his freedom after his slave owner took him to Illinois and Wisconsin, two states prohibiting slavery [4]. While Dred Scott concluded that enslaved people were not considered citizens, nor granted legal protection, rhetoric from Chief Justice Roger B. Taney exacerbated the underlying racial ideologies of our very own legal powers. Taney declared that Black people “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”[5]
The conjunction of Prigg v. Pennsylvania (1842) and Dred Scott v. Sanford (1857), along with multiple fugitive slave acts, upheld that enslaved people and free Black people alike were considered federal property under the law and excluded from citizenship and naturalization laws. These cases gradually finalized the legal definition of a ‘slave,’ denoting a prioritization of the government to the destruction of Black humanity and mobility. This implication influenced subsequent legal framework surrounding the identities of enslaved women.
In 1855, a 19-year-old enslaved woman went on trial for the murder of her slave owner, Robert Newsom, an elderly man that had been repeatedly raping her for the past five years. From the day he purchased her and until his death, he took advantage of her while married. Celia had borne two of his children and was pregnant at the time of his death. She was found guilty and sentenced to death by hanging, but her execution was delayed until she gave birth. Yet, there was still a question of whether an enslaved woman had such a right to fight back against her owner—granted the institution of slavery allowed her any rights of all. State of Missouri v. Celia, a Slave (1855) found Celia guilty, denying her a right to self defense [6]. Although the second article of Section 29 of the Missouri Statutes of 1845 forbade anyone "to take any woman unlawfully against her will and by force, menace or duress, compel her to be defiled," Judge William Hall refused to include Celia in the declaration of “any woman.”[7] Celia’s case illustrates the difficulty in protecting enslaved Black women in reproductive matters as sexual assault on enslaved women by White men was considered trespass, and the law did not embrace enslaved Black women–the word ‘woman’ only applied to free White women.
Late this summer, a 13-year-old Black girl gave birth after being raped and denied an abortion in Mississippi [8]. In a state where lawmakers enacted a ban on most abortions after 15 weeks of pregnancy, and where Black women are four times as likely to die from pregnancy-related complications as White women, the young girl and her mother faced barriers seeking justice for her rape and hoping to save the girl’s life [9]. These heightened legal threats to reproductive health and sexual safety of even Black female teenagers points to a continuation of history nearly 200 years after Celia’s lifetime.
Not only limited to Black women, the United States’ later application of reproductive healthcare laws and rights disenfranchised Black birthing people as well as Black reproductive healthcare providers. In 1921, the United States Congress passed the Sheppard-Towner Act, displacing Black and other minority midwives as a result of misdirected state funding toward other midwife training programs [10]. The inception of the act came from a campaign including eugenics, beginning in the 1910s. The act placed a landmark emphasis on maternal and infant mortality as the first federally funded social welfare program, but it also created a racial caricature of maternal health by equating the presence of midwives of color to maternal and infant health concerns. A step in the right direction for White mothers and maternal healthcare providers meant the opposite for their Black counterparts.
In an alternative bout of activism, after Webster v. Reproductive Health Services (1989) undermined the tenants of reproductive freedom in Roe by striking down the constitutional right to abortion, Black female activists and scholars highlighted the disparities in its outcomes. That year, 16 Black women published the first collective statement advocating for equal access to abortion, titled “We Remember: African American Women are for Reproductive Freedom.”[11] The document aimed to define reproductive justice beyond Roe and provide a more holistic analysis of Black women’s historical fight for freedom. These women initiated a uniquely intersectional legal campaign to fight for reproductive rights.
While these legal occurrences were insurmountably significant for the reproductive rights movement, there is no doubt that Black women were continually left out of the discussion.
As detrimental as a lack abortion access and reproductive healthcare access remains for Black women and the general Black community, activists and policy researchers note the responsibility of the United States government to put an end to “the most unregulated industry in the United States” to redefine what the notion of choice means for a pregnant Black person [12]. Calling upon historical, legal instances of eugenics and population control of Black Americans through abortion, the researchers advocate for more transparent communication with the government regarding the Black community’s relationship with abortion providers. The strained relationship between Black life and the law is undeniable, particularly considering the legacy of American slavery, but this specific line of rhetoric actively endangers the individual lives of Black women.
Despite moral and political opposition to the usage of abortion within the Black community, as well as the place of abortion as a reproductive right, continued legal attacks on reproductive access further the gap in Black maternal and reproductive health to fatal extents. A 2020 report by the Center for Disease Control and Prevention (CDC) revealed stark racial disparities in maternal health: the maternal mortality rate in the U.S. for non-Hispanic Black women was 55.3 deaths per 100,000 live births–nearly three times the rate among non-Hispanic White women [13]. This number was the highest among any other racial group, and it has continued to increase. Following the fall of Roe, increased state restrictions prove detrimental to Black women’s reproductive health outcomes. The states with the largest percentages of African Americans [14], such as southern states like Mississippi, Alabama, and Georgia, also have some of the most restrictive abortion laws [15]. Black women’s lack of access to abortion brings to light other pertinent reproductive health experiences, indicating distinct racial barriers. Aside from a heightened risk of health complications–related and unrelated to pregnancy–in Black women, more recent studies have shown that social and systemic factors, such as historical exposure to racial discrimination and trauma, implicit bias in healthcare, and lacking health insurance, also contribute to Black women’s poorer reproductive health outcomes [16].
Consequently, leaders of the United States government have recognized the need to prioritize Black maternal and reproductive health, regardless of their stance on abortion. In 2021, Vice President Kamala Harris announced a nationwide call to action to reduce maternal mortality and morbidity, specifically noting the increased rates of maternal mortality in Black women [17]. In April of 2023, President Joe Biden issued a proclamation on Black Maternal Health Week, nationally recognizing the Black maternal health crisis and planning for federal action to improve maternal health outcomes [18].
As previously revealed, Black women are no stranger to the denial and violation of bodily autonomy. Enslaved women like Missouri’s Celia experienced sexual abuse justified by the law and increased violence and dehumanization by the government. Yet, Black women’s right to reproductive freedom and bodily autonomy–or lack thereof–has only undertaken new forms as the fight for reproductive rights continues.
The position of Black women’s legal and social identity allows for their exclusion in the larger discussion of women’s rights and the law, especially considering pervasive rhetoric surrounding current issues of abortion access. The legal history of American slavery also points to the plight of enslaved Black women concerning their bodily autonomy. In light of the Supreme Court’s upcoming decision on the availability of mifepristone, the first pill taken in a two-drug regimen for medication abortion, efforts to recognize Black women as recipients of the negative repercussions of these cases ensure reproductive healthcare access is protected by the law [19]. For example, earlier this spring, more than 30 Black-led organizations created a comprehensive reproductive justice policy guide centering Black women, girls, and gender-expansive people [20]. The Black Reproductive Justice Policy Agenda contemporaries the bicameral Black Maternal Health Momnibus Act by the Black Maternal Health Caucus, which includes 13 individual bills to address the Black maternal health crisis “through historic investments that comprehensively address every driver of maternal mortality, morbidity, and disparities in the United States.”[21]
As United States Representatives and local community members fight for the lives of Black women and beyond, our government has a duty to address how marginalized communities, and specifically, Black women, live burdened with the historical legacy of inadequate, uninformed reproductive healthcare.
Bibliography
Cecilia Lenzen, “Facing Higher Teen Pregnancy and Maternal Mortality Rates, Black Women Will Largely Bear the Brunt of Abortion Limits,” The Texas Tribune, June 30, 2022, https://www.texastribune.org/2022/06/30/texas-abortion-black-women/.
Winifred Breines, “Struggling to Connect: White and Black Feminism in the Movement Years,” Contexts 6, no. 1 (February 1, 2007): 18–24, https://doi.org/10.1525/ctx.2007.6.1.18.
Paul Finkelman. “Slavery in the United States: Persons or Property?,” in the Legal Understanding of Slavery: From the Historical to the Contemporary, edited by Jean Allain, 105-134. 2012.
Ibid.
Ibid.
Melton A. McLaurin, Celia, a Slave (University of Georgia Press, 1991), https://www.jstor.org/stable/j.ctt46nh62.
Ibid.
“She Just Had a Baby. Soon, She’ll Start 7th Grade.,” Time, August 14, 2023, https://time.com/6303701/a-rape-in-mississippi/.
Ibid.
“End Racial Disparities in Maternal Health, Call a Midwife,” Columbia University Mailman School of Public Health, February 2, 2020, https://www.publichealth.columbia.edu/news/end-racial-disparities-maternal-health-call-midwife
“Black Women and the Fight for Abortion Rights: How This Brochure Sparked the Movement for Reproductive Freedom,” accessed October 8, 2023, https://www.nbcnews.com/news/nbcblk/black-women-fight-abortion-rights-how-brochure-sparked-movement-reproductive-n983216.
“THE EFFECTS OF ABORTION ON THE BLACK COMMUNITY / the-Effects-of-Abortion-on-the-Black-Community.Pdf / PDF4PRO,” PDF4PRO, April 4, 2020, https://pdf4pro.com/amp/view/the-effects-of-abortion-on-the-black-community-79de44.html.
“Maternal Mortality Rates in the United States, 2020,” November 7, 2022, https://www.cdc.gov/nchs/data/hestat/maternal-mortality/2020/maternal-mortality-rates-2020.htm.
US Census Bureau, “Racial and Ethnic Diversity in the United States: 2010 Census and 2020 Census,” Census.gov, accessed October 8, 2023, https://www.census.gov/library/visualizations/interactive/racial-and-ethnic-diversity-in-the-united-states-2010-and-2020-census.html.
Ibid.
Anuli Njoku et al., “Listen to the Whispers before They Become Screams: Addressing Black Maternal Morbidity and Mortality in the United States,” Healthcare 11, no. 3 (February 3, 2023): 438, https://doi.org/10.3390/healthcare11030438.
The White House, “FACT SHEET: Vice President Kamala Harris Announces Call to Action to Reduce Maternal Mortality and Morbidity,” The White House, December 7, 2021, https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/07/fact-sheet-vice-president-kamala-harris-announces-call-to-action-to-reduce-maternal-mortality-and-morbidity/.
The White House, “A Proclamation on Black Maternal Health Week, 2023,” The White House, April 10, 2023, https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/10/a-proclamation-on-black-maternal-health-week-2023/.
“Abortion Pill Rulings: What to Know About Availability of Mifepristone - The New York Times,” accessed October 8, 2023, https://www.nytimes.com/article/supreme-court-abortion-pill-ruling.html
Cheyanne M. Daniels, “Black Women Offer Lawmakers a Policy Guide on Reproductive Justice,” Text, The Hill (blog), June 15, 2023, https://thehill.com/policy/healthcare/4050198-black-women-lawmakers-guide-reproductive-justice/.
“Black Maternal Health Momnibus | Black Maternal Health Caucus,” March 7, 2020, http://blackmaternalhealthcaucus-underwood.house.gov/Momnibus.