Towards a theory of state visibility: race, poverty, and equal protection.

AuthorBridges, Khiara M.

In the state of New York, uninsured pregnant women with incomes falling below 200% of the federal poverty line are eligible to enroll in the Prenatal Care Assistance Program ("PCAP"), a Medicaid program that pays the prenatal healthcare expenses of women who meet the program's qualifications. (1) The aims of PCAP/Medicaid are laudable; it was passed in the late 1980's with the goal of lowering the state's high rate of infant mortality as well as the number of infants born with low birthweight. (2) In order to justify the spending of state and federal monies on the program, legislators looked to studies that "documented the correlation between infant mortality and neurological abnormalities on the one hand, and low birthweight and premature birth on the other--conditions ameliorated by proper care throughout pregnancy, which can be costly." (3) Although the infant mortality rate in New York has decreased more than thirty percent over the last decade, (4) New York State appears to remain committed to "improving the health of underserved women, infants and children through improved access to and enhanced utilization of perinatal and prenatal care and related services." (5) Consequently, it continues to provide generous funding to PCAP.

The Author observed firsthand the PCAP/Medicaid enrollment process during eighteen months of ethnographic fieldwork conducted in the obstetrics clinic of a public hospital in New York City, "Alpha Hospital" (a pseudonym). (6) Over the course of sixteen months, the Author compiled several notebooks of fieldnotes and over 120 hours of in-depth interviews with patients, staff, administrators, and providers who provided colorful narratives about their experiences at Alpha.

Upon enrolling in PCAP, women are required by legislative mandate to divulge a broad swath of information about their lives--an "informational canvassing" that usually occurs at the woman's first visit to her obstetrician for prenatal care. (7) While much of the information gathered as part of PCAP's various "risk assessments" and interviews is information that one would expect all pregnant women to share with their providers upon beginning prenatal care--including facts concerning previous pregnancies and their outcomes, drug allergies, previous hospitalizations and surgeries, etc.--much of the information gathered from PCAP-insured women is not quite standard (that is, a private doctor attending a privately-insured woman would not likely ask such questions).

This Article explores the issues that arise when poor, pregnant women must submit to a state-erected apparatus that requires them to yield personal and, often, private information about themselves in exchange for a welfare benefit. Informed by these issues, this article develops the concept of "state visibility," understood as the consequence of women having ceded to the state informational access to themselves upon enrollment in PCAP/Medicaid. This article argues that state visibility is problematic because it is premised on a profound distrust of poor people and poor mothers, because it violates poor women's right to privacy, and, most importantly, because it makes possible the surveillance of poor, pregnant women by the state. Moreover, state surveillance of poor, pregnant women's lives easily transforms into state intervention into poor women's lives--in the form of the removal of children from the home, the regulation of the home by child protective agencies, and the initiation of criminal or other legal proceedings. State visibility, then, helps explain why the poor are more likely than the wealthy to come within the regulatory and punitive arms of the state..

This Article then puts the concept of state visibility in conversation with equal protection jurisprudence and, specifically, Kenji Yoshino's idea of "corporeal visibility"--the principle by which the Supreme Court has granted heightened scrutiny to equal protection claims made by groups with defining characteristics that can be seen on their bodies. (8) Because race has been understood as a visible fact--especially for those inhabiting non-White bodies--racial minorities are understood to be corporeally visible, and paradigmatically so, within equal protection jurisprudence. This Article explores the intersections of and divergences between the concepts of state visibility and corporeal visibility. It argues that corporeal visibility is continuous with the concept of state visibility because, due to the persistent relationship between race and poverty in the United States, the poor, pregnant women who comprise the ranks of the state visible also tend to be racial minorities. Moreover, it argues that corporeal visibility is embedded within the concept of state visibility because racialized notions of the poor inform the legislation that makes poor, pregnant women visible to the state. Because of the complex consistencies between state visibility and corporeal visibility, this article concludes that laws that discriminate against, or produce groups of individuals as, the state visible ought to be reviewed with the same heightened scrutiny as are racially discriminatory laws.

This is more than an academic exercise: In Maher v. Roe, (9) the Court upheld a Connecticut law that provided that Medicaid funds would only be used to cover the costs of "medically necessary" abortions. In Harris v. McRae, (10) the Court upheld the Hyde Amendment, which prohibits the use of federal Medicaid funds to cover the costs of all abortions, unless the life of the mother is endangered or the pregnancy is a result of rape or incest. (11) In both cases the Court argued that the poor was not a suspect class and declined to use heightened scrutiny when reviewing the equal protection claims; the result was that both laws were upheld under rational basis scrutiny. (12) However, if, as this article proposes, the condition within which indigent pregnant women exists is one of state visibility, and if state visibility warrants heightened scrutiny, then restrictive Medicaid funding statutes like the Hyde Amendment must satisfy the demands of a more searching review--a review that may lead to a finding of their unconstitutionality. (13) This is a positive result for those interested in equal rights for all: Maher and Harris have the effect of dramatically reducing a poor, pregnant woman's ability to exercise her right to abortion and terminate an unwanted pregnancy. For the poor, pregnant woman left without state assistance and without the means to pay for an abortion independently, the right to an abortion is hardly a right at all. Indeed, Maher and Harris suggest that the abortion right possessed by indigent women is dramatically different than the one possessed by their wealthier counterparts. Heightened review of the equal protection claims of poor, pregnant women, if it led to the reversal of Maher and Harris, would enable poor, pregnant women to enjoy the same right to abortion as wealthier women.

Part I of this Article describes in detail the informational canvassing to which poor, pregnant women must submit upon enrollment in PCAP/Medicaid. This Part concludes by sketching the outlines of a theory of "state visibility," posited as both the precondition to state surveillance and the condition in which poor women are left subsequent to their requisite meetings with the state actors that initiate their prenatal care. Part II describes the concept of "corporeal visibility," explains its role within equal protection law, and compares it to "state visibility." Part III continues the exploration of the ways in which corporeal and state visibility intersect, describing how ideas about the corporeally visible function to validate regimes that produce state visibility. This Part concludes that, in light of the tangled, complex relationship governing corporeal and state visibility, the Court ought to grant heightened scrutiny to the claims of the latter groups. If corporeal visibility is a justification for heightened scrutiny, then state visibility ought to be a justification also. A brief conclusion follows in Part IV.


    The informational canvassing to which poor, pregnant women must submit upon beginning state-subsidized prenatal care is a product of PCAP providers' statutory obligation to assist women in signing up for Medicaid, (14) as well as their obligation to conduct a nutritional risk assessment (15) and a psychosocial assessment. (16) Each component is described in turn.

    1. Medicaid Enrollment

      A woman seeking PCAP coverage during her pregnancy must formally enroll in Medicaid upon beginning prenatal care. Before enrollment, the woman must meet with a Medicaid financial officer, who interviews her to determine whether or not she will likely qualify for Medicaid coverage and, if so, describes the documents establishing proof of pregnancy, identity, address, and income that she will ultimately need to submit in order to enroll in the program. (17) The financial officer's interview with a prospective PCAP client can be quite lengthy and quite invasive, as the officer culls the information necessary to predict whether the woman will have a successful application. Accordingly, by the end of the interview, the woman would have revealed much information about herself, including information that she may deem "private"--particularly statements about her immigration status (a potentially frightening admission for women residing in the country "illegally," (18) usually occurring when the woman, faced with her lack of "official" documentation in the form of a driver's license or state ID card, asks how she will be able to establish her identity for the purposes of the Medicaid enrollment process), her work history (including whether she has worked "off the books" or engaged in criminalized activity in order to earn money), and the work history of any persons who help to support her financially...

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