Excerpted From: Hala Baradi, Advocating for Abolition in Health Law: A Theory and Praxis to Liberate Black Incarcerated Women, 51 Journal of Law, Medicine & Ethics 196 (Spring, 2023) (137 Footnotes) (Full Document)


HalaBaradiOn May 2, 2022, a draft opinion authored by Justice Alito revealed the Supreme Court's intention to overturn Roe v Wade. The leaked draft sparked national protests from the pro-choice movement. Protesters held signs saying “bans off my body,” and “don't police my body.” People on social media likened Justice Alito's draft opinion to the popular television show “The Handmaid's Tale,” indicating a belief that this opinion could usher in a severe retrenchment of reproductive justice laws that would render women objects of the state. The idea that the state can force people to give birth and control what they do with their own bodies enraged and frightened women and their allies throughout the nation. And yet, this is nothing new. Beyond the fact that reproductive justice rights have been whittled away in recent years, there already exists a subset of the population whose bodies and entire livelihoods are literally policed by law enforcement and the so-called criminal “justice” system--incarcerated women. Historically, the carceral state has served as a mechanism to control and regulate the reproductive capacities of marginalized people, particularly Black women. As we collectively mourn the impending loss of our reproductive rights and buttress existing mutual aid networks to prepare for its eventuality, we must not forget those behind bars, who have been systematically robbed of such rights from the outset. Their designation as prisoners has robbed them of most reproductive health rights that many of us can still exercise, at least for the time being. If we are to remain ardent about protecting reproductive justice for all, then we must center the lived realities of our most marginalized people. Since the carceral state is a mechanism of control that disproportionately targets Black people, and the reality of being a woman compounds vulnerability, then we ought to understand how systems of oppression work to abridge their reproductive capacities. Black radical activists, such as those from the Combahee River Collective, have put forth the theory that “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 the systems of oppression.” This theory, combined with abolition, can provide an avenue to facilitate our collective reproductive freedoms.

Abolition is a vital tool that the law can use to end mass incarceration and the restriction of reproductive freedoms within prisons. Abolition is a theory and praxis that requires a two-pronged approach. First, it calls for the dismantling of the entire prison-industrial complex and the oppressive systems that uphold it, such as white supremacy, capitalism, and heteropatriarchy. Second, abolition calls for building alternative systems of restorative justice centered on care rather than violence. As Ruth Wilson Gilmore explains, “abolition is about building life-affirming institutions.” The claim implicit within the abolitionist framework is that the carceral state is not malfunctioning. The disproportionate number of people of color behind bars is not by accident, but rather indicative of how the carceral state evolved from slavery. High recidivism rates are not by happenstance nor indicative of a formerly incarcerated person's moral failing. Indeed, research shows that the exit and reentry of incarcerated people are concentrated within the poorest, minority neighborhoods, indicating a targeted approach to imprisoning people. Abolition insists that the carceral state is working exactly as intended--to control and subjugate historically marginalized groups for the benefit of those in power.

The argument in favor of abolition is particularly powerful when discussing Black incarcerated pregnant women and mothers. Abolition discourse is often masculinized because women's incarceration is viewed as an incidental effect of punitive systems designed to punish Black men. However, prisons are a central aspect in regulating and restricting Black women's reproductive capacities in the United States. The inability of Black pregnant incarcerated women to birth and raise their children is not an oversight by the law, but rather an intended mechanism of social control. These policies are grounded in historically constructed stereotypes that Black reproduction perpetuates degeneracy, deviance, and societal burden. Thus, robbing Black women of their reproductive freedom is predicated on the belief that they are inherently unfit mothers. Since the violation of reproductive freedom is a consequence of imprisonment, health law could be used as an avenue to achieve justice. Unfortunately, health law as currently practiced reproduces carceral logics and is unable to substantially address how Black female inmates are oppressed by the state. For the purposes of this paper, health law will be defined as legal professionals who work at the intersections of public health and advocacy. Carceral logic refers to the ways in which people's behaviors and mentalities are informed by the ideologies of prisons, such as the tendency to police others' actions for merely deviating from the norm or equating retribution with justice. In other words, “incarceration as a logic and method of dominance is not reducible to the particular institutional form of jails, prisons, detention centers, and other such brick-and-mortar incarcerating facilities.”

Moreover, constrictions on how health law is practiced fail to consider the unique ways in which Black incarcerated women experience racial and gender oppression under the law. Erasing and punishing incarcerated pregnant women and mothers under the law renders prisons a structural determinant of health. If the prison-industrial complex is a modern remnant of slavery, and the subjugation of Black women is grounded in racial oppression, then merely reforming the carceral state will not be sufficient in uprooting it. This paper argues that the law often facilitates harm to Black women, making abolition critical to liberating Black women from punitive systems designed to subjugate them, especially with regard to reproductive justice. In other words, abolition is a tool that can be leveraged by practitioners of health law to advance the reproductive and overall health of Black incarcerated women.

This paper will begin by first explaining how reproductive justice is compatible with abolition. Then, I will problematize the conception of “criminals” by illustrating how the carceral state punishes marginalized people for social problems born out of legacies of oppression. Next, I will delineate the specific ways prisons rob Black women of reproductive justice. Specifically, I will argue that systematic medical neglect, separation from their children, and shackling during labor and delivery, are all instruments of the law used to inhibit Black women's reproductive capacities. I will then consider several reforms currently used to challenge punitive systems for pregnant women and mothers in prison. Ultimately, however, I will argue that while commendable, these reforms fall short because they do not dismantle the systems that incarcerate these women in the first place. Finally, I will offer an example of how abolitionist strategies can be used to re-imagine practicing health law.

[. . .]

How far has this nation come in freeing Black women from state abuse? Evidently, not far enough. Regulating Black women's reproductive capacities has been a central tenet of social control throughout this nation's history. To protect Black women's right to carry, birth, and raise their children free from state-sanctioned abuse, we must abolish the systems that prevent them from doing so. Abolition contends that it is by no accident that the laws that fail to protect Black women are also the ones that punish them. Thus, we must reimagine how the law can be used to rebuild alternate systems of care in place of those that perpetuate violence. While the abolitionist agenda advanced in this paper would indeed liberate Black incarcerated women and promote their health and wellbeing, it should be noted that its effects are far-reaching. Indeed, studies have shown that bettering the lives of marginalized peoples uplifts us all. Abolition is more than a tool to dismantle prisons. Abolition is a medicine that can heal us all.

If the abolitionist agenda put forth seems daunting, it is because it is. However, Black women deserve our efforts. They deserve our solidarity.

Hala Baradiis a law student at Northeastern University Law School.