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Birth Justice Advocates Finds New Challenges—and Opportunities—Post-'Roe'

Birth Justice Advocates Finds New Challenges—and Opportunities—Post-‘Roe’

In the months since the Supreme Court overturned Roe v. Wade, pregnant people with ectopic pregnancies and fetal abnormalities have had to wait until they are essentially at death’s door to receive treatment—usually via abortion care—because hospitals fear state abortion bans. This denial of care exacerbates existing inequities surrounding childbirth.

Before Roe’s downfall, the United States had the highest rate of maternal mortality compared to other high-income countries. Because of systemic racism, lack of access to prenatal and postpartum health care, maternity care deserts, and weathering, Black, Asian, and Indigenous women and birthing people face higher rates of maternal mortality than their white counterparts.

In response to the Black maternal health crisis and other instances of birth injustice, primarily Black mothers, parents, activists, and maternity care practitioners birthed a movement in the late 2000s and early 2010s. The birth justice movement works to create a world where women and trans people control “when, where, how, and with whom to birth” and are free from medical abuse and reproductive oppression. The movement includes efforts to increase access to and affordability of doulas and midwives, legalize home births, create birthing centers, and end obstetric violence.

Achieving birth justice is more crucial now than ever: Recent research shows that in 2020, maternal mortality rates were 62 percent higher in states that heavily impeded abortion access than in states with fewer restrictions. Unfortunately, the rate of birthing deaths in abortion-hostile states will increase now that Roe has been overturned, which underscores the interconnectedness of abortion and birth justice.

Shamika Boone, the community-based doula program manager at Tulsa Birth Equity Initiative—an organization that trains community-based doulas to help guide women and birthing people through prenatal, perinatal, and early parenting experiences—said abortion bans complicate access to doulas or midwives.

“Generally, in the birth work space, when a family comes to us they have already decided to have their child,” Boone said.

Now, with Roe overturned and abortion outlawed in Oklahoma (except in cases of “medical emergencies”), Boone said a pregnant woman or person might seek out birth services because of “an unwanted pregnancy or experience that they have to go through with now.” The use of doulas and midwives has been linked with healthier birth outcomes and the empowerment of birthing people.

Unfortunately, a pregnant person in an abortion-hostile state who cannot afford to travel out of state for abortion care likely cannot afford a doula or midwife. Of the more than a dozen states that have criminalized abortion, at least eight have proposed some action to provide doula-adjacent services for low-income birthing people since 2019, according to the Doula Medicaid Project. Yet none of these states, including Oklahoma, offer Medicaid reimbursement for doula services.

“We’re still working on Medicaid reimbursement in Oklahoma. … Anyone [on Medicaid] who seeks a doula has to pay out of pocket,” Boone said. “They may not be able to afford a doula who costs $1,000. They’ll just go to the hospital because they’re on SoonerCare and can’t afford to do that.”

According to Boone, the high cost of doulas in Oklahoma may deter people from having the birth experiences they desire.

“It’s important to be able to receive Medicaid reimbursement to have a doula along with your Medicaid insurance, and have that additional support because of the possible inequitable treatment that could happen in the hospital,” Boone said.

Denials of reproductive autonomy snowball. Abortion bans put birthing people at risk of having unfavorable, traumatic, and potentially fatal birthing experiences.

Roe’s reversal also impacts the birth justice movement’s ability to grow. Indra Wood Lusero, founder and president of the Birth Rights Bar Association, a group of legal advocates that develops and provides legal responses and solutions to issues surrounding birth, shared that the organization is concerned that funders will hesitate to invest in broad reproductive justice work because of the abortion rights crisis.

“Just in the past few years, there was greater attention about how birth connected to abortion rights,” Wood Lusero said. “Some funders are starting to fund solutions to maternal mortality racial inequities. The overturning of Roe complicates it because of political will and momentum.”

According to Wood Lusero, synchrony between these movements is important.

“Black women, through [the] Black Mamas Matter Alliance, raised awareness about racial inequities with regard to maternal mortality,” they said. “If that wave of attention is not connected to the philosophical thinking of reproductive justice, that is not going to work. Access to abortion rights is one form of discrimination on the basis of pregnancy, but another piece is lack of access to evidenced-based care, of which midwifery is a part. We need a reproductive justice approach to improve maternal mortality.”

Wood Lusero believes that funding is important for developing the birth justice movement’s lawyering aspects. They said birth justice lawyers know that understanding legal issues is necessary to achieving birth justice.

“We have to hold a space for that to even be possible because there’s no law school curriculum that is training about birth justice. … It’s not like you can take a birth justice class in a law school at this point,” Wood Lusero said. “If there is no investment in developing new legal theories and better legal arguments, we’re not going to have them.”

Funding birth justice lawyering is more crucial now that legal advocates have the opportunity to create new arguments about a person’s rights during childbirth.

“One of the problematic things about Roe is the viability framework, which complicated the end of pregnancy,” Wood Lusero said. “The law has been developed around abortion. There is very little law that’s been developed specific to childbirth. The way that the law gets made in this country is precedent. We have to be in conversation with what exists.”

Wood Lusero pointed to the 1991 Colorado Supreme Court case People v. Rosburg, which held that Roe’s right to privacy did not include the personal choice of whether to have a midwife-assisted childbirth because the state’s interest in fetal life superseded the pregnant person’s autonomy once viability was reached.

Now, 50 years after Roe became the law of the land, abortion access is in shambles. Yet perhaps new life can sprout from this culled forest.

“What got us Roe was an ahistorical view of law and policy related to reproduction. If we’re going to do better, we have to learn from history,” Wood Lusero said. “Now is an important moment to look carefully not just at Roe, but a hundred years before Roe, and a hundred years before that and the evolution of the architecture of pregnancy care. We can learn a lot about how it got shaped and reshape it. I think we do want to reshape it. Losing Roe gives us a chance to get something better.”

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