As the state-sanctioned assault on the reproductive rights movement continues, legal mechanisms and healthcare institutions are furthering racialized disparities.
By Ella Chin
DEC 21, 2024
During the most recent 2024 term, the Supreme Court heard two critical, but less-well known, abortion protection cases. In FDA v. Alliance for Hippocratic Medicine, the Supreme Court ruled that the four pro-life medical associations, and several individual doctors, did not have the standing to challenge the constitutionality of the FDA’s approval and regulations for the widely-used abortion medication, mifepristone. The Court’s June 13th decision reversed the previous instated injunction, allowing the medication to remain accessible on the markets. The Court, however, issued no decision on whether or not the FDA’s regulations were, in fact, legal.
Only two weeks later in Moyle v. United States, the Court reinstated the lower court’s decision that the state of Idaho cannot constitutionally enforce its restrictive law that criminalizes abortions to the extent it conflicts with the Emergency Medical Treatment and Labor Act, or the EMTALA. Despite this temporary protection for abortions, the Court ultimately dismissed the case and the clash between EMTALA and Idaho’s abortion laws remain, illustrating a broader complication of navigating state and federal regulations for abortion that hinders patient accessibility.
Above all, the cases illustrate that even after the Court issued the detrimental decision Dobbs v. Jackson in 2022 (which overturned Roe v. Wade, the landmark 1973 decision that instituted the federal right to an abortion), it is clear that the battle to eliminate existing protections for reproductive rights continues. The overturn of Roe v. Wade was far from the worst of it.
The breadth of the advocacy groups that submitted amicus briefs to the Court for Dobbs v. Jackson—The National Asian Pacific American Women’s Forum (NAPAWF), Asian Americans Advancing Justice (AAJC), and Puerto Rican organization Nacional Por El Aborto Libre (National Campaign for Legal, Safe, and Free Abortion)—demonstrates the far reaching stakes for reproductive justice. According to 2021 data from the Pew Research Center, 42% of all women who had abortions in the District of Columbia, New York City, and 31 other states were non-Hispanic Black and 22% were Hispanic. The International Journal of Environmental Research and Public Health found that in New York City, the abortion usage within the Asian American community had not decreased compared to other racial groups from 2011 to 2015. In fact, the abortion rate for Indian women was roughly three times the average for the overall Asian American community sampled.
Despite these facts, the mainstream reproductive rights movement has historically been fronted by white women. In 2021, the National Committee for Responsible Philanthropy found that predominantly white reproductive rights organizations make up the top 20 recipients of funding for the cause. This is a glaring problem. There cannot be a successful and complete fight for reproductive rights as long as cultural, economic, and racial barriers effectively exclude communities of color and their experiences. Reproductive justice is intertwined with racial justice.
However, a multitude of cultural and racialized barriers remain unheard and unseen in the fight for reproductive rights. For example, language barriers place a significant burden on individuals of color in navigating the complexities of individual state abortion bans. The amicus brief submitted by both the NAPAWF and the Asian Americans’ AAJC for Dobbs v. Jackson cites that “over one third of Asian Americans report limited English proficiency” and that the AAPI community consists of over 100 languages and dialects. According to a 2024 study by the Kaiser Family Foundation, 26% of Hispanic women ages 18-49 and 10% of Native Hawaiian and Pacific Islander women speak English “less than very well.” Within the context of a healthcare system that already perpetuates inequality and inaccessibility for subordinated peoples, women of color are increasingly facing new and particular barriers to becoming informed of ever-changing restrictions.
The intersection between US racial stratification and economic disparities also undeniably bars adequate access to healthcare and reproductive services for women of color. According to the amicus brief submitted by the National Women’s Law Center for Moyle v. United States, Asian Americans, Native Hawaiians, and Pacific Islanders, Black, Indigenous, and Latinx populations are significantly more likely to be uninsured than their white counterparts for healthcare. In addition to being uninsured at higher rates, in the same amicus brief, the NAPAWF reported that “on average, AAPI women working full-time are paid 85 cents for every dollar paid to their white male counterparts,” illustrating not only accessibility, but affordability as an economic hurdle to overcome for access to care. These disparities remain unseen in the greater movement for reproductive justice, but individual state abortion regulations are further perpetuating these economic disparities. For the oft-conflated and homogenized AAPI community, the model minority myth further conceals the economic disparities that bars them from abortion and reproductive care, disregarding the community’s stakes in the fight for reproductive justice.
This October in Houston, Texas, Josseli Barnica experienced a miscarriage at 17 weeks, which put her at risk for an infection if the hospital did not perform an abortion or empty her uterus. Due to the state’s abortion ban, medical professionals could not perform any procedure for Barnica until the heartbeat of the fetus stopped. Days after her delivery, Barnica died from a sepsis infection. Barnica’s case illustrates greater complications in the movement for reproductive justice. Not only are medical professionals in states with abortion bans now confronted with the legal bind of compromising their medical integrity or possibly facing prosecution, but the legal ability to provide an abortion—and therefore prevent a woman’s potential death—is entirely dependent on the state. Had Barnica been in another state where abortion bans were legal, her death could have been averted. But not all women of color have access or means to travel out of state for abortions. Given that some communities of color already have higher rates of abortion compared to their white counterparts (due to limited access to contraceptives and healthcare), the lack of resources to travel creates a compounding of inequalities such that women of color are both disproportionately in need of, and unable to access, abortions. It is clear that without first recognizing the clear economic hurdles people of color confront, access to abortion and healthcare will remain dangerously inequitable.
In thinking about the need to decenter whiteness from the ongoing fight for reproductive rights, we must also remember that the United States has always weaponized the control of women of color’s bodies as a vehicle to perpetuate white supremacy and systemic oppression. Many of the Supreme Court’s decisions reflect the country’s roots in eugenics, most notably when the Court upheld forced sterilization of “unfit” individuals in Buck v. Bell (1927). In this case, the Court reasoned that the Virginia statute that authorized sterilizations was for the welfare and best interest of society. The same legal doctrine was later used to justify government-funded “family programs,” that pushed compulsory sterilization of roughly 100,000 BIPOC women who were seen as “unfit” to reproduce. In other words, these sterilizations were in the “best interest” for society. In reality, these policies and legal mechanisms were grounded in the view that minority populations are so deeply inferior that their existence, and continued reproduction, are a blight on society, one that threatens the structures of the human race (the white race).
The government continues to justify the policing of non-white bodies under the guise of what is best for society (white domination) even today. Similar mechanisms used to enforce abortion bans are rooted in racist and discriminatory stereotypes against communities of color. One example is sex-selective abortion bans, which prevent individuals from seeking an abortion on the grounds of sex of the fetus. Within the past decade, several states including Arizona, Illinois, Kansas, North Dakota, and North Carolina enacted sex-selective abortion bans and others continue to evaluate bills for these bans. Harmful Asian stereotypes (mainly that Asian cultures favor sons over daughters, and that Asian women are more likely to get abortions if they predict they will give birth to a girl) justify such bans. Former South Dakota State Representative, Stace Nelson, on considering South Dakota’s sex-selective abortion ban said, “Many of you know I spent 18 years in Asia, and sadly I can tell you that the rest of the world does not value the lives of women as much as I value the lives of my daughters.” What this rhetoric does is reinforce stereotypes veiled as what is “best” for women while also upholding the structures of white supremacy through the control of non-white bodies. Enforcement of these bans are just one way to criminalize the pregnancies of individuals in the AAPI community and prevent their access to abortion care.
At this point, it is worth noting that the two cases from earlier this June—FDA v. Alliance for Hippocratic Medicine and Moyle v. United States—each had a key element in their rulings: the Supreme Court did not rule on the constitutionality of these abortion protections. As Justice Ketanji Brown Jackson wrote in her dissent for Moyle, “[the] decision is not a victory for pregnant patients in Idaho. It is delay. While this Court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires.” This paints the greater implications for the two cases: any existing abortion protections—at the state and federal level—remain in jeopardy. Mifepristone and emergency abortions required by the federal government may present themselves again before the Court, standing on the chopping block of the conservative majority. There is nothing stopping another party from challenging these protections (as all it takes is for them to prove standing) and the conservative Court from striking them down. The movement for reproductive justice cannot afford, while the assault on abortion protections continue, to ignore the experiences and challenges of minorities and people of color. The Court will continue to hear cases that endanger protections to reproductive rights, so to ensure that the fight for reproductive rights is successful, it is imperative we remove the cultural, economic, and racial barriers for abortion care.
Ella Chin is a philosophy and economics major at Northeastern University.
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