Part of a Series
In the fourth installment of our podcast series examining the state of the reproductive health, rights, and justice movement in the United States on the occasion of the 40th anniversary of Roe v. Wade, we speak with University of Pennsylvania Professor Dorothy Roberts, a pioneer in the reproductive justice movement. Professor Roberts explains how she came to the movement, shares lessons about how to ensure that the movement be inclusive, and explores the connections between reproductive justice and the child-welfare system in light of the recent Supreme Court case, Adoptive Couple v. Baby Girl.
Elizabeth Chen: What has Roe v. Wade meant for women throughout the United States, not only for their ability to have or not have children but to parent the children they do have?
I am Elizabeth Chen, a policy analyst for the Women’s Health and Rights Program at the Center for American Progress and a Reproductive Justice Law Fellow. University of Pennsylvania Law Professor Dorothy Roberts has written extensively to bring to light the reproductive rights of marginalized women, especially low-income black women, through her seminal work Killing the Black Body. She joins us today to talk about her work and how different communities address and fight reproductive oppression through a number of different social justice movements. I am very pleased to welcome Professor Roberts.
You were starting college just as the Supreme Court decided Roe v. Wade. Can you tell our listeners a little bit about what that was like?
Dorothy Roberts: Well, in some ways, interestingly and unexpectedly, I feel as if there was more of a climate of freedom for women. It may have been because where I went to college was particularly open to women’s control over their bodies and students’ control. So birth control was available. Even the morning after pill was available. And abortion services were available. But I was aware that there was a struggle going on in other communities for access to abortion. And I was also aware that there were many women who had died or suffered great loss because of lack of access to safe, legal abortion.
EC: What did you notice about those people who didn’t have access to a lot of these services?
DR: Well, I knew that there was a movement among women activists, feminists, and health advocates to ensure women have access to legal abortion and a fuller ability to have good health and control over their childbearing and over their bodies. I was aware that Roe v. Wade was an essential decision to make sure women could make these kinds of choices for themselves and also be able to have a safe abortion without the fear of either having an unwanted pregnancy or having an abortion that could potentially harm them because it wasn’t legal in some states prior to Roe v. Wade. So I was very aware of the importance of a constitutional right to abortion, even though when I went to college I assumed that women should have that right. It didn’t seem controversial to me. But I did realize it was a very important decision because there were places where women were prohibited from having abortions or had to seek them under very dangerous circumstances.
EC: So was it strange for you seeing the backlash to the decision?
DR: Yes. I continue to be disturbed by the backlash to the decision that I think continues to this day and that in some ways has intensified. There was a period after the decision in Roe v. Wade when I graduated from college, when I was clerking for Constance Baker Motley in the Southern District of New York, and I recall that there were a number of decisions—except for the abortion-funding decisions—but there were a number of decisions that fortified the right of women to access to abortion, and with the exception of the unfortunate denial of funding—public funding for abortion—it seemed as if there was increasing legislative and constitutional support for women’s right to access to abortion services. Again, I would highlight that the lack of public funding was a major barrier for many, many women. But I feel as if today with the onslaught of all sorts of laws designed to block women from getting an abortion in very blatant and inhumane ways, that to me seems today to create a much more hostile climate than I recall when I was in my twenties.
EC: Did this influence your decision to become a lawyer and then your work later on—seeing the different reactions to Roe?
DR: I think what influenced my decision to become a lawyer and to go into law teaching and advocacy around reproductive freedom was in part my assumption—which I think was fortified by the Roe v. Wade decision—that women should have [an] absolute right to reproductive health services and to make decisions about their reproductive lives. Now the aspect of reproductive freedom that propelled me into this field was not the right to abortion; it was the brutal regulation of black women who were pregnant and wanted to have children, the denial of their right to bear children, and the control that black women had experienced historically as well as in the present day of their decisions about their reproductive lives and their bodies.
The decision that really got me outraged and interested in advocating in this field was a decision that involved a white woman. It was the In re A.C. decision in 1987 involving a woman who was dying of lung cancer and wanted to survive to see the birth of her baby, and doctors at the George Washington University Hospital determined that she may not live long enough for the baby to be born and got a court order against her will compelling her to have a Cesarean section. And the doctors performed the Cesarean section and she died, and the fetus wasn’t viable and also did not survive. And when I read that decision, I was so outraged that because a woman was pregnant she could be violated in that way. I considered that to be an assault and battery against her because she was cut into without her permission.
And that was the decision—not abortion rights but the rights of a pregnant woman to be treated like an equal human being despite being pregnant—that got me interested and compelled me into the field of reproductive freedom and justice. And then learning about the multiple ways in which black pregnant women had been treated and black women’s childbearing had been devalued throughout the course of U.S. history and into the 1980s and ‘90s—this was a time when poor and low-income black women who used drugs during pregnancy were being prosecuted for various kinds of crimes and treated in extremely brutal and inhumane ways; it was those prosecutions that really compelled me to get involved in the fight for reproductive justice.
EC: Your work has provided a great deal of the analysis and intellectual capital for the reproductive justice movement. Can you tell us how you understand reproductive justice and how it relates to the concepts of reproductive rights that Roe puts forth?
DR: Roe v. Wade was certainly, as I said, a landmark decision that was essential and remains essential for protecting women’s equality, self-determination, control over their lives, and over their bodies—no doubt about it. But it has many limitations because it relies on a concept of protection of a woman’s private decision—what reproductive rights groups began calling freedom of choice; you know, her choice to end her pregnancy—without taking into account the social, political, and economic conditions, including poverty and racism, maybe physical disabilities, other aspects of her life where she might experience discrimination and inequality. And those also affect women’s lives and decision making. And Roe v. Wade doesn’t take that into account, nor did mainstream reproductive rights and women’s rights organizations that focused on a concept of choice: protecting a woman’s choice against government interference. And so the concept of reproductive justice places decision making about childbearing in a social context and in the context of the struggle for social justice and recognizes that without social justice, women cannot—or all women cannot—truly have reproductive freedom, cannot truly have control over their reproductive lives and over their bodies.
A simple example is the Hyde Amendment that was passed in 1977 right after Roe v. Wade and was upheld in Harris v. McRae in 1980. And the Hyde Amendment denies federal funding for abortion for women who can’t afford them. Even in cases where the state provides for other health care services, the Supreme Court has also allowed the state to discriminate against this particular decision to have an abortion. And so without the money to pay for an abortion, many women’s actual ability to make this decision is hindered. That’s just a simple case where just having a choice isn’t enough if you don’t have the resources to really make that choice.
But even more broadly than that, women’s ability to make decisions about their childbearing is affected by the social conditions they live under and the discrimination they may face, whether their childbearing is valued or devalued. And that is beyond the decision to have an abortion. It also includes the decision to have a child and the ability to raise your child in a healthy way and to have your relationship with your child respected by the state and by society. So this is way beyond the limited protection of choice against government interference. It takes into account issues of social justice as well in order to guarantee women and men a true ability to make reproductive decisions and be self-determining when it comes to whether or not to have children and their relationships with their children.
EC: So you just mentioned being able to raise your child in a healthy way as part of the reproductive justice framework. Last week the Supreme Court heard oral arguments on a case involving the Indian Child Welfare Act. You signed onto an amicus brief along with other family law professors in support of the child’s father. Can you tell us a little about the case and about the arguments you made and how this particular issue relates to reproductive justice?
DR: The case is called Adoptive Couple v. Baby Girl, and it involves an unwed couple. The mother, who was not Native American, decided to put the baby girl up for adoption and did not get permission from the father, who was a member of the Cherokee Nation. Under the Indian Child Welfare Act, members of Indian tribes have particular protections against state interference in their parental rights because of a long history of the government deliberately taking children—Indian children—from their families and communities and placing them with white families or in boarding schools. Because of that law, the father in this case had certain special protections, so that even if, as an unwed biological father who hadn’t complied with state laws to get legal status as a parent, he still had status as a parent under the Indian Child Welfare Act. And it was only after the mother gave the child up for adoption that the father learned about this and intervened, and the Cherokee Nation also intervened to undo the adoption.
In the case the South Carolina family court judge found that denying the father the right to parent his child did in fact violate the Indian Child Welfare Act, and the Supreme Court of South Carolina affirmed that decision. And now the parties came before the Supreme Court. The adoptive parents petitioned the Supreme Court to overturn this decision, and the father argued that the Supreme Court should uphold the South Carolina decision granting him custody rights to his daughter.
I signed onto a brief by some family law professors because I think it’s very important for the U.S. Supreme Court, number one, to affirm the protections of the Indian Child Welfare Act because the act is important to prevent the kind of devaluation and kidnapping of children based on stereotypes and myths and discrimination against their parents because of their, in this case, tribal heritage. I am also concerned about this in the case of other children of color who don’t have the protections of a special law like the Indian Child Welfare Act. But I think it’s very important for the Supreme Court to uphold that protection.
And I think it’s also very important for the Supreme Court to recognize the importance to children of having a relationship with their parents as long as their parents haven’t been deemed to be unfit. And in this case, there was no evidence that the father was unfit. He simply hadn’t asserted his rights in time according to the adoptive couple under state law. But there was no evidence that there was a reason why he shouldn’t be able to have a relationship with his daughter and parent his daughter. So for those reasons—because of my interest in protecting the rights of families that have historically been devalued—I joined this brief.
I think this case is related to reproductive justice because the concept of reproductive justice doesn’t just end with a pregnant woman and her decision whether or not to carry the pregnancy to term. It also recognized that women who have babies want to—usually, in the vast majority of cases—parent the baby and have a relationship with their child. Reproductive justice also recognizes that this is more than just a choice of the mother or father to parent the child. It’s also a decision that is deeply affected by societal stereotypes based on race about certain groups of people. And so there is a long history, for example, of black mothers being devalued and being stereotyped as not caring about their children, being sexually promiscuous, and having babies without really an intent to mother them or a love for their children or an ability care for their children properly. And these myths have been perpetuated since the time of slavery, and I believe they’re a central reason why black mothers are at higher rates than other mothers in this country—except for maybe Native American mothers—of losing their children to the foster care system.
EC: How do you see the child welfare system’s treatment of privacy and government intervention both converge and diverge from those concepts that Roe sets forth and that women’s rights advocates have pushed for?
DR: I think many people don’t understand that reproductive justice must involve the right and ability to parent a child as well as to decide whether or not to have a child. So Roe v. Wade could be interpreted as very narrowly just having to do with the right to terminate a pregnancy or maybe stretched a little bit further to the decision whether or not to have a child. But the decision to parent a child and the ability to parent a child is often seen as outside the scope of Roe. And then, in addition, the privacy concept, if it’s interpreted as just being able to avoid interference by the state, does not take into account the ways in which parents—really all parents but especially poor and low-income parents—need support in order to take care of their children. And so there is an approach to child welfare in the United States that says that parents should privately care for their children. And if they’re unable to, the state then can come in and remove their children and place them in foster care.
For some reason, many people don’t see that state intervention of removing the children as being a problem because it’s in the context of a very narrow private view of caring for children. And I believe that the child welfare system in the United States that swoops in to intervene in struggling families, remove the child, and place the child in foster care, perpetuates this idea that parents should be able to take care of children on their own, and if they can’t, they can be punished by losing their children. I think that is a very harmful way of thinking about families.
And it harms everybody because it sets up this false view of parents as either being those who are good parents and can take care of their children or being pathological, neglectful parents who can’t, when in fact, it may just be that because of societal inequities, some parents who are very loving and caring parents just don’t have the resources that they need. And an alternative child welfare system would recognize that and provide general support for children and families, rather than rely so much on foster care to deal with it; the vast majority of foster children are from poor families, so I see this as dealing with poor families in a very punitive way.
EC: We see that privacy is an inadequate frame when we are talking about reproductive justice. So what constitutional principles should we be looking to as we look forward?
DR: Well, some of the options are privacy, equality, and liberty. None of them is perfect. I prefer social justice as a concept, which you don’t see very much mention of in your Supreme Court decisions.
But privacy has the benefit of protecting relationships against government interference, and it is the case that there is a lot of unjust government interference that people need to be protected against. The problem is that it often isn’t seen as government interference if it’s in a context that doesn’t pay attention to social justice. So again, it doesn’t look like unjust state interference in families when children are removed and placed in foster care if you don’t notice the inequities that led to the policy to remove children to place them in foster care or the inequities that led to the decision to remove certain children from their parents and not other more privileged children from their parents. So privacy has some advantages, but only if it’s interpreted within a context that understands social justice and social inequities and cares about them.
Liberty, similarly, is an important concept for protecting people’s ability to make decisions for themselves and not be controlled and manipulated by state forces, but again, without that understanding of the social context in which liberty takes place and a concern for social justice, it can just be a way of avoiding government interference and not seeing the duty—the public duty—of the state and the public to support people living within society, especially those who are disadvantaged by longstanding institutionalized inequities.
And then equality is another alternative, which recognizes that all people deserve the same rights and protections regardless of their social status, but again, I would say the same thing. Without understanding equality in a context of social justice, equality can mean treating people the same, and if there are people who are already disadvantaged by unjust social institutions and systems, treating them the same without taking into account the disadvantage isn’t necessarily going to be helpful; it can just perpetuate the disadvantage.
So I think all of these constitutional principles have something to say for them. But they don’t really help lead to a place of true justice and true equal respect for human beings unless the social context—the political context—is taken into account. So I prefer social justice. Another concept with great potential, again not recognized by the U.S. Supreme Court by and large, is human rights, which has that positive claim on the state and also has the concept that all human beings deserve to make that claim. And that is another possibility that many people, even within the reproductive justice movement, have used as a way of moving beyond the limitations of choice, and privacy, and formal equality.
EC: Thank you so much for joining us today.
 While modern progestin-only emergency contraceptives were not approved by the FDA for use until the late 1990s, as early as the 1970s, off-label uses of existing drugs were available and prescribed as emergency contraceptives. Laurence M. Demers, “The Morning-After Pill,” The New England Journal of Medicine 284 (18) (1971): 1034–1036.
 The Hyde Amendment was actually first passed in 1976, but was part of the FY1977 budget. Heather D. Boonstra, “The Heart of the Matter: Public Funding of Abortion for Poor Women in the United States,” Guttmacher Policy Review 10 (1) (Winter 2007): 12–16.
This interview was edited for clarity and length.
Elizabeth Chen is a Policy Analyst for the Women’s Health and Rights Program at the Center for American Progress and a Reproductive Justice Law Fellow.
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