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Law and racism are intertwined, with legal tools bearing the potential to serve as instruments of oppression or equity. This Special Issue explores this dual nature of health law, with attention to policing in the context of mental health, schools, and substance use disorders; industry and the environment in the context of food advertising, tobacco regulation, worker safety, and environmental racism; health care and research in the context of infant mortality, bias in medical applications of AI, and diverse inclusion in research; and anti-racist teaching and practice in the context of building an interprofessional curriculum and medical-legal partnerships.
Welcome, everybody, to the American Society of International Law's annual meeting. it is my pleasure to welcome you to this very special panel on Black women, global human rights, and policing. My name is Michele Bratcher Goodwin. I am the host of “On the Issues with Michele Goodwin” at Ms. magazine and the executive producer of Ms. Studios. I am also a chancellor's professor at the University of California Irvine and a senior lecturer at Harvard Medical School.
The questions and concerns addressed in this book cannot be evaluated in isolation from race and class, especially because the state finds many ways of making criminals out of its citizens. Racial disparities dominate all forms of policing in the United States, regardless of sex and income. However, the shocking toll of male incarceration crowds out research and more nuanced understandings of women’s engagement with the penal system. Sadly, researchers and policymakers tend to view incarceration through a male lens. However, they are missing a very grave, rapidly emerging social problem. Marginalized women are funnelled in and out of the American justice system at alarming rates. They are invisible. Their experiences with mass incarceration, police brutality, sexual violence, shackling while pregnant (if in the penal system), birthing behind bars, medical neglect, restrictions on housing access after release, and other pernicious encroachments on their daily lives are rarely rendered visible. Consequently, male accounts about mass incarceration, while troubling and certainly not inaccurate, fail to problematize and offer a detailed reading of prisons and penal systems. More importantly, these depictions fall short of informing the American public about women and children as the casualties of the nation’s overpriced and unsuccessful drug war.
Is it ethical when doctors breach their pregnant patients’ confidentiality? Is it legal? What about HIPAA (properly known as the Health Insurance Portability and Accountability Act of 1996)? Are there different rules for pregnant women than for men? These are some of the questions women ask me after I give a talk. I understand this bewilderment and, for many, fear. At the heart of their questions resides this chilling thought: Could this happen to me or my daughter? Depending on where they live, the answer may be yes. And, increasingly, wealth will not save them. As this Chapter explains, physicians owe their patients care, confidentiality, loyalty, and trust, and the principle that undergirds all of this – the fiduciary relationship – is not contingent on the sex of the patient. However, with increased pressure from state legislatures and prosecutors, some doctors and nurses have abrogated their responsibilities to their patients. Among them, some are genuinely fearful that unless they adhere to whatever law enforcement demands of them, they may lose their licenses to practice medicine. Some of these doctors are genuinely ambivalent about their duties. These doctors tell me they feel powerless.
This chapter highlights how legislators, prosecutors, and judges sympathetic to a tough-on-crime or “using the stick” approach to pregnant women and their bodies miscalculate the human and financial costs of their decision-making. Their approaches do not improve health outcomes for women or their children. Rather, legislators, prosecutors, and judges are misguided to believe that harsh criminal punishments and invasive civil sanctions reduce the incidents of miscarriage, stillbirth, low birth weight, genetic abnormalities, childhood asthma, obesity, diabetes, and more. Yet, these conditions are not improved, let alone cured, through criminal punishment or civil confinement of pregnant women.
Understanding the enigmatic policing of pregnant women requires grappling with broader, troubling social and political issues, including mass incarceration, the U.S. drug war, welfare reform, and even our nation’s notorious, but largely hidden, history of eugenics. These policy landmines set the stage for regarding pregnant women as objects of the state, deploying criminal punishment as a viable means of regulating their behavior, and, in essence and substance, criminalizing pregnancy. This book makes a close study of those issues and reveals that fetal protection efforts, which are often purported to justify states’ persistent intrusions in poor women’s lives, serve to mask other politically expedient interests: controlling women and demanding their obedience, gerrymandering, pandering to tough-on-crime strategies, achieving electoral victories, and heightening moral panic. Rarely are the well-being and dignity of babies and children a persistent concern of those politicians who most favor punitive interventions in the lives of their mothers. In the process of writing this book, I have come to conclude that criminal threats and prosecution are measuring pregnant women’s obedience, and far more than fetal risk. After all, how are shackling, birthing in prison toilets, and rearing children behind bars demonstrative of respect for fetal or child life?
This is not a work of fiction, although I wish it were. Some of the cases described here could recall the imagery evoked by Mary Shelly, author of Frankenstein; or, The Modern Prometheus, who tells a horror story about a young rogue scientist who creates an unsightly monster through clandestine, aberrant experimentation. Although Frankenstein is the name of the monster’s creator, Dr. Victor Frankenstein, readers would be forgiven for debating who the real monster happens to be. In Policing the Womb, the story of Marlise Muñoz comes to mind. Brain-dead, decomposing in a Texas hospital, forced by state legislation to gestate a barely developing fetus while her body decays and the anomalies in the fetus mount. Eventually, it will be reported that the fetus is hydrocephalic, which means severe brain damage in this case and water or fluid developing on its brain. Medical reports will also show that the fetus is not developing its lower extremities. The state knows brain death is irreversible.
A key link in the numerous arrests and prosecutions of pregnant women throughout the United States is their medical providers, whose roles as undercover informants and modern day “snitches” belie their sacred fiduciary obligations. From their once revered roles as fiduciaries, duty-bound with the tasks of protecting and promoting the interests of their female patients, some medical providers now police their pregnant patients’ conduct and even serve as quasi law enforcers for the state. For my European colleagues, physicians entreating law enforcement against their pregnant patients was simply unimaginable. Once upon a time, it might have been unthinkable in the United States, too. However, that period is long gone. Indeed, even race can no longer spare white women some of the indignities suffered by Black women. In their politicized roles as deputized interpreters of the law, physicians and nurses may misinterpret the law or, even worse, prioritize the exercise of their legal judgment over that of their medical judgment. In this context, physicians and nurses are called upon to wear two hats: those of health care provider and law enforcer.
Today, the full scope of liberty-infringing pregnancy interventions, including threats of arrest and other coercive conduct that does not necessarily lead to criminal punishment, is unknown. There is no national database, and any state-level record-keeping related to mothers prosecuted under the guise of fetal protection can be difficult to access. Reporters like Nina Martin file “multiple information requests to identify” those arrested under child endangerment laws and child abuse statutes, which now apply to fetuses in a number of states. Vigilant investigation in Alabama revealed dramatic undercounting by “more than three times the number previously identified.” Evidence of arrests and prosecutions gathered by reporters, as well as national and international advocacy organizations such as National Advocates for Pregnant Women and Amnesty International, indicate the numbers of women vulnerable to pregnancy policing are on the rise. New prosecutions of pregnant women for acts of feticide and attempted feticide illustrate this shift; such prosecutions simply did not occur before.
In 1973, by a 52–42 vote, the U.S. Senate adopted the Helms amendment, a law that prohibits the use of federal foreign assistance funding for abortion research and procedures. Congress did not hold a single hearing related to the legislation, despite the seriousness of family planning access and the fact that women’s reproductive healthcare was at stake. Only months before, the U.S. Supreme Court ruled in Roe v. Wade that the right to terminate a pregnancy was a fundamental constitutional right rooted in privacy and protected under the Fourteenth Amendment’s Due Process Clause. In dramatic contrast, the Helms amendment effectively conditioned U.S. foreign aid policy on the antiabortion platform long advocated by the legislation’s author, “the late, stridently antiabortion Sen. Jesse Helms (R-NC).” Senator Helms, a former journalist, was a master of rhetoric. He claimed, “My amendment would stop the use of U.S. Government funds to promote and develop ways of killing unborn children.”
In this Chapter, I consider what lessons can be learned and pathways forward. The reproductive battleground was once in the courts, where incremental advancements through landmark decisions were achieved. Skinner v. Oklahoma (overturning a compulsory sterilization law that treated similar crimes differently), Griswold v. Connecticut (overturning a Connecticut law that barred married couples from accessing contraceptives), Eisenstadt v. Baird (striking down a Massachusetts law that restricted non-married persons from accessing contraceptives), and Roe v. Wade (decriminalizing doctors’ performing abortions) formed the foundation for the reproductive rights discourse, advancing concepts such as privacy and autonomy in the reproductive health space. However, recent retreats from the primacy of those holdings by the Supreme Court suggest that, at least for the present time, the Court may gerrymander reproductive rights and weaponize the First Amendment to advance the personal views of five conservative male Justices of the Court. Drawing on brilliant contributions of scholars, civil society, activists, a bold new cohort of female legislators at the state and federal levels, and intuitions of judges committed to the equality of women, this Chapter concludes that a Reproductive Justice Bill of Rights is needed and that new pathways in litigation must involve an equal protection analysis.
The battle over women’s autonomy, especially their reproductive healthcare and decision-making, has always been about much more than simply women’s health and safety. Rather, male power, control, and dominion over women’s reproduction historically served political purposes and entrenched social and cultural norms that framed women’s capacities almost exclusively as service to a husband, mothering, reproducing, and sexual chattel. For example, tort law carved out specific remedies for husbands who suffered the loss of their wives’ servitude and sex under the loss of consortium cause of action. Historically, loss of consortium litigation provided economic remedies only for husbands. This law derives from the legal premise that the husband is the master of the wife. She is his servant. Thus, when wives suffered a physical injury, husbands could file suit against third parties for the “loss” of their wives’ servitude, companionship, and sex. Most Black women, their mothers, and daughters encountered or directly suffered the physical norms and conditions of that cruel enterprise, including physical bondage, food deprivation, and physical torture (whippings, brining, and amputations of fingers and toes). They also endured reproductive coercion and terror, including sexual assaults, rapes, forced reproduction, and stripping away of offspring.