The Unsurprising Overturn of Roe v. Wade:
A Black Feminist Reflection

June 24, 2022 is the new date that has been added to the U.S. reproductive justice and politics timeline. It was the day that the U.S. Supreme Court announced its decision for Dobbs v. Jackson Women’s Health Organization, a case that challenged Mississippi’s 15-week abortion ban, one of other similar “heartbeat bills” that existed in multiple states. These laws prohibit abortions at the point in which a fetal heartbeat can be detected, sometimes as early as 6 weeks of gestation (Donovan 2020). Dobbs not only deemed that these bans were constitutional, but it would also become the decision that ultimately reversed Roe v. Wade, the landmark case that legalized abortion in the United States in 1973. Once again, individual states have the right to severely restrict or outright ban abortion. At least half of the states in the U.S have done so since Dobbs as predicted by policy researchers and analysts. Many of these states had laws or constitutional amendments (i.e. so-called “trigger laws”) in place in anticipation of Roe’s repeal (Nash and Cross 2021).

The initial leak of the decision by online news media site Politico in May 2022 caused a flurry of lively and anxiety-ridden discussion within my personal and professional networks of friends, colleagues, and acquaintances (Gerstein and Ward 2022). What would this mean for the future of reproductive politics and reproductive justice in the United States? Will this country revert to the precarious conditions that existed before Roe? What other social and political issues will this U.S. Supreme Court target next? Contraception? Marriage Equality? Voting Rights? The list could go on. Unfortunately, Associate Justice Clarence Thomas confirmed our worst fears in his concurring opinion. Criticizing the premise on which Roe was originally decided, Thomas argued, “…[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous…’” (Dobbs, p. 3). In other words, the U.S. Supreme court should re-assess its decisions regarding contraception, sodomy, and same sex marriage, respectively.

This decision, the prior leak, and the recent publication of my book Reproductive Politics in the United States has made 2022 a very busy year for me professionally. In the aftermath, I have been invited to participate in a slew of activities, including guest lectures, panel discussions, webinars, briefings, and podcasts, to make sense of what a post-Roe, post-Dobbs world will look like. I have spoken to audiences of students, professors, and researchers in a variety of disciplines—public affairs, law, political science, women’s and gender studies, architecture, and global health to name a few. I have even met with a group of Black queer elected officials. I have also written analytical commentaries for a couple of national news sources, and I have been interviewed by reporters. The requests keep coming and have not shown any signs of slowing down.

I have been asked to share strategies for teaching Dobbs in the classroom and to discuss the impact of this decision on women of color and other marginalized communities. I have even had a thought-provoking discussion with a group of students about how reproductive politics and policy can have an impact on how architects design clinics. They want to design clinical spaces that are welcoming, efficient, and aesthetically pleasing as well as safe and secure, but are wary of the politics that can impede those goals. There was one recurring question I have been asked: What was your initial reaction to the announcement of this decision? I experienced a range of emotions: sadness, frustration, anxiety, rage, and grief. In fact, the grieving process began while the court was still hearing the legal arguments. The court’s deliberations coincidentally coincided with the semester that I was teaching my reproductive rights and justice course, casting a pall of fear, anxiety, and anger that affected my students in deeply profound ways. However, I can honestly say that I was neither shocked nor surprised. As a scholar and long-time activist of reproductive justice and politics, I saw this coming, as this decision was decades in the making. It is the culmination of 50 years of incremental attacks on abortion access by the anti-abortion movement, a social movement comprising the Catholic Church, evangelical Protestants, “pro-life” advocacy organizations, and conservative political leaders (Price 2021, Rose 2007). In the 1980s, this movement persuaded the Republican Party to adopt an anti-abortion stance in its political platform. Prior to the 1980s and the election of Ronald Reagan into the U.S. presidency, Republicans had been supportive of abortion and family planning programs. In fact, Title X, which grants funding to clinics for family planning services, was passed in the U.S. Congress with bipartisan support and was signed into law by a Republican president, Richard Nixon, in 1972. In 1976, the Hyde Amendment, which prohibits the use of federal funds to pay for abortions, was passed by Congress. This means that Medicaid funds, a health insurance program for low-income people, federal employee and military health plans, and federal facilities cannot be used to pay for and/or provide abortions. Many individual states subsequently adopted their own versions of the Hyde Amendment. These laws have been upheld in subsequent U.S. Supreme Court decisions, such as Harris v. McRae (1980) and Williams v. Zbaraz (1980) (Price 2021, Rose 2007).

Anti-abortion policymakers and advocates employed a political strategy focused on introducing and implementing state laws that restrict access to abortions. The goal was to regulate abortion out of existence and, possibly, force a legal challenge that would make its way to the U.S. Supreme Court who may be convinced to reconsider Roe. Since 1973, more than 1,300 restrictive state laws have been enacted (Nash 2021). Many states, for example, have imposed waiting periods ranging from 24 to 72 hours and parental consent or notification for teens seeking abortions. Many states require pre-procedure mandatory counseling, which often promotes misinformation about abortion and fetal development, including refuted claims that abortion can cause breast cancer and severe mental health problems (Guttmacher Institute 2022, 2020a). Under the premise of protecting patient safety, some states have enacted TRAP (Targeted Regulation of Abortion Providers) laws, which impose additional stricter regulations that specifically target abortion providers. These regulations are often at the same level as those for ambulatory surgical centers which perform riskier and more invasive procedures; these are standards that are not necessary for abortion clinics. TRAP laws only generate additional expenses—especially for building construction—for clinics and have forced some clinics to close because they do not have the money to comply with the regulations (Guttmacher Institute 2020b).

Even though Roe v. Wade (1973) made it clear that states could not place any restrictions on abortions during the first trimester of pregnancy (i.e. the first 13 weeks), many of these restrictions were upheld by the U.S. Supreme Court, notably in Webster v. Reproductive Health Services (1989) and Planned Parenthood v. Casey (1992). Anti-abortion leaders had hoped that the U.S. Supreme Court would reconsider the Roe decision in the Webster and Casey cases, but the court decided that Roe was still good law on those occasions. However, the court did use the Casey decision to introduce a new standard, the “undue burden” test, for deciding whether an abortion restriction was constitutional or not. It defined an undue burden as any state regulation that placed a substantial obstacle that made it difficult for a pregnant person to seek an abortion—before a fetal viability, the point at which a fetus can survive outside of the uterus if born prematurely. However, there was not any clear guidance of how to determine what an undue burden, or substantial obstacle, is. This ambiguity only further encouraged anti-abortion advocates and lawmakers to test the limits of the law. With a conservative majority in the U.S. Supreme Court by 2021 and a “fetal heartbeat bill” at the center of the controversy, Dobbs v. Jackson Women’s Health Organization ultimately became the case that would reverse Roe. There was one sentiment that surfaced in many of my conversations: We should listen to Black women (queer and nonqueer alike). For decades, Black women activists have been ringing the alarm that abortion rights and reproductive freedom were in a precarious state, but it seemed that no one was listening or taking our premonitions seriously enough. I am not suggesting that Black women have otherworldly superpowers, nor do I want to tap into the “strong black woman” stereotype (Collins 1990). Although the “strong black woman” trope is often intended to be a compliment that acknowledges and celebrates the resilience and independence of Black women, the trope denies Black women of our vulnerabilities and strips us of our humanity. It glosses over the historical exploitation of our physical, caretaking, and emotional labor and the subsequent physical, psychological and mental toll that exploitation has taken on us individually and collectively (Carter and Rossi 2019, Donovan and West 2015).

Instead, I am arguing that Black women have a specific standpoint that provides them with a unique vantage point that allows them to acquire knowledge and perceptions that might be overlooked, ignored, or simply unknown by other social groups. As a marginalized community, Black women are not only conscious of their own predicament and experiences, but they are also often cognizant of the actions, opinions, and perceptions of the dominant culture. They must possess this multiple consciousness for their own survival, given that marginalized groups are usually the first to be targeted and affected by adverse laws, policies, and practices.

According to Black feminist scholar Patricia Hill Collins, a Black women’s standpoint includes “experiences and ideas shared by African-American women that provide a unique angle of vision of self, community, and society” (Collins 1990, p. 22). It is from these experiences, that Black women began to theorize about the simultaneous nature of oppression; they argued that gender and sexual politics could not be easily separated from race and class politics. Because of this interconnectedness of oppression and privilege, Black women have believed that their liberation is tied to the liberation of others. The Combahee River Collective argued, “If black women were free, it would mean that everyone else would have to be free since our freedom would necessitate the destruction of all systems of oppression (Combahee River Collective 2017, p. 119).”

Black women have a long history and tradition of community organizing, and they have participated in a range of social movements to dismantle patriarchy, white supremacy, heterosexist oppression, and the “political-economic systems of capitalism and imperialism” (Combahee River Collective 2017, Springer 2005, 1999). Black women organizers were the backbone of the civil rights movement. It is often said that although it was the Black men who led, it was the Black women who organized. They handled the day-to-day logistics, managed the resources, and mobilized voters and participants (Crawford et al 1993). Moreover, Black women fought for suffrage for African Americans and women and have become the most reliable and consistent voting bloc in the Democratic Party. In fact, Black women have been credited for helping the Democrats win the Presidency and take back control of the U.S. Congress in the 2020 elections because of their organizing skills and for turning out in significant numbers to vote (Crumpton 2020).

It was Black women activists who coined the term reproductive justice, a framework that critiques the choice rhetoric of the mainstream reproductive rights movement as well as the movement’s singular focus on abortion rights. The framework also places intersectional analysis and the voices of the most marginalized communities at the center of the fight for reproductive freedom (Luna 2020, Ross and Solinger 2017). Reproductive justice activists argue that reproductive oppression is not only about gender and sex oppression; race, class, sexuality, disability, and many other markers of difference are implicated as well. Additionally, reproduction does not exist in a vacuum. It is connected to other social, political, and economic issues, such as poverty, housing, environmental justice, immigration, and mass incarceration. Simply put, we must expand the scope of reproductive politics to achieve full reproductive and sexual liberation. It is not just about the right to not have children. It also about the right to have children, the right to parent children in safe and sustainable communities, and the right to bodily autonomy and integrity (Luna 2020, Ross and Solinger 2017).

Black women have exposed and fought against the historical and contemporary reproductive and sexual control and policing of black bodies through governmental programs, public policies, and medical practice. Black women, other women of color, poor women, and immigrant women have been the targets of government-sanctioned coercive sterilization campaigns (Davis 1983, Kluchin 2011). African Americans have historically been the subjects of medical experimentation, such as the infamous Tuskegee Syphilis Study and the use of enslaved Black women to test obstetric and gynecological procedures (Oparah and Bonaparte 2015, Washington 2006). Poor women of color are the most likely to be arrested and prosecuted for homicide, manslaughter, and child endangerment while pregnant for actions such as terminating or miscarrying a pregnancy, refusing unnecessary C-sections, and testing positive for drug use (Paltrow and Flavin 2013).

Welfare programs have surveilled and policed poor Black single mothers receiving benefits (Davis, 1983, Mink 1998, Roberts 1997). For instance, they can lose their benefits if it is revealed that they are living with a male partner. In the mid-1990s, the federal government and some states implemented family caps when they “reformed” their welfare policies; that is, a recipient could no longer receive an increase in benefits if they gave birth to more children while receiving public assistance. Moreover, there were the abstinence-only and marriage promotion programs that targeted women receiving welfare benefits (Mink, 1998, Roberts 1997). Welfare reform programs were developed and implemented on the premise that “excessive” child-bearing and persistent singlehood are the causes of poverty instead of a stratified, inequitable economic system. To obtain public support, the advocates of these programs relied on racialized sexual tropes of Black women as hypersexual, promiscuous, irresponsible, fraudulent, lazy, and unwilling to work to support their families.

People of color, poor people, and people living in rural areas have been the most affected by state restrictions on abortion. Even when Roe was in effect, these groups had difficulty accessing reproductive and sexual health services. They are the most likely to live in contraceptive and clinical “deserts,” places that do not have an adequate number of health centers and services to meet the needs of the residents of that community (Kreitzer et al 2021, Marcus and Pillai 2021, Smith et al 2022). These deserts may be at the root of the disproportionately higher rates of unplanned pregnancy and abortion among Black women (Diamant and Mohamed 2022). Moreover, reproductive health disparities go beyond abortion. Black infants are the most likely to die within the first year of their lives, and African Americans are the most likely to die from pregnancy-related complications (Rosenthal and Lobel 2011). This suggests that we need a more comprehensive approach to reproductive politics and reproductive justice activism. We simply cannot solely focus on abortion to the detriment of these other concerns.

The Dobbs decision has also shown that it matters who is elected and appointed into public office at all levels—federal, state, and local—and that our votes matter. The U.S. Supreme Court as the highest court in the nation has the power to overturn any law that it deems unconstitutional. Even though the President nominates Supreme Court justices and federal judges, it the U.S. Senate that approves them. States have the power to regulate many issues, such as health care and medicine, marriage, education, and the issuance of drivers’ licenses and other types of permits. Local governments have their local laws and ordinances as well. The individuals who occupy those spaces have the power to make and influence policy, directly and indirectly. For instance, even in his short time in office as president, Donald Trump nominated 234 federal judges and three U.S. Supreme Court justices with guidance from the conservative group the Federalist Society (Canellos 2022, Price 2021). These nominations were in turn approved by a Republican-controlled Senate. This has created a 6-3 conservative majority on the Supreme Court and a federal court system packed with conservative judges who adhere to a strict interpretation of the U.S. constitution. Additionally, studies have shown that the U.S. Congress has become more conservative over the last four decades (DeSilver 2022). This will have a lasting impact on reproductive politics for generations to come.

Many people, including political leftists, moderates, and many abortion rights supporters, underestimated the influence and tenacity of the anti-abortion movement and the political right. Over the years, my increasing concerns about the precarity of abortion rights and reproductive freedom were at times met with some iteration of the following argument: “We will never go back to the pre-Roe days of unsanitary back-alley abortions and women desperately attempting to self-terminate their pregnancies. We have too much infrastructure at this point to revert to those days. Besides, too many people support abortion rights for that to happen. Most Americans are pro-choice.” At the same time, those doubters were also dismissive of the rhetoric and tactics used by anti-abortion activists and policymakers. This rhetoric is so persistent that most people can probably recite it verbatim: Abortion is murder. Sex is for procreation not pleasure. Unmarried women who unexpectedly become pregnant must take responsibility for their immoral, promiscuous activities by having and raising their babies. People (teens in particular) should not have sex until marriage. Abstinence is the best birth control, etc. (Luker 1984).

However, for quite a while, I have argued that we, reproductive rights and justice activists, must pay attention to that rhetoric and take it seriously even if it does not jibe with our own personal and political beliefs, values, and viewpoints or the material reality of most people. We cannot simply dismiss perspectives that differ from our own no matter how “out of touch,” “outlandish,” or “crazy” they may seem. Regardless of how we feel about it, anti-abortion rhetoric has resonated with several segments of our society and has become the rhetoric that drives abortion and reproductive health discourse, politics, and policy.

We have a mass public that is disillusioned by the political system and the political parties. They are weary of the polarized partisan politics that is anything but civil. Many feel disenfranchised and believe that neither of the major parties have their interests and needs in mind, and that there are not any viable third parties to support. This sentiment is especially prevalent among younger people (Pew Research Center 2022). For some voters, their participation in the political system is an exercise in pragmatism. Which of the two parties somewhat matches my beliefs? Or more draconian, which one is the “lesser of two evils” or will cause the least harm?

My reproductive justice course students were among the disillusioned and alienated masses. Some of them admitted that they did not follow politics or watched the news regularly. However, a semester of learning about reproductive politics in the U.S. and the release of the leaked decision near the end of the semester forced them to rethink their apathy. After all, they were witnessing the revoking of their rights in real time. They began to brainstorm the ways in which they can become more politically active and engaged. First, they agreed that it was important for them to stay informed by regularly reading and watching credible news sources and to vote regularly. Second, they felt that it was important for them to become more actively engaged in electoral politics and political organizing, whether as volunteers or paid staffers. A few are even considering running for political office in the future. The Dobbs decision is their call to action. They believe that they have a responsibility to continue the work that was started by those who came before them. It has been a privilege for me to see this political awakening unfold before my eyes. Perhaps the Dobbs decision was the wake-up call that we all needed. We cannot take our rights for granted because they can easily be taken away from us.