A Critical Race Theory Reading of Roe v. Wade
The Constitution, one Black scholar argues, requires the abolition of slavery—and its vestiges, too.
(CW: discussion of slavery, misogynoir, racial violence)
COTTON ROOT BARK, I recently learned, was a common method used during slavery to induce abortion. So great were the incentives of the political economy of slavery that when, by the terms of the Constitution, the United States exited the international slave trade in 1808, the South turned inward to sustain the breakneck pace of agricultural harvesting and production that filled white coffers with cash. Slavers paired up their human property for mating as farmers might field animals. Because stillbirth could result in punishment, ensuring the viability of the fetus was a question of life or death for the mother, too.
At the time, these circumstances were constitutional.
Having read the leaked draft opinion in Dobbs v. Jackson Women’s Health did not lessen the shock of the Supreme Court’s decision Friday morning. My mind first gravitated toward the loved ones who may be affected and harmed by this decision. I also thought about the series of decisions, forces, and omissions that have gotten us to this point. In particular, I thought about the recent push to ban discussions about race in K–12 schools under the pretense of banning “critical race theory” (CRT).
One of my frustrations with the media coverage of that political story has been the definition of CRT solely as a framework that aims to examine the intersection of race and law. That definition, while accurate, is also reductive. It leaves room for misinterpretation, because everything interacts with race and law. During the confirmation hearings of Ketanji Brown Jackson, Republican Sen. Marsha Blackburn, of Tennessee, accused her of believing that “judges must consider critical race theory” when sentencing criminal defendants based on a passing mention she had made in a 2015 speech.
Critical race theory is, at its core, a legal theory about social relations—not individuals, but systems, narratives, and institutions. Like many of its critics, its proponents believe that race is a social construct. But unlike the critics, theorists in this school of thought are concerned with the fact that those systems and institutions have used race to organize society in hierarchies of inequality. Race was the primary determinant of one’s social status — and freedom — in the antebellum South. Consequently, it also determined bodily autonomy, from the freedom of movement to a woman’s decision to bear a child. Such freedom, Justice Samuel Alito said in Dobbs, appeared nowhere in the Constitution.
I recently got in the mail a book titled Critical Race Judgments, but never had occasion to open it. It’s a collection of landmark Supreme Court opinions, rewritten as if they had been decided through the lens of critical race theory—that is, seeking to undo the racial inequalities that allow certain people to exert control over others.
Melissa Murray, a professor of law at NYU Law, writes the chapter on Roe v. Wade. Because Roe affirmed the right to an abortion, the chapter is set up as a concurring opinion, in which Murray writes separately to argue that in addition to the majority opinion’s privacy grounds, the Constitution contains a separate clause that explicitly requires a right to seek an abortion.
“The Reconstruction Amendments,” she writes, “were purposefully crafted to abolish slavery, eliminate the vestigial aspects of that ‘peculiar institution,’ and establish the core rights of national citizenship.”Her opinion contends that the Thirteenth, Fourteenth, and Fifteenth Amendments actually mandate a broad right to bodily autonomy. (Post-Dobbs, other Black women scholars have advanced this claim, too.) She continues:
“Viewed through this lens — a desire to identify and mark the contours of freedom in a society that had only recently renounced slavery — the Reconstruction Amendments’ guarantees go beyond the plain terms of their language. Because the vestiges of slavery were broad and innumerable, the Amendments left open the definition of those contours. On this account, the Thirteenth Amendment did more than simply abolish slavery. Its prohibition of involuntary servitude and the badges and incidents of slavery made clear that the defining features of slavery would no longer be tolerated, whether under that peculiar institution or under some new iteration of it.”
Legislative schemes that tell pregnant people what they can or cannot due with their bodies, Murray argues, are such new iterations.
Notably, the Fourteenth Amendment appears 101 times throughout the Dobbs opinions. The right to privacy—a term that has been widely discussed in recent weeks and I have examined before—does come from the Fourteenth Amendment, which states that no state can “deprive any person of life, liberty, or property, without due process of law.” During the twentieth century, the Supreme Court held that in addition to the law acknowledging that some process is due before the state can take one’s rights away, the Court also had to define what those fundamental rights were to distinguish which deprivations required process—and substantive due process was born.
But that’s just one small portion of the Fourteenth Amendment. Murray urges the Court to think expansively, in systems, in narratives, in peculiar institutions. If the Court was willing to understand constitutional provisions not as self-contained cells on an Excel spreadsheet, but as part of a web of principles connected to each other, we’d have a different result:
“[T]he Reconstruction Amendments recognized that slavery’s status hierarchies were as painful and pernicious as the yoke and shackles of bondage themselves. They sought to address the vestiges of these hierarchies, which were often most perniciously felt in the intimate lives of enslaved persons. In this regard, beyond simply abolishing slavery and establishing the citizenship rights of newly freed African Americans, the Reconstruction Amendments also sought to address and redress slavery’s brutal impact on the intimate lives of enslaved men and women.”
The historical record in this respect makes plain that slaveowners placed a legion of conditions on Black people’s personhood. Because enslaved people could not enter into contracts, they could not marry. They had no parental rights. They had no agency, either, in selecting their sexual partners. As W.E.B. Du Bois writes in his seminal tract Black Reconstruction in America, cited by Murray, “the deliberate breeding of a strong, big field-hand stock could be carried out by selecting prospering males, and giving them the run of the likeliest females.”
Given these brutal trappings, women had to use what grew from the earth they trod to assert control over their bodies and resist the bludgeon of slavery. Because slavery was a matrilineal institution, the slave status of the child was determined by that of the mother. Thus, Murray writes, “many enslaved women went to great pains to contracept and deliberately miscarry pregnancies rather than see their children conscripted into a brutal system of physical and economic coercion.”
The scholar also notes that physicians also had a role to play, later on, in the birth of an abortion restrictionism that relied on medical cooperation with the state. Doctors shifted their focus to quelling the use of contraception and the practice of abortion among white, middle-class women so the white race could reproduce itself and, with it, the existing social order.
Therefore, Murray concludes,
“Because they were animated in part by an interest in perpetuating slavery and promoting pro-natalism among native-born whites, laws criminalizing abortion must be understood as an unchecked and overlooked vestige of the effort to promote and maintain slavery and white supremacy.”
Now, we all know the Supreme Court won’t be adopting either this reading of Roe or this theory of constitutional rights anytime soon. The Court has shifted so far right that its primary goal appears to be the preservation of traditional norms and not so much the end of slavery’s vestiges. (Hi, Clarence, welcome to the newsletter.) I can be pretty cynical, and think that all this is irrelevant because this is not what Roe held, and these inspirational sentences won’t reduce the carceral sentences many abortion providers will most immediately face.
But I am convinced the state can never invade our capacity to imagine more expansive, more inclusive futures. Whether formally acknowledged as legal or not, that power cannot be alienated.
Two more things!
A Twitter thread I found interesting:
A poem that I think about often and returned to after the reports of immigrants found dead in a truck in San Antonio:
