The Poverty of Privacy Rights
BY KHIARA M. BRIDGES
STANFORD UNIVERSITY PRESS, 2017
AUTHORS. Michele Goodwin is Chancellor's Professor of Law and Director, Center for Biotechnology and Global Health Policy, University of California, Irvine School of Law. Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law. The authors are grateful for the research assistance of Mariah Lindsay and Julia Jones. This work was presented at Chicago-Kent College of Law, the University of California, Berkeley, the University of California, Irvine, Boston University, and Southern Cross University in conjunction with the Byron Writers Festival. The authors would like to thank the faculties and participants at those workshops and events for their insightful comments.
BOOK REVIEW CONTENTS
INTRODUCTION 1272 I. RACE, CLASS, AND THE LOSS OF FAMILY AND REPRODUCTIVE PRIVACY 1281 A. Depriving Poor Mothers of Privacy Rights 1284 B. The Value of Privacy Rights 1293 C. The State as a Negative Messenger Against the Poor 1298 II. THE LEGALIZATION OF THE MORAL DISREGARD FOR WOMEN'S 1305 REPRODUCTIVE HEALTH AND RIGHTS A. Moral Corruption Against Women's Bodies 1306 B. Why We Can't Forget Jim Crow and Eugenics: Poverty 1314 and Reproductive Rights 1. Eugenics 1315 2. The Relationship Between Economic and Work 1319 Exploitation and Reproductive Privacy C. Reproductive Health, Privacy, and Unjust Laws 1323 III. DANGEROUS TIMES: A REPRODUCTIVE HEALTH WARNING 1329 CONCLUSION 1334 INTRODUCTION
This Review of Khiara Bridges's compelling book, The Poverty of Privacy Rights, is published on the fiftieth anniversary of Dr. Martin Luther King Jr.'s death. (1) In reading his pivotal speeches, sermons, and commentary, we are struck by his profound wisdom on matters related to race, class, reproductive autonomy, health, and women's equality. In 1966, King wrote a landmark speech on reproductive health and rights for his acceptance of Planned Parenthood's inaugural Margaret Sanger Award. (2) In accepting his award, King argued that Black Americans "have no mere academic nor ordinary interest in family planning." (3) He explained-that while "[t]here is scarcely anything more tragic in human life than a child who is not wanted," poverty is often at the root of this condition. (4) Despite the many "mountainous obstacles" facing the Black community, King insisted that "one element in stabilizing [the Negro's] life would be an understanding of and easy access to the means to develop a family related in size to his community environment and to the income potential he can command." (5) Partially due to this reason, King saw the Civil Rights movement and advocacy for family planning as "natural allies" seeking to "guarantee the right to exist in freedom and dignity." (6)
King's Planned Parenthood acceptance speech came at a time when some researchers and doctors estimated that as many as one million illegal or "back-alley" abortions took place each year in the United States. (7) Hospitals were overwhelmed by the deaths and infections caused by coat-hanger abortions. (8) Deaths were most striking among poor women of color: "[m]aternal mortality rates of black women were three to four times higher than those of white women," (9) and abortion-related deaths accounted for nearly half of the total maternal mortality in New York City. (10) Hospitals in major cities hosted an alarming number of survivors : teenagers and women who nearly bled to death or were severely burned while trying to end unwanted pregnancies. (11) Far less fortunate pregnant women died on kitchen tables, in bathtubs, and in unsanitary makeshift abortion facilities: closets, bedrooms, and living rooms. During this period, it remained illegal in a number of states for physicians or anyone else to provide birth control to unmarried women. (12)
Family planning then, as well as now, is what King called "a special and urgent concern" (13) because reproductive autonomy is directly linked to women's freedom, liberty, dignity, and health. (14) We are struck by the dramatic contrasts between the conversations taking place in the public sphere then and now, and we are particularly concerned with the continuing threats to poor women's reproductive health and rights.
For example, decades ago, Prescott Bush, father of former President George H. W. Bush, served as an early treasurer and fundraiser for Planned Parenthood. (15) Later, then-Congressman George H. W. Bush played a crucial role in the enactment of Title X, which provides family planning services, including contraceptives for the poor. (16) In 1969, when access to family planning for poor women was being debated in Congress, George H. W. Bush exclaimed, "We need to take sensationalism out of this topic so that it can no longer be used by militants who have no real knowledge of the voluntary nature of the program but, rather, are using it as a political stepping stone." (17) According to the former President, "If family planning is anything, it is a public health matter." (18) Bush prevailed, and President Nixon signed Title X legislation into law.
By contrast, in early 2017, a partisan, Republican-led effort in Congress gutted Title X provisions, leaving states free to ban abortion providers from reimbursement for basic family planning services, including cervical and breast cancer screenings, testing for sexually transmitted diseases, and provisions of contraception provided to the poor. (19) Republican leadership proclaimed it a victory, and President Trump immediately signed the legislation into law. (20) Shortly thereafter, the House Committee on Appropriations approved the Make America Secure and Prosperous Appropriations Act of 2018, which eliminates nearly three hundred million dollars in Tide X funding for family planning services, essentially defunding the program. (21) Consequently, if enacted, this legislation will directly harm millions of poor Americans, including those who are underinsured and the low-income insured who access Title X services each year. (22)
Whether or not the Make America Secure and Prosperous Appropriations Act of 2018 becomes law, we are deeply concerned about lawmakers' evident disregard for the lives of poor women and the inhumanity that such legislation seeks to bake into law. Gutting funding for programs that provide essential health services does not contribute to the prosperity of poor women and girls, nor does it advance their security. (23) Instead, stripping funding from this program evinces disdain for the poorest American women because in the worst cases, the results include mass-scale preventable deaths. (24)
Consider the case of Texas, where lawmakers gutted Title X funding and caused reproductive health clinics to close. Three serious problems emerged. First, there was a reduction in access to, prescribing of, and use of long-acting contraception. (25) Second, more Medicaid-eligible pregnancies occurred. (26) And, third, the rate of maternal mortality skyrocketed. (27) The state's efforts to repeal and curtail reproductive rights and to close the clinics that provided reproductive health services seem likely to correlate to the problems identified above. The dramatic rise in maternal mortality in Texas now earns it the reputation as "one of the most dangerous places in the developed world to have a baby." (28)
In our view, efforts to gut Title X fit a broader pattern of hostility toward the interests and autonomy of poor women. (29) In 2015, Title X served over four million clients. (30) Of these clients, 66% had "incomes at or below the federal poverty guidelines." (31) According to a 2015 study, 86% of Title X clients had "incomes at or below 200% of the federal poverty guidelines." (32) For the majority of Title X patients, the Title X clinics that service them are their "usual" or only healthcare provider. (33) The question is not: if Congress eliminates Title X funding, where will poor women be served? Rather, we must ask whether they will have any healthcare access at all, given that Title X barely serves the millions of poor women and girls in dire need of reproductive health services. Eliminating what little remains of the program further lowers the benchmark of cruel and unjust treatment toward poor women.
The scale and scope of contemporary efforts to hollow out privacy rights and render them meaningless for poor women extend well beyond Title X. (34) In this Review, we argue that state legislatures, as well as the federal government and courts, express moral disregard and even outright contempt for poor women in multitudinous ways that include, but extend beyond, Bridges's daring new book. (33) The Poverty of Privacy Rights argues that states' moral constructions of poverty, which frame indigent women as lazy, irresponsible, and ultimately immoral, help justify unwelcome state interventions in these women's lives, as well as the deprivation of their privacy rights. However, we emphasize the point that it is the state that bears the mark of immorality and illegitimacy when it deprives women of civil liberties and constitutional rights. For example, in Alabama, where King famously penned Letter from a Birmingham Jail, (36) nearly five hundred poor women have been prosecuted in recent years for endangering their fetuses. (37) In most of those cases, medical providers also played a key role in disclosing confidential patient information and reporting the women to law enforcement. (38) Such actions, combined with recent federal and state efforts to undermine women's reproductive healthcare rights through the enactment of targeted regulations of abortion providers (39) (known as "TRAP" laws), the exclusion of Planned Parenthood and other abortion providers from Title X programs, (40) and efforts to repeal the Patient Protection and Affordable Care Act's reproductive health safeguards, (41) demonstrate remarkable...