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Excerpted from: Jill C. Morrison, Resuscitating The Black Body: Reproductive Justice as Resistance to the State's Property Interest in Black Women's Reproductive Capacity, 31 Yale Journal of Law & Feminism 35 (2019) (130 Footnotes) (Full Document)

JillCMorrisonThe Reproductive Justice (RJ) movement arose in recent decades in response to a pro-choice movement concerned primarily with preventing births and terminating unwanted pregnancies. This focus ignored the very real threats to Black women's reproductive autonomy seen since our arrival on America's shores. These include barriers to becoming pregnant, having healthy pregnancies and births, and raising children to adulthood in safe environments. Both human rights and social justice frameworks are integral to RJ. RJ adopts the human rights approach of positive rights: affirmative duties imposed upon the State to actualize rights. RJ recognizes that the right to privacy and governmental non-intrusion--at the core of much reproductive rights discourse--is inadequate to address the needs of the most vulnerable and marginalized women.

This Article explores how present-day reproductive oppression reflects an attempt by the State to retain a property interest in Black women's bodies once held by their owners during the time of enslavement. Rather than endorsing the view that sexuality and reproduction are legitimately conceptualized as property, this Article merely seeks to identify some of the ways that current restrictions on women's reproductive liberty mimic systems that once formally commodified Black women's sexuality and reproductive labor. The Reproductive Justice framework seeks to remove these property interests in Black women's bodies and return them to their rightful "owners."

Part I describes how racialized rhetoric is used to justify reproductive oppression and support the State's property interest in Black women's reproductive capacity and sexuality.

Part II analyzes the reproductive and sexual oppression of Black women through a framework of the property rights of use and exclusion. During enslavement, these property rights were exploited by the owner; currently, these property rights are exploited by the State.

Part III proposes that the RJ framework serves to emancipate Black women from continued attempts to render their sexuality and reproductive labor the property of the State, attempting to sever this badge of inferiority established during enslavement.

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Reproductive oppression has always been and continues to be heavily racialized. Therefore, as Bridges argues, the regulation of Black women's sexuality and reproduction must be treated as a matter of racial justice. The discourse about Black women's reproductive and sexual capacities is still influenced by the notion developed during enslavement that Black women's reproductive labors are for the benefit of others; that they are the property of others, be it individual masters or the State acting as master. The Reproductive Justice movement serves to resuscitate the Black body that has been killed by the reproductive oppression so eloquently described by Professor Dorothy Roberts over twenty years ago. Current attempts to marginalize and objectify Black women vis-à-vis their reproductive capacities reflect this centuries-long history of oppression, and must be explicitly rejected on this basis.

Visiting Professor of Law and Executive Director, Women's Law & Public Policy Fellowship Program, Georgetown University Law Center. LL.M., Georgetown University Law Center; J.D., Yale Law School.

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