Dr. Katherine Simpson, FCIArb., of Simpson Dispute Resolution in the US and London, UK discusses the racist implications of Dobbs v. Jackson Women's Health Organization...
While the immediate threats to women’s access to healthcare are obvious, it could be years before the United States comes to terms with the gravity of the Dobbs v. Jackson Women’s Health Organization opinion. This brief essay focuses on why Dobbs is celebrated by white supremacists as an answer to “the great replacement,” a type of fear mongering that the white race is being “replaced” by non-white people. White supremacists have applauded the Dobbs v. Jackson Women’s Health Organization opinion and believe that the abortion bans that emerge as a result will force white women to have more babies, while at the same time condemning more non-white women to death or infertility due to pregnancy-related complications.
At first glance, it would appear that the Dobbs opinion and “replacement theory” could be at odds with one another. At footnote 41, Justice Alito referred to liberal access to abortion as supporting some sort of Black genocide, stating that “supporters (of liberal access to abortion) have been motivated by a desire to suppress the size of the African American population. And it is beyond dispute that Roe has had that demographic effect.” This makes it appear as though the Supreme Court is interested in protecting Black lives. But with his simplistic pen stroke, Justice Alito robs all decision-making women of their autonomy to choose, while casting them as genocidal. His treatment of women—of Black women—is, as Professor Benjamin Davis puts it, “Sanctimonious Barbarity.”
One might still wonder, how it could be that an abortion ban—which would force unwilling white women and non-white women alike to carry to term—would end up forcing white women to reproduce while condemning non-white women to death. The short answer is that there are racial disparities in access to health care, and these disparities result in a higher incidence of maternal mortality among women of color. This was recognized by Senator Bill Cassidy, who remarked that the maternal mortality rates in his state of Louisiana were on par with the rest of the United States, so long as no one counted Black women.
As Professor Amanda Jane Stevenson explains, “the pregnancy-related death rate for non-Hispanic Black women is about three times higher than for non-Hispanic white women and Hispanic or Latino women, likely because of structural racism, biases in health care provision and disparities in health care access, among other reasons.”
Before Dobbs, before any state had criminalized abortion, a woman was fourteen times more likely to die by carrying a pregnancy to term than by having an abortion. Professor Amanda Stevenson estimates that, in the event of a nation-wide abortion ban, “the annual number of pregnancy-related deaths would increase by 21% overall, or 140 additional deaths, by the second year after a ban.” While the risk of death would increase by 21 percent overall, non-Hispanic Black women would face an increase of 33 percent, translated to 78 additional and unnecessary deaths of Black women each year.
Because of these disproportionate effects, a ban on abortion could change the country’s racial demographics. This is likely why opponents to racial equality have celebrated this ruling and made the connection between “banning abortion” and “saving the white race.” On June 25, 2022, Republican Congresswoman Mary Miller praised Mr. Trump for the Dobbs decision, stating, “I want to thank you for the historic victory for white life in the Supreme Court yesterday.”
Even before Ms. Miller’s statement, which she later stated was an error, there was coverage on the relationship between banning abortion on the one hand and resolving “the great replacement” on the other, including reporting on the recent mass shooting in Buffalo, New York:
The anti-abortion movement was born in the 19th century of white fears of a declining white birth rate, says Jennifer Holland, assistant professor of history at the University of Oklahoma. The idea was that by allowing white women to receive abortions, lawmakers were leaving white populations vulnerable to demographic “replacement” by non-white or immigrant groups with higher birth rates. In the 1870s and ’80s, the fear was primarily focused on Jewish and Catholic immigrants, especially those from Italy or Ireland, who had higher birthrates than white Protestants at the time; now, white power organizations that embrace “replacement theory” focus on Black and Latino communities, which have higher birth rates than whites.
While the Buffalo gunman did not explicitly mention the word “abortion” in his manifesto, he references birth rates more than 40 times, according to a TIME analysis, and repeatedly expresses his belief that “white birth rates must change.”
Feminist thinkers have also recognized the connection between abortion bans and replacement theory.
Thus, it is fair to say that if abortions are banned and the women who receive them or the doctors who perform them are subject to criminal prosecution (Michigan, 1931 Act) or civil penalty (Texas), more white women will have babies, and more non-white women will die in childbirth and of related childbirth complications.
But those projections assume a Roe v. Wade status quo, where women had access to other medical care. Abortion bans and the criminalization of doctors who contribute to a miscarriage could have the result that no woman of reproductive access can access health care.
Counts vary on the number of women of reproductive age in the United States. While typical estimates refer only to women aged 15 to 49, the youngest mother ever on record was only 5 when she gave birth, after becoming impregnated at the age of 4. The oldest woman to ever give birth had twins in 2019, at the age of 74.
The changes in law force doctors who are interested in defending themselves against potential criminal liability to view each woman, aged 4 to 74, as a potential pregnancy risk. States that criminalize pregnancy termination (which includes both voluntary abortion and involuntary abortion, like miscarriage) and/or the doctors who perform it (as Michigan’s 1931 law would do) could make it impossible for women of childbearing age to access all medical care. For example, if a fall can cause a miscarriage, why not a shock or startle one could get from a Covid swab? If any infection can cause a miscarriage, what about bacterial infections following dental care? What about care that one might receive before a woman knows she is pregnant? The potential for any medical intervention or treatment to carry the possibility of a felony prosecution for murder will make doctors reluctant or unwilling to treat female patients at all. The implications of Dobbs reach far beyond voluntary pregnancy termination, more commonly known as “abortion.” This opinion could undermine medical care for all women of childbearing age in the United States.
Women’s health care has long been a mismatch of rights and obligations, with women carrying obligations despite lacking rights. Even under Roe, doctors were free to turn pregnant patients away if they did not present in an emergency room. Congress could act, perhaps as a first step, by giving women an enforceable right to general, non-emergency medical care with the physician of her choosing. After all, if the Supreme Court is willing to let the rapist choose the mother of his children, the very least Congress can do is to give each woman a right to care by the doctor of her choosing.
Dr. Katherine Simpson, FCIArb., is an international arbitrator with offices in the US (Simpson Dispute Resolution) and London (33 Bedford Row Chambers). Katherine has taught international commercial arbitration at the University of Michigan Law School (Adjunct Professor). She is a licensed attorney (Maryland, New Jersey) and recently co-authored “The New List: Arbitrators of African Descent.”
Suggested citation: Katherine Simpson, The Appalling Rule of Forced Pregnancy, JURIST – Professional Commentary, July 6, 2022, https://www.jurist.org/commentary/2022/07/katherine-simpson-abortion-dobbs-racism/.
This article was prepared for publication by Rebekah Yeager-Malkin, JURIST Deputy Commentary Manager. Please direct any questions or comments to she/her/hers at firstname.lastname@example.org
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