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A Tale of Two Clauses: Due Process in Racialized Reproductive Freedom

Updated: Jul 24, 2023

For Women’s History Month, I’m so pleased to celebrate three women who have each, through their original work, taught me important lessons about the history of drug control. This second post in my series on Drugs, Women, and Families summarizes an exceptional research paper written by Lydia Wendel during my seminar in drug law last year. She identified two very different constitutional and legislative histories that defined reproductive freedom: one path for white women and another path for all other, or BIPOC, women. The U.S. Constitution’s “due process of law” clause appears twice, commanding both federal and state governments to provide it to all citizens. Wendel’s remarkable insight into how these words have worked to protect the rights of some women while forsaking others gave me a deeper understanding of this difficult and vital aspect of constitutional law. She arrives at a chilling conclusion: that these two constitutional paths are now converging to the detriment of overall reproductive freedom for all women in the United States.


Shielding personal decisions about family relationships from government intrusion has been the key function of substantive due process. As a practical matter, U.S. Supreme Court decisions that assert or develop a substantive right generally invalidate state laws that intrude on personal matters. The intrinsic human right to marry is a relevant example that also demonstrates how a pathway can unfold from a precedent. Established by the U.S. Supreme Court in Loving v. Virginia (1967) with regard to interracial couples, the right to marry was reaffirmed in a 1978 decision regarding fathers with unpaid child support and a 1987 decision regarding state prison inmates. In 2015, Obergefell v. Hodges struck down state laws forbidding same-sex marriage.


The right to privacy and the right to procreation are two others among only a handful of established substantive due process rights. (Remaining are the right to acquire knowledge, also called the right to education, dating from decisions written in the 1920s; and a more general substantive right to freedom from government actions that “shock the conscience,” dating from a 1952 case of police brutality.)


The rights to privacy, procreation, and marriage are interconnected. In Griswold v. Connecticut (1965), the high court articulated a marital right to privacy when it struck down a state law criminalizing the use of contraception. This ruling applied only to married couples, but the concepts of privacy and autonomy articulated in Griswold and Loving resulted in Eisenstadt v. Baird (1972), which “made it clear that access to contraception is not merely about the right to privacy in marriage, but also concerned largely with women’s individual rights to privacy and personal autonomy,” as Wendel writes. “Following Eisenstadt, the inherent right of individuals to make their own choices regarding childbearing became essential to the Fourteenth Amendment’s Due Process Clause, encompassed in the fundamental right to privacy.”


Griswold and Eisenstadt thus contributed to Roe v. Wade (1973) the key reasoning to establish a woman’s fundamental right to privately and autonomously decide whether her pregnancy will result in a child’s birth. But it contained an inherent vice: A lesser known companion case, Doe v. Bolton, struck down an anti-abortion law in Georgia but, at the same time, upheld the “conscience clause” included in Georgia’s state-regulatory framework for abortion. Several states and the federal government then adopted conscience clauses and began using them to expand the circumstances in which a government could curtail abortion access. Among many other examples, Congress in 1976 passed the Hyde Amendment, restricting the use of Medicare funds for abortion (excepting rape, incest, or endangerment); Congress renews this provision annually as part of public health funding.


The Affordable Care Act (ACA) of 2010 required health insurance policies to cover contraception. “But alongside this historic expansion of women’s health services was yet another federal conscience clause,” Wendel writes. Healthcare providers could refuse to provide abortion services, and certain employers such as churches and religious non-profits could even refuse to provide contraception. Based on these conscience clauses and religious exemptions, the chain-craft-store corporation Hobby Lobby won a 2014 ruling (Burwell v. Hobby Lobby) that freed it from the ACA mandate to provide contraceptives to female employees. “Hobby Lobby alleged that the mandate violated their freedom of religion due to their closely held beliefs that pregnancy begins at fertilization, rather than the widely held scientific belief that pregnancy begins at implantation,” Wendel writes. Thus—as the company argued and the Supreme Court agreed—some types of contraception such as morning-after pills amounted to abortion and activated the conscience clause.


The path from Loving through Roe to Burwell has lately been hindered by anti-abortion politics drawing on claims to religious freedom. However, it generally has been a tale of the courts’ expanding and protecting women’s reproductive freedom based on substantive due process claims to privacy and autonomy. Another tale should be told alongside it, as Wendel has done in her paper, because access to contraception and abortion is not the whole of reproductive freedom.


Beginning in the early 1900s, the right of a woman to bear children was threatened in the United States by state laws that adopted the aims of the eugenics movement. Eugenicists sought policies such as compulsory sterilization for impoverished and disabled women as well as “undesirable” ethnic and racial minorities. Following the model of the temperance movement, the eugenics movement convinced 23 states to adopt sterilization laws by 1925, with 20 more to follow after Buck v. Bell (1927), upholding such a law in Virginia.

In this infamous case, Carrie Buck, an 18-year-old woman institutionalized as “feeble minded,” used the newborn concept of substantive due process to challenge the constitutionality of sterilization against her wishes. At the apex of public support for eugenic policy, the court ruled that society’s imperative to “prevent those who are manifestly unfit from continuing their kind” should prevail. “Buck made it clear that the Supreme Court was willing and ready to mark eugenics-based sterilization laws as superior to individuals’ Fourteenth Amendment rights,” Wendel writes. From 1929 to 1941, some 2,000 eugenic sterilizations were performed under state law each year.


A 1942 challenge to sterilization resulted in the Supreme Court’s first decision articulating a substantive due process right to procreate. In Skinner v. Oklahoma, the Court warned against sterilization generally but distinguished between the circumstances of Buck and those of Skinner, who was incarcerated and facing forced sterilization in prison. “The Court reasoned that criminality is a choice, and thus it is not inheritable and cannot be bred out,” Wendel writes. Thus no public good existed to outweigh the individual right in the latter circumstance.


Following the post-World War II revelation that Nazi Germany had used U.S. eugenics as a template for its own forced sterilization programs, states began repealing their laws or quietly dismantling sterilization programs. Still, by the 1960s some states were still sterilizing a few hundred mentally disabled persons each year.


The 1970s “saw a distressing number of sterilizations of BIPOC and indigent women from disturbingly young ages, by their physicians, public health services, and other governmental entities,” Wendel writes. “Medical professionals oftentimes took sterilization into their own hands when they believed it necessary for impoverished women.” Well publicized incidents such as the 1973 sterilization of Mary Alice and Minnie Relf, 12 and 14, in Montgomery, Alabama appeared only to scratch the surface; that same year, more than a third of welfare recipients who gave birth in a county hospital in South Carolina were sterilized by three obstetricians there. Also in the 1970s, the federal Indian Health Service was found violating its own moratorium on sterilizing native women younger than 21, and Latina women claimed they were coerced into sterilization as they delivered children at a Los Angeles medical center.


Norplant consisted of six matchstick-size silicone containers of contraceptive hormones that were surgically inserted under the skin of the arm. Image courtesy of the Science Museum, London.

In spite of federal regulations such as waiting periods and a ban on sterilizing anyone under age 21, rights groups continued to report and protest coerced sterilizations through the 1980s, especially among poor and minority populations that received public health services. Then in late 1990, the Food & Drug Administration (FDA) approved Norplant, an implantable contraceptive that prevented pregnancy for five years. When the editors of the Philadelphia Inquirer suggested the new drug as a solution to poverty among Black families, many were rightly outraged. 


This Dec. 12, 1990 Philadelphia Inquirer editorial on Norplant was later retracted by the newspaper. 

Still, legislators in 13 states introduced measures to financially entice poor women to obtain the implants, and seven states brought bills that would mandate Norplant for some women, including women accused of illicit drug use during pregnancy. Some proposals would have made Norplant a condition of public assistance payments. None of these became law, but in a shocking development, courts sanctioned schemes to condition shorter prison sentences on the receipt of Norplant. “Perhaps what is most troubling is that many state legislatures were close to accomplishing their goal of Norplant mandates and incentives in a decade that was much kinder to a woman’s substantive due process rights than the current one,” Wendel writes. What should be done, she asks, if the question of coerced long-term contraception or sterilization resurfaces? 


Over the past several years, I have thought a lot about how the history of drug control has shaped Constitutional rights for criminal defendants, by studying cases mostly involving procedural due process. I really appreciated gaining this new perspective on how contraceptive drugs have interacted with the Constitution in ways that can be terribly pointed and consequential for families, and especially for women. Two constitutional paths indeed are clearly drawn by Wendel’s work. By one path, women have sought the freedom to procreate by fighting the eugenics-inspired sterilization and contraception schemes of the state. By the other, women have sought freedom from procreation by gaining access to contraception and abortion.


In 2003, the Los Angeles Times reviewed California’s long history of sterilization programs as the legislature debated whether to locate and compensate victims of past abuses, which it did.

Wendel’s summary is best: “Historically, the judiciary has favored the substantive due process rights of affluent white women—GriswoldEisenstadt, and Roe protected the rights of affluent white women while ignoring the same rights of BIPOC and indigent women, who were sterilized by the thousands as those cases were being decided,” she writes. “This complex, interwoven legal history tells us that while these paths sometimes merged, like in Buck v. Bell, it was only to prove that the Court still believed some women deserved to have their due process rights protected while others did not.” The Burwell decision favoring a corporation’s “exercise” of religion over women’s access to contraception suggests that “the due process clause, which was once starkly different for separate categories of American women, is converging again into one.” 

 

Feature Image Caption: This brochure promoting the 1926 book Mongrel Virginians shows the underlying obsession of eugenicists with so-called racial purity. Virginia’s law forbidding interracial marriage was struck down in the precedent-setting Loving v. Virginia (1967), establishing, via substantive due process, the constitutional right to marry. 

 

Sarah Brady Siff is visiting assistant professor at the Moritz College of Law at The Ohio State University, in affiliation with the Drug Enforcement and Policy Center (DEPC). She is a historian of modern U.S. law and politics specializing in the history of drug control. The DEPC is supporting her work on two book manuscripts. “Tough on Dope: Crime and Politics in California’s Drug Wars” is a survey of local and state drug prohibition efforts from 1850 to the mid-1960s, including issues of federalism and constitutional law. “Weed Killers: Cannabis Eradication in the United States” covers the unsuccessful, century-long campaign of American marijuana prohibition with an emphasis on agricultural and environmental policy as well as law enforcement. Siff’s 2019 article “Burn, Sell, or Drive: Forfeiture in the History of Drug Law Enforcement” in the Ohio State Law Journal proposes that customary drug-related seizure and forfeiture practices in the United States are rooted in founding-era tax law.

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