By: Rolonda Donelson
Published on: September 15, 2022
On June 24, 2022, at around 10:30 am, the United States Supreme Court released an opinion in one of the most controversial cases of the term: Dobbs v. Jackson Women’s Health Organization.[1] The Jackson Women’s Health Organization, the sole licensed abortion clinic in Mississippi, initiated the claim, challenging the constitutionality of a Mississippi state law provision that prohibited abortion procedures after fifteen-weeks of gestation.[2] Jackson Women’s Health Organization argued that the fifteen-week ban violated precedent set in Roe v. Wade[3] and Planned Parenthood v. Casey,[4] because the provision prohibited abortion before fetal viability.[5] Conversely, the State of Mississippi argued that the Constitution does not guarantee a right to abortion, and therefore, Roe and Casey should be overruled.[6] The Supreme Court agreed with the State of Mississippi, holding that the Constitution does not mention abortion and therefore is not protected by the Due Process Clause of the Fourteenth Amendment, which cannot be used to justify any right unless “deeply rooted in this Nation’s history and traditions and implicit in the concept of ordered liberty.”[7]
Dobbs took almost immediate effect due to trigger laws which instantaneously banned abortion in eight states and restricted abortions to before six weeks gestation if Roe v. Wade was ever overturned.[8] The opinion written by Justice Alito reasoned that when the Fourteenth Amendment was ratified in 1868, approximately twenty-eight out of thirty-seven states had prohibited or criminalized abortion,[9] thus the practice was not “deeply rooted in the Nation’s history and tradition.”[10] The Court reasoned that a state’s elected officials were the best people to decide the permissibility and scope of abortion within their borders.[11]
Specifically, in Footnote 41 of the opinion, Justice Alito mentions amicus briefs filed by African-American, Hispanic, Roman Catholic and Protestant Religious and Civil Rights Organizations and Leaders to highlight the “significant” motives legislators might have to enact abortion restrictions.[12] Justice Alito, in this passing footnote, implies that some of these “significant” motives include the fact that the legalization of abortion through Roe v. Wadedramatically affected demographics of the United States by suppressing the African American population because “ahighly disproportionate percentage of aborted fetuses are black.”[13]
This rhetoric touted by Justice Alito is dangerous for two reasons: (1) it perpetuates misogynoir against Black women and (2) it supports the disproven abortion as “Black Genocide” theory and ignores the systematic issues that contribute to why Black Americans are more likely to receive abortions.[14]
The Dobbs opinion perpetuates misogynoir by ignoring Black women’s agency regarding their ability to have an abortion and other reproductive freedoms. Misogynoir is a term used to describe the specific form of “hatred, dislike, distrust, and prejudice directed toward Black women.”[15] The rhetoric in Justice Alito’s Footnote 41 regards abortion as an act inflicted on Black women, not a conscious decision by a Black woman to assert her own bodily autonomy or choose her own destiny.[16] This suggests that Black women are helpless to the will of abortion providers, and, thus, the state needs to intervene to “protect” Black fetuses because Black women are incapable of doing it themselves. This perpetuates misogynoir because it feeds into existing stereotypes about Black women as uneducated, untrustworthy, or perpetrators of violence. The misogynoir in Footnote 41 has begun to spread to state legislators, law offices, and everyday people who believe that banning abortions moves towards achieving racial justice by “saving” Black fetuses from Black women who want abortions and the providers who do the procedure.[17]
Notably, the misogynoir in Dobbs dangerously glosses over systemic issues that make Black women more likely to receive an abortion.[18] First, Black women are less likely to use contraceptive methods with high efficacy, such as pills or intrauterine devices (IUDs), opting instead for condoms or the withdrawal method.[19] Birth control methods with higher efficacy rates, such as IUDs or pills, can prove difficult for Black women to obtain since they disproportionally represent those without health insurance in the United States.[20] Additionally, even if Black women do have insurance they are more likely to live in “contraceptive deserts,” areas where significant barriers to contraceptive access exists.[21]These systematic barriers to contraception help demonstrate why Black women experience higher rates of unintended pregnancy and therefore higher rates of abortion.[22] The language in Dobbs trivializes Black women’s struggle for reproductive healthcare, which contributes to misogynoir and stereotypes about Black women.
Finally, the misogynoir in Dobbs additionally manifests in a manner not explicitly stated by the opinion. While the opinion notes that banning abortion will help to combat the “disproportionate number of aborted Black fetuses,” it fails to mention the Black maternal mortality rate.[23] Currently, Black women are two to three times more likely to die from pregnancy-related complications than their white counterparts.[24] The rhetoric in Dobbs allows politicians to campaign on messaging that abortions “saves Black fetuses,” while doing nothing to ensure that these fetuses and their mothers, who are supposed to nurture them, lead happy and productive lives or even make it through childbirth.[25]
Black women will bear a double burden from the opinion in Dobbs: limited access to abortion care and the rhetorical and actual violence of misogynoir created by “saving Black fetuses.”[26] In this sense, Dobbs does more than limit access to healthcare: it also limits access to agency.
[1] See Nina Totenberg & Sarah McCammon, Supreme Court Overturns Roe v. Wade Ending Right to Abortion Upheld for Decades, NPR (June 24, 2022), https://www.npr.org/2022/06/24/1102305878/supreme-court-abortion-roe-v-wade-decision-overturn (considering the implications of the federal right to abortion being overturned in Dobbs v. Jackson Women’s Health Organization).
[2] See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2243-44 (2022) (discussing the Mississippi law at issue which prohibits abortion after fifteen weeks of gestation unless there is a fetal abnormality or danger to the person’s life).
[3] See Roe v. Wade, 410 U.S. 113, 155-56 (1973) (declaring that abortion is a fundamental right and restrictions on abortion need to pass strict scrutiny), overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).
[4] See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877 (1992) (explaining that an abortion restriction is unconstitutional if it places a substantial obstacle in the path of a person seeking an abortion before the fetus is viable, known as the undue burden test), overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).
[5] See Dobbs, 142 S. Ct. at 2242 (explaining that the state of Mississippi intended to institute an abortion ban weeks before a fetus is considered viable).
[6] See id. at 2243-44 (describing the State of Mississippi’s arguments for upholding the fifteen-week ban).
[7] Id. at 2242.
[8] See Emily Shurgerman, Clinics Turn Away Patients in Trigger-Law States After Abortion Decision, Daily Beast (June 24, 2022), https://www.thedailybeast.com/clinics-turn-away-patients-in-trigger-law-states-after-scotus-overturns-roe-v-wade (chronicling the experiences of patients scheduled to receive abortion care after the federal right to abortion was overturned).
[9] See Dobbs, 142 S. Ct. at 2253 (discussing the legal status of abortion in the United States in 1868).
[10] Id.
[11] See id. at 2243 (holding that the legal status of abortion should be left to the people to decide through their elected representatives).
[12] See id. at 2256 n.41 (explaining that it is not the courts responsibility to question the motive of the legislatures in creating an abortion restriction because some legislatures have significant reasons to enact restrictions).
[13] See id. (“They note that some supporters have been motivated by a desire to suppress the size of the African American population. And it is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are Black.”).
[14] See Janice Gassam Asare, Misogynoir: The Unique Discrimination That Black Women Face, Forbes (Sept. 22, 2020), https://www.forbes.com/sites/janicegassam/2020/09/22/misogynoir-the-unique-discrimination-that-black-women-face/?sh=7a6b4af456ef (describing contemporary examples of misogynoir); see also P.R. Lockhart, Abortion as Black Genocide: Inside the Black Anti-Abortion Movement”, Vox (Jan 19, 2018), https://www.vox.com/identities/2018/1/19/16906928/black-anti-abortion-movement-yoruba-richen-medical-racism (explainig that there are multiple contributing factors for black women getting abortions such as access to birth control and the maternal maternirty rate of Black women); see also Nathalie Baptiste, Don’t Let Samuel Alito Fool You: Ending Abortion Isn’t About Protecting Black Life, Huff Post (May 5, 2022), https://www.huffpost.com/entry/samuel-alito-abortion-black-lives_n_627430bfe4b009a811c127fd (describing the false narrative of Black Genocide and abortions).
[15] See Eliza Anyangewe, Misogynoir: Where Racism and Sexism Meet, The Guardian (Oct. 5, 2015),
https://www.theguardian.com/lifeandstyle/2015/oct/05/what-is-misogynoir (explaining that in 2010 Moya Bailey coined the term “misogynoir,” “to describe the bias, mistrust, and sexism directed at Black women in American visual and popular culture.”).
[16] See Baptiste, supra note 14 (criticizing Justice Alito’s rhetoric toward Black women in Dobbs).
[17] See Kathryn Rubino, White Counsel at Biglaw Firm Spreads ‘Inappropriate and Offensive’ Theories About Abortion, Gets Suspended, Above the Law (July 8, 2022), https://abovethelaw.com/2022/07/white-partner-at-biglaw-firm-spreads-inappropriate-and-offensive-theories-about-abortion-with-seemingly-no-consequences/ (recounting the story of a partner at a law firm using Justice Alito’s rhetoric from Dobbs to praise the decision’s effort to save Black fetuses).
[18] See Fabiola Cineas, Black Women Will Suffer the Most Without Roe, Vox (June 29, 2022), https://www.vox.com/2022/6/29/23187002/black-women-abortion-access-roe (describing the factors that led Black women to have higher rates of abortion such as living in areas where birth control is less available).
[19]See Carolyn Payne & Nicole Fanarjian, Seeking Causes for Race-Related Disparities in Contraceptive Use, 16 Am. Med. Ass’n J. Ethics 805, 806 (2014) (comparing the most common types of contraception used by different racial groups).
[20] See Nat’l P’ship for Women and Fams., Black Women Experience Pervasive Disparities in Access to Health Insurance 1, 1-2 (2019) (comparing the rate of uninsured Black women to White women).
[21] See Jennifer S. Barber et al., Contraceptive Desert? Black-White Differences in Characteristics of Nearby Pharmacies, 6 J. Racial Ethnic Health Disparities 719, 730 (2019) (explaining the prevalence of “contraceptive deserts” and what groups live in them).
[22] See Theresa Kim, Rada Dagher & Jie Chen, Racial/Ethnic Differences in Unintended Pregnancy: Evidence from a National Sample of U.S. Women, 50 Am. J. Preventive Med. 427, 431-32 (2016) (comparing the rates of unintended pregnancies between racial groups).
[23] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2256 n.41; see also Baptiste, supra note 14 (discussing Justice Alito’s failure to discuss Black maternal health issues in his opinion).
[24] See Infographic: Racial/Ethnic Disparities in Pregnancy-Related Deaths — United States, 2007–2016, Ctr. for Disease Control and Prevention, https://www.cdc.gov/reproductivehealth/maternal-mortality/disparities-pregnancy-related-deaths/infographic.html (last visited July 13, 2022) (analyzing the maternal mortality rate between racial and ethnic groups).
[25] See Jennifer Shutt, Members of U.S. Senate Panel Fight Over Effects of Abortion Ruling on Black Patients, Mo. Indep. (July 12, 2022), https://missouriindependent.com/2022/07/12/members-of-u-s-senate-panel-fight-over-effects-of-abortion-ruling-on-black-patients/ (recounting a Senate Judiciary Committee hearing where an individual was questioned over whether they believe more Black fetuses should be aborted).
[26]See Shyrissa Dobbins-Harris, The Myth of Abortion as Black Genocide: Reclaiming our Reproductive Cycle, 26 Nat’l Black L. J. 85, 85-86 (2017) (recounting the author’s personal experience of having an abortion and being lectured about an “abortion war,” waged against the Black community).