By Elizabeth Jekanowski
Edited by Emily McCaffrey
This article will investigate how institutions and policymakers have used the coercion, criminalization, and control of Black reproduction to uphold white supremacy. This paper will introduce the stark health disparities between Black and white women that underpin this discussion. It will ground us in the historical context of white institutions controlling Black bodies, constant since slavery, and present the reproductive justice framework to connect these far-flung, intersecting experiences. It will delve into the history of Norplant, a long-acting contraceptive, that state lawmakers utilized as an eugenic tool by connecting it to welfare programs. Finally, it will bring us to the present day’s continued criminalization of Black reproduction and offer a look forward.
In 2001, a year before the eponymous Norplant contraceptive left American shelves, Dorothy Roberts, Black lawyer and reproductive justice advocate, told Ms. Magazine, “The thing about reproduction is that, more than anything else, it tells you how a society values people.”1 For people who can become pregnant, the ability to decide whether or not to have children, and how to raise the children one has, is central to their liberation and self-fulfillment. Institutionalized control of this collective choice is essential to perpetuating hierarchical social structures and systems of inequity and power. Black communities have consistently fought for reproductive autonomy as a means for Black liberation.
This article centers Black women’s lives and thus captures only a portion of the rich and nuanced history of Black communities in the United States. There is limited space to address this spectrum of experiences, which this article attempts to acknowledge. While reproductive justice theory and this author both define “woman” as those who identify as such in mind, body or spirit and embrace the fluidity of this term, the limitations of data available engender this discussion to prioritize cisgendered women. By reflecting on the coercive uses of power and privilege to control vulnerable communities and uphold white supremacy, this article seeks to inform the reader’s policy analysis and advocacy, to wrestle with our responsibilities as policymakers to find equitable solutions and build just societies, and ultimately to challenge our definitions and the limitations of these very ideas.
RACIAL HEALTH DISPARITIES
Our present racial health disparities are symptomative of the institutionalized divide between communities constructed as socially valuable and those who are not, and they indicate Black women’s exclusion from the former. The differences between white and Black women’s health experiences are alarming and the following statistics offer only a glimpse of this divergence.2 Black women are 22 percent more likely to die from heart disease and 71 percent more likely to die from cervical cancer then white women. Most demonstratively, they are 243 percent more likely to die from pregnancy or childbirth.3
To reiterate, Black women are three times more likely to die from a pregnancy-related complication than white women with the exact same medical condition.4 This is true across educational and socioeconomic strata: in New York, Black college-educated women have more severe complications after childbirth than white women of the same age who did not graduate high school.5 Relatedly, Black infants are twice as likely to die before their first birthday than white infants — consistent across class and education — and the “weathering”6 of racial and sexual discrimination Black women face has shown to be a major determinant of infant and maternal health.7
Thus, while reproductive medical advances are benefiting white women and improving the health and vitality of white families, Black women — who are thrice as likely as white women to be the sole head of household8 (due in large part to mass incarceration of Black men since the Black-targeted War on Drugs in the 1980’s9) — are dying. A reproductive justice framework is an urgent and essential tool to dismantle the institutionalized white supremacy upholding these disparate realities.
REPRODUCTIVE JUSTICE FRAMEWORK
Reproductive justice is a paradigm shift from reproductive health and rights to a community-based, integrative human rights framework that centers women of color’s complex experiences navigating multiple and intersectional reproductive oppressions.10 While trans, Native, and women of color have fought for reproductive justice throughout their existence, Loretta Ross, Black activist and academician, co-founded the present term in 1994 after the International Conference on Population and Development in Cairo.11
Today, advocates continue to expand the movement’s scope and nuances, incorporating campaigns for disability justice, sex workers’ rights and safety, and modern abolitionism. Reproductive justice envisions a future in which all people can live out the full expressions of their reproductive lives with autonomy, dignity, and respect.12 By utilizing this framework, policymakers can center women of color’s reproductive liberation and dismantle institutions of violence and inequality.
REPRODUCTIVE POLICY AS COERCION
The white institutional control of Black reproduction is foundational to American policy and the nation’s rise to a global superpower, originating from the country’s first slave imports in 1619.13,14 This began a long history of lawmakers controlling and coercing Black women’s reproductive decision-making, the majority of which is out of scope for this article.
One illustrative example however, is the U.S.’s state-sanctioned sterilizations of communities deemed “unfit” to reproduce.15 Throughout the twentieth century, government officials in 32 states approved forced sterilizations of Black, poor, disabled and socially undesirable girls and women (including rape survivors), some as young as 10 — often without these women’s knowledge or consent.16
This state policy was within living memory: in 1976, North Carolina’s Supreme Court upheld the constitutionality of involuntary sterilizations in In Re Sterilization of Moore, asserting that the “welfare of all citizens should take precedence over the rights of individuals to procreate” and that it was the “duty” of the legislature to “preserve the race.”17 The Eugenics Board of North Carolina and its permissive involuntary sterilization laws remained until 2003.18 California had the most aggressive program, sterilizing over 20,000 people from 1919 to 1952 and accounting for more than one third of the roughly 55,000 officially reported eugenic sterilizations nationwide.19,20
CASE STUDY: NORPLANT
Policymakers’ use of the Norplant contraceptive, available in the U.S. from 1990-2002, is an illustrative case study revealing the intersections of power and privilege that coerce, control, and criminalize Black reproduction.
The first new contraceptive in 25 years, Norplant was made of six match-size plastic rods of progestin inserted under the skin of the upper arm, and was revolutionary for its 99 percent efficacy rate, five years of reliable pregnancy prevention, and its introduction to methods free of patient upkeep.21,22 Furthermore, the device was comparatively inexpensive, it worked immediately upon insertion, users could not interfere with its efficacy, its placement under the skin was easily visible, and only an advanced practitioner could remove it. Thus, Norplant’s unique characteristics — which made it appealing to people seeking convenient, long-lasting birth control — became the same qualities that enabled lawmakers to police women’s bodies, and Black women’s bodies in particular.23
By the early 1990’s, slavery’s legacy, compounded by ongoing social and economic discrimination, built the racial wage gap that prompted Black women to access government programs at disproportionally higher rates than their counterparts.24 Black women were five times more likely to receive welfare benefits than white women and three times more likely to be unemployed than white women.25 These increased government contact points amid a culture of racist stereotypes of Black mothers also enabled a higher likelihood of Black women being reported for child abuse than their white counterparts.26 As the aforementioned Dorothy Roberts explains, “Any policy directed at women on welfare will disproportionately affect Black women because such a large proportion of Black women rely on public assistance.”27 Within these economic and social constraints, Black women at the beginning of the 1990’s were significantly more vulnerable to government-sanctioned reproductive coercion than other communities.
Despite its initial fanfare, Norplant became a lightning rod for racially coded population control even before it hit shelves. In fact, the first Norplant trials were exclusively tested in Global South countries: Chile, India, and Brazil.28 Only two days after Norplant’s FDA approval in December 1990, The Philadelphia Inquirer published an op-ed entitled, “Poverty and Norplant — Can Contraception Reduce the Underclass?” specifically calling for Black women on welfare to obtain the device.29 The op-ed relied on stereotypes of Black women and welfare, and anti-poverty narratives holding people responsible for their own impoverishment while ignoring institutionalized class divisions and economic exploitation. Black employees at the Inquirer led “emotionally charged” staff meetings the following day addressing this racist suggestion.30 The Inquirer published a redaction and apology eleven days later, but the op-ed had already characterized Norplant’s national dialogue. Newspapers around the country published similar op-eds in the following weeks and the device became inextricably tied to white moralized assumptions about poverty and race.
Throughout the 1990’s, state legislators introduced a wave of punitive bills targeting female welfare recipients and incentivizing them to obtain Norplant. This would have effectively criminalized female welfare recipients’ independent and private medical decision-making, and disproportionately limited the reproduction of Black families in comparison to white families. Norplant’s creator, Dr. Sheldon J. Segal, voiced this overreach at their onset in 1991 when he explained, “When you single out a welfare mother, wave a $500 bill in front of her face and say that the government is going to induce you not to have children, you’ve gotten into a risky area, ethically and morally.”31 This new wave of constraints on Black women’s reproductive choices and personal dignity appeared in policies introduced throughout the decade.
In 1991 and 1992, 13 states introduced 20 legislative bills offering welfare recipients financial incentives to obtain Norplant.32 A Texas legislative bill in 1991 offered women $300 for obtaining the implant and an additional $200 if she kept it for five years.33 That same year, Kansas offered Norplant for free to female welfare recipients, with a $500 cash incentive and an additional $50 for each subsequent year she kept it.34 The bill’s sponsor, Representative Kerry Patrick, who described himself as a “pro-life Republican Presbyterian,”35 ceded his motivation for this bill as “encourag[ing] people to engage in a certain type of behavior.”36 This connection of women receiving welfare to immoral behavior emphasizes the pervading racist caricatures of hypersexual Black women and the Welfare Queen underpinning representatives’ motivations. Representative David Duke of Louisiana — also a Grand Wizard in the Ku Klux Klan — followed Patrick’s lead that same year and proposed an annual $100 incentive for the device.37 By forcing Black women to choose between feeding their families and maintaining their own bodily autonomy, these policies are cruel examples of American politics denigrating Black women’s humanity.
State lawmakers further tightened their grasp by making the incentivized Norplant financially costly to remove. Oklahoma’s Department of Public Health directed physicians to coerce women into keeping the device as long as possible, stating:
“It is not the intent of the Department to cover removal of the Norplant system prior to the expiration of five years unless there is documented medical necessity. Payment is not intended to be made for the removal of the contraceptive for the convenience of the patient, minor menstrual irregularities, or for the purpose of conception.” 38
This “documented medical necessity” did not include a woman’s decision to remove the device, a fact medical providers were not required to inform women of prior to Norplant’s insertion.39 In Oklahoma, South Dakota, and South Carolina,40 Medicaid only reimbursed providers if Norplant was removed at the end of five years, meaning providers — the only people who could safely remove the six rods — lost money if women wanted the device removed sooner.41 Thus, women living off less than $10,000 a year42 had to pay this cost (ranging from $150 to $500) themselves.43 This effectively trapped poor and Black women in sterilization for five years without their consent.
Policymakers moved quickly from incentivizing Norplant to mandating it. In 1992, North Carolina representatives introduced a bill mandating the implant for women on Medicaid who had an abortion.44 The following year, South Carolina introduced two pieces of legislation: when women with more than one child applied for welfare, the first bill required them to obtain Norplant before receiving their eligible benefits; the second bill stopped a woman’s benefits entirely until she got the device.45 Maryland Governor William Schaefer echoed this plan by proposing mandatory Norplant for all women on welfare46 and Ohio and Mississippi representatives introduced nearly identical bills soon after.47 These policies held the children’s lives hostage to control women’s medical decision-making. In 1994 alone, 12 states introduced 21 relevant bills: nine bills financially incentivized Norplant to women on welfare and female inmates; five mandated it for female substance-users; two denied welfare increases to women who refused the device; two encouraged public schools to market Norplant to students; one offered Norplant free to women at or below 185 percent of the Federal Poverty Line, and one offered tax credits to providers who inserted Norplant for welfare recipients.48 A single bill proposed prohibiting tying Norplant to welfare benefits.49
These bills would effectively target Black women and women of color. Black women account for 30 percent of the U.S.’s incarcerated women, despite being 13 percent of the American population.50 Tying Norplant use to welfare benefits, while expanding access to Norplant, similarly targeted Black women, women of color and low-income women and thus were also considered to be coercive in their motivations. Norplant was promoted in predominantly Black and low-income schools in cities (including Baltimore, Los Angeles, Chicago, and San Francisco) at disproportionately high rates even though nationally teen mothers were more likely to be white.51
Black activists, journalists, communities, and allies voiced their opposition from the start and were instrumental in defeating these proposed bills and stopping the introduction of similar legislation in the second half of the decade. In 1992, the Native American Women’s Reproductive Rights Coalition ran a full page ad in South Dakota’s The Lakota Times arguing it must be a person’s unrestrained choice to obtain Norplant, not one’s status as a welfare recipient.52 Black women in particular were wary of governmental incentives, due to their communities’ coerced sterilizations just years prior. Their leadership and grassroots organizing constructed the critical national dialogue and poor public image from which Norplant never escaped.
Women also took Norplant’s manufacturing company, Wyeth-Ayerst, to court over its failure to inform patients of the device’s side effects, particularly changes in menstrual cycles and infections at the insertion site. The FDA reported that 38 women were hospitalized from 1991 to 1993 due to difficult removals or infections, and posited the true number was likely much higher.53 In 1993, over 400 women filed the first class action lawsuit against Wyeth-Ayerst, and in three years over 50,000 women were represented in 180 lawsuits, 46 of which were class actions.54 By 1999, Wyeth-Ayerst had won three jury verdicts and had 14,000 claims against Norplant dismissed, but that same year its parent company American Home Products agreed to a cash settlement in a class action case over its exclusion of the device’s side effects from patient information.55 American Home Products paid out $54 million, allocating about $1,500 to each of the lawsuit’s 36,000 plaintiffs.56 Women’s conversations with each other about their experiences and negative side effects converged with the lawsuits’ negative publicity and activists’ organizing to dramatically reduce patient uptake: Norplant sales dropped from $120.7 million in 1997 to $4.4 million in 1992.57 Norplant was discontinued in 2002.58
TODAY: FROM COERCION TO CRIMINALIZATION
Although the Norplant welfare bills never lived past legislative floors, their ideological function of controlling Black reproduction and upholding white supremacy continues to appear in present policies. From Norplant’s example, we can learn how policymakers have addressed social problems — teenage mothers, poverty, welfare reform — by controlling the reproduction of communities with less institutional power. Roberts explains:
“Family planning policies never reduced the Black birthrate enough to [eliminate Black communities]. Rather, the chief danger of these policies is the legitimation of an oppressive social structure… By identifying procreation as the cause of Black people’s condition, they divert attention away from the political, social, and economic forces that maintain America’s racial order. This harm to the entire group compounds the harm to individual members who are denied the freedom to have children.” 59
Just as contemporary society reinvented Norplant — it remains alive today in its derivative contraception, the single rod Nexplanon60 — so too have policymakers continued to value white families at the expense of Black lives. Since the 1990’s, states have increasingly passed bills criminalizing women’s behavior during pregnancy. These bills threaten women’s agency, liberty, and reproductive decision-making and disproportionately target and harm Black women.
The legislative erosion of the right to reproductive healthcare takes multiple forms, but its convergence with the War on Drugs resulted in a new trend of current legislative bills: fetal harm laws. These state bills criminalize drug use while pregnant under charges including child abuse, chemical endangerment of a child and delivery of drugs to a minor (through the umbilical cord).61 While these bills are championed as protective measures for children, their motivations and implications contradict this claim: these bills favor punishment over treatment, disproportionately target Black women,62 and are motivated by the “personhood” belief that a fertilized egg, embryo, or fetus not only has the same rights as a human being, but is also an adversarial and independent entity whose interests should trump those of the pregnant person. Currently 24 states legally qualify substance use during pregnancy as child abuse and 38 states have feticide or “unborn victims of violence” acts.63 This is a punitive and carceral approach to a public health problem.
Although nationally white women use illegal substances while pregnant at higher rates than Black women, Black women’s behavior is disproportionally criminalized. Currently, 23 states require medical professionals to report suspected prenatal drug use to police,64 and these programs scare pregnant women from seeking prenatal care, leading to poorer health outcomes and higher rates of infant and maternal mortality.65 States that implemented mandatory testing programs have seen upwards of an 80 percent decline in prenatal care admissions.66 Black women bear the brunt of these laws at every point: they are more likely to be tested for drugs while pregnant and during delivery and are more likely to be reported, arrested, convicted, and incarcerated for drug use while pregnant.67 During South Carolina’s state-sanctioned mandatory prenatal testing program, 41 of the 42 women ultimately arrested were Black.68 (This program was implemented in public clinics and hospitals which statistically served more women of color and poor women, yet private obstetric offices within the same public hospitals were exempted).69 Similarly, in Florida, where Black and white women use illegal substances at similar rates, pregnant Black women are more than 10 times more likely to be subjected to mandatory reporting and arrest than white women.70 These laws are a legal extension of the criminalization and control of Black women’s reproduction under Norplant-welfare bills.71
The United States’ national identity originates from closely held beliefs in freedom, self-determination, and choice, yet these values are incongruent with historical and present policies criminalizing Black reproduction and upholding white supremacy. American institutions more highly value the freedom of certain people — namely white, wealthy, straight, cisgendered men — and normalize this framework to control populations outside this purview. As policy students situated to be at the forefront of national, state, and local leadership, it is our responsibility to create new tools to dismantle structures of violence, surveillance, and oppression. With a measured eye to the past and to build a more equitable future, we must question whose voices are amplified, whose freedoms are restricted and existences criminalized, and which leaders must be brought to the proverbial table. The reproductive justice framework is a critical tool for this shift in policy analysis and advocacy.