Excerpted From: Elizabeth Tobin-Tyler, Putting Your Money Where Your Mouth Is: Maternal Health Policy after Dobbs, 53 Seton Hall Law Review 1577 (June 12, 2023) (152 Footnotes) (Full Document)


ElizabethTobinTylerEvangelical minister Rob Schenk made headlines when he renounced his previous leadership of “operation rescue,” an anti-abortion group that often blocked the doors of abortion clinics. In a 2019 New York Times op-ed, he declared that he had come to see that his opposition to abortion, rather than being “pro-life,” was instead “destructive of life.” He wrote that he came to this conclusion when he had “witnessed firsthand and now appreciate[d] the full significance of the terrible poverty, social marginalization and baldfaced racism that persists in many of the states whose legislators are now essentially banning abortion.” One can criticize Schenk's late acknowledgement of the harms for women and children of unplanned pregnancy and forced birth. But Schenk's renunciation of the pro-life movement's focus on criminalizing abortion while largely ignoring the conditions in which women get pregnant, give birth, and parent, exposes antiabortion politicians' and the Supreme Court's magical thinking when it comes to maternal and child health and well-being in the United States.

In Dobbs v. Jackson Women's Health, the majority displayed a jaw-dropping disregard for the realities of women's lives, especially those living in poverty. Washing its hands of the “abortion controversy,” the Court not only ignored the embarrassing state of maternal health in the United States as compared with other wealthy countries, but it did not even tip its hat to the despicable rates of Black maternal morbidity and mortality that have only recently been recognized in the media and by some politicians. In delegating to state legislatures whether to ban abortion, the Court also entrusted to states that have some of the worst rates of maternal morbidity and mortality to somehow now protect and promote maternal and child health as birth rates rise.

This Article considers the effects of the legal and policy landscape, pre- and post-Dobbs, on existing and future maternal health. Citing public health and clinical research, Part I briefly describes the state of maternal and child health in the United States. Part II traces the misinformation perpetuated by pro-life activists and adopted by the Supreme Court about the negative effects of abortion on women's health. It then highlights the Dobbs majority's erasure of women's health from its consideration of the constitutional right to abortion. Part III describes the failure of existing federal and state laws and policies to protect and promote maternal health, ties this failure to existing maternal health outcomes and disparities, and documents how states that have enacted abortion bans post-Dobbs have the least generous and most punitive policies for mothers. Part IV critiques policy proposals by antiabortion politicians that they purport will improve maternal and child health and well-being, but in reality, will do little to improve the conditions for pregnancy, birth, and parenting. Finally, Part V proposes a post-Dobbs policy agenda based on the principles of reproductive justice to promote maternal health.

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Dobbs will have serious ramifications for maternal health, especially for low-income women of color who already have poor access to reproductive healthcare and who bear the burdens of intersectional racial and gender discrimination, economic inequality, and healthdisparities. But now that the binary question--should abortion be a constitutional right or not--has been, at least for the foreseeable future, removed from political discourse, policymakers should not be able to shirk their responsibility for worsening maternal and child health. Policymakers must confront what it means to get pregnant, give birth, and parent in the United States. Academics and advocates should partner to hold policymakers and courts accountable for their ignorance of, indifference to, and sometimes outright denial of the facts about maternal health in America. Pro-life activists, politicians and judges should no longer be able to claim that they are “pro-woman” and “pro-child” while turning a blind eye to the realities and consequences of unplanned pregnancy in a country that does not value maternal and child health. Hammering away at the facts-- including the growing evidence demonstrating the benefits to maternal health of government supports and “pro-family” policies, as well as elevating the voices of women's lived experiences, particularly those of low-income women of color-- is more critical than ever. As SisterSong's recent declaration on reproductive justice says, “[w]hen we fight for reproductive justice--we show up for people who are harmed the most.”

Elizabeth Tobin-Tyler, JD, MA is Associate Professor of Health Services, Policy and Practice, Brown University School of Public Health.