Claims of protecting fetal health serve as powerful proxies for political and prosecutorial agendas in the United States. The Texas abortion law, SB8, demonstrates this with disturbing clarity. That law deputizes ordinary citizens to track, surveille, and spy upon those who may aid or abet a person seeking to terminate a pregnancy. Yet, the troubling arch of policies that dramatically interfere in pregnant women’s pregnancies date back to the Reagan Administration—a time in which some perceived abortion rights to be inviolable. Yet, in the dark shadows, Black women became the euphemistic canaries in the coalmine—tracked, surveilled, reported, arrested, and criminally punished.
During the Reagan Administration, criminal surveillance of and policing pregnancy served to expand the “War on Drugs” and inflamed narratives about “bad mothering,” crystallizing in the harmful “crack mom” and “crack baby” nomenclature of the 1980s and 90s. Stereotypes about Black mothers and their offspring proliferated, fueling the policing of poor women as they sought prenatal and reproductive healthcare. As such, healthcare became captive to a problematic political agenda and these mothers the hostages to political agendas that resulted in civil and criminal incarceration. Often these women and their offspring were the unfortunate and invisible collateral damage in the failed American “War on Drugs.”
This Essay links the old with the new. Today, protecting fetal health continues to justify a broader political agenda, including antiabortion laws such as SB8 and criminal punishments for stillbirths and miscarriages, and its targets are no longer confined to poor Black women. Instead, the latter are now the precedent on which modern political and policing agendas are built. Today, fetal-protection-related punishments materialize in cases of miscarriages, stillbirths, refusal for end-of-life care, and even in instances wherein pregnant patients refuse cesarean operations. This Essay urges that the new reproductive politics or Jane Crow must be centered in criminal justice reform and abolition discourse, bringing the concerns of women from the shadows to the spotlight.
Goodwin, Michele, "Pregnancy and the New Jane Crow" (2021). Connecticut Law Review. 509.