In 1992, a young Black woman named Mary received the results of her pregnancy test at a federally funded family planning clinic in her neighborhood: she was pregnant. She knew that she did not want to have the baby. She was grateful to be able to turn to the clinic for help because she had no health insurance. When she addressed her concerns to the counselor, the counselor refused to give her any information about abortion. She would not even tell Mary where she could find a safe and inexpensive clinic that performed abortions. Instead the counselor gave her a selective list of clinics and hospitals providing prenatal care. When Mary insisted that she had made up her mind to terminate the pregnancy, the counselor responded "this project does not consider abortion an appropriate method of family planning and therefore does not counsel or refer for abortion.

Lori Griffin was transported weekly from the jail to hospital in handcuffs and leg irons for prenatal care. Three weeks after her arrest, she went into labor and was taken still in handcuffs and shackles to MUSC [Medical University of South Carolina]. Once at the hospital, she was kept handcuffed to her bed during the delivery.

Do these stories accurately depict how the promise of reproductive choice has affected Black women? Is their access to reproductive services determined by their race rather than gender? This paper will demonstrate that the law and the states have effectively denied reproductive choice to Black women. To examine the effects of reproductive law on the rights of Black women without considering the historical context of these rights paints an incomplete picture of the current discourse. Therefore, this paper attempts to demonstrate that there is an explicit link between the historical experiences of Black women and the construction of reproductive liberty.

While the ruling in Roe v. Wade theoretically provided every woman the right to make choices regarding her reproductive ability, the aftermath of the decision assured that Black women were not guaranteed complete choice and access to abortion. Unfortunately, reproductive freedom is more than a matter of choice and abortion, and the insistence of the mainstream reproductive rights movement on relying on such a narrow definition has left women of color out in the cold. "The movement must acknowledge that we make reproductive decisions within a social context, including inequalities of wealth and power. Reproductive freedom is a matter of social justice not individual choices." The reproductive rights movement must broaden to address issues like coercive and abusive sterilization, complete access to pre and post-natal care, and access to information and facilities.

Reproductive freedom means the ability to choose whether, when, how and with whom one will have children. The process for defining a reproductive rights agenda must recognize and include women of all color. Only by hearing from women with a wide range of experiences can we begin to draw connections among the full range of reproductive rights issues. Part 1 of this paper will consider the slave woman's experience as a procreative tool and its effect on the value of Black motherhood. While the practice of forced reproduction merits a lengthy analysis, this paper focuses specifically on the construction of the maternal-fetal conflict and the commodification of the Black womb. Part 2 will explore some of the tools used to control reproductive choice for Black women in the aftermath of Roe v. Wade, specifically the Hyde Amendment, the use of Norplant and sterilization abuse. Part 3 will discuss some examples of reproductive law and their implications for Black women's reproductive freedom.

Rust v. Sullivan and Webster v. Reproductive Health Services denied Black women an opportunity to exercise their reproductive rights by limiting their access to information and services. And Whitner v. South Carolina and Ferguson v. Charleston criminalized the actions of Black women and utilized the maternal-fetal conflict to pit the mother's interests against those of her fetus.
George Santayana wrote that those who do not remember the past are condemned to repeat it. By examining how history and the law have limited Black women's personal liberties, the reproductive movement can begin a discourse that embraces reproductive self-determination for all women. For Black women, the denial of reproductive freedom began with the experience of the female slave as a "cog in the plantation regime's reproductive machine."

I. Pregnancy for Slave Women

Historically, reproductive rights have been measured by a woman's capacity to conceive and bear children, but if female slaves were not considered women they could not be recognized as mothers. After the abolition of the slave trade in 1807, the only method available to increase the slave population relied on the reproductive capacities of plantation slaves. Though some historians have argued over whether slave breeding occurred, many recognize its use as a means to expand the slave population. Frank Tannenbaum wrote that "the breeding of slaves for sales as if they were mere cattle came to be part of the recognized practice of slave and plantation owners in some, perhaps most, of the slave states." Though his study of slave history marginalizes the slave woman's experience, he does recognize her reproductive value to the plantation owners.

"The Negro female was reduced to a breeding animal and the emphasis was upon raising children so they could be sold at high prices." Conflicting studies have also emerged on the manner in which the female slave was bred. While Robert Fogel and Stanley Engerman insist that masters encouraged slave monogamy and stable family life in order to promote reproduction, Richard Sutch concludes that slave masters manipulated the sexuality of their female slaves by promoting polygamy and promiscuity. Regardless of whether she was bred by her master or gave birth to offspring on her own, the slave woman was constructed into a brood mare. This role provided masters with an economic incentive to govern Black women's bodies and mark them as objects whose decisions about reproduction were subject to social regulation rather than to their own will. The Black woman became a fragmented commodity with every part of her body including her womb subject to the master's control.

The nature and quality of attention a pregnant slave received varied, with some women having their food supplies increased and their work decreased. But because of a persistent belief that slave women gave birth more easily and quickly than White women, the majority of female slaves were given little attention during their pregnancy and labor. Consequently, slave women who had been whipped or forced to perform heavy work while pregnant suffered from severe complications during delivery. And many slaves, sent back to the fields to work immediately after delivery suffered from backaches, uterine pains and hernias.

While slave masters held little interest in caring for pregnant slaves, they went to great lengths to protect her womb. To whip pregnant slaves, "Dey [the White folks] would dig a hole in de ground just big 'nuff fo' her stomach, make her lie face down and whip her on de back to keep from hurtin' de child." The master was thus able to punish and control his female slave while still preserving his future investment. The Black woman's womb represented such a valuable investment that steps were taken to ensure its control. An 1823 case, Banks' Administrator v Marksberry, is a prime example of the master's interest in maintaining his long-term investment of slave children. The case involved a clause in a deed executed by Samuel Marksberry, Sr.: "To Samuel Marksberry, my younger son, I do likewise give my Negro wench, Pen; and her increase from this time, I do give to my daughter, Rachel Marksberry. " The court recognized that the slave's "increase," or un-conceived offspring would thereafter be the property of the daughter. "Marksberry not only owned the piece of property itself but also the goods that she bore, as well as her potential to bear future goods. " The paradox in the commodification of the Black womb is that while female slaves were not recognized as women or mothers (despite possession of the biology that determines such an identity), their wombs were valued for just that function. For all intents and purposes the slave womb was a separate entity from the woman who possessed it.

This early construction of the maternal-fetal conflict separated the mother's interests from those of her unborn child. These conflicted interests continued after birth, with many infants becoming ill or dying due to improper care, irregular feedings, poor hygiene, and some historians argue, a lack of nurturing and attention by their mothers. As the children became older they too were subjected to beatings, with the mother unable to do anything but watch. One slave commented that "During slavery it seemed lak yo' chillun b'long to ev'ybody but you."

Slave breeding, the treatment of the pregnant slave and the need to commodify the slave womb are all early examples of how Black women's reproduction was subjugated. While the means to control the Black female body have changed over time, the power to make reproductive choices continues to remain in the hands of everyone but those affected by the decisions.

II. Aftermath of Roe v. Wade

While reproductive freedom for women of color needs to be broadened beyond the abortion debate, the issue of choice still remains a crucial component that has been consistently threatened since 1973. The Hyde Amendment, passed in 1977, prohibits federal reimbursement of Medicaid funds for abortion services thereby restricting a woman's access to abortion. Under the current version of the Amendment, Medicaid pays for an abortion only when the woman's life is endangered by pregnancy or if the pregnancy is the result or rape or incest. As a result of the amendment, the number of federally funded abortions dropped from nearly 300,000 in 1977 to under 300 in 1992. Like a domino effect, the government's resistance to spend money filtered down and most states now have restrictive polities similarly refusing to pay for abortion. As of 1994, only seventeen states used their own funds to subsidize abortions for poor women. "It simply does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choice." Unfortunately, passage of the Hyde Amendment limited a Black woman's choice by placing a financial obstacle in their path.

While the federal government will not pay for abortion, it does allow Medicaid to pay for sterilization services. During the 1970's sterilization become the most rapidly growing form of birth control in the United States, rising from 200,000 cases in 1970 to over 700,000 in 1980. What is disturbing is not the prevalence of sterilization as a form of birth control, but the fact that many women were being sterilized without their informed consent and for no valid medical reason. "In most major teaching hospitals in New York City, it is the unwritten policy to do elective hysterectomies of poor Black women, with minimal indications, to train residents." Women on Medicaid were subjected to tubal ligations and hysterectomies while on the table for other medical reasons or were coerced into consent when doctors refused to perform abortions or deliveries until the acquiesced. When questioned about the practice, one doctor responded that "A girl with lots of kids, on welfare and not intelligent enough to use birth control is better off being sterilized."
While Black women suffer from sterilization abuse, White women find it nearly impossible to find a doctor to perform sterilization. Most doctors will only allow a woman to undergo the procedure with the endorsement of two doctors and psychiatrist. With race constructing the value that society places on motherhood, it stands to reason that White women would be encouraged to procreate while Black women are encouraged to curb their fertility. It is hard to dismiss the eugenicist undertones that seem to lie in this disparity between Black and White women's sterilization experiences. "The mass of Negroes still breed carelessly and disastrously, with the result that the increase among Negroes, even more than among Whites, is from that portion of the population least fit, and least able to rear children properly." This statement, taken from a brochure for the Birth Control Federation of America in 1939 (during the peak of the eugenics movement), could just as easily have been used to describe the sterilization abuse or population control of Black women in the 1970's. In 1978, the Department of Health, Education and Welfare issued guidelines to prevent involuntary sterilization that included: restricting sterilizations performed under programs receiving federal funds, requiring informed consent and mandatory thirty-day waiting periods. But sterilization remains the only form of birth control fully financed by the federal government.

In addition to advocating sterilization, the government recently began to use Norplant as a means of exercising reproductive control. Approved by the FDA in 1990, Norplant was widely regarded as a flexible, relatively reasonable and inexpensive way to induce temporary sterilization. It entails the medical insertion of six capsules in a woman's upper arm and prevents pregnancy for up to five years. In many states, Medicaid will pay for the insertion of the capsules but charges an additional fee of $150 to $500 for its removal. The removal fee can be waived if Medicaid determines that the extraction of Norplant is medically necessary (with proof that there are detrimental effects on the health of the mother). Long-term side effects resulting from prolonged exposure to Norplant include: infections, ovarian conditions, dermatitis, blood clots, circulation problems, and endometrial or cervical cancer. Unfortunately, with so many public clinics having a backlog of patients waiting for extraction, many women are forced to keep the implants in longer than necessary. And those women who have limited resources find it hard to locate a private, affordable practitioner trained in removing Norplant. "Imagine the panic of bleeding for weeks on end, witnessing your hair fall out, only to be turned away from every clinic you approach to remove the source of your affliction." Some women have gotten so desperate to remove it that they have attempted to personally extract it using razor blades, knives or sharpened pencils. By enticing poor women to use Norplant with the offer of free implantation and then refusing to pay for removal, the state is mandating the Black woman's reproductive choice, which begs the question of what kind of eugenicist message they are sending Black women?

Half of the women in the United States who have used Norplant are Medicaid recipients and a number of bills passed in state legislatures have pressured women on welfare to use the device either by offering them a financial bonus or by requiring implantation as a condition of receiving benefits. With Black women five times more likely to live in poverty, five times more likely to be on welfare and three times more likely to be unemployed than White women, the coercive tactics of Norplant for women on welfare predominately affects Black women. Courts have regarded Norplant as the single most practical option for regulating the fertility of drug abusing and violent women, as women on welfare have been described. The court ordered Darlene Johnson, a Black single parent of four convicted of "being a bad parent" to be implanted with Norplant as a condition of her probation. The judge argued, "It is in the defendant's best interest and certainly in any un-conceived child's interest that she not have any more children. Her un-conceived children have rights, and we as a government have a duty and obligation to help these children." The abuse of Norplant is a reflection of the maternal-fetal conflict discussed in section 2, where the interests of an un-conceived child outweigh the reproductive choice of its mother. "If courts are empowered to order birth control as a condition of probation, one more stone will be removed from the wall of privacy that shields women from biological subjugations. "

For poor Black women, the walls of reproductive liberty are crumbling down: they have no financial assistance to help them obtain an abortion, a contraceptive that is detrimental to their general health, and the only financially viable option is permanent sterilization. Add these all up and the dominant reproductive discourse is that the fertility of Black women must be curbed, controlled and regulated making reproductive choice a meaningless phrase.

III. Reproductive Law

In 1970, Congress enacted Title X of the Public Health Services Act that authorized the Secretary of Health and Human Services to make grants and to enter into contracts with public or non-profit entities to assist in family planning projects. Title X funded-clinics are critical sources of medical care for poor women that provide contraceptive information and services, related medical tests, and general physical examinations and counseling. Title X offered millions of poor and low-income women access to reproductive health services that otherwise would not have been available to them. In 1988, the Secretary amended the bill with regulations that became known as the "gag rule," banning projects receiving Title X from counseling their pregnant patients about abortions, from referring them to an abortion provider, and even from telling them where such information could be obtained. Several Title X grantees and doctors in New York filed two separate actions against the Secretary challenging the regulations on the grounds that they violated the rights of women under the due process clause of the Fifth Amendment. In Rust v. Sullivan, the District Court ruled that these regulations did not impermissibly burden a woman's right to an abortion and on appeal the Supreme Court upheld the decision. The Court held that the regulations did not violate the due process clause because Congress' refusal to fund abortion counseling under Title X left pregnant women with the same choices they would have had if the federal government had not chosen to fund family planning services at all. According to the majority, "the government is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for the purposes for which they were authorized."

In June 1986, the state of Missouri amended its abortion law by prohibiting the use of public facilities and employees to perform or assist abortions not necessary to save the life of the mother. Five health care professionals employed at public facilities and two non-profit corporations that were providing abortion services filed suit against the state of Missouri arguing that the provisions violated the right to privacy guaranteed under the Fourteenth Amendment . In Webster v Reproductive Health Services, the District Court and the Eighth Circuit Court of Appeals declared the provisions unconstitutional, but on appeal to the Supreme Court, the decision was reversed on the grounds that the state's decision to prohibit the use of public facilities in performing abortions left no governmental obstacle in the path of a woman who wished to terminate a pregnancy. The decision thus prohibited abortions both in public facilities and in private hospitals that receive public funds. The Court argued that the provisions only restricted a woman's ability to obtain an abortion to the extent that she chose to use a physician affiliated with a public hospital.

In 1992, a test indicated that Cornelia Whitner's youngest son had been exposed prenatally to cocaine and she was arrested on charges of child abuse. She was never counseled about her substance abuse and never offered treatment as a way of avoiding arrest. On the day of her hearing, her court appointed lawyer advised her to plead guilty to child neglect charges promising to get her into a drug treatment program. In the hearing before Judge Frank Eppes, Whitner pleaded for help with her drug problem and her attorney explained that her client was in a counseling program and had stayed off drugs since giving birth to her son, who was in good health. She requested that Whitner be placed in a residential treatment facility. Judge Eppes responded, "I think I'll just let her go to jail," and sentenced her to an eight-year prison term. In Whitner v. South Carolina, she appealed on the grounds that the trial court lacked jurisdiction to accept a guilty plea for a nonexistent offence, since the statute punished child, not fetal neglect.
The judge invalidated the conviction and released her but the South Carolina Supreme Court reinstated Whitner's conviction holding that the child abuse statute covered a viable fetus.

In August 1989, staff members at the Medical University of South Carolina (MUSC) in Charleston became concerned about an apparent increase in the use of cocaine by patients who were receiving prenatal treatment. The local solicitor, Charles Condon argued that neither doctor-patient confidentiality nor the fourth amendment would prevent hospital staff members from reporting positive drug tests to the police.

The staff was ordered to cooperate with the city in prosecuting mothers whose children tested positive for drugs at birth. A task force made up of MUSC representatives and police developed a policy that set forth procedures for identifying and testing pregnant patients suspected of drug use, provided education and treatment referral for patients testing positive and prescribed prosecutions for drug offences of child neglect. The policy made no mention of any change in the prenatal care of such patients nor did it prescribe any special treatment for the newborns.

During the first several months, women were arrested if they tested positive for cocaine at the time they gave birth. The task force then set up an "amnesty program" where patients who tested positive were handed two letters; one notified them of an appointment with a substance abuse clinic, the other was a warning from the solicitor. Uncooperative women who declined treatment were arrested based on the evidence of a single test and women who tested positive a second time were imprisoned. Of the 42 women arrested, all but one was Black. Police arrested some patients within days or even hours of giving birth and hauled them to jail in handcuffs and leg shackles. The handcuffs were attached to a three-inch wide leather belt that was wrapped around their stomachs. One woman who was pregnant at time of arrest sat in a jail cell waiting to give birth.
While the ultimate goal of the program might have been to get patients into substance abuse treatment and off drugs, the immediate objective of the searches was to generate evidence for law enforcement purposes. Ten women brought suit arguing that MUSC's drug-testing policy constituted a warrantless and non-consensual search in violation of the Fourth Amendment and that disclosure of medical information to law enforcement personnel violated their right to privacy. After losing in district court and on appeal, the plaintiffs appealed to the Supreme Court. The Court ruled that regardless of the intent of the test, the searches were conducted without consent, warrants, probable cause or reasonable suspicion and were unconstitutional.

What is the significance of Rust v. Sullivan, Webster v. Reproductive Health Services, Whitner v. South Carolina, and Charleston v. Ferguson and how do they shape Black reproductive rights? By examining the implications of each case, I demonstrate that reproductive freedom for Black women is constrained in one of three ways: a denial of her choice, control over her choice that places her interests against those of her unborn child, or a criminalization of her choice.

Denial of Choice:

In Rust v. Sullivan, the Supreme Court assumed that Title X patients would have the ability to seek medical advice or reproductive health services elsewhere without considering the fact that many low-income patients are forced to rely exclusively on Title X clinics for primary care. These low-income patients relying on publicly funded clinics are predominately Black women because they are less likely to have private health insurance, sufficient income to pay for a private physician or a continuing doctor patient relationship. Of the nearly 4 million women in 1988 who used a Title X clinic for a family planning visit during the previous year, 28 percent were Black.
Similarly, poor women and women of color traditionally rely on public hospitals for abortion services because they are accessible and affordable. A 1996 study on the cost of non-hospital abortion procedures concluded that a first trimester abortion cost approximately $300; a second trimester ran an average of $604 if the pregnancy was at 16 weeks, and $1,067 if it was at twenty weeks. Therefore, the effect of Webster v. Reproductive Health Services was that it curtailed Black women's access to abortion.

President Clinton repealed the "gag rule" in 1993 but the damage of stifling information about family planning services had already been done. The effect of Rust v. Sullivan was that it discouraged clinic patients from considering abortion as an alternative-leaving them with little choice but a back alley, potentially dangerous abortion or the burden of another child. "The mandated silence on abortion threatened to mislead women who had already decided to terminate a pregnancy about the legality and availability of a safe abortion." Roe v. Wade was supposed to have given all women the right to make a choice regarding their reproductive function. By withholding knowledge critical to a woman's reproductive health, the Court was reinforcing a disparity between the quality of knowledge and care available to Black women and that available to White women. "By promoting ignorance among these women, the Court erected one more layer of structural entrapment that keeps poor Black women at society's margin…and portrays Title X patients as undeserving of the care to which affluent women are entitled, simply because poor women are dependent on the government's charity."

But all members of the court were not unaware of the effect that Webster (and Rust) were having on reproductive rights for women. Justice Blackmun wrote in his dissenting opinion, "Thus not with a bang but a whimper, the plurality discards a landmark case of the last generation and casts into darkness the hopes and visions of every woman in this country who had come to believe that the Constitution guaranteed her the right to exercise some control over her unique ability to bear children." Rust and Webster effectively gave the state the means to intervene and regulate a woman's right to choose. Rust limited the Black woman's access to abortion information, and Webster constrained her choice by creating a sizeable financial obstacle. The state was now capable of determining how and where an abortion would occur, thereby invading the woman's right of privacy guaranteed under Roe v. Wade.

Maternal-Fetal Conflict

Roe v. Wade held that at no stage of development are fetuses persons under the law and that according constitutional rights to fetuses would jeopardize women's lives and health by denying them access to legal abortion. Justice Stevens noted, "As a matter of federal constitutional law, a developing organism that is not yet a person does not have what is sometimes described as a right to life. This has been and remains a fundamental premise of our constitutional law governing reproductive autonomy." The court maintained that a woman's life and health must always be paramount, because she, unlike the fetus is a constitutional person. Unfortunately, Whitner v. South Carolina fundamentally redefined the rights and status of the fetus.

In effect, the Supreme Court of South Carolina in Whitner refuted the premise of Roe v. Wade by declaring fetuses "persons" and subject to protection by the law. In doing so, the court went one step further in separating the needs of the woman from those of the fetus. "Assigning a more elevated moral and legal status to the fetus, granting it personhood separates it from the woman carrying it." The Court reasoned that punishing fetal abuse would further the statute's aim of preventing harm to children and that "the consequences of abuse or neglect after birth often pale in comparison to those resulting from abuse suffered by the viable fetus before birth."

As of 1999, 12 states required that evidence of a woman's drug use during pregnancy be reported to child welfare agencies, and these along with three others states now require drug testing of newborns or pregnant women. Some states, without legislation, have attempted to expand the scope of their civil child abuse laws to include a woman's conduct during pregnancy. In the name of fetal rights, over 200 pregnant women have been arrested and prosecuted on theories of fetal abuse. Most of them have been low-income women of color with untreated drug addictions.

Evidence of fetal abuse is determined by toxicology tests performed by hospital staff and reported to child welfare authorities. This testing is implemented with greater frequency in hospitals serving poor minority communities and the common criteria for the toxicology screen is a mother's failure to obtain prenatal care, a factor that strongly correlates with her race. Some hospitals with no formal screening process rely on the health care provider's suspicions, allowing doctors and staff to perform tests "based on stereotypical assumptions about the identity of drug addicts."

The most common penalty for a mother's prenatal drug use is the permanent or temporary removal of her baby. Thousands of low income Black mothers have lost custody of their babies on the basis of a solitary drug test. But a positive toxicology reveals only that the mothers ingested drugs shortly before the delivery. It reveals nothing about the extent of the mother's drug use, any harm to the baby, or the mother's parenting abilities. While I agree that the state should remove infants from drug-addicted mothers when they are at risk of harm, it seems equally detrimental to separate mother and child without more substantial evidence. Far from protecting children, imprisoning new mothers is injurious to the child's development. "A separation of children from their primary caretaker-parents can cause harm to children's psychological well-being and hinder their growth and development. Many infants who are born shortly before or while their mothers are incarcerated are quickly separated from their mothers, preventing the parent-child bonding that is crucial to developing a sense of security and trust in children." Perhaps a more useful solution would be to place these women in drug treatment centers, enabling them to get help for their problem and allowing new mothers a chance to develop the needed emotional bond with their children.

Concern for the needs of Cornelia Whitner and other drug addicted pregnant women should not be misconstrued as naiveté. Their drug problems are serious and I am not suggesting that these women are not responsible for their actions or behavior while carrying a child. Of issue is the state's zealous desire to punish rather than help these women by separating them from their children and ignoring the root cause of their problems. According to an amicus brief filed for Ferguson by the American Medical Association (AMA), criminal sanctions fail to halt drug abuse by pregnant women, discourage patients from obtaining prenatal and postnatal care, inhibit patients voluntary disclosure of their drug abuse, and result in inadequate postnatal infant health and development. Given the context and evidence that is used to prosecute pregnant drug addicts, we must recognize that race does have some effect on the treatment of these mothers.

Punishing Black Mothers

A women targeted under the Charleston policy gave birth on October 13, 1989. Despite the fact that she was bleeding so profusely that she needed four sanitary napkins to absorb the blood and had passed a small clot the night before, she was arrested the next morning while in the recovery room and charged with child neglect. The woman was transported to the police station handcuffed, wearing only a hospital gown open at the back. Because she was still bleeding and experiencing severe pain, she had to be assisted into both the police car and the station. Once at the station, she was kept in a holding cell for four to five hours and later brought to a larger facility. She was handcuffed and shackled at all times, still dressed in the hospital gown, which by this time was soaked in blood.

Despite similar rates of substance abuse in South Carolina, Black women were ten times more likely than White to be reported to government authorities. The civil rights division of the Department of Health and Human Services (HHS) began to investigate whether MUSC had violated the civil rights of Black patients by discriminating against them in referring patients to the solicitor. In 1994, five years after the policy's inception, the program was dropped as part of a settlement with HHS.

In Whitner and Ferguson, we see a need to punish Black women who chose to have children despite the fact that the state makes every effort to ensure that their pregnancies are not terminated. The states and the law instruct the Black woman not to get pregnant, but if she does, she has limited choices other than to carry the baby to term. Then, when she fails to meet the correct standards of an expectant mother, we penalize her choice. Justice Kennedy, concurring with the majority in Ferguson, validated the use of punishment for Black mothers by arguing the state's legitimate interest in fetal rights. "There should be no doubt that South Carolina can impose punishment upon an expectant mother who has so little regard for her own unborn that she risks causing him or her lifelong damage and suffering." The implications of Ferguson for Black women are not unlike the experiences of female slaves whose bodies were irrelevant, but whose wombs had to be protected.

In an amicus brief filed with the court in Ferguson, the ACLU argued that pregnant women do not have a diminished expectation of privacy, hence they may not be subjected to warrantless, suspicionless, nonconsensual searches, and if the Court sanctioned the policy, it would open the door to other extensive restriction on individual autonomy and the privacy rights of pregnant women. But does that right of privacy and autonomy really extend to all pregnant women or just those fortunate enough to be members of a privileged race and class?

Condon, elected as South Carolina's Attorney General in 1994, launched an attack accusing HHS of shutting down "one of the first crack baby prevention programs in the nation in order to cater to politically correct liberals and feminists…The policy of the Clinton administration is to protect not the children but the rights of the mothers to escape the consequences of their actions." Condon claimed that the program's success at getting scores of women off drugs made it a model that other states ought to emulate. Why can't the courts protect the interests of both mother and child? Must the Black pregnant woman be demonized and punished in order for the state to feel as though it is "saving" the child? The state, like the master, still refuses to see the Black woman as a whole person. The contents of her womb are precious and need protection, but there remains a fundamental disinterest in her needs, desires, and choices.

IV. Conclusion

This paper has demonstrated that the state and the law have successfully ensured that reproductive choice does not exist for Black women. A look at the pregnant female slave provided an early example of how her reproductive rights were subjugated by the master. In spite of Roe v. Wade, reproductive choice continued to elude Black women as her options were curtailed through sterilization, Norplant, and the Hyde amendment. And the impact of Rust, Webster, Whitner, and Ferguson shaped reproductive liberty by denying any control to Black women. I want to close with an excerpt from Alice Walker that eloquently describes the state of reproductive rights for African American women today.

What can the white man say to the black woman? For four hundred years he ruled over the black woman's womb. For four hundred years, he determined which black woman's children would live or die. Given his history, in relation to us, I think the white man should be ashamed to attempt to speak for the unborn children of the black woman.