\u3ci\u3eWindsor\u3c/i\u3e, Surrogacy, and Race

Scholars and activists interested in racial justice have long been opposed to surrogacy arrangements, wherein a couple commissions a woman to become pregnant, give birth to a baby, and surrender the baby to the couple to raise as its own. Their fear has been that surrogacy arrangements will magnify racial inequalities inasmuch as wealthy white people will look to poor women of color to carry and give birth to the white babies that the couples covet. However, perhaps critical thinkers about race should reconsider their contempt for surrogacy following the Supreme Court’s recent decision in United States v. Windsor. In the decision, the Court envisions same-sex couples and the families that they head as valuable threads in the fabric of American society. Surrogacy arrangements are vehicles for same-sex couples to produce the families that Windsor celebrates. This fact may encourage opponents of surrogacy arrangements who have been concerned about the racial implications of the practice to reconsider their opposition. This Article conducts that reconsideration, ultimately concluding that while surrogacy arrangements are beneficial because they enable persons who are unprivileged by virtue of sexual orientation to have children, they may reaffirm extant racial hierarchies and exacerbate the marginalization of persons and families that are already unprivileged by virtue of race and class. However, instead of calling for a ban on surrogacy for these reasons, the Article argues that there are more desirable avenues for destabilizing racial hierarchies and undoing the marginalization of unprivileged persons and families

Pregnancy, Medicaid, State Regulation, and the Production of Unruly Bodies

This paper represents a concretization of thoughts generated during a year and a half of anthropological fieldwork in the obstetrics clinic of a large, public hospital located on the . As a condition of receipt of Medicaid coverage of prenatal care expenses, poor, uninsured pregnant women are compelled to meet with a battery of professionalsnamely nutritionists, social workers, health educators, and financial officerswho inquire into areas of women\u27s lives that frequently exceed the realm of the medical. This paper argues that, as a result, Medicaid mandates an intrusion into women\u27s private lives and produces pregnancy as an opportunity for state supervision, management, and regulation of poor, uninsured women. In essence, the receipt of Medicaid inaugurates poor women into the state regulatory apparatus. Further, this paper argues that because the regime of prenatal care provided by the state-qua-Medicaid is one delivered within a highly technological, biomedical paradigm of pregnancy, poor women are produced as possessors of unruly bodies. Because the uninsured poor are universally produced as such, I argue that the consequence is a medicalization of poverty. As a result, the poor are treated as biological dangers within the body politic. The paper begins with a presentation of Michel Foucault\u27s notion of biopolitics and an explanation of its relationship to the regime of prenatal care at peration in . A detailed description of the apparatus of professionals that initiates women\u27s prenatal care at Alpha follows in Part Three. Part Four continues with a description of the highly-technological care that is delivered as a matter of course at Alpha. A brief conclusion follows in Part Five

Pregnancy, Medicaid, State Regulation, and the Production of Unruly Bodies

This paper represents a concretization of thoughts generated during a year and a half of anthropological fieldwork in the obstetrics clinic of a large, public hospital located on the . As a condition of receipt of Medicaid coverage of prenatal care expenses, poor, uninsured pregnant women are compelled to meet with a battery of professionalsnamely nutritionists, social workers, health educators, and financial officerswho inquire into areas of women\u27s lives that frequently exceed the realm of the medical. This paper argues that, as a result, Medicaid mandates an intrusion into women\u27s private lives and produces pregnancy as an opportunity for state supervision, management, and regulation of poor, uninsured women. In essence, the receipt of Medicaid inaugurates poor women into the state regulatory apparatus. Further, this paper argues that because the regime of prenatal care provided by the state-qua-Medicaid is one delivered within a highly technological, biomedical paradigm of pregnancy, poor women are produced as possessors of unruly bodies. Because the uninsured poor are universally produced as such, I argue that the consequence is a medicalization of poverty. As a result, the poor are treated as biological dangers within the body politic. The paper begins with a presentation of Michel Foucault\u27s notion of biopolitics and an explanation of its relationship to the regime of prenatal care at peration in . A detailed description of the apparatus of professionals that initiates women\u27s prenatal care at Alpha follows in Part Three. Part Four continues with a description of the highly-technological care that is delivered as a matter of course at Alpha. A brief conclusion follows in Part Five

The Deserving Poor, the Undeserving Poor, and Class-Based Affirmative Action

This Article is a critique of class-based affirmative action. It begins by observing that many professed politically conservative individuals have championed class-based affirmative action. However, it observes that political conservatism is not typically identified as an ideology that generally approves of improving the poor’s well-being through the means that class-based affirmative action employs — that is, through redistributing wealth by taking wealth from a wealthy individual and giving it directly to a poor person. This is precisely what class-based affirmative action does: it takes a seat in an incoming class (a species of wealth) from a wealthy individual and gives it directly to a poor person. This Article attempts to reconcile this apparent contradiction. Interestingly, engaging in this project of reconciliation reveals very little about conservatism, but a lot about class-based affirmative action. This Article proposes that class-based affirmative action enjoys widespread support from people across the political spectrum because it is imagined to benefit the “deserving poor.” Unlike the “undeserving poor,” the “deserving poor” are those who cannot be blamed for their poverty; their impoverishment is not due to individual behavioral or character flaws, but rather to structural or macro forces well outside of an individual’s control. Class-based affirmative action enjoys bipartisan political popularity because it is imagined to benefit these respectable poor people — folks who are deserving of a “leg up” in the admissions competition and deserving of programs designed to assist them, even if those programs involve a direct transfer of wealth from the wealthy to the poor. However, that political conservatives and liberals alike currently imagine class-based affirmative action to benefit the deserving poor is a reason for alarm. Alarm bells should ring because, throughout history, the categories of the deserving and undeserving poor have been racialized — and, frequently, racist. To be precise, it has been difficult for people of color — black people, particularly — to access the ranks of the deserving poor. If history is a teacher, then, we might expect that it will be difficult for society to continue to imagine that the beneficiaries of class-based affirmative action are the deserving poor if these class-conscious programs disproportionately benefit racial minorities. Indeed, if history is a teacher, then class-based affirmative action will lose its popularity if poor racial minorities — who have always figured within the cultural imaginary as the embodiment of undeservingness — are (or are imagined to be) class-based affirmative action’s primary beneficiaries. The Article explores the case of AFDC/TANF and unemployed single mothers as an example of the racist nature of deservingness. It argues that, if class-based affirmative action functions to assist people of color in disproportionate numbers, it, like AFDC/TANF before it, will be reimagined to be a program that assists the undeserving poor, and its political tenability will suffer as a result

Towards a Theory of State Visibility: Race, Poverty, and Equal Protection

In the state of New York, uninsured pregnant women with incomes falling below 200% of the federal poverty line are eligible to enroll in the Prenatal Care Assistance Program (“PCAP”), a Medicaid program that pays the prenatal healthcare expenses of women who meet the program’s qualifications. The aims of PCAP/Medicaid are laudable; it was passed in the late 1980’s with the goal of lowering the state’s high rate of infant mortality as well as the number of infants born with low birth weight. In order to justify the spending of state and federal monies on the program, legislators looked to studies that “documented the correlation between infant mortality and neurological abnormalities on the one hand, and low birth weight and premature birth on the other-conditions ameliorated by proper care throughout pregnancy, which can be costly.” Although the infant mortality rate in New York has decreased more than thirty percent over the last decade, New York State appears to remain committed to “improving the health of under- served women, infants and children through improved access to and enhanced utilization of perinatal and prenatal care and related services.” Consequently, it continues to provide generous funding to PCAP

Quasi-Colonial Bodies: An Analysis of the Reproductive Lives of Poor Black and Racially Subjugated Women

This Article analyzes the relationship between the struggle for the recognition of Black women\u27s reproductive rights in the United States and the fight for racial justice. Specifically, it argues that the problematization of poor Black women\u27s fertility--evidenced by the depiction of single Black motherhood as a national crisis, the condemnation of poor Black women who rely on public assistance, and the portrayal of their children as an embryonic criminal class --ought to be understood as a form of contempt for Black women\u27s reproductive rights. Differently stated, the lack of acknowledgment in legal, political, and popular discourse that motherhood is a legitimate choice for poor Black women demonstrates that their right to reproduce is disparaged. Further, this censure of poor Black women\u27s fertility ought to be understood not only as a failure of the reproductive rights movement, but also as a matter of racial injustice. That is, the struggle of poor Black women to have their reproductive choices respected is a struggle for racial equality

Capturing the Judiciary: Carhart and the Undue Burden Standard

In Planned Parenthood of Southeastern Pennsylvania v. Casey,\u27 the Supreme Court replaced the trimester framework, first articulated nineteen years earlier in Roe v. Wade,2 with a new test for determining the constitutionality of abortion regulations-the undue burden standard. 3 The Court\u27s 2007 decision in Gonzales v. Carhart 4 was its most recent occasion to use the undue burden standard, as the Court was called upon to ascertain the constitutionality of the Partial-Birth Abortion Ban Act, a federal statute proscribing certain methods of performing second- and third-trimester abortions.5 A majority of the Court held that the regulation was constitutionally permissible, finding that it did not impose an undue burden on a woman \u27s right to terminate her pregnancy. 6 In order to determine why it is that the undue burden standard has been incapable of striking down Laws that limit a woman \u27s ability to elect an abortion, this Article conducts a close reading of Carhart. The close reading reveals Carhart to be, at base, a logically sound opinion; however, its primary and fundamental weakness is that it proceeds from a highly problematic and disputed assumption-namely, that the fetus is a morally-consequential entity. It is this magnificently undecided presupposition that forms the 7 basis of the Carhart majority\u27s argument that abortion harms women, a contention for which the decision has gained notoriety. Furthermore, the undue burden standard has come to reflect this presupposition inasmuch as the standard, too, presupposes the inherent life and moral value of the fetus. As such, this Article argues that the undue burden standard has become ineffective because, built into it at present, are assumptions about the always already valuable life of the fetus that, in any given instance, overdetermine the questions that the Court asks when weighing the constitutionality of a regulation that limits abortion by protecting fetal life. When the standard presupposes the existence of a valuable fetal life, it is likely that any legislation aimed at protecting that life will pass constitutional muster. The Article attempts to rehabilitate the standard by proposing an agnostic undue burden standard -that is, an undue burden standard that proceeds from the assumption that the moral status of the fetus is not known. The agnostic undue burden standard would ensure that the state corrupts neither the pregnant woman \u27s ability to contemplate the moral status of the fetus that she carries nor her ability to contemplate whether the moral status so accorded should affect her decision to continue her pregnancy. If reconceptualized in the way that this Article proposes, an undue burden might be thought to reference those measures that impose upon the woman a conception of the inherent, moral value of fetal life-in derogation of her own personal views concerning fetal life, or in derogation of whether she believes that those views should determine the trajectory that her pregnancy takes