Reproductive Rights, Slavery, and ‘Dobbs v. Jackson’

This post is part of our forum on “Black Women and Reproductive Rights.”

In 1662, the Virginia legislature cast a cold, calculating eye on Black women’s children. Never mind that fewer than 150 Black women were enslaved there at the time, those legislators recognized that control of women’s reproductive bodies yielded both profits and policing that would be at the heart of their wealth and the colony’s future. In doing so, they set in motion a precedent for violent state involvement in the bodies of dispossessed women that we are viscerally encountering today some 360 years later.

Their intent was to rectify an error on their predecessors’ part. Six years earlier, a Black woman named Elizabeth Keye had successfully sued for her freedom on the basis of the fact that while her mother had been an enslaved Angolan woman, her father had been a free, white, property-owning Englishman who, not incidentally, was also a member of the Virginia legislature. Based on her paternal inheritance she claimed a freedom that was, indeed, logically hers based on centuries of Anglo-European juridical notions of both descent and the prerogatives of Christianity. Keye used the laws of descent against them—and now they needed to clarify the relationship between their power and her mother’s womb.

Six years later, after she had slipped away from the bondage that she had labored under for the first twenty-six years of her life, the Virginia legislators realized that something about their concession to her sat poorly with them. In the 1660s, they represented the political and economic interests of about 15,000 English settlers among whom lived a mere 300-500 Africans—some enslaved, some free. Still, the implications of Keye’s freedom suit were alarming. Their brethren to the south in the colonies of Antigua and Barbados had already begun to carve enormous wealth out of the land using the labor of Black workers. Their Blackness was increasingly the key symbol of their enslavability—conveying through the color of their skin and the texture of their hair an astonishing range of claims that we now clearly understand as racism. And so, with eyes set on a horizon in which their wealth and power would be guaranteed through the relentless labor of other people, the Virginia legislators reconsidered their earlier decision and wrote, “Whereas some doubts have arisen whether children got by any Englishman upon a negro woman should be slave or free…all children borne in this country shall be held bond or free only according to the condition of the mother.”  The Act cemented hereditary racial slavery, overturned long-standing laws that regulated fatherhood, and incentivized rape for capitalism.

The connecting tissue between 1662 and 2022 are fundamentally rooted in the history of slavery and reproduction. In his concurrence to Dobbs v. Jackson Women’s Health Organization, Clarence Thomas mobilizes, as he has since he joined the Bench, his opposition to substantive due process. This is the clause in the Fourteenth Amendment that says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It is from here that the notion of privacy as a protected right emerges—much to the dismay of conservative jurists like Thomas.

Thomas has long marshalled the history of slavery and racism to buttress his deeply conservative politics. Thus, Thomas gestures to Moynihan’s “tangle of pathology” as he laments the damage slavery did to Black manhood, lambasts birth control and abortion as the strategy of eugenicists trying to control Black populations, and cites the failures of Reconstruction and its aftermaths to argue for the importance of gun ownership and the sacrosanct nature of the Second Amendment. But his fundamental opposition is rooted in rejecting the notion that the autonomous body is constitutionally protected.

As Corey Robin has recently written, Thomas has played a central role in the demise of Roe v Wade, and his stance against substantive due process is at its heart. For Thomas, past misreading of the Fourteenth Amendment has led to the explosion of what he defines as “unenumerated” rights—those rights not listed in the Constitution and thus not guaranteed by it. Thomas argues this proliferation of rights has eroded traditional authority, denying Black men of their opportunity to be strong father figures. Abortion is just the tip of the iceberg for this interpretation. Birth control, state support for single mothers, the rights of the incarcerated, same sex marriage—all of these are in the sights of not just Thomas, but also the conservative religious right. “To reverse the downward spiral of social decadence and patriarchal decay, conservatives must undo the liberal culture of rights, starting with the unenumerated rights of substantive due process.” This is the fundamental issue. Only rights enumerated in the Constitution—like the right to bear arms—are those whose tradition and text must be upheld. Rights rooted in privacy, or worse, in bodily integrity, are not the business of the federal government.

It might be argued that the right to privacy is a modern concern. One that, as Thomas himself argues, emerged in the aftermath of the “rights revolutions” of the 1960s. And yet, the legal case of Elizabeth Keye reminds us that women’s struggles over bodily autonomy are at the foundation of our modern political and economic institutions. Racial slavery pitted women’s reproductive capacities against the interest of the state, introducing a conflict between a woman’s identity as a parent and the child’s identity as a commodity—enacting, most brutally and decisively, the notion that the fetus’s worth was paramount, and that the mother’s corporeal integrity was immaterial. The 1662 case should remind us that the founding legislators of this country were erecting a legal system in which, among other things, the expansion of the slave economy rendered women’s reproductive lives as matters of political, legal, and economic intervention. The absence of the right to bodily integrity for the formerly enslaved should have been rectified in the aftermath of the Civil War and the Emancipation Proclamation. Instead, we have seen the erosion of such claims to autonomy—rooted in the experience of the enslaved—expanding exponentially into the lives of poor and dispossessed Americans across the racial spectrum. The Supreme Court has just put the rights of a fetus above those of the person who carries it. Where is the precedent for the appropriation of a person’s body by the state? Where did we learn in this country that the state could define a fetus as a distinct matter of law and property and state intervention? We learned that from the long and violent history of hereditary racial slavery.  The laws of our country laid a clear path towards the utter dispossession of rights bearing subjects at the hands of the state.  Elizabeth Keye saw it coming in 1656. Every woman in this country now understands it too, as a matter of deep and relentless dispossession at the hands of those whose agendas have always been to rewrite American law to erase the impact and implications of the history of slavery.