Dorothy E. Roberts ’80 was shopping with her engaged daughter for her wedding dress, accompanied by two young friends, when the U.S. Supreme Court handed down its decision in Dobbs v. Jackson Women’s Health Organization, the historic 2022 ruling that ended a woman’s constitutional right to an abortion.
It was a day she’ll never forget.
“Being with these three young women who should have had a future that was far more free than mine, it was just an indelible moment in my mind,” said Roberts, a renowned professor of law and sociology at the University of Pennsylvania, addressing a standing-room-only crowd at Harvard Law School last week. “And of course we’re learning that everything we fear is even worse. Every day there’s a new someone who dies as a result of a miscarriage.”
For Roberts, the “cataclysmic” landmark ruling that overturned Roe v. Wade and decades of judicial precedent was just the latest entry in the nation’s long history of sanctioning oppression of women, particularly women of color. In her remarks, she decried the racism she sees behind the intersecting politics of abortion, pregnancy, and family policing — “what most people call child protection” — and called for a fundamentally new pathway that meets “human needs through community-based efforts to be caring and supportive and equitable to each other.”
Roberts delivered the Biddle Lecture, delivered annually in honor of Francis Biddle, who graduated from the law school in 1911 and eventually became private secretary to Supreme Court Associate Justice Oliver Wendell Holmes Jr., U.S. attorney general, and lead judge during the Nuremberg Trials in Germany after World War II.
The author of four books, Roberts has devoted her career to exploring equality and justice, focusing on how structural inequities in the nation’s health and social systems have targeted women, poor people, and people of color. Earlier this year, she was one of 22 people awarded a MacArthur Foundation Fellowship, also known as the “genius grant.”
Introducing her, Harvard Law Professor Guy-Uriel Charles said Roberts “carefully and meticulously articulates the way that race is embedded and operates, and the relationship between race and gender and the relationship among race and gender and law, and how all of those construct a mechanism of inequality.”
Roberts sees the Supreme Court’s reversal on abortion as the latest in a long line of efforts to control Black women’s bodies and restrict their reproductive rights. Yet, while she sees the Dobbs decision as another way to legally curtail a woman’s autonomy, she said it doesn’t fully capture the weight of oppression inflicted on Black women.
“Prioritizing abortion as the be-all and end-all of reproductive freedom has historically left out the other kinds of reproductive violations that happened, especially to women of color, especially impoverished women of color,” said Roberts. “And so this focus that we tend to still have on the importance of a legal right to abortion — [while] absolutely critical — ignores all the kinds of violations that happened that weren’t even seen as reproductive-rights violations.”
Understanding the historic roots of those various forms of oppression, Roberts said, is critical to understanding how laws surrounding compelled pregnancy, criminalized pregnancy, family separation, and abortion are all “interlocking.”
Efforts to assert reproductive control over Black women and the destruction of families are rooted in the horrors of slavery, said Roberts. It was essential “that enslavers controlled or attempted to control, through law, the reproductive labor of enslaved women.” Slavery also enabled slave holders to break up families by “sell[ing] at will the children of the enslaved … They could give away children or a mother or a father. On the auction block, family members could be sold off separately. They could sell a child to meet a debt or to punish the parents. So these two entwined aspects of reproductive violence were essential to the institution of slavery.”
“This focus that we tend to still have on the importance of a legal right to abortion — [while] absolutely critical — ignores all the kinds of violations that happened that weren’t even seen as reproductive-rights violations.”
Slavery was also the root of destructive stereotypes that have persisted, and inflicted new harm, for decades, said Roberts.
In the post-Civil War era, newly emancipated Black women were deemed unfit to mother, fueling the “apprentice programs” that took Black children away from their families, often placing them back with their former enslavers. Later, forced-sterilization programs that began in the 1950s and even continue today in prisons and ICE detention centers, said Roberts, grew out of other stereotypes, including the image of Black women as eager to have children simply to continue collecting welfare.
These stereotypes, she said, also fueled problems with the foster care system. In the 1960s, the federal government began extending benefits to Black families, but only on the condition that they had what was deemed a suitable home, said Roberts. If those benefits were denied, “Your children should be taken from you and put in foster care. That is when we see the beginning of this massive foster care population.” It was also the beginning of more federal funds being spent maintaining children outside their homes rather than inside them.
That policy, according to Roberts, “was in the interest of white supremacist politicians, [including] government agents eager to end this idea that Black people, Black families, were entitled to government assistance.” The policy also was fueled by racialized stereotypes “that say that Black mothers can’t take good care of their children … and the stereotypes that say that Black fathers are absent, and they don’t care about their children.” Yet, most children are put into foster care because of the parents’ inability to meet a child’s material needs due to poverty rather than a lack of care or attention, said Roberts.
“These harms that are caused by poverty, caused by structural inequities, are then treated as if they’re the fault of pathological parents. And the cure for that is therapy, mandated sessions with counselors, mandated parental training, mandated meetings with your caseworker, mandated ‘admit you’re a bad parent,’” said Roberts, adding that parents who miss even one meeting risk losing custody.
In the 1980s, while working on her first book, “Killing the Black Body: Race, Reproduction, and the Meaning of Liberty,” which stemmed from her opposition to the prosecution of Black women who were pregnant and using drugs, Roberts watched another ugly stereotype take destructive hold.
“Across the country,” she said, “there were tens of thousands of Black women whose newborns were being taken from them at birth just based on one positive toxicology [test]. And the same kinds of stereotypes, vilification of so called ‘crack babies’ and Black women trading sex for crack, and the idea that crack [was] used by only Black women of maternal instinct … were also fueling mass removals of newborns from Black mothers.”
Punishing women for their conduct while pregnant also led to criminalizing their pregnancy outcomes, said Roberts, as in the case of Regina McKnight, a Black woman who suffered a stillbirth and was convicted of homicide by child abuse in 2001 due to her cocaine use. After serving several years in prison, McKnight was released, said Roberts “because finally she got a lawyer who could show that her prior lawyers never adequately contested the bogus testimony that she caused the stillbirth.”
Proponents of overturning Roe, said Roberts, were choosing to ignore the history that preceded it and the possibility it could recur. “‘It’s never going to happen,’ they said because they didn’t want people to believe that banning abortion would lead to something so atrocious as prosecuting people for miscarriages and stillbirths,” said Roberts, “but it has happened.”
Turning to possible solutions, Roberts said she supports models of community-based care, equitable policies that meet human needs, and the work of grassroots organizations. She urged her listeners to recognize not only how oppressive systems that support racial, gender, and class hierarchies are intertwined, “but also to recognize that our movements against these forms of oppression should be interlocking.”
Addressing the audience, she said: “And so I call all of you, if you see these connections, whatever piece of it you’re working on, to see it’s connected to these other pieces, and to work toward a society where compelling people to give birth, where punishing people for pregnancy, criminalizing pregnancy, where forced family separation as a means of meeting human needs would be unimaginable.”
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