Dobbs as a Catalyst for Reproductive Justice
By Kimberly Mutcherson
As advocates construct arguments for saving and expanding abortion access, they should also think deeply about what it means to deny or refuse would-be mothers from traditionally disfavored groups the access to assisted reproductive technology.
While the post-Dobbs conversation about abortion is critical and immediate, this turbulent time has potential for igniting more expansive and sustained conversations about reproductive justice (RJ), including how to create a more just market for fertility services.
For the unfamiliar, RJ is a movement begun by Black women almost three decades ago that focuses on three central tenets: the right to have a child, the right to not have a child, and the right to parent one’s children in safe and healthy environments.
While the mainstream reproductive rights movement has long had a particular focus on abortion and the choice to avoid or end a pregnancy, the history of Black women in the United States is replete with examples of denying the affirmative choice to have a child. Forced or coerced sterilizations, attempts to mandate long-acting birth control for women receiving public benefits, and family caps on social welfare payments are some ways that the law has sought to manipulate who has babies and, in so doing, has favored the family building choices of some (often white and with money), while denigrating those same choices for others (often Black and Brown and poor). Thus, protecting the right to have a child and raise one’s child safely is crucially important in the lives of many Black and Brown women in the United States
Access to fertility treatment in the United States is stratified by race and class. While Black women have higher rates of infertility, they are less likely to be able to access expensive fertility treatments, even in states that have insurance mandates. They are also less likely to successfully have children even when able to access treatment. Despite this, the discussion about access to often prohibitively expensive infertility treatments has yet to reach any sort of fever pitch. In fact, while Black women’s overrepresentation in abortion and maternal mortality statistics has received increasing media attention, infertility care continues to be treated as a luxury item for the wealthy.
The irrefutable reality is that the right to abortion and the right to access fertility treatment are both fundamental and equally important aspects of RJ. In the wake of Dobbs, the American Society for Reproductive Medicine recognized the impact of the decision for their constituents and released a statement decrying the overruling of Roe and declaring, “Decisions about healthcare, particularly reproductive healthcare, should be made by patients and physicians, not by interest groups, religious organizations, politicians, pundits, or Supreme Court Justices.”
The post-Dobbs moment in which we find ourselves has shone a bright light on the lack of abortion access in the United States, even before the fall of Roe. The consequences of abortion bans are dire, as documented in the Turnaway Study and from more recent stories of women denied abortion care after Dobbs. As always, it is the most vulnerable whose suffering is magnified when abortion is out of reach. In the same vein, gatekeeping access to fertility treatment has its most dire impacts on those who are most vulnerable often because of multiple socio-economic factors like race, income, education level, and health status. The need for coalition between abortion providers and advocates and providers of fertility care and advocates for the infertile is as clear as ever. We know that today’s abortion patient may be tomorrow’s infertility patient, and vice versa. Thus, the time for separate movements has long since passed. As the fertility industry finds itself pulled into the post-Dobbs world of hyper-regulation of reproductive health care, there is opportunity to advocate for a wider swath of potential patients.
In the frenzy of post-Dobbs legislation, legislators should be made to confront their own hypocrisy. Any state that cares so deeply about babies and about life that it chooses to ban abortions should be happy to fund fertility treatment for those who cannot afford it.
Many of the policymakers pushing abortion bans typically have not used law to help facilitate procreation among those thought to be overly fertile, bad parents (often because of poverty), or otherwise outside of the heteronormative expectations of family formation. But if government dollars will pay for a woman to have her uterus removed or her tubes tied, why shouldn’t they also pay for a woman to participate in IVF or artificial insemination? If properly harnessed, this moment full of peril may also be rife with possibility.
Kimberly Mutcherson is Dean and Professor of Law at Rutgers Law School.
