The History of Criminalization of Pregnant Women in the U.S: An Interview with Professor Michele Goodwin

Anoushka Chander (Interviewer, AC): Professor Goodwin, I am so excited to have you here to talk to the Harvard Undergraduate Law Review. We are honored to have you. I have a couple questions for you about your work and about everything that you have been committed to throughout your entire life. My first question is about your book, Policing the Womb: Invisible Women and the Criminalization of Motherhood. In your book, you depart from narratives about solely abortion criminalization, and begin to expose the criminalization of motherhood of women who want to keep their pregnancies in the United States specifically. You have referenced this era before as the new Jane Crow, playing off of the era of Jim Crow. My question for you is, how have state laws and courts converged to target vulnerable pregnant women?

Michel Goodwin (Interviewee, MG): Thank you very much for the interview, Anoushka, and for your interest. When we think about matters of surveillance and criminalization associated with pregnancy, it has its histories that are immediate, the more recent, and then that which is historically rooted. So the more immediate happens to be in the wake of Dobbs, where there are states that have proposed various measures that include criminal punishment, as well as civil penalties when individuals break new state laws that ban abortion altogether or ban it at certain periods of time. Perhaps one of the most alarming of the bills that are being floated is one in South Carolina, that calls for the death penalty for any pregnant woman or person with the capacity for pregnancy, that terminates a pregnancy in violation of that state's law. And while attention has been placed on South Carolina and how alarming such legislation is, what's not been expressed very much is that South Carolina is not alone. In Louisiana, there was legislation that was similar, which was floated in recent years in the state of Kentucky as well. This has been something that has been floated. So, it's not just the sort of oddity of South Carolina, but it is that there is a way in which pregnancy has become so policed, so surveilled, where there is almost this kind of cult-like engagement within the reproductive space, that it loses any sense of humanity and care for the individual. It's part of what is so alarming about this. Then when we think of this as a matter that threads through history, and we look at the more recent history, not this sort of immediate post-Dobbs landscape of the last year, but a landscape that goes back maybe 30 years and we begin to see how states during a period of high use of crystallized cocaine began to criminally target Black and brown women during their pregnancies, surveilling them. And in these instances, quite often women who wanted to be able to maintain their pregnancies. Actually, some of this surveillance was triggered by women coming in for prenatal care, and unbeknownst to them, medical providers, nurses and doctors, releasing what they believe, was confidential medical information to law enforcement and prosecutors, thus leading to criminal charges being charged, prosecuted, plea deals or jury trials, etc. And much about that space was ignored by the people who engage in the broader reproductive rights landscape, because within the reproductive rights landscape, it's a mistake to think of it as a plural “rights” when so much of that effort gave its attention solely to abortion, not to the myriad other areas that are tethered to reproduction. Reproductive Justice seeks to address that. But at any rate, in the ‘80s and ‘90s we're talking about women like Regina McKnight charged with murder for having a stillbirth. She had a tragic life and she nevertheless did seek care and was young, 23 years old. First woman in the country to be charged with murder for having a stillbirth. Rennie Gibbs, 16-years-old, 15 when she became pregnant, charged with depraved heart murder, because she had a stillbirth in the state of Mississippi. These are Black women. At the Medical University of South Carolina, [they] formed a dragnet specifically to entice poor pregnant women to come in for prenatal care. But [they] then [failed] to disclose that they had sort of deputized themselves as agents of the state, who were then turning over this confidential patient information leading to dozens of arrest, women being shackled while giving birth, being carted out of hospitals in bloody gowns, or giving birth in prison toilets and on floors. Man, it's such an egregious backdrop. But that is what that work seeks to do, as you mentioned, Policing the Womb: expand the aperture, expand how we understand people who make their way through our country with the capacity for pregnancy. And then I should say, before wrapping up on that question, that early roots with surveillance and punishment, actually take us back to the times of colonialism and American slavery, where Black women were legally the status of property. To leave with your child off of a plantation was a crime, [and] was punishable. The federal government enacted laws that protected people who thought of Black women as having no higher status than that of a field animal. I’m talking here about the Fugitive Slave laws. Those laws essentially reduced Black women to the status of property and chattel. And interestingly enough, by the very nature of how those laws were entitled, “Fugitive,” made fugitives of moms who sought to protect their children by taking them away from harmful places.

AC: Thank you so much for that response and for covering American history and how it has really led us to this moment. I just had a brief follow up question. You mentioned that pre-Dobbs, in the last 30 or so years, there's been specific targeting of women who are Black, low-income, minority women. I wanted to ask out, like, how does that targeting work? You talked about coercion to coming in for prenatal appointments. Was there a part of this that was engaged with the welfare system and myths about Black moms being on welfare and being dependent on welfare systems? And how did all of those myths and stereotypes then converge in the over-policing of specifically low income, Black women?

MG: With that question, we could take this show on the road and actually have to spend lots of time, hours, weekends of time, unpacking the stereotypes and stigmas. Let me go way back and mention a case that may be fruitful for those who engage with this interview. It may be useful for them to read about. So Toni Morrison wrote a book, Beloved, which was well received. It was widely praised and translated into multiple languages, a searing [and] heartbreaking story, but it's actually a story that's based on real life events. It's the story of Margaret Garner, who escapes from a Kentucky plantation because she has had enough of being, not even [a] second-class citizen, no citizenship, no humanity. She is exhausted with the sexual predations of slavery, the cruel treatment of slavery. Margaret, at the time of her escape, is about 21, 22-years-old, and already she's had several pregnancies, which is not uncommon during the period of American slavery. It wasn't uncommon that Black girls eight, nine years old, are sexually assaulted. There are actually records of suicides of Black girls that young during the antebellum period. And Margaret decides on a cold winter night that she's going to seek out her freedom. And she takes with her her children and companions. And she walks across a frozen river that separates Kentucky from Ohio. The case becomes known around the world, note-worthy because Margaret, when she hears the approaching agents that she knows will take her back to slavery, she grabs the first child and slits his throat. Then she grabs another child, and it is after she has put the knife to that child's neck and that child has cut that then she is overtaken by the men who had pursued her.It is said that Margaret fought mightily and that she screamed out that she refused to be returned to slavery, that she would rather die than to go back to enslavement, that she would prefer that her children die than to see them grow up as enslaved property. Well this case becomes one that is heard around the world, because [of] the question “is she property or is she a person?” Of course, if she's a person, does this mean that her child was a person too? Does this mean that she committed first degree murder in the death of the one child? But if she's property, then can property destroy other property? It’s all so complex and convoluted. Except that it's not: slavery was a system that may fugitives of moms who wanted to protect their children from sexual assault, from forced labor, from kidnapping and all those things. The more recent story is one that involved a layering–one could call it the perfect storm or the imperfect storm, like the perfect storm brought about by imperfect conditions of stereotypes and stigmas,-- [of] the kinds of stereotypes and stigmas that suggested in the ‘80s and ‘90s, that Black women were helplessly lazy and that they remained uneducable to some degree with certain exceptions. These were people who were burdens on society and their children [were] also burdens on society. In order to cure some of this, one needed welfare reform but [they were] trying to reform welfare, when [Black women] were just cheats. That was the other narrative: that these are women, who because of the suggestion that they lacked intellectual capacities [and] were simply lazy, all these things, that these were people who then could not reach the heights of society, such as being able to care for themselves in meaningful ways and their kids. So they would rely on welfare. These were all the narratives. Once in a system where they are receiving the state's dough (welfare) they would defraud these systems, right. And so the images in newspapers at the time that depicted women who relied on government assistance [were] almost always images of Black women and their children. The American imagination was that the people who rely on the state for support are Black women [and] white women. That was actually factually inaccurate. But it did stir up something within, I think, American consciousness. And then the other part of this was that at the same time, there's the overlaying of the Drug war, the kind of idea that Black people are dangerous. Black moms are dangerous too. Black moms care very little about the fetal development of the fetuses that they're gestating. That these are people who are irresponsible and so irresponsible that they would use illicit drugs during pregnancy. And the narratives didn't have to say that white women don't, which would have been inaccurate. But by fastening a social challenge problem to an image that looked Black then suggested that it was only Black. That too, was inaccurate. And so you have these narratives moving together: the lazy welfare queen who is defrauding Americans who also then can't control her drug dependency and urges and is somehow polluting the womb. This then serves to justify law enforcement intervening in their pregnancies with surveillance and arrests and prosecutions.

AC: Thank you for that answer. Two-part question: the first is, how do fetal personhood laws which purport to protect mothers and their fetuses actually target pregnant people make it so that pregnant people are brought under surveillance or criminalized for reckless behavior? How do abortion bans, with their vague language and with their lack of medically-specific knowledge, endanger pregnant people who are experiencing pregnancy complications?

MG: Well, originally, some of the laws that are within the fetal personhood space were not necessarily about fetal personhood but about protecting the health of fetuses. It's a strange go-about in the ‘70s and ‘80s, to protect women who experienced domestic violence (and if you're pregnant, the risk of domestic violence and intensifies). Domestic violence had been baked into legal frameworks and structures for centuries: both marital rape and also domestic violence were essentially permitted within law. What I mean by that is that [is] laws that shielded those who perpetrated such crimes, shielding them from prosecution, because they were a husband. So, marital rape laws were that if you rape your wife it's not really a rape because you cannot rape yourself. This would mean that after women went through the effort, because that’s an effort, of calling the police, [getting] police reports, you’ve got the reports of the bruises and whatnot, the prosecutor brings a charge, but then the defense says “but look, there's a statute here, and this actually says that a married man may not be guilty of marital rape.” Similar justifications were made in the case of domestic violence. One way to address what were very clear harms that endangered women's lives was the strategy of using measures that protected fetuses. Why not just protect a woman's life? Why have to protect a fetus in order to protect a woman's life? But anyway, those laws that were branded as kind of feticide laws, were ones that sought to eliminate the risk of intimate partner violence [and] discourage it. It's why some of those laws were enacted. But now the sort of new brand of fetal personhood laws are a variety. They are more explicitly connected to an anti-abortion logic, such that in Georgia, there is an embryo adoption law. The embryo adoption law on its face would seem to have nothing to say about fetal personhood save that the legislator that proposed legislation, which was later enacted, suggested afterwards, that now what that law meant was that fetuses and embryos would have the same constitutional stature as pregnant women. Right? So these days, the fetal personhood movement is one that seeks to elevate the a “rights” discourse of fetuses and actually have that right on par or superior to that of the pregnant woman or the pregnant person. There's so much more that could be said about fetal personhood. As a start, when prosecutors first began to prosecute women in this space, for the most part, they were using existing child abuse statutes, and simply applying them to fetuses, right, which was a stretch. And one might wonder, well, why was it then that there weren't clear legal arguments that were presented as to this actually being wrong. But for the most part, this gets back to the idea that those who are in the reproductive rights movement really didn't see this time coming. They really ignored the women who were most likely to be disenfranchised by these kinds of policies. And those were basically Black and brown women. On the question of abortion bans and the way in which they endanger the health and safety of pregnant people: in the wake of Texas enacting T.R.A.P. laws (targeted regulation of abortion providers) a decade ago, those new laws basically required a variety of things. In one case called Whole Woman's Health v. Hellerstedt, [the Supreme Court said} that one, doctors must have admitting privileges at nearby hospitals; two, clinics must retrofit in order to look like ambulatory surgical centers, or the clinics have to widen their hallways or they have to change the height or depth of their cabinets. All these various things to basically lead to clinics closing. And what research showed actually, in the space of Texas intensifying and doing all of this, is that maternal mortality rates began to go up in Texas. As clinics closed that provided reproductive health care, there was no longer access to contraception, no longer access to prenatal care, no longer access to postnatal care, and women died. Recent studies show that the trend is only continuing, so that while other countries, and we are talking about dozens and dozens and dozens and dozens of countries, have in recent years, seen [a] decline in maternal mortality and maternal morbidity, including countries that are economically challenged and fraught, we have seen is that the U.S. is part of a tiny cohort of only a few countries where maternal mortality has actually increased. As the United Nations has been tracking this, we can actually see that there are countries that are doing far better than ours. I mean, internationally, we rank around 55th in the world in terms of maternal mortality. We rank behind countries that otherwise make our Human Rights Watch lists, like dangerous places for a girl to live and a woman to live. And yet those places actually do a far better job with keeping women alive who have pregnancies. And so, you know, there has been much that we need to think about in terms of the dangers that are resulting from a space that has become so hostile to abortion rights.

AC: I think that the point about the clinics not being available for women to even access the care increases so many health risks of pregnancy. Pregnancy is a very risky situation and if someone who can't access contraceptives and is young, or has a health issue or something like that, all of those just compound the risks of pregnancies. The space for abortion rights being hostile is not only touching people who don't want to have a child. The next question that I wanted to look at actually focuses a little bit on abortion access. Abortion access and other reproductive health care services were already very difficult to access, especially for low income women and women of color. How does our new landscape of reproductive rights, the very limited version we're seeing in many states, compound these racial disparities in access and outcomes and further alienate women of color and low income women from accessing necessary health care?

MG: I take a pause because it is egregious. It's a term that the Supreme Court used in Dobbs to describe the prior justices elevating reproductive freedom in their decisions in Roe v. Wade, and Planned Parenthood V. Casey. In those cases, the justices were described as engaged in something that was egregious. It's ironic because it's such a potent and powerful term. When you think about what's egregious, I think about that, which is inhumane or what Dr. King might have said even inhuman, which seems to strike at a level that's even more profound. What one sees is that there is already a disparity in terms of maternal mortality in the United States. Already, Black women are three and a half times more likely at a national level to suffer maternal mortality than their white counterparts. But that's a national figure; that doesn't account for when we begin to look in specific counties and cities, and that number begins to double or triple. What it means in the state of Mississippi to be Black, and 118 times more likely to die due to maternal mortality, than if one were to have an abortion. It's absolutely glaring. I mean, it's absolutely stunning. It becomes its own version of a death penalty. And that's not hyperbole. You know, we have become so disassociated from reasoning, from logic, from being rational, and compassionate in these spaces. Given the backdrop already of high rates of maternal mortality, high rates of maternal morbidity, and other kinds of disenfranchisement that matter to a healthy democracy: we see voter suppression taking place in the very states that are promulgating abortion bans, meaning that it's becoming more challenging to get reproductive health care, whether that is abortion care, or whether it is care for a pregnancy or contraception to prevent one, and in those same states, making it difficult for people to be able to articulate their political choices. Voting, and polling places have shuttered, thousands of them across the American South, [the] space where so many of these abortion bans are in place, and one can't help but see the connection and thread to the antebellum period. Mississippi, the case that brings us Dobbs, a notorious place of American slavery. Mississippi and Louisiana were two of the places that if you were Black, you never wanted to be sent. Because the level of cruelty was just so unbelievable, so unbelievably horrible. Except we can believe it because of the things that we actually know. The records of lynching, the records of people's homes being burned down, the records of the Mississippi appendectomy, where Black women and girls were coercively sterilized, often without even their knowledge. The Mississippi that denied Black people the right to vote, that made Black people have to guess how many jelly beans in the jar or bubbles on a bar of soap in order to be able to vote or reciting the state's constitution, the Mississippi that dragged Fannie Lou Hamer and other Black women off of a bus and put them in a male prison, a male jail, because they dared to be able to vote after there was already a 19th amendment. That is the Mississippi, the Mississippi that ratified the 13th Amendment, which abolished slavery and involuntary servitude, but doesn't ratify it in 1865, but instead in 2013. This is the Mississippi that brings us Dobbs, and somehow there are lawmakers that expect people to ignore that history in the present times, when the past is repeating itself in ways that have been preserved, as Reva Siegel would say, but transformed.

AC: That point is exactly why those same lawmakers don’t want history to be taught. If history is taught, it is so glaringly clear the legacies and that the exact same things are going on now. I want to pivot to less of the historical perspective and how that impacts what’s happening on the ground now, to more of your legal perspective as a Constitutional scholar. You wrote a piece in the New York Times about finding the justification for reproductive rights, reproductive protection, reproductive freedom, under the 13th and 14th amendments. Could you explain for us how those amendments could be used to protect bodily autonomy?

MG: It actually takes us a bit back to history again because the 13th amendment abolishes slavery and involuntary servitude. The 14th amendment provides equal protections under the law and also extends to substantive due process, and privileges and immunities and much more. Interestingly enough, the 14th amendment's first sentence articulates that citizens are people that are born in the United States. These are Reconstruction amendments so they can’t be read apart from the time in which they were enacted. This represents a radical change, a sea change, in the American Constitution, in that it recognizes and seeks to remedy the vestiges and badges of American slavery. And then when we begin to think about, well what were those vestiges and badges of slavery? Well, they included forced, compulsory reproduction. This is what we see in the advertisements that use the term “breeding wench.” It is very clear that as part of the American capitalist analysis was the profit to be earned through the sexual exploitation of Black women and girls. It should not come as a shock given all of this history but we know that sexual exploitation is something that we call sex trafficking. Thomas Jefferson famously wrote that it was overstated to emphasize too much the value of Black men on plantations because the real value was found in Black women because they were turning a profit every year or two. So when we think about the 13th amendment as abolishing slavery, it’s not just about protecting Black people from being in the bucolic green fields, picking light little puffs of cotton and putting them in sturdy sacks. I think that there is a part of an American narrative that sees that as the primary, almost sole backdrop of American slavery. We’re not courageous enough to understand that slavery had another component. And it was a primary component, it wasn’t just secondary or third-lane and kind of tucked away to the side. But a primary aspect of American slavery was the forced reproduction placed on Black women. Because it did turn a profit. And in a society that was thinking about economic exploitation solely in connection to Black people, then the idea was to maximize that as much as possible. And in a backdrop of that, when then the abolitionists ratifiers of the Reconstruction amendments began to do their work, they saw that as well as part of what they needed to defeat with American slavery. And we know that it did work because that practice stopped. That practice stopped. I mean, there were other kinds of practices that were preserved and transformed, but that practice stopped. And then with the 14th amendment, it also speaks to a reproductive justice arc, and here I think about the work of Peggy Cooper Davis, professor at NYU School of Law, in that the 14th amendment was responsive to the questions about Black families as well, and the protection of them, along with other matters, hence the very first sentence of the 14th amendment, specifically speaking to the citizenship of born Black children. Now, it's actually helpful for us to think about that within the context today because in Dobbs the Supreme Court says, “well, abortion is never mentioned in the Constitution.” Well, neither is pregnancy mentioned in the Constitution, neither are the body parts that help to reproduce, we don’t have reproductive organs mentioned in the Constitution. The Constituon doesn’t describe sex or what future sex could be in terms of reproduction. But it does mention very clearly that rights would belong to citizens and that citizens would be people that are born. There are a number of scholars who say that the real work to be done, and part of this was what Justice Ruth Bader Ginsburg supported too, is that an equality framework and not just a privacy framework is important to the arguments that support reproductive freedom. A person with a uterus cannot be fully free and actualized and equal in society unless that individual is able to have full autonomy and authority over their body. And that is a matter of having equal citizenship. If people who don't have uteruses are able to have full autonomy over their body, people with uteruses should be able to have that.

AC: On that point about the equality argument, my next question is about the possibilities for expanding Constitutional protections. While this argument for the Constitutional protection of reproductive freedom under the 13th and 14th amendments is very powerful, there could be one that’s more explicit in the future. I wonder what you think of movements to ratify the Equal Rights Amendment, or just in general, what is that legal future, you’ve termed in the “reproductive bill of rights” in Policing the Womb, that could be implemented that would improve women’s health and achieve reproductive justice?

MG: It’s a great question because these times call for using a liberty imagination. If we’re not shackled by the psychology of discrimination which bears upon so many of us, the sense that rights do not belong to us or should not be equally shared amongst people. But if we were to be freed of those shackles, what kind of future might we imagine? It might be a future that more explicitly incorporates an equal rights amendment; constitutions across the world do have an equal rights statement for women. That’s not even a question mark in so many countries around the world. It’s a question for us, except now the sufficient number of states to ratify that have done so so it's a matter of having the archivist publish it. But when we think about what this reproductive justice future looks like, a reproductive justice new deal, what that could include, then we want to think about LGBTQ equality as well, think about disability justice as part of that conversation, think about how we protect the future interests of trans children in such a space. It’s horrific to see the kinds of attacks that are taking place in spaces that otherwise people probably wouldn't pay much attention to, like who would know? The very idea that there are state lawmakers that are proposing that little girls have to now reveal their periods and turn in information about it in order to ferret out who may biologically have not been born with a uterus–is just absurdist. But if we can imagine what a future of equality and compassion looks like in law, then we could see protections in that space too. And so that’s what I call for. This is really a time of a third Reconstruction, if the first one was the 13th, 14th, and 15th amendments in the mid-late 1800s. And then the second one basically [is] the 1964 Civil Rights act and ‘65 Voting Rights Act and we could also include Medicaid in that, the work that President Johnson did. Then what do these times hold for us? They hold for us to imagine boldly and to protect fiercely and to promote the dignity of all and to show compassion. Law need not be wedded to cruelty; there’s a sort of sense of what's coming out of state legislatures today that happen to be incredibly punitive that are not about lifting up the American spirit at all. In fact, it’s one where we have to worry about more than even reproductive freedom. The kind of landscape where we find ourselves today is one where even the Bill of Rights is threatened, where the 1st amendment happens to be under attack, and where other kinds of protections found in our Bill of Rights, including the 4th amendment’s privacy, of our bodies, our papers, our homes, of the 8th amendment, which is supposed to protect us from cruel and unusual punishment. One would have to ask, is it not cruel and unusual when a state seeks to take over control of half the population’s bodies? I think about a reproductive freedom future that bothers to treat with dignity and integrity the lives of all people.

AC: Thank you, Professor Goodwin. That is an incredible vision and I hope we get there soon. I have a final question for you, very short, and thank you so much for this amazing interview. I am so excited for everyone to hear your words. Finally, what gives you hope for the future of reproductive justice, and how can anyone who reads your words and is moved to action get involved?

MG: Let me say, in response to this question: I am inspired by you. I am inspired by young people who are courageous, young people who recognize the human dignity in others that don’t look like them, who weren’t born in the ways in which they were, and who say, “well no i’m going to speak up.” That’s really something that on one hand people could think is simple but it's actually profound considering histories of people being complicit in the harms of other people. So it’s really quite bold, what’s taking place by young people also imagining a better future. That includes thinking about our environment as well. What also is hopeful for me is that we can do better. Now, with the frameworks that have been dismantled, we can reimagine them. Granted, we are reimagining from a space of what was broken, but given that, as some have said, the shards are on the ground, we get to pick up the pieces and build a brilliant mosaic. I believe that we will get there. I am incredibly hopeful about all of the dynamic ideas that are coming out at these times by scholars and so much more. And then I would say, in terms of getting involved: read, read, read, and write, write, write. There are a number of ways of contributing. One is to support abortion funds. That is certainly a possibility; give money there because it costs a lot of money when people have to leave their state, travel to another, in order to get the reproductive healthcare services that they need, desire, and want. I would also say that the political landscape truly does matter. There is so much to impact about January 6th, and that ties to a political landscape. Let me say this, and I will close with it. The ballot measures that were put forth in the 2022 election that sought to preserve and protect reproductive freedom all won. All succeeded. Voting does matter. I know that people can be discouraged by the political landscape, I know that they can think that their votes don’t matter, but they do. I think that even the recent judicial election in the state of Wisconsin to that state’s supreme court really shows how important voting does matter, and that voting rights matter.

AC: Thank you so much Professor Goodwin. Your words have been so informative and inspiring and the Undergraduate Law Review is so grateful to have you.