Document Type

Article

Publication Date

2013

Publication Title

Yale Journal of Law & Feminism

Publication Title (Abbreviation)

Yale J.L. & Feminism

Volume

25

Issue

1

First Page

1

Last Page

50

Abstract

Questions of race and abortion have shaped current legal debates about defunding Planned Parenthood and banning race-selection abortion. In these discussions, abortion opponents draw a close connection between the eugenic or population-control movements of the twentieth century and the contemporary abortion-rights movement. In challenging legal restrictions on abortion, abortion-rights activists generally insist that their movement and its predecessors have primarily privileged reproductive choice.

Notwithstanding the centrality of race to abortion politics, there has been no meaningful history of the racial politics of abortion that produced or followed Roe v. Wade. This Article bridges this gap in the abortion discussion by focusing on the racial politics of abortion in the 1970s. In the 1970s, some population controllers did have ties to the eugenic legal reform movement or a particular interest in limiting the growth of poor, non-white populations. Those most closely involved with the abortion-rights movement, however, primarily focused on family planning for white, middle-class families, emphasizing the importance of environmental stewardship and sexual liberation. Arguments treating the abortion-rights, population-control, and eugenics movements as indistinguishable from one another are flawed.

At the same time, by reinterpreting Roe, feminists created new opportunities to reshape the racial politics of abortion. By defending their own understanding of the opinion against anti-abortion attack, feminists were able to redefine abortion as a right that belonged to women irrespective of its political consequences.

In telling the story of Roe’s racial politics, we can gain new insight into legislative battles on laws defunding Planned Parenthood or banning race-selection abortions. Legislators sponsoring these laws at times raise important questions about the disproportionately high number of African American women who have abortions. Racial disparities in access to reproductive health care are real and disturbing, but as the history offered here suggests, legislators cannot address those disparities by punishing clinics on the basis of the history of race, population control, and abortion.

The materials presented here also speak to upcoming juridical battles about defunding and race selection. The issue of legislative intent figures centrally in doctrinal disputes under the Bill of Attainder Clause, the undue-burden test, and the First and Fourteenth Amendments. The desire to address the present impact of past racism may be sincere, but legislation of this kind does not address a present danger of racial bias. As the history of the racial politics of abortion makes clear, contemporary legislative concerns about racism and abortion are overstated. A better understanding of the racial history of abortion should reinforce, rather than undermine, judicial concerns about the true purpose of laws said to address racism and abortion.

Rights

© 2013 Mary Ziegler

Comments

First published in Yale Journal of Law & Feminism.

Faculty Biography

http://www.law.fsu.edu/our-faculty/profiles/ziegler