Excerpted From: Elizabeth Tobin-Tyler, Abortion Rights and the Child Welfare System: How Dobbs Exacerbates Existing Racial Inequities and Further Traumatizes Black Families, 51 Journal of Law, Medicine & Ethics 575 (Fall, 2023) (81 Footnotes) (Full Document)


ElizabethTobinTylerIn Dobbs v. Jackson Women's Health Organization, the Supreme Court returned to the states the power to regulate abortion. The Court's majority dismissed data presented by advocates that overturning Roe v. Wade would have grave consequences for the health and well-being of women and children. Post-Dobbs, the majority of states that have imposed bans are in the southern United States, home to more than half of the country's Black population. Seven of these southern states that have imposed bans-- Alabama, Georgia, Louisiana, Mississippi, South Carolina, Tennessee, and Texas--have large Black populations, as well as high rates of female-headed households and of Black child poverty (Table 1). The abortion bans in these states are likely to have profound consequences for the health and well-being of Black women and children for years to come. One impact that has been entirely ignored by antiabortion lawmakers and courts is how post-Dobbs bans, particularly in the South, will exacerbate the already existing racial disparities in state child welfare systems.

Birth rates are already beginning to rise in southern states with abortion bans. While some women from these states are able to travel to other states to obtain abortions, this is often not an option for lowincome women, including many Black women. This essay considers how the post-Dobbs increase in births in these seven southern states will exacerbate existing injustices in the child welfare system. It seeks to address this question by first briefly describing the history of reproductive exploitation and injustice experienced by Black women. Second, it presents the research detailing the relationship between abortion access, child well-being, and disparities in Child Protective Services (CPS) involvement. Third, it tracks the substantial overrepresentation of Black families in state child welfare systems, the studies demonstrating the role that racial and class bias play in the system, and the trauma inflicted on these families by CPS involvement. Fourth, it analyzes the likely exacerbation of CPS intervention in Black families in these seven states that have enacted abortion bans. Finally, it offers recommendations from a reproductive justice perspective to advocates seeking to mitigate the negative effects of abortion bans on Black families through legal advocacy, holding policymakers accountable, and elevating the voices of Black mothers.

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The Dobbs decision has profound implications for women, children, families and communities in states that have banned or severely restricted access. In states with large Black populations that have banned abortion and a long legacy of racial injustice and parsimonious safety nets for low-income families, the consequences will be most dire. With abortion outlawed, state lawmakers and child welfare system agency administrators have to decide if they will act to support family health and well-being or continue punitive policies that tear families apart based on poverty and deprivation. So far, state policymakers seem to be either ignoring the post-Dobbs hreproductive and racial justice, advocates will be more vital than ever in helping to mitigate the harms, particularly to Black families, that are coming.

Elizabeth Tobin-Tyler, J.D., M.A.,is an Associate Professor of Health Services, Policy and Practice at the Brown University School of Public Health and of Family Medicine and Medical Science at the Alpert Medical School.