How does police violence impact people’s reproductive decisions?
After the murder of Michael Brown in 2014 by police in Ferguson, Missouri, Imani Gandy, Rewire Senior Editor of Law and Policy, tweeted “I saw so many people on Twitter saying “I don’t want to have/raise Black children in this country.” That is a reproductive justice issue.” Since then, the intersections of police violence and reproductive justice have received more attention in the popular press. “Reproductive justice,” first coined in 1994 by a group of Black women, has spurned into a movement that supports “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.” The U.S. does not foster “safe and sustainable communities” particularly for Black, Indigenous, and other people of color, and that lack of safety is perpetuated through disproportionate and excessive surveillance, policing, and punishment by law enforcement. Black people have flocked to social media to vent about how even the fear of police violence threatens their reproductive and parenting decisions. Writer and journalist Hannah Giorgis has remarked that “Any force that systematically and unapologetically turns unconsenting Black wombs into graveyards is a reproductive justice issue.”
How do pregnant people experience police violence?
In 2020, the state-sanctioned murders of Breonna Taylor, George Floyd, Tony McDade and other Black people raised the public consciousness of an all too pernicious, long cycle of racist state-sanctioned violence in the United States. Ongoing advocacy and activism efforts were bolstered, calling for decreased use of force by officers, demilitarization of law enforcement, divestment of police department funding and redistribution to social services, and abolition. Nevertheless, since the summer of 2020, law enforcement has continued to disproportionately harm Black people, including assaulting and arresting pregnant Black women. In a recent study, Dr. Rachel Hardeman and colleagues found an 83% increase in the odds of preterm birth among those who reside in neighborhoods with high levels of police exposure, contact, and activity relative to those in low police exposure neighborhoods. After Zityrua Abraham’s assault mentioned earlier, she was in physical pain and her pregnancy became high risk. Although Ms. Abraham’s contact with police did not end in her murder, such exposure to law enforcement and their technologies of surveillance is still violent—physically, mentally, and emotionally. This is a type of “slow death”—a cumulative trauma borne out of the daily round of living, and in this case, living while Black.
It is also critical to acknowledge and address the mental, emotional, and physical ramifications of witnessing police violence. Darnella Frazier was 17-years-old when she filmed George Floyd being murdered by Minneapolis police officer Derek Chauvin. This footage helped to galvanize worldwide protests against police violence and became primary evidence in the conviction of Chauvin. Frazier has talked openly on social media and in news stories about the chronic post-traumatic stress that she has experienced from bearing witness to Floyd’s murder by police. Additionally, her then-nine-year-old cousin also witnessed the murder. Similarly, the children and other young family members of Korryn Gaines, Atatiana Jefferson, Philando Castile, and Jacob Blake witnessed or were in close proximity to the murders of their loved ones by law enforcement. Dr. Rhea Boyd’s research and advocacy acknowledges this, and she notes the glaring absence in the research literature of the impacts of young people who have witnessed their family members murdered by law enforcement. Ultimately, we must ask what are the consequences of witness and of survival; what coping practices exist and persist amidst chronic trauma; and will we ever be able to reproduce justice?
LeConté Dill, DrPH, MPH, is an Associate Professor in the Department of African American and African Studies at Michigan State University. In her work as a community-accountable scholar, educator, and poet, she listens to and shows up for urban Black girls and works to rigorously document their experiences of safety, resilience, resistance, and wellness.
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This post is a part of our Bioethics in the News series. For more information, click here.
By Deborah Fisch, JD
Public fascination with the female  breast is nothing new, from Janet Jackson’s famous “wardrobe malfunction” to Angelina Jolie’s much-discussed preventive mastectomy. When, in addition, the breast is used in its reproductive capacity to nourish children, law especially sits up and takes notice. In 2014 the lactating breast was at the center of a number of issues, with implications not only for legal rights, but also medical practice, public health, and Reproductive Justice. The breast, so active last year, was propelled by interesting messages, ultimately arriving at unexpected places.
 The author recognizes that some people who breastfeed do not identify as women; in the absence of generally accepted non-specific language, this article will alternate the use of gender-specific and gender-neutral terms.
1. The Public Breast: Yes, You Can!
Passage of Michigan’s Breastfeeding Antidiscrimination Act represents an improvement on previous legal protections limited to the breastfeeding’s exclusion from municipal public indecency laws. The new Act broadly forbids the denial of “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service to a woman because she is breastfeeding a child.” It also provides civil remedies in case of violation; in offering recovery of litigation costs, the law makes it possible for a greater number of injured parties to pursue legal redress.
The Act does not include the addition of breastfeeding as a fundamental right, a provision that might have shaped employment sex discrimination cases. Of more pressing concern is that although since 2012 breastfeeding mothers may be exempted from jury duty, no caregiver exemption exists. To suddenly locate full-time childcare for an indeterminate period of time may be even more challenging than coping with the interruption of breastfeeding. In other words, while breastfeeding is a biological act, it is its social context that can often determine its success or failure.
2. The Working Breast: We Think You Can!
Nowhere is breastfeeding’s social context more central than in the workplace. The absence of a national parental leave policy presents an immediate barrier to continued breastfeeding, as does the lack of workplace-centered childcare.
The Affordable Care Act addressed this obstacle by requiring employers to provide “a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth.” However, legal experts are skeptical of the provision’s effectiveness. Philadelphia attorney Jake Marcus has long pointed out the law’s lack of a clear enforcement provision and what that means. She also questions the extent of the law’s coverage, an issue addressed by Nancy Ehrenreich in a forthcoming article. While the law on its face covers hourly workers and excludes salaried workers, Ehrenreich believes that in practice, salaried workers are more likely to reap its benefits because of factors related to logistics, culture, and power dynamics. She argues that the (unpaid) “Break Time” provision may actually exacerbate systemic inequalities based on race and class: mothers abandonment of breastfeeding will be regarded as “evidence of ignorance and poor parenting – and therefore as deserving of disciplinary surveillance and regulation.”
Lynne Paltrow and Jeanne Flavin write of the criminalization of pregnancy, the loss of civil or human rights when pregnant. Behavior that is permitted in non-pregnant people is forbidden when carried out by pregnant ones, with uneven enforcement based on socioeconomic status and race. Similarly, the disapprobation many Americans feel at the idea of public breastfeeding – thus the need for protective laws – often translates into moral policing and criminalization of breastfeeding women’s behavior.
At the same time, no amount of moral purity protects breastfeeding parents from the charge of harming their children – through breastfeeding! Anthropologist Katherine A. Dettwyler notes that “ … women have been accused of sexual abuse of their children simply for breastfeeding them for various lengths of time deemed inappropriate by others, including mothers of children as young as 2 months of age.”
Journalist Kimberly Seals Allers, a consultant to the Detroit Black Mothers’ Breastfeeding Association, describes reservations expressed by BMBA and other advocacy organizations at the plans of Medolac, an Oregon company, to solicit donations of breast milk at $1/ounce from lactating women in Detroit. Medolac hopes to re-sell milk to hospitals for use by preterm infants.
The commodification of body parts and fluids is a topic long disputed by advocates, ethicists, and scholars. Whether payment should be offered for breast milk is a question beyond the scope of this piece. Nevertheless, one wonders how Medolac could be so remarkably insensitive to the context and conditions of this particular business venture.
As this article was going to press, Medolac announced the retirement of its campaign in Detroit.
A common theme is not so much national or state law as a combination of the Law of Unintended Consequences and Murphy’s Law. Various entities with good intentions have nevertheless not gone far enough, gone too far, or caused outcomes the reverse of their design. Part of the blame results from reliance on inadequate, incorrect, or changing evidence – but what is to be done? The responsibility of the legislature is to safeguard the public’s health. Medical providers are ethically bound to respect patient autonomy and do no harm. The ultimate legal rights inquiry is who decides, while Reproductive Justice demands that governments affirmatively assist people in accessing their rights. Consider also that no one is more concerned about the welfare of a child than its mother; no one holds the child’s interest closer to their heart.
These facts taken together suggest that consulting and following the wishes of breastfeeding parents will yield the best chance of identifying problems and arriving at solutions. Detroit mothers would eagerly have given input on the prospect of selling their breast milk, had they been asked. Parents who use substances can explain what policies would best support them in taking care of their children. The initiatives required to permit parents in the workplace to continue to breastfeed are to be most easily discovered by asking a variety of parents in the workplace. Whether a law protecting breastfeeding in stores and restaurants goes far enough is, again, best evaluated by people who struggle with integrating breastfeeding into their private and public lives.
When in doubt, trust and support breastfeeding parents. The breast that feeds the child is (usually) attached to the parent, after all. As much as we might wish to endow the breast with a separate identity and cause it to function – or malfunction, in Ms. Jackson’s case – at the behest of medicine, public health, or the law, it is the person behind the breast who can say what is needed, and tell us how to get there.
Deborah Fisch, JD, is Senior Researcher at the Sexual Rights and Reproductive Justice Program at the University of Michigan. She is a founding member of the Birth Rights Bar Association and actively advocates for licensure of Certified Professional Midwives in Michigan. Her professional interests include the role of malpractice liability in determination of standard of care; the legal maternal-fetal relationship in pregnancy, labor, childbirth, and postpartum; regulation of out-of-hospital birth attendants and protocols for their interaction with in-hospital providers; and evolving access to maternity care under the Affordable Care Act. She writes on these subjects and many others at Mama’s Got a Plan and the associated Facebook page. She earned her AB in Linguistics from the University of Michigan and her JD from Wayne State University Law School. All opinions expressed in this article are her own.
Join the discussion! Your comments and responses to this commentary are welcomed. The author will respond to all comments made by Thursday, February 5, 2015. With your participation, we hope to create discussions rich with insights from diverse perspectives.