Beyond Kavanaugh | The Dwindling Right to Privacy
**Editor’s note: This is the first article in a three-part series analyzing the consequences of a Roe v Wade overturn. The second piece examines how a post-Roe Ohio would look. The third addresses the potential criminalization of miscarriage.**
As the U.S. awaits the confirmation of judge Brett Kavanaugh to the U.S. Supreme Court, the conversation around access to reproductive healthcare has been resurrected.
It comes back every so often, usually when there’s a threat to access in the form of a policy or lawmaker, but it’s often limited to a two-sided debate: those who are in favor of accessible, safe and legal abortion, and those who believe the procedure to be murder. Distilling this dialogue would uncover the core issue, the question of whether or not people should have the right to bodily autonomy and privacy in healthcare decision-making.
Under the U.S. Supreme Court decision in Roe v Wade, pregnant people were entrusted to consult with a physician to create a birth plan that worked for the patient and their family, be it abortion, adoption, vaginal birth, or cesarean section.
This constitutionally-protected right came with the promise of access without undue burden, but the practical application of such a concept has yielded mixed results.
Gov. John Kasich will leave office come January, but not without having signed 20 abortion restrictions into law and allowing half of the state’s clinics to close. Those with unwanted pregnancies face travel and housing costs, childcare expenses, a mandatory ultrasound and a 24-hour waiting period.
The state has enacted a 20-week ban on abortion and attempted to ban abortions after a fetal diagnosis of Down Syndrome, a measure that was struck down by a federal court in March. Should Roe v Wade be further gutted or even overturned, Ohio is also ready to criminalize abortion and charge doctors and patients with murder.
Beyond imposing legislative restrictions, Ohio is one of several states using funds designated for Temporary Assistance for Needy Families (TANF) to fund crisis pregnancy centers (CPCs). CPCs offer free pregnancy tests and sometimes an ultrasound procedure to attract pregnant people who are considering their fertility options.
While not actually healthcare clinics, CPCs typically offer medically inaccurate information regarding abortion, inflating its risks and asserting, without scientific evidence, a connection between abortion and breast cancer and mental health problems. In some cases, CPCs offer ultrasounds to determine if the pregnancy is viable. Often, CPCs exaggerate the risk of miscarriage (reportedly citing the risk as anywhere from 25 percent to 33 percent, double the actual statistic), and encourage clients to delay the procedure, which has a higher and higher price tag the longer a person is pregnant.
Should the U.S. enter a post-Roe era, obtaining an abortion won’t be an impossible feat, but the method for it could vary based on geography and income. Abortion activists are leaning hard on the abortion pill, which would allow people to have an (illegal and unsupervised) at-home abortion and avoid the high cost of traveling out-of-state for a surgical procedure.
A Biased Medical System
Racial disparities exist in all quality of life determinants, including healthcare. In reproductive healthcare specifically, the disparities are striking, with a report from the Black Mamas Matter Alliance (BMMA) finding black women to be three to four times more likely to die from complications from childbirth, usually from heart and cardiovascular conditions associated with high blood pressure.
“Research indicates that this is not a genetic flaw or inherent biological inevitability,” the report states, “instead, it is directly related to “weathering,” toxic stress, and inadequate and disrespectful health care.
“It is important to note,” the report continues, “that African immigrant women have healthier birth outcomes upon arrival in the United States than their Black counterparts, but mirror Black rates of adverse birth outcomes over time.”
Another report shows that black maternal morbidities are directly impacted by biased treatment from western medical professionals who perpetuate racialized stereotypes. These include the assumptions, regardless of socioeconomic status, that black women have more sexual partners and are less likely to regularly use birth control; that black women are more likely to have children or have been pregnant; that they’re more likely to be receiving public assistance and have a lower level of education; and that their partners are less likely to be involved in raising the child.
These and other racialized stereotypes, like the idea that black women exaggerate pain levels, directly affect the kind of treatment they are given.
Local reproductive justice organization Restoring Our Own Through Transformation (ROOTT) affects policy change and aids individual women in achieving their desired birth plans through the use of doulas. ROOTT Executive Director Jessica Roach says the state of obstetrics and gynecology for women of color, at least in mainstream healthcare circles, is dire at this very moment — even before an overturn of Roe v Wade.
“We still do have issues with women, in particular in reproductive health, coming to and finding out that they’ve been sterilized during a C-Section that they didn’t necessarily give consent to,” Roach says. Roach is part of the growing community of women of color raising awareness around the racial context causing common health disparities. ROOTT and similar groups point a finger at institutionalized, structural racism to explain why black women die so much more often than white women during childbirth, and why their babies are less likely to live to their first birthday.
Should reproductive healthcare access and privacy in decision-making be further attacked, women of color will likely see the worst of the effects. Across the spectrum of reproductive justice, Roach cites inequalities between the treatment of white and black families — “Children are taken away, Child Protective Services are called more often on us than others, and there’s always this disproportionate level of suspicion when it comes to whether or not a toxicology screen should be run” she says.
“You can’t say that the same thing isn’t going to happen [once Roe overturns],” she continues, arguing that women of color who miscarry in states that criminalize abortion (like Ohio) would be more likely to be charged with manslaughter. “There’s nothing that shows us in our 400-year timeline that we have been here in this country that there is going to be anything that would be different.”
Regardless of who is confirmed to the Supreme Court, the right to privacy and access has been dwindling since it was supposedly secured in 1973. Roach and others in the reproductive justice sphere emphasize that the conversation extends before and beyond this particular Supreme Court nomination.
“Kavanaugh is a symptom of the overall disease. It could be a potentially major issue if Kavanaugh is placed on the supreme court, but really we have to take this conversation beyond just the confirmation or non-confirmation of one person,” Roach says.
“So quickly, folks want to silo the reproductive justice conversation into either being pro-abortion or pro-life, and we’re really clear in our organization that it’s literally about the right to privacy and the right to autonomy. The right to have control over our bodies, the right to have decision-making control over our families, how we either choose to make them or not make them, and the right to access to all healthcare and the medically accurate information coupled with that.”