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Excerpted From: Ariane Frosh, Reproducing Equality: How Covid-19 Can Strengthen Abortion Rights, 68 UCLA Law Review Discourse 80 (2020) (70 Footnotes) (Full Document)


ArianeFrosh copyRacial inequities underpin both the COVID-19 pandemic and the current state of abortion care. The virus has disproportionately impacted Black, Latinx, and Native communities and exacerbated the racial disparities in the American healthcare system. This trend echoes the racial inequalities in access to reproductive healthcare. Accordingly, the COVID-19 pandemic provides a lens to understand abortion bans as an affront to racial justice, as well as gender justice, and facilitates a discussion of the weakness of a substantive due process analysis of the abortion right. Gender discrimination helps situate abortion in an equality frame and provides an important first step. But widening the scope of analysis to include structural racism against pregnant people of color illuminates a more nuanced and ultimately fruitful approach to procreative rights. In addition to historical discrimination, the severe burdens that Texas and others visit on pregnant people of color during an emergency demonstrate the insufficiency of the substantive due process framework.

The reproductive rights violations marginalized women have long suffered represent the dehumanization of these women based largely on their racial identities. White colonizers systematically raped Native women in their conquest of the continent, and thereby established, among other things, an early disregard for the reproductive autonomy of women of color. The antebellum South commodified Black women's reproduction to perpetuate the economics of slavery and used sexual violence to physically and socially control them. The legacy of chattel slavery is responsible for today's disparities of health outcomes between white women and Black women. More recently, pregnant people of color have been disproportionately prosecuted under fetal protection laws and are more likely than their white counterparts to see their families subjected to the surveillance and violence of the state. The institutional headwinds facing pregnant people of color in the reproductive arena suggest that inequality has endured. It is concerning, therefore, that the constitutional framework for the abortion right has not meaningfully evolved since Roe.

The reliance by Roe and its progeny on the dignity and autonomy interests of the abortion decision has lionized the notion of "choice" to the detriment of pregnant people of color. The pro-choice paradigm rests on the faulty assumption that if granted the right to choose abortion, the financial, social, and emotional burdens of the decision to terminate a pregnancy melt away. Such myopia largely ignores the lived experiences of many pregnant people of color, who are more likely to live in poverty and have fewer resources to overcome increasing hurdles to abortion care. Architects of the reproductive justice movement, themselves women of color who experienced the limitations of the pro-choice movement, argue that a single-minded focus on procreative choice alienates pregnant people of color from the legal framework of the abortion right:

The law and other instruments of power could use [a] woman's body and her fertility to degrade her and her children, harm her community, and protect white supremacy in the United States. In the context of such histories, such laws and policies, what role did individual, personal choice have in safeguarding the reproductive dignity and safety of women of color? A poor Black pregnant person's diminished control over their reproductive future relative to that of a middle-class white woman underscores the lack of universality in the choice framework. Without a reckoning of the ways the choice framework perpetuates racial inequality in reproductive healthcare and access, pregnant people of color will continue to be vulnerable to the overreach of state power.

[. . .]

Emergencies can spark innovative reforms to prevent present harms from occurring again in the future. Reproductive freedom can be understood as the key to self-determination that has yet to be realized for all pregnant people, and the abortion bans implemented during the COVID-19 pandemic should serve as an opportunity for advocates to retool their strategy. An approach to reproductive freedom that focuses solely on the traditional constitutional foundation is insufficient to meet the moment that the COVID-19 pandemic demands; a reliance on choice and autonomy without equality will only reinforce the structural inequities that define the pandemic's toll. As long as the autonomy- and choice-centric status quo rules, pregnant people will continue to shoulder an increased burden, and pregnant people of color will experience even more acute marginalization. As long as states continue to hold their thumbs on the scales of reproductive freedom, especially when emboldened by an emergency to weaponize their duty to protect the public health, reproductive justice advocates require a new tactic that represents the socioeconomic context in which pregnant people seek healthcare.

Adjusting the constitutional foundation of the abortion right will not immediately fix the reproductive inequities that the pandemic exposes--just like the fight for racial and gender justice continues decades after the Supreme Court labeled discrimination on the basis of race and sex violative of equal protection. But advocates must do what antiabortion states have done: They must seize this moment. Emergencies can empower movements as well as states. If an inflated state cannot cure systemic injustice, the antidote might lie within the American promise of equality.

Ariane Frosh is a third year law student at the University of Colorado Law School.

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