By Claire Gothreau, Joona Räsänen, Kasper Lippert-Rasmussen

The U.S. Supreme Court’s decision to overturn the constitutional right to abortion has sparked intense backlash and condemnation from the American public. In the 100 days since the Court’s ruling in Dobbs v. Jackson Women’s Health Organization that overturned Roe v. Wade, total abortion bans that criminalize the procedure have been put in place in 13 states. Much of the discourse among activists and on social media around the Dobbs decision has focused on the disproportionate impact that abortion restrictions will have on women of color, particularly Black women. Because of existing inequities in reproductive healthcare between white women and women of color, it is reasonable to believe that the consequences of Dobbs will be particularly impactful among racially and ethnically marginalized women.

In our article, Does overruling Roe discriminate against women (of color)?, we consider the overturning of Roe and subsequent abortion restrictions using the framework of philosophy of discrimination. We ask, “Are abortion restrictions discriminatory, and if so, do they amount to direct or indirect discrimination? Against women of color or against women in general or both?” Our analysis of this issue contributes to the ongoing debates about the repercussions of the Dobbs decision and illuminates the potential discriminatory features of abortion restrictions. We argue that banning abortion is indirectly discriminatory against women of color and directly (but neither indirectly, nor structurally) discriminatory against women in general.

Women of color, especially Black women, in the United States are in a disadvantageous position when it comes to reproductive healthcare. In our article we note that 2019 Center for Disease Control and Prevention (CDC) data revealed that Black women had the highest rates of abortions with 23.8 abortions per 1000 women. These higher rates can mostly be attributed to higher rates of unintended pregnancy. Furthermore, infant mortality rates are higher among women of color, Black women are three times more likely than white women to die during pregnancy, are more vulnerable to pregnancy-associated violence, and are more likely to be subject to surveillance and forced pregnancy interventions.

It seems obvious that women of color already face inequalities with respect to reproductive healthcare and abortion restrictions may exacerbate those inequalities. But do abortion restrictions amount to discrimination in the philosophical sense? We reason that any potential abortion ban would not discriminate directly against women of color simply because, with respect to the Dobbs decision, women of color are not treated any differently from white women, the relevant reference group.

However, just because potential abortion bans are not directly discriminatory, does not mean that they are not discriminatory at all. Adopting a definition that posits discrimination can take place when disadvantages are placed on a group of people that are disproportionate relative to the benefits that others may accumulate, we contend abortion restrictions do indirectly discriminate against women of color. However, the disadvantages, some of which we outlined above, seem evident. Abortion restrictions involve many burdens on women of color that are morally significant and no proportionate benefits to others.

Banning abortion is also directly discriminatory against women in general. First, a ban on abortion disadvantages women compared to men considerably relative to a situation where there is free access to abortion. Second, we respond to the challenge that since a ban on abortion applies to both men and women, it cannot be directly discriminatory against women by addressing the similar and implausible view that a ban on treatment of prostate cancer, whether in male or female patients, would not be directly discriminatory against men.

The United States has a long history of violating the reproductive freedoms of women of color. So, in a sense, the increasing regulations on abortion that will disproportionately impact women of color, are nothing new. In sum, we argue that the overturning of Roe and subsequent bans on abortions does constitute direct discrimination against women generally and indirect discrimination against women of color. Our analysis highlights that the concerns activists and the public have about the disproportionate impact Dobbs will have on women of color is not unfounded.

Paper title: Does overruling Roe discriminate against women (of color)?

Authors: Joona Räsänen, Claire Gothreau, Kasper Lippert-Rasmussen

Affiliations: CEPDISC – Centre for the Experimental-Philosophical Study of Discrimination, Department of Political Science, Aarhus University

Competing interests: none

Social media accounts of post author(s): https://twitter.com/claire_gothreau