Pregnancy and Power, Revised Edition

A History of Reproductive Politics in the United States

Rickie Solinger

• Publisher: NYU Press
• Year: 2019
• Print ISBN: 9781479866502
• eBook ISBN: 9781479883813
• Topic: Social Sciences
• Subtopic: Gender Studies
• Index: Social Sciences

A sweeping chronicle of women's battles for reproductive freedom

Reproductive politics in the United States has always been about who has the power to decide—lawmakers, the courts, clergy, physicians, or the woman herself. Authorities have rarely put women's needs and interests at the center of these debates. Instead, they have created reproductive laws and policies to solve a variety of social and political problems, with outcomes that affect the lives of different groups of women differently.

Reproductive politics were at play when slaveholders devised "breeding" schemes, when the US government took indigenous children from their families in the nineteenth century, and when doctors pressured Latina women to be sterilized in the 1970s. Tracing the main plot lines of women's reproductive lives, the leading historian Rickie Solinger redefines the idea of reproductive freedom, putting race and class at the center of the effort to control sex and pregnancy in America over time.

Revisiting these issues after more than a decade, this revised edition of Pregnancy and Power reveals how far the reproductive justice movement has come, and the renewed struggles it faces in the present moment. Even after nearly a half-century of "reproductive rights," a cascade of new laws and policies limits access and prescribes punishments for many people trying to make their own reproductive decisions. In this edition, Solinger traces the contemporary rise of reproductive consumerism and the politics of "free market" health care as economic inequality continues to expand in the US, revealing the profound limits of "choice" and the continued need for the reproductive justice framework.

1

Racializing the Nation

From the Declaration of Independence to the Emancipation Proclamation, 1776 to 1865

On the campus, at the mall, and in the supermarket, interracial couples are commonplace in many cities and towns around the country—proof that when people are left more or less alone, millions will form intimate relationships across racial identities. Yet we are only about fifty years away from laws forbidding mixed-race sex, love, marriage, and reproduction. Today, 17 percent of marriages in the United States are interracial. Among people with college educations, the rate is slightly higher. What’s more, interracial relationship and marriage rates are accelerating in all parts of the country.1

Historically, though, people in the United States have not been left alone to make their own decisions about intimacy, the kinds of decisions that determine what kinds of babies are born. Religious institutions, family and community traditions, and formal legislation have created and enforced rules about who may be intimate with whom. Historically, racial identity has been a crucial feature of both formal and informal rules about sexual intimacy. In this chapter, we can look back, first, at the founding decades of the United States, from roughly the Declaration of Independence to the Emancipation Proclamation—ninety years—to see what was at issue when the early rules about intimate relations and race were created. What was at issue when colonial and then state legislatures made laws about who could have sex with whom, with what consequences, in a new country?

During the eighteenth century in the American colonies and then in the United States, the men who made and enforced laws governing sexual relations were legislating in an era of complex interracial contact. Also, this was an era when people had very limited knowledge about how to separate sex and pregnancy. Legislators crafted laws to regulate sexual intimacy for a society in which some people were the property of other people and in which race, property, and population growth all interacted with each other, as reproductive matters.

The early laws show us what all laws show: lawmakers’ worries about what ordinary people will do if their behavior is not regulated. The laws show what, in fact, people were actually doing in an unregulated state. The first colonial laws forbidding marriage between white women and African men, for example, suggest that at the time these laws were enacted in the first half of the seventeenth century, white women were forming intimate relations, including marriage, with Africans, even with enslaved African men. If these everyday relations had been rare or nonexistent, no laws like these would have been necessary.

Early laws governing sex-and-pregnancy show that founding fathers and the leaders of the next generations believed that regulated reproduction was crucial to building the United States. Famously, the founding fathers and others debated whether the United States should be a nation predominantly of cities, manufacturing, and commerce or a nation of independent farmers producing food in a rural landscape. But the founders did not debate which race was destined to populate and to rule the continent. This goal was a certainty beyond debate. If the United States were to be a “white country,” laws and practices would have to make it—and keep it—that way. Laws would ensure that whites alone were citizens and property owners. Laws would ensure that enslaved Africans were—both as labor and as property—the producers but not the owners of wealth. Laws and military victories would ensure that native populations were “removed” from properties that whites could use to consolidate their holdings and their territorial supremacy. All these laws would depend on defining and policing race by regulating reproductive practices, what I call “racializing the nation.”

Degrading African and Native Reproduction

At the end of the eighteenth century, racial theorists defined race as a quality inhering in the body, a biologically conditioned characteristic, not an environmentally conditioned attribute.2 They described the color—or the race—of enslaved Africans in the late eighteenth century as a biological marker of permanent inferiority. Theorists also imposed a biologically based interpretation of inferiority on Indians at this time, an interpretation that precluded assimilation. As one historian has put it, “Americans were gradually coming to adopt a color scheme that made assimilating all but impossible. The old belief that beneath the layer of bear grease, dirt, or sunburn was a white person yearning to be cleaned up was slowly being replaced by the notion that Indians were ‘redskins.’”3

Whites used somatic, or body-based, ideas about racial inferiority to justify the physical domination and exploitation of Africans and Indians, whose labor and land they were determined to command. Domination relied at its heart on controlling the reproduction of enslaved and native women.4

White lawmakers and law enforcers believed that controlling reproduction was a strategy for enforcing the distinction between races, for establishing the “legal meanings of racial difference,” for enforcing the degradation of nonwhite women, and for facilitating white supremacy, generally.5 Put another way, the reproductive capacity of enslaved and native women was the resource that whites relied on to produce an enslaved labor force, to produce and transmit property and wealth across generations, to consolidate white control over land in North America, and to produce a class of human beings who, in their ineligibility for citizenship, underwrote the exclusivity and value of white citizenship.

Reproductive politics—the contest between official authorities and women themselves to regulate female bodies and their reproductive capacity—isn’t the only way to understand the nation-building strategies of the founding fathers. Nor does reproductive politics completely explain the evolving meanings or experiences of sexuality, the brutal “subduing” of Indians, the construction and maintenance of American slavery, the interaction between racism and slavery, or the experience of being enslaved. But none of these subjects can be adequately explored without paying attention to the laws, policies, and practices that shaped the reproductive lives of the population.

To understand the first principles of the new nation, we must look at the laws and policies and social norms controlling these matters: Which men could or could not have sex and children with which women? Which women were coerced to reproduce? Which persons were killed, in part, so that they could not reproduce? We must consider how these matters were fundamental to property and citizenship claims and the land and labor needs of the colonizers and the nation’s founders.

The process of constructing a system of chattel slavery took more than 150 years on the North American continent, from 1619, when the first Africans were brought to the Virginia Colony, to the second half of the eighteenth century, when the U.S. Constitution formalized, on a federal level, the status of enslaved persons as property and as “three-fifths” of a human being. During these long decades of constructing American slavery, colonial legislators steadily alienated Black men from many of the rights and privileges that white men enjoyed. This process continued at the end of the American Revolution, after which a number of formerly enslaved men were granted freedom in exchange for their wartime military service. Over time, though, Black men were denied citizenship rights, including the right to vote, to testify in court, to sit on juries, and to serve in the militia. In many states Blacks were denied the right to travel freely and to travel without identity papers. Many laws and practices limited the rights of Black men to own property. Laws and practices excluding Blacks from public places abounded. Each of these provisions contributed to creating Africans in America as a degraded, exploitable pariah class: slaves.

Yet arguably, the serial decisions—the formal and informal regulations—to treat Black women as breeders with no formal rights or control over their own bodies, their sexual experiences, and their children constituted the ultimate degradation of enslaved persons and provided the foundation of the slavery system. The first of these laws was enacted in the Virginia Colony in 1662, “An Act Defining the Status of Mulatto Bastards.” The law read: “Whereas some doubts have arrisen whether children got by an Englishman upon a negro woman should be slave or Free, Be it therefore enacted and declared by this present grand assembly, that all children borne in this country shall be held bond or free only according to the condition of the Mother. And that if any christian shall committ Fornication with a negro man or woman, hee or shee soe offending shall pay double the Fines imposed by the former act.”6

English common law, the legal model for constructing laws in the American colonies and later in the United States, dictated that the status of the child, in bondage or free, always followed the condition of the child’s father, not her mother. Thus the Virginia Colony’s law was a radical innovation, adapting an old practice to meet the labor and other needs of an underpopulated land. Under the new system, if the father was enslaved and the mother was enslaved, the child was born enslaved. If the father was a free man and the mother was enslaved, the child would be born enslaved. The older law would have classified the offspring of this union as a free child. Clearly, after 1662, the fertility of the enslaved woman became the basis for the increase of human property. Just as clearly, the new law encouraged white men to seek power, pleasure, and profit by impregnating enslaved women.

In the past, a white man who impregnated a woman not his wife, even an enslaved woman, might have been charged with “bastardy” and expected to take material responsibility for the maintenance of the child he sired. Now the legitimacy or illegitimacy of the child was irrelevant. Now, a man’s having impregnated an enslaved woman could simply mean that he gained ownership of a new person. The 1662 law relieved white slaveholders of punishment for sexually exploiting Black women, replacing penalties with property.7 The new law also went some distance toward clarifying and hardening racial boundaries. Consider, for example, an enslaved child who could show that while his or her mother was enslaved, the father was white and free. After 1662, this fact, too, became entirely irrelevant. As legal scholar Adrienne Dale Davis has put it: “Showing that one’s father was white was [now] no defense to enslavement.”8

But what of the children of free white mothers and Black enslaved fathers? These were children born from mothers who the courts believed were beneath contempt. According to the law, following their mothers’ racially elevated though sexually degraded status, these children were free. But they were not “white.” Consequently, in communities throughout the North American colonies, these children enlarged the population of free Blacks. Over time, more such children occupied the status—“free”—that lawmakers and others believed should be reserved for “white” people. In response to growing numbers of these children by the end of the seventeenth century, the Virginia legislature passed a law in 1691, “For the prevention of that abominable mixture and spurious issue,” resulting from “negroes, mulattoes, and Indians intermarrying with English, or other white women, as by their unlawfull accompanying with one another.”9 This law made intermarriage a crime and mandated that a white person who intermarried must be banished from the dominion.

A more practical, labor-oriented, and profitable solution to the growing number of free Blacks was widely adopted: to hold mixed-race children—typically the offspring of servants—in extended, though impermanent, bondage. Traditionally, children of indentured servants could be held in servitude until the age of twenty-one if the child was a white boy, and the age of eighteen for a white girl. A mixed-race child of a white mother was bound out by law until the age of thirty-one. Historian Kristin Fischer notes that “mixed-race children, though they might be nominally free, effectively spent most of their productive and reproductive years as servants.”10 In addition, mixed-race children were marked indelibly as illegitimate, unable to inherit property or names from their fathers.11

These early Virginia laws set the pattern for colonial and then state legislatures for nearly two hundred years: the use of sexual regulations—who had the right to have sex and reproduce with whom—to reinforce and police racial boundaries. These laws also played a major role in allowing whites to construct and dominate the labor system. The legislation sexualized race and racialized sex.12 The North Carolina legislature, for example, passed laws in 1715, 1723, and 1741 criminalizing interracial sex and marriage. If the woman giving birth was indentured, she would have her term of indenture extended the usual two years, plus two more years for having “a Bastard child by a Negro, Mulatto or Indyan.”13 In Louisiana, an 1807 law, modified in 1827, 1830, and 1831, prohibited a free Black man from buying and freeing his enslaved wife until she was thirty years old, that is, through her childbearing years. The law also provided that the children of this union, born before the wife was manumitted (freed), would be born slaves and remain enslaved for at least thirty years. Shortly before the Civil War, Louisiana outlawed all manumission, so even these opportunities for freedom were dead.

Again and again, state legislatures made laws allowing slaveholders and their families to use the reproductive capacity of enslaved women for their own enrichment. One state’s law allowed the formally acknowledged illegitimate child of a deceased slaveholder and his “concubine” to be freed at the man’s death only if the value of the child did not exceed the portion of the estate’s value that such a child was entitled to. If the child was worth a substantial sum on the slave market, or if the slaveholder’s estate was paltry, the child would have to remain enslaved.14 The law was written to protect the property interests of the dead slaveholder’s white family in this way.

The experience of giving birth to a child who was considered the property of a white man was a devastatingly complex event for enslaved parents. In many cases, the birth was the outcome of coerced sex, forced on an enslaved woman by the slaveholder, a man who might or might not acknowledge a child born of that rape. From the mother’s point of view, the interracial enslaved child she gave birth to could represent the essential mark of sexual and reproductive powerlessness and could be a symbol of the terrorism on which slavery depended: “the immense power whites held over the most intimate sphere of black life.”15 For the enslaved mother, who had no laws protecting her body, her reproductive capacity, and her sexual safety, rape was truly a “weapon of terror” that reinforced “white domination over their human property.”16

The child embodied the enslaved mother’s sexual degradation and also her degradation as human property. The child defined her as chattel who reproduced a commodity, not a person, at the will of the slaveholder. The white man’s freedom to rape enslaved women depended on the traditional definition of sexual violation as a crime against a man’s legal rights over an economic dependent: his property. When a slaveholder raped his own possession, no man’s property interests were hurt. As historian Kathleen Brown writes, “The only man with legal claims to a female slave’s labor and reproductive capacity was her master. Rape did not jeopardize his investment”—and may well, in fact, have increased it.17

According to Brenda Stevenson, a historian of the enslaved family, for some raped women, the potential interracial child might be a symbol of the shame enslaved women ex...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Introduction: What Is Reproductive Politics?
• 1. Racializing the Nation: From the Declaration of Independence to the Emancipation Proclamation, 1776 to 1865
• 2. Sex in the City: From Secrecy to Anonymity to Privacy, 1870s to 1920s
• 3. No Extras: Curbing Fertility during the Great Depression
• 4. Central Planning: Managing Fertility, Race, and Rights in Postwar America, 1940s to 1960
• 5. The Human Rights Era: The Rise of Choice, the Contours of Backlash, 1960 to 1980
• 6. Revitalizing Hierarchies: How the Aftermath of Roe v. Wade Affected Fetuses, Teenage Girls, Prisoners, and Other Women, 1980 to the Present
• Acknowledgments
• Notes
• Index
• About the Author