Recent efforts to mobilize communities around the ways in which incarceration affects Black women, such as the Black Mama’s Bail Out campaign and SisterSong’s anti-shackling campaign, offer an important reminder of the racialized gendered violence and socioeconomic disadvantages that beset Black women and their families. When we talk about the impact of the criminal legal system on individuals and communities, we also need to talk about how systemic sexism, racism, and classism deny incarcerated Black women the basic resources necessary to give birth, prevent pregnancy, parent, sustain life, and even to live.
Rachel Anspach for Rewire.News and Akilah Wise for The Nation have insightfully explained how the criminal legal system affects Black women’s health. Together, they expose how intersecting inequalities reinforce institutional violence. This raises the question: How does the interplay of race, gender, and class deepen Black women’s captivity, and in what ways can researchers and advocates leverage this knowledge to improve Black women’s health?
The story of Darlene Johnson, a Black mother of four, is a testament to the history of reproductive control exerted by the criminal legal system. After pleading guilty to three counts of felony child abuse in 1991, Johnson was given a fraught proposition: a choice between a seven-year prison sentence or only one year in prison and three years on probation, with the condition that she get a Norplant birth control device implanted into her arm for three years. Howard Broadman, a California Superior Court judge, imposed the discriminatory judicial decision after noting that Johnson might become pregnant again while receiving welfare assistance, feeding the false narratives of the “welfare queen.” This infamous myth about Black, single mothers remains an enduring image of deviance—one that serves to justify the criminalization of Black womanhood and motherhood by state agents, politicians, lawyers, and staff of jails and prisons.
Johnson agreed to the terms of the probation out of fear of receiving a full sentence and, subsequently, her children were placed in foster homes. She unsuccessfully appealed the court’s coercive decision.
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The case sheds light on how the criminal legal system can exert reproductive control, a particular form of systematic violence often reserved for incarcerated Black women.
Policy and academic literature has for years offered insight into how Black women’s bodies remain entangled in a set of institutional circumstances that magnify reproductive violence. In Killing the Black Body: Race, Reproduction, and the Meaning of Liberty, legal scholar and reproductive justice advocate Dorothy Roberts writes:
[R]egulating Black women’s reproductive decisions has been a central aspect of racial oppression in America. Not only do these policies injure individual Black women, but they also are a principal means of justifying the perpetuation of a racist social structure … that blatantly deny Black women control over critical decisions about their bodies.
This type of violence is reflected in what advocates describe as the new reality of “Jane Crow”—the interconnected racial, gender, and sexual oppression that Black women experience in various institutional contexts. For example, in the past few decades, there has been a profound change in the involvement of Black women within the criminal (in)justice system. These trends stemmed from expansive law enforcement efforts and stiffer drug sentencing laws that have criminalized the survival strategies of many Black women as it displaced women and their children in the criminal legal system.
Following Richard Nixon’s infamous declaration of the “war on drugs” in 1971 and Ronald Reagan’s implementation of the Anti-Drug Abuse Act of 1986, federal mandatory minimum sentencing imposed fixed terms on incarceration, a policy which had its greatest impact on nonviolent drug offenders. The disproportionate application of criminal laws to Black communities in general and to Black women and mothers in particular results in their overrepresentation in correction control via incarceration, parole, and probation. Stricter drug laws and law enforcement efforts have increased the number of Black women in prison by 800 percent since 1986 and the number of women overall by 400 percent, feeding a correctional system that traps them in a web of surveillance and punishment.
The new Jane Crow is a cruel reminder of the ways the bodies and reproductive decisions of Black women, particularly those who are incarcerated, become objects of terror among various state agents. Prison policies that restrict inmates’ abortion rights force many women to carry their pregnancy to term. In some cases where jails and state prison staff allow incarcerated women access to abortion care, women must pay for the health-care service, transportation, and staff time. While the median annual income of an incarcerated woman before her time behind bars is $13,890, as compared to $23,745 for their counterpart, that of an incarcerated Black woman is $12,735. For Black and Latina women who face the greatest wealth disadvantage, and whose disproportionate presence in jail complicates even their most basic survival efforts, accessing an abortion is virtually impossible.
As Darlene Johnson’s case showed, reproductive injustices against poor, incarcerated women don’t end there. The state’s reproductive control over Black women’s bodies extends to forced contraception and sterilization. In July 2013, the Center for Investigative Reporting published findings that 148 female inmates in two California’s women’s prisons received tubal ligations between 2006 and 2010. At least three dozen of these unauthorized procedures directly violated the state’s own informed consent process, according to Alexandra Minna Stern, a professor at the University of Michigan. The majority were Black and Latina first-time offenders. Among them, Kimberly Jeffrey, a Black mother of one who served time for a parole violation, had to advocate for herself against pressure to be sterilized while she was sedated and strapped to a surgical table for a cesarean section. Although federal and state laws ban inmate sterilization if federal funds are used, some correctional staff and medical practitioners believed the sterilizations were an important service to poor women who faced health risks in future pregnancies. Valley State Prison’s former OB-GYN, Dr. James Heinrich, explains the state’s decision to pay $147,460 total for the procedures: “Over a 10-year period, that isn’t a huge amount of money,” Heinrich says, “compared to what you save in welfare paying for these unwanted children—as they procreated more.”
While repeating “welfare queen” rhetoric, state authorities often overlook the systemic failures that contribute to unintended pregnancies, particularly those among Black women. Pregnancy decisions are shaped by a host of factors that often undermine marginalized women’s ability to make informed reproductive decisions. Some of these factors include the lack of comprehensive sex education and quality access to mental health services coupled with the deep fears of a medical establishment and health-care system that fails to appropriately address their reproductive and general health needs.
The experiences of Black women leading up to incarceration reflect the pervasive and invasive clutch of the criminal legal system in contexts such as hospitals where health-care providers and social workers disclose confidential information about patients of color to police and prosecutors. Even as the U.S. Supreme Court ruled that such collaborations between medical and legal officials violated a patient’s Fourth Amendment constitutional rights to privacy in the 2001 case Ferguson v. City of Charleston, the collection of patient information for law enforcement purposes continues. This not only violates the privacy of marginalized women, but significantly undercuts the patient-health provider relationship in ways that cement Black women’s mistrust of health institutions.
For example, one study by the National Advocates for Pregnant Women documented the experiences of 413 pregnant women subjected to cruel punishment or unwanted medical procedures that included incarceration, forced surgery, and coerced abortion. Researchers found that Black women are more likely than white women to be subjected to drug testing and reporting by medical and public health professionals who worked with law enforcement and other state officials to deprive pregnant women of their liberty. Whereas less than one-third (27 percent) of white women were reported to police, nearly half (48 percent) of Black women were reported, which resulted in 85 percent of Black women charged with felonies compared with 71 percent of white women. In some cases, police will take women straight from their hospital beds and arrest them shortly after delivery, placing them in handcuffs sometimes strapped around their waists, or even shackle them during labor.
Ultimately, what this study reveals is the way the routes to Black women’s imprisonment parallel the intense marginalization that incarcerated Black women face.
This violence extends to Black children in a particularly cruel way. The 1997 federal Adoption and Safe Families Act (ASFA) requires states to automatically file a petition to terminate parental rights once a child has been in foster care for 15 of the most recent 22 months. In theory, the goal of ASFA is to prevent children from staying in foster care indefinitely by making them eligible for adoption after a set period of time has passed. Yet, the law’s intentions remain disconnected from the racialized, gendered realities of mass incarceration. For example, ASFA’s deadline stacks the odds against incarcerated women who parent, particularly in states such as New York, where the median minimum sentence for women is 36 months, which is over twice as long as ASFA’s 15-month deadline. These barriers compound as family members, especially Black grandmothers who already lack the social safety nets necessary to address these needs, shoulder the disproportionate burden to care for the economic, social, and physical welfare of children. This intersection of prison and foster care is reflected in the conscious decision of social workers, lawyers, and judges to contribute to incarcerated women’s termination of parental rights and the separation of Black families.
Central to this form of reproductive control is the complete denial of Black women’s motherhood and humanity, a reality that intensifies for expectant mothers who want to carry to term while incarcerated. The lack of gender-specific considerations in incarceration settings is seen in the practice of shackling and binding pregnant women during medical consultations and childbirth. The failure to address basic reproductive health needs coupled with the heightened risk of blood clots, injury, and death to the mother and fetus caused by shackling reflects the frightening history of the devaluation of Black mothers.
Where national policy falls short, reproductive justice advocates have worked vigorously on behalf of incarcerated Black women. After SisterSong and its affiliated coalition groups mounted public pressure to end shackling during childbirth, state prison officials in North Carolina expanded their anti-shackling policy to remove wrist, leg, and waist restraints during labor. Although, according to the ACLU, many of these laws are not properly implemented, North Carolina joins 22 other states where legislation prohibits shackling of pregnant prisoners during labor, delivery, or postpartum recovery, offering some relief to the 12,000 (6 percent) of the 200,000 women incarcerated pregnant women in U.S. prisons and jails. Yet, states without legislation have little recourse to effect change that can end this practice.
The collective work of SisterSong, the National Black Women’s Justice Institute (NBWJI), the Black Mama’s Bail Out campaign, and other organizations or projects offers a roadmap for building sustainable, transformative change. SisterSong, an Atlanta-based reproductive justice organization, initiates and supports efforts to spread awareness of the plight of incarcerated women and revise policies and laws to help effectively improve Black women’s health. The NBWJI complements this work by providing evidence-based research and technical assistance while working with higher education institutions to investigate the impact of Black women and girls’ criminalization and economic marginalization on their families and communities.
And as Black women’s captivity remains linked to the devastating impact of cash bail, organizing efforts must also address the material impacts of the criminal legal system in Black women’s lives. The grassroots coalition behind the National Black Mama’s Bail Out campaign addresses this by raising funds and highlighting local organizing efforts to call on legislators, judges, and district attorneys to abolish the cash bail system. This type of support offers advocates and organizers an opening to amass the political will, economic resources, and social consciousness necessary to transform the constraints Black women face.
Written on the bodies of incarcerated Black women are the myriad ways the criminal legal system exerts reproductive control through practices and policies that explicitly deny basic access to reproductive justice. Yet, these experiences also offer political lessons to counter the racialized gendered violence that pervades the criminal legal system. Amid the lethal assaults on Black women’s lives, a reproductive justice approach centers our anti-racist and gender equity agendas, simultaneously combating state violence in women’s intimate lives and the race- and class-based reproductive inequities that impedes them.