How Abortion Rights and Birth Justice Are ‘Inextricably Linked’
Since the Supreme Court overturned Roe v. Wade nearly two years ago, voters in several states have enshrined abortion rights into their state constitutions via ballot initiatives. In November, people in at least 11 more states may vote on abortion rights ballot measures. Some of the initiatives’ proposed language, like Colorado’s, pertains only to abortion access, while others, like New York’s proposed Equal Rights Amendment, protect the gamut of reproductive liberties, including gender identity and expression, reproductive health care, and pregnancy outcomes.
But a majority of these initiatives don’t protect abortion rights throughout pregnancy—in many proposed ballot measures, the buck stops at fetal viability, which is a judicially created and imprecise medical term that can occur anywhere between 24 and 26 weeks of pregnancy. This essentially restores the protections of Roe, but reproductive and birth justice advocates say that merely restoring protections is insufficient to protect people’s reproductive autonomy.
Roe never aligned with birth justice
Birth justice organizers and advocates have previously told us about how Roe, even when it was the law of the land, insufficiently protected the interests of birthing people. The data backs it up: From when Roe was decided in 1973 to the June 2022 decision in Dobbs v. Jackson Women’s Health Organization that overturned it, over 1,800 people faced criminal investigation, prosecution, and/or imprisonment because of their pregnancy outcomes. In a 2023 report, around 1 in 5 women and birthing people reported facing mistreatment while receiving care, with higher rates Black, Latinx, and multiracial women and birthing people reporting. More Black women and birthing people report experiencing coercion during childbirth and perinatal care than their white counterparts. Health-care providers test Black pregnant people for substance use more frequently than white pregnant people, which contributes to the “womb-to-foster-care pipeline.” State abortion ballot initiatives pose an opportunity to create legal protections to address these birth inequities.
Jacqueline Hammock, president of the Birth Rights Bar Association, an organization that equips lawyers and advocates to creatively address the human rights violations that occur during pregnancy, birth, and the perinatal period, said that because of the connection between abortion and birth justice, abortion ballot initiatives must promote autonomy throughout pregnancy.
Abortion rights and birth justice “are inextricably linked by the human right of bodily autonomy and the reality of pregnancy as a process with multiple potential outcomes, including abortion, miscarriage, and birth,” Hammock said.
Some states brought birth justice advocates to the table
Two ballot initiatives that voters and legislators approved since the fall of Roe v. Wade have something in common: Birth justice advocates were “at the table” when the initiatives were being developed, according to Farah Diaz-Tello, senior counsel and legal director at reproductive justice legal advocacy and direct services organization If/When/How.
Diaz-Tello pointed to some recently passed birth justice-inspired legislation and ballot initiatives as a possible blueprint for other states, including California’s AB 2223, which prohibits pregnancy criminalization in the state and was signed into law in September 2022, and Michigan’s Right to Reproductive Freedom Initiative, which voters resoundingly ratified in 2022.
“It was important to that state’s coalition to create the most robust protections possible,” Diaz-Tello said.
Virginia’s proposed constitutional amendment, which may not be on the ballot until November 2026 at the earliest, has language similar to Michigan and California’s AB 2223, and it “will hopefully ensure protections for decision-making and freedom from criminalization for people throughout the entirety of a pregnancy and across potential outcomes,” Diaz-Tello said.
According to Hammock, two state ballot initiatives that advance birth justice on the ballot this November are Maryland’s Right to Reproductive Freedom Act, which establishes that every person has a fundamental right to reproductive freedom and prohibits the State from, “directly or indirectly, denying, burdening, abridging the right” and New York’s Equal Rights Amendment, which would prohibit discrimination on the basis of pregnancy or pregnancy outcomes.
As advocates work to restore and improve abortion rights post-Dobbs, they must also ensure birth justice is advanced as well, Diaz-Tello said.
“Our work to create a future where people have access to the reproductive care they need must also include people who give birth, because they are frequently the very same people at a different point in their lives,” Diaz-Tello said. “The crisis of maternal mortality and the crisis of abortion access may seem like they are running on parallel tracks, they are in fact cars of the same train.”
Hammock said the birth justice movement cannot strive toward a world that respects and realizes the rights of pregnant and birthing people while supporting policies that undermine pregnant people’s rights. And any ballot initiatives or policies that establish parental consent/notification requirements, criminalize pregnancy outcomes, or protect birth attendants or institutions that engage in coercion, manipulation, or obstetric mistreatment or violence to force birthing people to comply with provider preferences also conflict with birth justice.
“We can’t support legislation or initiatives that curtail pregnant people’s right to bodily autonomy at any stage in gestation, in the form of viability restrictions,” Hammock said. “By the time people can make the decisions surrounding labor and birth, they are overwhelmingly likely to be past any definition of viability. Also, we’ve witnessed how viability restrictions create a cultural framing that privileges the value of a fetus over the value of a birthing person.”
Tanay Lynn Harris, the director and co-founder of the Bloom Collective, a reproductive justice organization that provides preconception to postpartum services in Baltimore, said she has heard from clients who have experienced coercion or the privileging of provider preferences over their own during their labor and delivery process.
“We have had clients in the past where their obstetrician told them they wanted to schedule an induction and there wasn’t any medical reason, even though that particular family was very clear that they wanted to try their very best to have a vaginal birth,” Harris said. “Then we find out that this particular obstetrician wants to go on vacation, so that’s why they’re scheduling the induction. That scheduling doesn’t allow for autonomy because of the lack of transparency.”
How can upcoming ballot initiatives honor birth justice?
Harris said her ideal reproductive justice legal protections would ensure people’s right to access the support they need.
“What would it look like if someone had access to be able to get a minimum of free ten [methods of] supports, and they would be able to name and claim what supports they want—whether that’s pelvic floor therapy, yoga, spa treatment, pre or post-natal massage, a postnatal doula, or a midwife, home birth, or to be able to go to a birth center. I think that would be a game changer,” Harris said.
Birth justice advocates say they hope state abortion rights ballot initiatives lead to an examination of the maternal health-care system and recognition of the importance of actively including birth justice activists and leaders in reproductive rights advocacy and education.
“Hopefully as more states reinstate abortion access in their state, we can rethink the ecosystem of reproductive health care and ensure that people have access to a range of providers, including midwives, nurse-practitioners, family medicine physicians, who can all work together to ensure pregnant people in those states can access respectful, safe, and dignified prenatal care and births,” Diaz-Tello said.
True alignment between reproductive and birth justice can only be achieved when birth justice advocates and leaders are actively involved throughout the ballot measure process,” Hammock added.
“That’s the best way to ensure that ballot initiative protections are matching the needs [of birthing people], which is just as true for citizen-initiated initiatives, where birth justice leaders are often underrepresented among abortion rights activists and as it is true for legislatively-referred initiatives which present an opportunity for educating legislators on birth justice,” Hammock said.
Harris underscored that the principles of reproductive justice must be embodied throughout the state abortion ballot initiative process.
“You can’t get birth justice without reproductive justice,” Harris said. “They go hand in hand. We have to stop siloing these particular issues and start seeing them from a holistic model.”
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