Dorothy Roberts has been writing about the criminalization and surveillance of black women and their bodies for years now, dating back to the hysteria over so- called “crack babies” in the 1980s. She is the George A. Weiss University Professor of Law at the University of Pennsylvania, where she directs the Penn Program on race, science and society. She is the author of four books, and her most recent book is . “Torn Apart: How the Child Welfare System Destroys Black Families – and How Abolition Can Build a Safer World.” (Basic Books 2022). She joined me on the Amicus podcast last weekend to talk about the ways in which criminalizing miscarriage, abortion, and motherhood are all part of a long tradition of American law, but these laws tended to target Black women. What she describes is a world in which mothers face a lose-lose legal regime in which they cannot terminate their pregnancies, and are also not permitted by the state to raise their children. Our conversation has been edited lightly for clarity.
Dahlia Lithwick: Professor Katherine Franke came on the show after Dobbs was argued. And she really reminded us that these rights to bodily integrity, to family autonomy, to bodily dignity, and the ability to raise your children as you see fit, and to abort, have always been ephemeral in this country. All throughout history, and certainly in some jurisdictions, she was very pointed in saying, Roe was a “paper right” if you were a black woman in Mississippi and Alabama long before Dobbs came down. And I just want to help orient this conversation around what you’re about to describe to us, what you describe in all of your work – not just this most recent book – is a reality that I think a lot of people didn’t know didn’t just start happening last week with Dobbs.
Dorothy Roberts: That’s absolutely right. Much of my work, my book, “Killing the Black Body,” for example, supported the legal right to abortion. But it also focused more so on the vast ways in which black women’s reproduction has been regulated, controlled, devalued since the time of slavery. And of course, the Supreme Court held very soon after Roe v. Wade, that there was no legal right to funding for abortion. So, we already knew early on that this was a limited right.
But in the case of black women, they faced just as much the punishment for having children, and state policies that sought to deter or prevent black women from having children. Federal government policies that encouraged coercing black women to be sterilized all throughout the 1960s and 1970s. Doctors who tricked black women into being sterilized, sterilized them without their consent. A long history of this, as well as the prosecutions then in the late 1980s and into the 1990s, with black mothers who were pregnant and smoked crack cocaine in the late 1980s. This all stepped up in the 1990s, with the prosecutions of Black women for still birth, and miscarriages, which I explained as punishing black women for having babies.
And part of this is a longstanding history of penalizing, devaluing black women’s childbearing. Today, we see that there is very clearly an anti-abortion right-wing strategy of reproductive control that includes both the criminalization of people who want to have babies and the criminalization of those seeking abortions. If we recognize this, the harms of Dobbs are even more catastrophic and call us to be even more expansive in our understanding of reproductive freedom and our fight for it.
Dahlia: You’re describing, if I’m hearing you correctly, in this moment, this “Gordian knot,” where on the one hand, we are criminalizing, surveilling, and prosecuting abortion. On the other hand, we are policing and criminalizing motherhood, which will lead to more and more impoverished mothers and child removals. There’s no way out of this double bind you’re describing.
Dorothy: We have to understand how criminalization is connected to the fallout of the Dobbs decision.And criminalization expands beyond the criminalization of abortion. It’s also the criminalization of having children; the criminalization of being a mother in a racist white supremacist society that doesn’t meet people’s needs, but instead blames mothers for the hardships that their children face. All of this is connected.
We could see, for example, the connection between family separation and compelled pregnancy in the way that adoption is being promoted as the solution to both. Why is it that we are in a time where families are routinely torn apart by a so-called child welfare system? And the answer embedded in federal policy is to get those children adopted, take them from their family caregivers and get them adopted. Not to support families, but to tear families apart and place their children up for adoption.
At the same time, we see adoption being promoted as the solution to compelled pregnancy. What does Justice Amy Coney Barrett say in the Dobbs argument? And Justice Samuel Alito then puts this in the majority opinion in Dobbs. The answer is to be compelled to carry a pregnancy to term, and then, turn over the baby to a so-called safe haven to be adopted. And Alito has the nerve to put in a footnote that this will ease the demand for adoptable children. Why is it that we see this so-called solution being promoted? Because it is a way of diverting attention from the deep structural reasons why there are children with unmet needs. Blaming primarily mothers, and especially black mothers for it, and then supporting policies that control their reproductive lives, whether they have children or they want to terminate the pregnancy, and turn to a private solution of adoption, which has always been primarily children going from less privileged families into more privileged families.
This is an agenda that supports a white male elite against everyone else and supports a view of society that says caregivers are not to be supported. They are to be blamed. And we will not acknowledge the structural reasons why mothers are struggling to take care of their children; why it is that the result of Dobbs is going to be more children with unmet needs. And this doesn’t mean that abortion is the solution to childhood poverty. It means that banning abortion is going to increase childhood poverty.
Dahlia: And I just want to commend to listeners the New York Times piece: Who Will Help Care for Texas’s Post-Roe Babies, which is essentially just a materialization of the point that you have just made, which is forcing women who cannot afford to have three children to then have a fourth, even if a crisis pregnancy center gives her diapers and a little bit of a respite, it in no way solves her ongoing material needs. And there’s no system to move in and solve for that. One of the things that you start with in your book is a statistic: A recent study by the American Journal of Public Health found that 53 percent of all black children in the United States will experience a child welfare investigation by the time they’re 18. That’s almost twice the prevalence for white children.
Dorothy: Yes, it is absolutely astounding. That is a huge number of children and families under investigation. And we have to remember that these investigations are traumatic. They’re disruptive. Children are often strip searched during them. Every aspect of a family’s lives becomes subject to inspection by the state. And they often end in family separation and could eventually end in the permanent severing of family ties. And compelling people to carry pregnancies to term is only going to increase the number of families under surveillance. Because the very families who are being investigated, mostly for neglect, which is confused with poverty, are the very ones who are suffering and struggling the most because of structural inequities.
It’s important to note that the very states that have trigger laws, that are now banning abortion, that are placing the most severe restrictions on abortion, are the very same ones that have the highest maternal mortality rates, and infant mortality rates, these states in the South, that also have the largest share of black populations.
And the black maternal mortality rate is three to four times higher than for white women. That’s deaths by pregnancy-related causes. Now before Roe v. Wade, the reason that bans on abortion caused deaths was largely because of unsafe abortions. Today, it’s probably going to be mostly because of unsafe pregnancies and women forced to carry a pregnancy to term under unsafe conditions because of the circumstances of their lives. But also because of the fear that this decision is going to put on doctors and healthcare providers to take good care of pregnant women because of the fear that they might be criminalized for it. It’s just atrocious to even say that; that a doctor would be afraid to care for the life of someone because of a fear they would be criminalized for caring for someone’s life. That should be seen as so abominable, we wouldn’t even think about it in a so-called civilized democratic society.
These states that are banning abortion are the ones that are the riskiest for black women to be pregnant. They have the highest poverty rates. They have the highest childhood poverty rates. They have the worst healthcare systems. They have the fewest supports for struggling families. And so, the contradiction of compelling pregnancy in a state that has the worst care for birthing people and where the death rates of black women from pregnancy-related causes are the highest, tells us that the outcome of Dobbs and all of this surrounding context we’ve been talking about is deadly, especially for black women, and also for indigenous women, for trans people, for other marginalized people, exploited people who suffer the most under deep structural inequities in this nation.