Reproductive Rights, Slavery, and the Post-Dobbs World

In 1662, the Virginia legislature cast a cold, calculating eye on Black women’s children. Never mind that fewer than 150 Black women were enslaved there at the time, those legislators recognized that control of women’s reproductive bodies yielded both profits and policing that would be at the heart of their wealth and the colony’s future. In doing so, they set in motion a precedent for violent state involvement in the bodies of dispossessed women that we are viscerally encountering today some 360 years later.

Their intent was to rectify an error on their predecessors’ part. Six years earlier, a Black woman named Elizabeth Keye had successfully sued for her freedom on the basis of the fact that while her mother had been an enslaved Angolan woman, her father had been a free, white, property-owning Englishman who, not incidentally, was also a member of the Virginia legislature. Based on her paternal inheritance she claimed a freedom that was, indeed, logically hers based on centuries of Anglo-European juridical notions of both descent and the prerogatives of Christianity. Keye used the laws of descent against them—and now they needed to clarify the relationship between their power and her mother’s womb.

Six years later, after she had slipped away from the bondage that she had labored under for the first twenty-six years of her life, the Virginia legislators realized that something about their concession to her sat poorly with them. In the 1660s, they represented the political and economic interests of about 15,000 English settlers among whom lived a mere 300-500 Africans—some enslaved, some free. Still, the implications of Keye’s freedom suit were alarming. Their brethren to the south in the colonies of Antigua and Barbados had already begun to carve enormous wealth out of the land using the labor of Black workers. Their Blackness was increasingly the key symbol of their enslavability—conveying through the color of their skin and the texture of their hair an astonishing range of claims that we now clearly understand as racism. And so, with eyes set on a horizon in which their wealth and power would be guaranteed through the relentless labor of other people, the Virginia legislators reconsidered their earlier decision and wrote, “Whereas some doubts have arisen whether children got by any Englishman upon a negro woman should be slave or free…all children borne in this country shall be held bond or free only according to the condition of the mother.”  The Act cemented hereditary racial slavery, overturned long-standing laws that regulated fatherhood, and incentivized rape for capitalism.

The connecting tissue between 1662 and 2022 are fundamentally rooted in the history of slavery and reproduction. In his concurrence to Dobbs v. Jackson Women’s Health Organization, Clarence Thomas mobilizes, as he has since he joined the Bench, his opposition to substantive due process. This is the clause in the Fourteenth Amendment that says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It is from here that the notion of privacy as a protected right emerges—much to the dismay of conservative jurists like Thomas.

Thomas has long marshalled the history of slavery and racism to buttress his deeply conservative politics. Thus, Thomas gestures to Moynihan’s “tangle of pathology” as he laments the damage slavery did to Black manhood, lambasts birth control and abortion as the strategy of eugenicists trying to control Black populations, and cites the failures of Reconstruction and its aftermaths to argue for the importance of gun ownership and the sacrosanct nature of the Second Amendment. But his fundamental opposition is rooted in rejecting the notion that the autonomous body is constitutionally protected.

Note: This post is part of AAIHS's forum on “Black Women and Reproductive Rights.”