Race, Reproduction, and Constitutional Law

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RACE, REPRODUCTION, AND CONSTITUTIONAL LAW

Race has always influenced the meaning of reproductive freedom in America. Scientific racism explained the domination of whites over blacks as the natural social order: blacks were biologically destined to be slaves and whites to be their masters. For three centuries, courts and legislatures carefully defined race according to amount of black ancestry and enforced the rule of white racial purity. One of America's earliest laws was a 1662 Virginia slavery statute that gave the children born to slave mothers and fathered by white men the status of slaves. Laws against miscegenation, designed to keep the races from intermingling, were not declared unconstitutional by the U.S. Supreme Court until 1967. Even today, Americans' continued understanding of race as an inherited trait profoundly connects reproductive policy to racial politics.

Regulating black women's reproductive decisions has been a central aspect of racial oppression in America. Slave-masters had a financial incentive to exploit slave women's reproductive capacity to replenish the enslaved labor force. During the Depression, the alliance between the emerging birth control movement and eugenicists paved the way for public birth control clinics aimed at reducing the birthrates of poor blacks in the South. It was discovered in the 1970s that thousands of black women had been coercively sterilized annually under government welfare programs. Federally funded programs had similarly sterilized more than one-third of women of childbearing age in puerto rico and one-fourth of Native American women.

Although contemporary reproductive health policies are not so blatantly racist, many coercive policies have a disparate effect on minority women and are arguably designed to curb the birthrates of minority mothers on welfare in particular. Many states have enacted child exclusion policies, or "family caps," that deny additional benefits for children born to women already receiving public assistance. Politicians have proposed even more coercive measures, such as mandating that mothers on welfare be implanted with the long-acting contraceptive Norplant. In the 1980s prosecutors across the country initiated a punitive response to the problem of drug use during pregnancy. Although the problem cuts across racial and economic lines, the vast majority of more than two hundred women prosecuted for prenatal crimes were poor black mothers who smoked crack cocaine. Recently the Supreme Court of South Carolina upheld the conviction of a black woman whose fetus was exposed to crack, ruling that a fetus is a child for purposes of the state's child abuse statute.

There are two types of constitutional challenges to reproductive health policies that threaten racial discrimination. First, the equal protection clause of the fourteenth amendment prohibits any law regulating reproduction that explicitly classifies citizens on the basis of race or that disproportionately affects a racial or ethnic minority where invidious purpose can be shown. Such claims are rarely successful, for government officials today are unlikely either to make explicit racial distinctions or to express racial motivation in enacting reproductive policies. The U.S. Supreme Court has upheld reproductive health laws that disproportionately burden minority women. Federal and state laws denying Medicaid reimbursement for abortions and other regulations that make it difficult for poor women to obtain abortion services, for example, disproportionately affect minority women, but were held constitutional in cases such as harris v. mccrae (1980) and planned parenthood v. casey (1992).

A second constitutional challenge combines the equal protection mandate with the protection of reproductive decisionmaking under the due process clause. These two provisions support a constitutional prohibition of invidious government standards for childbearing that reinforce white supremacy. skinner v. oklahoma (1942) acknowleged the threat to racial equality posed by government interference in the right to procreate. Skinner invalidated the Oklahoma Habitual Criminal Sterilization Act authorizing the sterilization of persons convicted two or more times for "felonies involving moral turpitude." The Court found that the statute treated unequally criminals who had committed similarly culpable offenses: chicken thieves like Mr. Skinner were sterilized while embezzlers were not. Applying strict scrutiny under the equal protection clause, the Court concluded that the government failed to demonstrate that the statute's classification was justified by eugenics or the inheritability of criminal traits.

The Skinner Court's reason for choosing strict scrutiny is especially pertinent to the constitutionality of racial discrimination in reproductive health laws. Declaring the right to bear children to be "one of the basic civil rights of man," the Court recognized the significant risk of racial discrimination inherent in state intervention in reproduction. "In evil or reckless hands," Justice william o. douglas wrote, "[the government's power to sterilize] can cause races or types that are inimical to the dominant group to wither and disappear." The state's discriminatory imposition of sterilization against certain types of criminals was as invidious "as if it had selected a particular race or nationality for oppressive treatment." Thus, the Court acknowledged the potential for racist governmental regulation of procreation even in the absence of explicit racial classifications.

loving v. virginia (1967) also deployed the constitutional guarantee to strike down a discriminatory law involving reproduction. Loving invalidated a Virginia statute that banned interracial marriage, resting the decision on both the equal protection and the due process clauses of the Fourteenth Amendment. The Virginia federal judge who convicted Mr. and Mrs. Loving explicitly endorsed scientific racism as an explanation for antimiscegenation laws, reasoning that "[t]he fact that [Almighty God] separated the races shows that he did not intend for the races to mix." The Court held that, "as measures designed to maintain White Supremacy," the laws had no legitimate purpose independent of invidious racial discrimination. Citing Skinner, the Court further concluded that the anti-miscegenation statute unjustifiably deprived the Lovings of their freedom to marry guaranteed by the due process clause.

Would the current Supreme Court invalidate, as "measures designed to maintain White Supremacy," reproductive regulations that disproportionately penalize minority women's childbearing, or whose popularity hinges on a widespread perception that they have such an effect? Probably not. Present equal protection doctrine requires a stronger showing of discriminatory purpose. Nonetheless, Skinner 's warning about the dangers of racist restrictions on procreation and Loving 's condemnation of laws that protect racial purity emphasize the constitutional importance of equality in reproductive decisionmaking. Laws that effectively single out black mothers to deter or punish their decision to have children impose a racist government standard for procreation. They function to preserve a racial hierarchy that essentially disregards black humanity. They evoke the specter of racial eugenics, especially in light of the history of sterilization abuse of women of color. Government policies that perpetuate racial subordination through the denial of reproductive rights, thereby threatening both racial equality and substantive due process should be subject to the most exacting judicial scrutiny.

Dorothy Roberts
(2000)

Bibliography

Davis, Angela Y. 1983 Women, Race, and Class. New York: Vintage.

Davis, Peggy Cooper 1997 Neglected Stories: The Constitution and Family Values. New York: Hill and Wang.

Fried, Marlene Gerber, ed. 1990 From Abortion to Reproductive Freedom: Transforming a Movement. Boston: South End Press.

Gordon, Linda 1976 Woman's Body, Woman's Right: A Social History of Birth Control in America. New York: Grossman.

Roberts, Dorothy 1997 Killing the Black Body: Race, Reproduction, and the Meaning of Liberty. New York: Pantheon.