Reproducing Injustice: COVID-19, Reproduction, and the Law

A Virtual Symposium
Friday, October 15, 2021
9 a.m.-4 p.m.
5.5 Substantive CLE Credits
Zoom link will be provided after you register
Registration is free

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Reproductive rights are under attack in the United States, with a record number of restrictive abortion bills introduced in state legislatures this year alone. The United States continues to report high rates of maternal mortality and morbidity, with pregnant people of color at greater risk of adverse health outcomes related to childbirth and experiencing mistreatment by their health care providers at disproportionately high rates. In addition, gaps in access to health care, legal services, and other critical resources mean that many poor people and people of color face particular burdens as parents trying to raise their children in safe and healthy environments. Political divisions regarding reproduction have been exacerbated by the COVID-19 pandemic. As we look forward to a post-pandemic future, it seems important to ask: What kinds of trends do we see as we consider reproductive health and rights through the lens of the pandemic? How can lessons from the COVID-19 era inform future efforts to increase access to health services, defend reproductive rights, and promote reproductive justice? The Drexel Law Review Volume XIV presents Reproducing Injustice: COVID-19, Reproduction, and the Law, a symposium designed to facilitate a conversation about reproductive health and rights in the wake of the COVID-19 pandemic, and what we can take away from the past year and a half to advocate for reproductive justice moving forward.

Panel Discussions

Keynote Address: Melissa Murray

Amidst a raft of major Supreme Court decisions, a relatively quiet concurrence has planted the seeds for what may precipitate a major transformation in American constitutional law. Writing for himself in Box v. Planned Parenthood, Justice Thomas chided the Court for declining to review a decision invalidating an Indiana law that prohibited abortions undertaken “solely because of the child’s race, sex, diagnosis of Down syndrome, disability, or related characteristics.” Arguing that the challenged law was merely Indiana’s modest attempt to prevent “abortion from becoming a tool of modern-day eugenics,” Justice Thomas proceeded to elaborate a misleading history in which he associated abortion with eugenics, racism, and a broader campaign to improve the human race by limiting Black reproduction. While many decried his selective and inaccurate invocation of the history of eugenics, Justice Thomas’s ambitions for the concurrence likely went beyond the historical record. Indeed, in drafting the concurrence, Justice Thomas may have been less concerned with history than with the future—and specifically the future of abortion rights and the jurisprudence of race. By associating abortion with eugenic racism, the concurrence lays a foundation for discrediting—and overruling—Roe v. Wade on the alleged ground that the abortion right is rooted in, and tainted by, an effort to selectively target Black reproduction.

Under the principle of stare decisis, a past decision, like Roe v. Wade, cannot be overruled simply because a majority of the current Court disagrees with it. Instead, a “special justification” is required. Justice Thomas’s association of abortion with eugenics constructs the case that racial injustice is the “special justification” that warrants overruling Roe. If undertaken, the Box concurrence’s latent strategy will be devastating to abortion rights, but its deleterious impact goes beyond eviscerating Roe v. Wade. Under the concurrence’s logic, race may serve dual purposes in shaping the Court’s jurisprudence. As an initial matter, race—and the prospect of redressing racial injustice—furnishes the Court with a potent justification for reconsidering settled precedent. But it also provides the Court with an opportunity to articulate new law that affirms and entrenches the Court’s preferred conception of race and racial harm. In this regard, the Box concurrence is not merely an invitation to recast abortion as an issue of racial injustice; it is an invitation to entirely reconceptualize the meaning of race, racial injury, and racism.

Panel One: Abortion Access and Care

During the COVID-19 pandemic, abortion clinics across the country were deemed “non-essential” and accordingly shut down as a part of state lockdown measures. Meanwhile, telemedicine flourished, becoming the preferred method of out-patient care for reasons such as expanded access to medical care, reduced exposure to disease, and reduced patient demand on overburdened facilities and staff. The logical consequence of these developments in some jurisdictions was for abortion services to be provided via telemedicine through medication and self-managed abortions. These approaches to abortion care offer opportunities to expand access, but concerns about inequities remain and access to second-trimester abortion continues to be vulnerable to restriction in jurisdictions across the United States. With Justice Amy Coney Barrett newly confirmed and further tilting the Supreme Court’s already right-leaning majority, it is widely assumed that the Supreme Court will narrow reproductive rights. What does the future of abortion access look like in the wake of the pandemic?

Panel Two: Pregnancy and Childbirth

The United States is facing a maternal health crisis made worse by the effects of the COVID-19 pandemic. Pregnant people whose employment or family responsibilities have precluded them from working remotely or practicing social distancing face an increased risk of contracting—and developing complications from—COVID-19. Although continuous labor support is associated with shorter labors and fewer medical interventions, hospital visitor restrictions during COVID-19 limited many birthing people’s access to their chosen support people, while others faced unwanted separation from their newborns after a suspected or confirmed COVID-19 infection. Advocacy groups have documented an increase in the mistreatment of birthing people by their health care providers during the pandemic. When pregnant people sought options for community birth to avoid COVID-19 exposure in hospitals or the restrictive policies hospitals had implemented, many were unable to access midwifery care for birth at home or in a freestanding birth center—the result of decades of regulatory hostility directed at midwives in many jurisdictions. As the pandemic exacerbated existing barriers to accessing prenatal care, pregnant people of color and poor people were disproportionately burdened by the pressures COVID-19 put on the U.S. maternity care system. What can we learn from the COVID-19 pandemic to ensure safety and good perinatal health outcomes during future health crises? How can advocates use the experiences of pregnant and birthing people during the pandemic to make changes that will improve maternal health and birth experiences in the non-crisis times ahead?

Panel Three: Parenting and Families

The emergence of COVID-19, and the resulting lockdowns, social distancing requirements, and limited access to courts, health care, and other services, impacted parents and their families in different ways. Some parents navigated additional challenges in the process of divorcing and sharing child custody during a public health crisis. Advocates sounded alarm bells about an increase in intimate partner violence and child abuse as people were largely restricted to their homes, facing significant economic and social stressors. Parents entangled in the child welfare system found themselves unable to reunite with, or even visit, their children, with increased trauma engendered by long separations. Still others delayed the process of becoming parents, whether due to concerns about safety or economic security, or because they could not access the fertility treatment or adoption services that would be essential for forming their families. At the same time, a decrease in reporting and limitations on the activity of child welfare agencies meant that fewer children were removed from their parents on suspicion of abuse or neglect, a phenomenon that disproportionately impacts poor families and families of color, whose poverty and lack of resources are often mistaken for mistreatment. As courts have reopened, what has changed—or should change—in the legal regulation of domestic relations? How can advocates for parents and families be prepared for the next public health crisis so that they can best serve their clients? What barriers interfere with family formation for people who rely on reproductive technology and other non-traditional methods of building their families? What lessons can we learn about how to maintain responsive public services that support families and protect all members within those families?

Concluding Discussion: Looking to the Future

What kinds of trends do we see as we look at reproductive health and rights through the lens of the pandemic? What might we expect from the Supreme Court’s treatment of reproductive rights in the coming term and how might changes in constitutional protection for abortion impact the ability of all people to choose to have a child, to decide not to have a child, and to parent their children in safe and health environments?

Past Symposia

• ‘Impactful Interactions’ Symposium Explores How to Dismantle Legal Barriers Faced By Individuals with Disabilities (Fall 2020)
• Not Your Father's First Amendment (Fall 2019)
• Times of Reckoning: Confronting the Legacies of Mass Abuse through Transitional Justice (Fall 2018)
• Race and Policing in America (Fall 2017)
• Twenty Years After the 1996 Immigration Laws: Revisiting an Experiment in Comprehensive Severity (Fall 2016)
• Criminal Justice Reform (Spring 2016)
• Beyond Reproach: Becoming an Expert Witness (Fall 2014)
• ERISA: Past, Present, and Future (Spring 2014)
• International and Transnational Legal Education (Spring 2013)
• Building Global Professionalism (Fall 2012)
• Perspectives on Medical Malpractice Litigation and Patient Safety (Fall 2011)
• Business Improvement Districts and the Evolution of Urban Governance (Fall 2010)
• Perspectives on Fundamental Rights in South Asia (Spring 2010)
• Health Law (Spring 2009)