The Widening Net of Punishment

Dorothy Roberts and Charlotte Shane on the criminalization of abortion and the expansion of the police state.

Claire Schwartz
July 28, 2022

Police in riot gear surround the Arizona Capitol as protesters reacted to the Supreme Court decision to overturn Roe v. Wade, June 24th, 2022

AP Photo / Ross D. Franklin

After the Supreme Court overturned Roe v. Wade last month, there was a flurry of activity from people committed to protecting abortion. Some of these responses were undoubtedly useful in mitigating harm: Clinics in states with trigger laws crowdfunded to relocate. Abortion workers convened trainings on how to facilitate access to care in the changing landscape. Others, less so: Some people who live in states where abortion is still legal offered their homes via the internet to strangers travelling to access care, seemingly unaware of how the surveillance that has long targeted criminalized communities can turn such public trails into sources of harm. Protesters—mostly white—dressed up as handmaidens in an allusion to Margaret Atwood’s novel, as though a fundamentalist regime that conscripts women into brutal servitude could only be imagined as the province of dystopian fiction, rather than a recurring feature of our nation’s actual history. The varied and contradictory reactions among people with a common goal clarified one thing: Without a shared understanding of the long fight for reproductive freedom—and the racist forms of state violence with which it has contended—today’s movements won’t be able to conceive a response sufficient to address the threat at hand.

Seeking to trace the connections between the fight for abortion and the struggle against the police state, I reached out to Dorothy Roberts and Charlotte Shane, two writers who think deeply about the interlocking matrix of reproductive unfreedoms. Roberts is a professor of Law & Sociology, Civil Rights, and Africana Studies at the University of Pennsylvania. From her now-canonical 1997 book, Killing the Black Body—which details reproductive control as a tool of racism since enslavement—to her most recent book, Torn Apart, which describes the anti-Black structures of the so-called child welfare system, Roberts has fastidiously mapped the entanglements of race, science, medicine, and family policing to expose underlying anti-Black logics, and to insist that the abolition of punitive systems is the only way toward true well-being. Charlotte Shane is a writer and publisher who has written extensively about sex work, reproductive freedom, and gendered harm; her work apprehends the tremendous violence of this world while refusing to cede the future to the terms power has scripted. She is also a volunteer with New York Abortion Access Fund, which supports people who live in or are traveling to New York to seek abortions.

I spoke with Roberts and Shane about how criminalizing abortion activates pre-existing structures of gendered punishment and fits into broader patterns of family policing; why the right so often proposes adoption as a solution to reproductive unfreedom; and which rhetorical strategies seem most—and least—equipped to meet this moment. This conversation has been edited for length and clarity.

Claire Schwartz: In the immediate aftermath of flashpoints like the Dobbs decision, narratives have a tendency to calcify or change shape: How do we tell the stories about how we got here? And how do those stories determine the kinds of actions we join with? In the wake of the decision there—obviously, and for good reason—has been a lot of conversation about Roe v. Wade and the movements to legalize abortion in the late 1960s and early ’70s. Are there other histories that feel especially alive to you at this moment?

Dorothy Roberts: The history of the reproductive justice movement feels particularly important. The term “reproductive justice” was coined in 1994 by a group of Black feminists, who were attentive to a long history of Black women resisting control of their reproductive labor. We have to understand abortion bans as compelled pregnancies, and we have to understand that compelled pregnancies were a fundamental part of slavery that Black women fought against—not only by having abortions, which they did, but also by resisting sexual assault, searching for their children from whom they had been forcibly separated, and caring for them despite the degradation that white enslavers inflicted on their families. From slavery to the more recent patterns of criminalizing people for pregnancy outcomes—whether they wanted to have babies or wanted to terminate pregnancies—Black women have seen the full scope of reproductive violence.

Reproductive justice contests the notion of choice as the dominant narrative for reproductive freedom, because true reproductive freedom can be ensured only when we address not just legal barriers, but also the social structures, institutions, and imagery that constrain people’s options. This broad understanding of reproductive freedom includes not only the right not to have children, but also the right to have children, and to raise them in safe, supportive communities. That means the work of reproductive justice extends to abolishing what I call “the family policing system”—others call it “the child welfare system”—as well as the prison industrial complex, and replacing those structures with approaches that actually support families.

Charlotte Shane: I have found myself hyperaware of some people’s unfamiliarity with the country’s willingness to punish and abuse women with its legal system. I’ve been thinking about the 1927 case Buck v. Bell. Carrie Buck became pregnant when she was raped by the nephew of her adoptive mother. She was deemed “feeble-minded,” and she was sterilized. The Supreme Court upheld the legality of her sterilization under the explicitly eugenicist logic of “prevent[ing] our being swamped with incompetence.” The adoptive family kept Buck’s daughter. It is so cruel.

From the responses of people who are appalled by Dobbs, it’s clear that a significant number of them haven’t fully recognized just how unrelenting the criminalization of women can be, and will be. They’re thinking, “It’s going to be very difficult to get an abortion”—which is, of course, not incorrect. But the mainstream media is still assuming a tone of shock when covering proposals that respond to the question, “What are we going to do with women who abort?” And that is, actually, the next big question: What do they want to do with us? They want women prosecuted, under psychiatric supervision, in jail and—under certain circumstances—even eligible for the death penalty. I hope that the people who aren’t there yet can get there quickly, because we all need to understand the extent of what we’re facing.

Roberts: We know that women will be prosecuted for serious crimes for pregnancy outcomes because, again, it has already happened. We need only look a couple of decades back to see how prosecutors and policy makers mounted a concerted campaign to turn the public health issue of drug use during pregnancy into a crime. First of all, they exaggerated the extent to which it was a problem. Then they created the vicious and false myth of “the crack baby”—the idea that smoking crack during pregnancy is more harmful than other drug use, and that babies born to mothers who smoked crack were destined to become “superpredators.” This myth was used to justify horrific treatment of Black women. Women were dragged from maternity wards still bleeding from delivery. Pregnant women who tested positive for drugs were locked up.

In the cases where courts held that women could not be convicted of a crime for being pregnant and using drugs, often the argument was, “If it’s not illegal to terminate a pregnancy, how can it be a crime, prior to viability, to engage in conduct deemed risky to a fetus?” If abortion is a crime, that does away with that barrier to prosecution for any pregnancy outcome that’s deemed the fault of the pregnant person. Classism, ableism, misogyny, and white supremacy are all built into policies of punishment. We’ve already seen the net of punishment widening; it’s going to cover anyone who is seeking to assist an abortion as well as people who have abortions. All of this foreshadows the expansion of the police state.

Schwartz: The expansion of criminalization not only means that more people will be more vulnerable, prosecuted along more axes; it also deputizes more people in policing roles. How do you expect this will take shape?

Shane: There’s a great deal of evidence that, facing criminal charges, most nurses and doctors are not going to try to protect the patients under their care. There will doubtless be incredibly brave doctors who refuse to comply with these horrific laws, but it feels clear to me that the majority of those criminalized in connection with procuring abortions—in addition to pregnant people themselves—will be members of pregnant people’s communities: family, friends, abortion funds that cover the cost of travel. It’s, for lack of a better word, civilians who have taken it upon themselves to do the right thing who are going to be in the line of fire.

Roberts: And those prosecutions can be for extremely serious crimes. Twenty years ago, Regina McKnight was convicted of homicide by child abuse for having a stillbirth. She was sentenced to 20 years in prison. She served eight years before her conviction was overturned.

We already have the structure for a police state that punishes people who assist with abortion, and deputizes anybody and everybody as a possible informant. There was, for example, a formal collaboration between the Medical University of South Carolina—which drug tested pregnant patients without their consent—and police and prosecutors to whom they reported positive tests. New mothers and pregnant patients were arrested in the hospital and incarcerated as a result. We also have the family policing system, which relies on a network of mandated reporters and child abuse hotlines that anyone can call to report their suspicions of child maltreatment. Doctors are among the chief reporters, and it is well-documented that their reports tend to be extremely biased and racially discriminatory. These are the same doctors who will potentially be reporting people for seeking abortions.

Criminalizing abortion also has a chilling effect on healthcare more broadly. I was on a panel with a medical ethics expert, who said, “We need to provide doctors with the tests they can use to determine when they can provide life-saving care to a person with a pregnancy complication.” In other words: At what point in treating someone whose health is compromised by pregnancy can you offer care without risking criminal prosecution? That is an abominable question. But criminalizing abortion forces doctors to consider their liability before they decide how much help to give pregnant patients.

Schwartz: You spoke earlier about the myth of the crack baby and its role in the racist construction of a Black maternal–fetal antagonism. You also mentioned that you use the term “the family policing system” for what is commonly referred to as “the child welfare system.” This renaming not only points to the fact that it is a system of surveillance and punishment rather than a system of care; it also underscores the way this system attempts to position a child as isolated from a family, a community. How has this idea of the child’s well-being as discrete from—and often oppositional to—collective well-being shaped not only the family policing system, but the discourse around abortion?

Roberts: It is not an accident that adoption is presented as the solution in the context of both family separation and compelled pregnancy. In the family policing system, the logic goes that when parents can’t take adequate care of their children, the state should terminate the parents’ rights, remove the children, and make them available for adoption. We already have those messages written into law. The 1997 Adoption and Safe Families Act speeds up the termination of parental rights and incentivizes states to put more children in foster care up for adoption. Amy Coney Barrett’s message, which Samuel Alito put into the Dobbs majority opinion, is the same: that we need to increase “the domestic supply of infants” for adoption. Women who don’t want children are portrayed as selfish, pathological people, who should be forced to carry pregnancies to term so that their babies can be adopted by more caring, loving families. The negative, disparaging stereotypes that fuel these systems are centered on Black mothers, who, along with Indigenous mothers, are most likely to be hauled before courts and have their children taken from them.

Shane: When I saw those pictures of that white couple showing up at the Supreme Court with the “We will adopt your baby” signs, all I could think about was the Hart family, the white lesbian couple who adopted six Black children and then drove their SUV off a cliff. It’s a sensationalist story because the details are so outrageous, but that’s the sinister nature of what underlies that sentiment.

Roberts: In the case of the Hart family, we have to ask the question that often gets overlooked: How did those children end up with two white women who blatantly abused them? The children had relatives who were willing to take them in. This reflects what is truly oppressive about the family policing system: It targets the most marginalized communities for family separation, blaming family caregivers who are themselves struggling for not taking adequate care of their children. The supposed solution is not to provide the families with resources; it is adoption. We know anyway that white people much prefer adopting white babies to Black children. But this false narrative of white people saving Black children continues to propel the violent system of family separation.

Schwartz: These false narratives are pervasive, and it can be hard to sift through them. Do you see people who are committed to ensuring safe abortion is widely accesible turning to popular narratives, images, or rhetorical strategies that either actively collude with these violent systems or simply don’t accomplish the work they think they’re doing?

Roberts: There are images being circulated, like the coat hanger, which call back to an earlier moment of criminalized abortion and don’t actually represent the threats we’re facing right now. Today, we have medication abortion, so we can have safe abortions even outside of clinics; what we are being kept from having is safe pregnancies. We have a rising maternal mortality rate in the US, which wasn’t true before Roe. We need images that convey the harm of pregnancy under a regime where it’s criminalized, which intensifies an already dangerous context, especially for Black women.

Shane: There are a few rhetorical trends that I do not find useful. It’s common for people to say things to anti-abortionists like, “It’s not very pro-life of you to be against gun control.” But fascists don’t care if they’re hypocrites. There’s also a common line that “white, wealthy women will always be able to access abortion.” I think that line is trying to convey that the lawmakers don’t make these laws for themselves; they make them for other people. But while there is no question that the devaluation of motherhood and children is intensified exponentially for non-white, non-wealthy women, you can be a billionaire, but if you’re in a state where you need medical intervention urgently, it is going to take time for you to fly yourself out.

Women, mothers, caregivers, and children are disposable in the eyes of the state, though they’re continually deployed as sentimental talking points. After Uvalde, people talked a lot about Castle Rock v. Gonzales, the Supreme Court ruling that definitively established that police are not required to protect the people they supposedly serve. That case was about a woman trying to protect her three daughters from her abusive ex. The police did not respond to her calls for help, and her ex ultimately murdered the children.

I don’t understand the logic behind “share your abortion” campaigns. I don’t see what political power that has beyond bonding people who’ve had abortions to one another. If you feel very isolated about your abortion, it might help you find community—and perhaps you can build political power from there—but if the goal is for abortion to be widely accessible and decriminalized and free, I don’t see any evidence that it works. We can just look at this moment: It hasn’t worked yet. Are we telling the wrong stories? Are we telling them the wrong way? Obviously, those who are in charge don’t care. We have to remember that among the people who are criminalizing abortion and protesting outside of clinics and donating money to anti-abortion groups are people who’ve had abortions before, and who will again, and who will help people in their lives get abortions. They don’t actually have a problem with abortion, they have a problem with other people’s autonomy. Abortion itself is popular and most people don’t want it to be illegal. So, what does this public display accomplish? Who is it for? While I think anyone should talk about their abortion if it’s cathartic for them—I plan on talking about mine forever—I think emphasizing individual stories is a tactical error: It sets us up to play this disgusting game of parsing which abortions are legitimate and which are frivolous or undeserved.

Something shifted for me when I began to understand that abortion is not by definition inaccessible. It is not something bestowed. Enslaved women used abortifacient plants. The Jane Collective performed safe abortions outside medical settings. The history of abortion does not begin with the professionalization of medicine. NYC for Abortion Rights is really good about pushing the line: Abortion is ours. We need to take stock of all the tools we have.

Schwartz: I’ve been finding it hard to talk about this moment. Given the histories that we’ve discussed, I feel an impulse to say, “This brutality isn’t new.” And yet: This seems especially bad. How are you making sense of where we are?

Shane: This is really bad. Everything happening to reproductive freedom is taking place in the context of a general move toward fascism in this country. We are so far down that path. And the anti-abortionists are so emboldened by their wins. They won’t stop demanding more restrictions and more policing. I expect that a lot of states that have criminalized abortion will soon criminalize contraception. They’re going to do it by saying what they’re already saying: “Abortion is illegal here, and these things are abortifacients”—even though by current definitions, IUDs and hormonal birth control are not. It’s easy for them to play with semantics and just straight up lie. Dobbs instantly made it more difficult to get medication for completely unrelated conditions. For example, access to methotrexate, which is used to treat certain types of cancer and rheumatoid arthritis, is being limited because methotrexate can be used for abortion. Pharmacists are refusing to fill prescriptions, which of course they’ve done in the past with Plan B, and oral contraceptives, and abortion pills.

Roberts: Not only does the Dobbs decision literally put back into effect laws that were passed when women, Black people, and Native tribes were formally disenfranchised, but it also comes at a time when state surveillance and punishment have intensified. The government’s technological ability to collect data on us has grown astronomically, and the criminal legal and family policing systems enmesh far more people than they did 50 years ago, magnifying the harmful consequences of making abortion a crime. This makes it all the more important to see the connections between movements for reproductive justice and those for economic justice, for Black lives, and for abolition of carceral systems. I see hope in building alliances between people organizing for a more humane society on these various fronts.

Shane: I think about the starfish parable a lot these days. A woman is walking on a beach after a big storm, and she sees all these starfish washed up on shore. They’re drowning in the air. She keeps walking and she comes across a girl who is throwing starfish back into the ocean. The woman asks the girl: “What are you doing? There are way too many. They’re going to die before you get to all of them. You’re not making a difference.” The girl picks up another starfish and throws it in the water and says: “Made a difference to that one.” I think that’s where we are right now. I have hope we can still do something that matters.

Claire Schwartz is the author of the poetry collection Civil Service (Graywolf Press, 2022) and the culture editor of Jewish Currents.

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