Dobbs v. Jackson Women’s Health Organization, the Supreme Court decision that overturned Roe v. Wade and eliminated the constitutional right to an abortion, has vastly expanded the criminalization and punishment of pregnant people in the United States. In the year since Dobbs was decided, it has become clear that ongoing reproductive injustice must become part of the call for reparations for white supremacist and, more specifically, anti-Black violence.
To be clear, the criminalization of pregnancy outcomes is not new. Eight months before Dobbs, 21-year-old Comanche woman Brittney Poolaw was convicted of first-degree manslaughter and sentenced to four years in state prison for a miscarriage she suffered in January 2020.
However, the Supreme Court’s decision in Dobbs cleared the remaining obstacles in the paths of the anti-abortion zealots in our state legislatures who have long fought to see cases like Poolaw’s become more common for pregnant people in the U.S.
Less than one month after Dobbs, a 10-year-old victim of rape was forced to travel to the state of Indiana to obtain an abortion due to the six-week “trigger ban” that went into effect in her home state of Ohio immediately after the Supreme Court overturned Roe.
The following month, the State of Nebraska charged 41-year-old Jessica Burgess with “improperly disposing of human skeletal remains, concealing the death of another person, providing false information and performing an abortion without a license” for allegedly supporting her 17-year-old daughter through a self-managed abortion.
In October 2022, a Planned Parenthood in Jacksonville, Florida, aided a middle school-aged victim of incest with traveling from her home state to obtain an abortion, legally, elsewhere.
In December 2022, medical staff at Women’s Hospital in Baton Rouge could only offer prayers to the Joshua family, a Black married couple coping with a painful, second miscarriage — this one wholly unassisted due to Louisiana’s near-total abortion ban.
In March of this year, a Texas man filed a wrongful death lawsuit and is seeking over $1 million in damages from three of his ex-wife’s friends, who he alleges aided his ex-wife in self-managing her abortion while she was fighting to leave her abusive marriage.
With each passing month since Dobbs, more people, many of them children, poor, people of color and women, find themselves wholly stripped of their most basic, intimate human rights — the right to determine their own reproductive fate.
Reinstating Roe Would Not Be Enough
The history of reproductive violence in the United States shows that the Dobbs decision is far from being a wholly unprecedented denial of basic reproductive rights. Almost 100 years ago, the Supreme Court wielded this same judicial power against many of the same communities oppressed by Dobbs to permit state-sponsored involuntary sterilization.
Before Dobbs, there was Buck v. Bell (1927). In that case, by a vote of 8-1, the Supreme Court upheld a Virginia statute permitting the involuntary and coerced sterilization of persons deemed to be “afflicted with hereditary forms of insanity that are recurrent, idiocy, imbecility, feeble-mindedness or epilepsy.” This decision has never been overturned.
The story of plaintiff Carrie Buck is as simple as it is devastating. A pregnant teenage girl who alleged that a member of her foster family raped her, Buck was discredited as a victim, suspected of promiscuity and deemed “feeble-minded.” The State of Virginia then involuntarily sterilized her shortly after she gave birth to her child in 1924. A few years later, the U.S. Supreme Court ruled Virginia’s actions constitutional in the Buck v. Bell decision.
In the decade following Buck, over 20 U.S. states passed laws permitting involuntary sterilization. The State of Virginia performed approximately 8,300 sterilizations between the date Buck was decided and 1972. Nationally, U.S. states performed an estimated 70,000 involuntary or coerced sterilizations over the course of the 20th century.
On May 3, 2002, on the 75th anniversary of Buck, then Governor of Virginia Mark R. Warner issued a formal apology on behalf of the state for its sterilization statute. Warner’s apology was the first apology given by a U.S. governor for their state’s embrace of the eugenics movement.
In 2015, after decades of advocacy, the Virginia state legislature budgeted $400,000 to compensate living survivors of state-sponsored sterilizations at $25,000 each. Virginia is the second — following North Carolina — to take such action. California will soon become the third.
Roe has always been the floor and not the ceiling of our reproductive rights, and so we must demand more than the reinstatement of Roe.
What we now live through post-Dobbs — states contending for the title of “most restrictive abortion law in the country,” prosecutors and police officers zealously enforcing these laws and courts rubber-stamping it all — is precisely what our movements have been fighting since Buck. While sterilization legislation and anti-abortion legislation might seem very different, both kinds of laws serve one agenda — to control people’s bodies based on how little or how much our society values those people. Buck is to forced sterilization as Dobbs is to forced birth.
Understanding that reproductive justice movements are actually in a familiar rather than foreign place, we must demand compensation for state-sponsored reproductive violence and build a movement that can achieve full reparations for reproductive injustice. Roe has always been the floor and not the ceiling of our reproductive rights, and so we must demand more than the reinstatement of Roe.
The National Coalition of Blacks for Reparations in America (N’COBRA) defines reparations as “A process of repairing, healing and restoring a people injured … in violation of their fundamental human rights by governments, corporations, institutions and families. Those groups that have been injured have the right to obtain from the government, corporation, institution or family responsible for the injuries that which they need to repair and heal themselves.”
In international law, reparations require five elements: restitution, compensation, rehabilitation, satisfaction and assurances of nonrepetition. Together, these elements mandate direct compensation and full acknowledgement and apology for violence, but also action to restore communities devastated by violence and to totally end the laws and systems oppressing these communities.
Applying a reparations lens, reproductive justice movements should seek not just a reinstatement of Roe but an actual acknowledgement of the ongoing state-sanctioned reproductive violence of this time and the creation of community-based structures that support rather than violate and punish pregnant people.
This lesson — that we cannot rely on the courts to administer reproductive justice — is also taught through Buck. With Buck still the law of the land, 31 U.S. states and the District of Columbia have laws permitting involuntary permanent sterilizations. The state of Virginia, despite its financial reparations program, is among these states. Virginia law permits the involuntary or coerced sterilization of disabled people as young as 14 years old, subject to the approval of the circuit court.
Together, Buck and Dobbs show us that any reinstatement of Roe would be conditional — that any human right that the Supreme Court recognizes can just as easily if not more easily be taken away. If reproductive justice is our movement’s goal, we need reparations now.
When the group of Black women who coined the term “reproductive justice” first gathered in Chicago, Illinois, in June of 1994, these women correctly identified that the mainstream reproductive rights movement was unequipped to fight for the most marginalized people among us. Reproductive justice requires that each person have access to the care and resources necessary to determine their reproductive fate, including the decision to have children, not have children and to parent the children that they have in safe and sustainable communities.
Holistic reparations for reproductive injustice — whether it be involuntary sterilization, forced birth, preventable perinatal mortality or the killings of Black people by the state or by white vigilantes — require that we finally learn the lesson that it is us, not the Supreme Court, who are the defenders and protectors of our human rights.
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