Laws and policies created in response to the COVID-19 pandemic ameliorated some long-standing barriers to reproductive justice. By granting access to paid family leave and telemedicine reproductive services, federal and state governments gave individuals greater responsibility for and autonomy over their reproductive and family lives, removing barriers to reproductive well-being. However, this devolution of personal responsibility back to individuals has occurred predominantly for people who already have means. Thus, COVID-19-stimulated policy changes have not only been ineffectual for marginalized individuals (for whom policy changes are most needed), but have in practice further entrenched harms to them: requiring them alone to continue to work when they or their family members are sick, and to overcome numerous barriers to seek reproductive care in person. This bifurcation is deliberate. American policy has long ascribed a kind of “personal responsibility” to Black and Brown people (who were disproportionately designated “essential” during this pandemic) that requires responsibility without providing a means to effect it, and punishes when prescriptive benchmarks are not met. It pretextually responsiblizes marginalized people, especially Black women and other women of color, for their health outcomes, instead of creating the conditions for reproductive and health justice. This chapter argues for laws and policies that enable a kind of responsibility that is consistent with reproductive justice. This responsibility sees people as worthy of making decisions about their and their family’s health, removes barriers to them doing so, and provides the underlying support to make such personal reproductive health decisions possible.

In 2016, Whole Woman’s Health v. Hellerstedt entered the post–Roe v. Wade canon of cases related to a pregnant person’s right to have a legal abortion in the United States. After the erosion of the abortion right in the Supreme Court’s 1992 decision in Planned Parenthood v. Casey, many abortion rights proponents feared that the Supreme Court’s decision in Whole Woman’s Health would severely curtail a woman’s right to terminate a pregnancy and perhaps even overrule Roe. In Casey, the Court adjudicated the constitutionality of a number of restrictions on abortion access posed by the Pennsylvania Abortion Control Act of 1982 (as amended). The Casey plurality articulated the “undue burden” standard, which allowed a court to invalidate an abortion restriction that “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Under this new test, the Court upheld a twenty-four-hour waiting period, parental notification, and a biased informed consent requirement, while rejecting spousal notification.

Johnson v. Calvert is one of the most significant cases in the development of surrogacy law. Its reasoning shaped not only the laws addressing surrogacy but how the industry of commercial surrogacy developed. The re-written opinion by Professor Melanie Jacobs centers how race, class, and gender affect commercial surrogacy agreements in contrast to published opinions addressing surrogacy that provide little insight into how these issues intertwine. The re-written opinion also addresses key issues left unresolved by the original opinion that would likely have significantly changed the evolution of laws addressing surrogacy and the practice of commercial surrogacy.

The Pregnancy Discrimination Act (PDA), the law at the heart of Young v. United Parcel Service, Inc., may have the most untapped potential of any federal law governing sex discrimination. First passed in 1978, the PDA amended Title VII of the Civil Rights Act of 1964 to prohibit discrimination based on pregnancy, childbirth, or related medical conditions. The PDA mattered because it undercut employer policies that excluded women and provided a potent check on pregnancy-based stereotyping.

No volume on reproductive justice could be complete without addressing the seminal case of Skinner v. Oklahoma. Skinner is the first Supreme Court decision to subject a law limiting reproduction to stringent scrutiny, and it achieves this result by entwining constitutional protection of reproductive liberty with equality. Unlike the reproductive rights framework, which focuses upon the individual’s right to make reproductive choices free from government regulation, reproductive justice emphasizes the political context within which race, gender, class, and other identities intersect to result in reproductive oppression. Skinner foreshadows this broader analysis, by striking down a state sterilization statute not because it interfered with individual liberty but based upon the recognition that governmental power to draw lines regarding who could reproduce and who could not posed the threat of “invidious discriminations … against groups or types of individuals” in violation of the constitutional guarantee of equality.

Stare decisis dictates that some injustices endure in our jurisprudence, waiting for a moment when they might be dusted off and properly discarded. Buck v. Bell and the forced sterilization of people with disabilities, Korematsu v. United States and the detention of people of foreign descent, and Geduldig v. Aiello and discrimination against pregnant people; even though we have made progress slowly (and, in some cases, legislatively), each of these decisions stands as a threat to the communities they marginalize and to just and equitable rule of law. In re Madyun is such a case, representing a line of thinking that accords with neither medical ethics nor law but which courts periodically cite as they grasp for justification for overriding a pregnant patient’s decisions. This case and others like it persist as thorns in the side of advocates for Birth Justice and the elimination of obstetric violence.

In Wyman v. James, the Supreme Court in 1971 upheld the constitutionality of home visits by social service caseworkers to verify the eligibility of welfare recipients. The case was a bitter blow to the welfare rights movement of the era and cemented a divide in privacy rights between the poor and the rich. The Supreme Court’s decision rested on distrust of the motives and morality of low-income mothers, particularly women of color, and it fueled the harmful “welfare queen” trope that continues to bedevil American social welfare policy. It also failed to restrain increasing forms of surveillance that impact not only poor people but all Americans. By contrast, Priscilla Ocen’s rewritten opinion contains a robust vision of privacy that does not discriminate based on race, gender, or income.

On its face, State v. Oakley is a simple but egregious case about child support and reproductive rights. David Oakley, a father of nine, failed to pay the entire amount of child support he owed his children, and the State of Wisconsin charged Oakley with nine counts of intentionally refusing to provide child support under Wisconsin Statute 948.22(2). At the sentencing hearing in the Circuit Court, the Judge sentenced Oakley to prison on the first count, imposed and stayed an eight-year term on two other counts, and imposed a five-year term of probation consecutive to his incarceration. This was a reduced sentence because Oakley’s lawyer convinced the judge that Oakley would not be able to support his family from prison. Most controversially, the Judge conditioned Oakley’s probation on not having any additional children, unless, the court stated, it could be shown that “he is meeting the needs of his other children and can meet the needs of this one.” On appeal, Oakley argued that the condition of probation ordering him not to father additional children violated the Fourteenth Amendment and the Constitution of the State of Wisconsin. Deciding against Oakley, the appeals court found the ban on Oakley’s reproduction “entirely related to his fathering of children he is not inclined to support.” The court held that a condition of probation may impinge on a fundamental constitutional right as long as “the condition is not overly broad and is reasonably related to the defendant’s rehabilitation.”

Burwell v. Hobby Lobby Stores, Inc., decided in 2014, broke ground in its unprecedented articulation of religious personhood rights for commercial entities, posing challenges to reproductive justice and the foundations of antidiscrimination law. The case addressed whether the Affordable Care Act’s (ACA) contraceptive mandate should yield to a Religious Freedom Restoration Act (RFRA) claim by for-profit corporations objecting on religious belief grounds to providing health insurance coverage for contraception to employees. Concluding that the corporations seeking exemptions were “persons” for free exercise purposes under RFRA, the Court held that US Department of Health and Human Services (HHS) regulations interpreting the ACA contraceptive coverage requirement violated RFRA by substantially burdening the exercise of religion.

Since the Johnson Administration’s “War on Poverty” in the 1960s, the merging of race and welfare in the public imagination has eroded support for the social safety net. Metaphorical constructs such as the “Welfare Queen” and other racialized tropes have served as cultural signposts to structure our understanding of which families should be deserving of public aid. These narratives historically have been deployed to reduce empathy and trigger resentment toward low-income mothers, who many presume to be African American. State legislators target these mothers by weaponizing racial biases under the pretext of promoting personal responsibility and protecting financial resources from so-called undeserving recipients of state aid. “Family caps” emerged in the 1990s as one approach to achieving these purported cost reduction and self-sufficiency goals. Welfare grants are typically allocated according to family size but states impose family caps in order to deny additional financial assistance to children born into families already receiving benefits. Advocates quickly initiated legal challenges to family caps because they represent a constitutionally suspect government intrusion on women’s reproductive rights and create severe penalties for already poor families.

Buck v. Bell has garnered much attention from legal historians and scholars across several areas including reproductive rights and disability law. Retrospective accounts profess collective enlightenment and vehemently reject the possibility of such overt inhumanity today. Yet Buck’s viability is not limited to a cautionary tale. In less than 1,000 words, Justice Oliver Wendell Holmes sent seismic ripples across the law of reproductive rights. Although the case remains on the books, it is rarely cited as legal precedent except to distinguish cases before courts. Rather, the power of Buck lies in its commentary on how the bodies of disfavored populations remain subject to state regulation and its implications for modern permutations of eugenic principles. Accordingly, Buck v. Bell was “never about mental deficiency; it was always a matter of sexual morality and social deviance.”

The Fourth Amendment recognizes “the right of the people to be secure in their persons … against unreasonable searches.” A reasonable search requires a warrant supported by probable cause, “special needs” unrelated to law enforcement, or consent. These requirements frame the dispute in Ferguson v. City of Charleston about the constitutionality of a policy under which healthcare providers reported obstetrical patients who tested positive for cocaine use to law enforcement officials who were empowered to arrest and detain them. The central question raised by the case was whether the Medical University of South Carolina (MUSC), a public hospital in Charleston, subjected its patients to reasonable searches within the meaning of the Fourth Amendment.