In 1851, Sojourner Truth delivered a speech best known as“Ain’t I A Woman?” to a crowded audience at the Women’s Convention in Akron, Ohio. At the time, slavery remained in full force, a vibrant enterprise that fueled the American economy. Various laws protected that system, including the Fugitive Slave Act, which resulted in the abduction of “free” Black children, women, and men as well as those who had miraculously escaped to northern cities like Boston or Philadelphia. Bounty hunters then sold their prey to Southern plantation owners. The law denied basic protections for Black people caught in the greed-filled grasps of slavery.
 
Ms. Truth condemned this disgraceful enterprise, which thrived off not only uncompensated labor, but also physical and psychological terror. Most will remember Ms. Truth’s oration for its vivid descriptions regarding physical labor; Black women were forced to plough, plant, herd, and build — just as men. Yet far too little attention centers on her condemnation of that system, which made sexual chattel of Black women, and then cruelly sold off Black children. This was human trafficking in the American form, and it lasted for centuries. Ms. Truth pleaded:
 
“I have borne 13 children, and seen most all sold off to slavery, and when I cried out with my mother’s grief, none but Jesus heard me! And ain’t I a woman?”
 
Following the Supreme Court’s decision in June Medical Services v. Russo this week, it is worth reflecting on the racist origins of the anti-abortion movement in the United States, which date back to the ideologies of slavery. Just like slavery, anti-abortion efforts are rooted in white supremacy, the exploitation of Black women, and placing women’s bodies in service to men. Just like slavery, maximizing wealth and consolidating power motivated the anti-abortion enterprise. Then, just as now, anti-abortion efforts have nothing to do with saving women’s lives or protecting the interests of children. Today, a person is 14 times more likely to die by carrying a pregnancy to term than by having an abortion, and medical evidence has shown for decades that an abortion is as safe as a penicillin shot—and yet abortion remains heavily restricted in states across the country.
 
Prior to the Civil War, abortion and contraceptives were legal in the U.S., used by Indigenous women as well as those who sailed to these lands from Europe. For the most part, the persons who performed all manner of reproductive health care were women — female midwives. Midwifery was interracial; half of the women who provided reproductive health care were Black women. Other midwives were Indigenous and white.
 
However, in the wake of slavery’s end, skilled Black midwives represented both real competition for white men who sought to enter the practice of child delivery, and a threat to how obstetricians viewed themselves. Male gynecologists claimed midwifery was a degrading means of obstetrical care. They viewed themselves as elite members of a trained profession with tools such as forceps and other technologies, and the modern convenience of hospitals, which excluded Black and Indigenous women from practice within their institutions.

History would later reveal that it was literally on the backs of Black women’s bodies that such tools were developed. Dr. Marion Sims famously wrote about his insomniac-induced “epiphanies” that stirred him to experiment on enslaved Black women, lacerating, suturing, and cutting, providing no anesthesia or pain relief. Only recently have the terrors that Black women endured through nonconsensual experimentation by gynecologists of the 19^th and 20^th centuries been acknowledged.
 
Successful racist and misogynistic smear campaigns, cleverly designed for political persuasion and to achieve legal reform, described Black midwives as unhygienic, barbarous, ineffective, non-scientific, dangerous, and unprofessional. Dr. Joseph DeLee, a preeminent 20^th century obstetrician and fervent opponent to midwifery, stated in a much-quoted 1915 speech, “Progress Toward Ideal Obstetrics”:

The midwife is a relic of barbarism. In civilized countries the midwife is wrong, has always been wrong … The midwife has been a drag on the progress of the science and art of obstetrics. Her existence stunts the one and degrades the other. For many centuries she perverted obstetrics from obtaining any standing at all among the science of medicine … Even after midwifery was practiced by some of the most brilliant men in the profession, such practice was held opprobrious and degraded.

At the root of these stereotypes were explicit efforts to destroy midwifery and promote white supremacy. As the surge of lynchings, “separate but equal” laws, police violence, and the decimation of successful Black communities during Jim Crow revealed, Black Americans post slavery suffered greatly due to white supremacy, as did Chinese and Japanese workers and their families. Indeed, the racist campaigns launched by doctors against Black midwives extended to anti-immigration legislative platforms targeted at Chinese and Japanese workers. The Page Act, which restricted Chinese women from entering the United States, is a part of this shameful legacy. This broader 20^th century anti-Chinese campaign became known as “yellow peril.” DeLee and Horatio Storer urged white women to “spread their loins” across the nation,  a dog whistle about the threat of too many Blacks and Asians in the U.S. 
 
Gynecologists explicitly revealed their motivations in undermining midwifery: They desired financial gains, recognition, and a monopoly. As Dr. DeLee wrote in a 1916 article published in the American Journal of Obstetrics & Disease of Women & Children, “There is high art in obstetrics and that it must pay as well for it as for surgery. I will not admit that this is a sordid impulse. It is only common justice to labor, self-sacrifice, and skill.” They believed that men should be paid, but not women — particularly not Black women.
 
To better understand racial injustice in the anti-abortion movement, remember that American hospitals barred the admission of African Americans both in terms of practice and as patients. And, the American Medical Association (AMA) barred women and Black people from membership. The AMA, founded in 1847, refused to admit Black doctors, informing them, “You come from groups and schools that admit women and that admit irregular practitioners.” For this reason, Black doctors formed the National Medical Association in 1895.
 
In 2008, the organization issued a public apology for its active campaigns to close Black medical schools, deny Blacks membership, and other efforts to marginalize Black patients and practitioners. 
 
Gynecologists pushed women out of the field of reproductive health by lobbying state legislatures to ban midwifery and prohibit abortions. Doing so not only undercut women’s reproductive health, but also drove qualified Black women out of medical services. For these groups, there was no meaningful path to the formalized skill set DeLee claimed necessary.
 
Abortion was an expedient way to frame their campaign to create monopolies on women’s bodies for male doctors. The American Medical Association explicitly contributed to this cause through its exclusion of women and Black people.
 
Today, as people debate whether anti-abortion platforms benefit Black women, the clear answer is no. The U.S. leads the developed world in maternal and infant mortality. The U.S. ranks around 50^th in the world for maternal safety. Nationally, for Black women, the maternal death rate is nearly four times that of white women, and 10 to 17 times worse in some states.
 
In the wake of both Whole Woman’s Health and June Medical Services v. Russo, keep in mind that both Texas and Louisiana, where these cases originated, are considered the deadliest in the developed world for a woman to give birth.
 
Sadly, pregnancy has become a death sentence for many in the very places that make reproductive health care access the most fraught and hard to reach. Many of these states (though not all) are former slave states, such as Texas, Louisiana, Mississippi, Alabama, and Arkansas. As Black people in these states continue to fight for equal access the reproductive care they need, Sojourner Truth’s 1851 speech continues to resonate. And as the Supreme Court demonstrated this week, the fight for justice in reproductive health care and equality in abortion access is far from over. The decision does not advance the equality of poor Black women — it maintains all other burdensome restrictions already in place. We have much more work to do such that not only DeLee’s words, but also his racist and exploitative viewpoints, are relegated to history.

Michele Goodwin, Chancellor's Professor of Law, University of California, Irvine

When COVID-19 first reached the U.S., the epicenter was a single nursing home in Washington State, where 45 people died. That nursing home outbreak was a precursor of what was to come. Ever since, the virus has been devastating nursing homes across the country, due in part to systemic mismanagement and discrimination against the people who live and work inside.

To date, deaths in nursing homes and other congregate care facilities account for almost half of all COVID-19 deaths in the country, despite these groups making up less than 1 percent of the population. Residents of these congregate facilities are dying from COVID-19 at 8.6 times the rate of the overall 75+ population.
 
If current trends hold, that means nearly 90,000 people living in nursing homes and other congregate care settings could die by October 1.

Grim as this projection is, the actual death toll to date is likely much higher than currently reported. It took the Department of Health and Human Services (HHS) months after declaring COVID-19 a national emergency to start requiring nursing homes to report deaths and infections despite ample evidence that these facilities were at high risk. Even now, nursing homes are only required to report data from May 8 onward. HHS doesn’t require other congregate settings for people with disabilities, such as psychiatric homes, to report at all. This lack of transparency, in addition to the government’s systemic mismanagement of nursing homes and other congregate settings, has helped create the crisis we see today.

In some cases, facilities have not only failed to report, but have actively hidden deaths from residents, families, and the government. For example, a nursing home in the Harlem neighborhood of New York City hid 26 COVID-related deaths from the state by covertly shipping bodies out of the facility. At a nursing home in New Jersey, 17 bodies were packed into a shed and later crowded into a morgue meant to house only four bodies. Other stories emerged of residents’ families being left in the dark about whether loved ones were dead or alive.
 
While HHS has lagged in collecting data, states can independently choose to require reporting and publicize this information. But too often, states are slow to report, and the data is often piecemeal and insufficient for analyzing the full scale of the pandemic.

As of June 29, only 41 states report deaths in nursing homes, and the level of detail varies from state to state. Some states offer only state or county totals (such as Arkansas, Indiana, Vermont, and others) while others break down data by facility (including North Carolina, West Virginia, and Nevada). Only 12 states go as far as naming facilities, reporting both cases and deaths, and disaggregating between residents and staff. Disaggregating data in this manner allows us to more accurately measure the impact on various groups of people. Residents are mostly seniors and all are people with disabilities. Staff are disproportionately people of color, women, and low-income. All of these demographic variables are relevant and integral to any adequate public health response.  

Even when states do report deaths and infections in nursing homes, most do not offer critical demographic data. This information is essential for assessing the impact of COVID-19 on different communities and demographic groups and facilitating our response. Yet only two states — Mississippi and Iowa — report the demographics of residents or staff who have tested positive or died.

People with disabilities and the people who work with them deserve to be counted. States can and should modify current policies to collect and publicize vital data while maintaining privacy standards. Last week, the ACLU filed a petition calling on HHS to do its job to address this crisis — and its job includes collecting and reporting full data from facilities that receive Medicaid or Medicare dollars.

The government needs good data to adequately respond to COVID-19. Data helps to inform where to investigate, where to channel resources, and what policies and practices to adopt. At the individual level, data helps people decide which facilities to live in and which to avoid. And in the long run, data can propel change to ensure this crisis never happens again.
 
The first step to change the system is to get to the truth. HHS must tell the truth about what is happening in the nursing homes and other congregate settings for people with disabilities that it oversees and funds with our taxpayer dollars.

Maps reflect public data reporting as of 06/29/2020. Links to state-level data sources available here.

This piece is part of a series, read the previous entry here:

We as a society must reckon with our relentless marginalization and de-prioritization of people with disabilities and the people who support them.

Brooke Madubuonwu, Director of Legal Analytics and Quantitative Research, ACLU,
& Charlotte Lawrence, Special Assistant for Digital, Tech, and Analytics, ACLU

Today, in an unprecedented decision, the Supreme Court ruled that the state of Montana must provide funding for religious education as part of its school voucher tax credit program — despite the fact that the Montana Constitution forbids government aid for religious education and activities. The court’s opinion in Espinoza v. Montana Department of Revenue marks an alarming sea change in the law and calls into question the continued validity of similar provisions in dozens of other state constitutions, which aim to prohibit government funding for religious institutions.
 
The Supreme Court has held that school vouchers for religious education are permissible under the First Amendment because, according to the court, the aid is indirect, meaning it is not provided directly to schools but instead funneled to individual students and families who then decide which schools to attend. However, the court has also recognized that state constitutions can, and often do, provide stronger protections than the federal Constitution against government funding of religion.
 
Today’s decision disregards that longstanding precedent and will be detrimental to both religious freedom and public education: The court’s ruling could effectively mean that, when states offer school vouchers or similar funding involving indirect aid — such as Montana’s tax credit scholarship program — they now must extend the aid to religious schools, too. This is despite the fact that millions more in government funds will be diverted from public schools as a result, and taxpayer dollars will be used to support religious indoctrination and training for future religious leaders and adherents. This also means that the government will fund discrimination against minority-faith and LGBTQ students and job applicants, as well as students and prospective employees with disabilities, whom many religious schools refuse to admit or hire. Indeed, earlier this year, the court heard arguments in two cases that could expand the ability of religious schools — the very same ones that often receive voucher funding — to discriminate in hiring and firing based on any ground the schools want, including race and ethnicity.
 
With today’s ruling and its 2017 decision in Trinity Lutheran v. Comer allowing — for the first time ever — direct funding of a church as part of a playground resurfacing program, the Supreme Court appears to be marching toward a legal paradigm that would virtually destroy a fundamental principle on which the Establishment Clause of the First Amendment was built. As James Madison, the architect of the First Amendment, explained, even “three pence” in compelled aid to religion was too much of a threat to religious liberty. Madison believed that forcing individuals to financially support religion was a direct assault on the fundamental human right of freedom of conscience. He and the other framers also worried that taxpayer funding of religion would weaken religious institutions by making them dependent on the government aid and engender religious divisiveness.
 
Dozens of states, including Montana, took Madison’s concerns seriously. They enacted constitutional provisions like Montana’s to protect their taxpayers’ consciences when it comes to matter of faith, preserve the vitality of their public school systems, respect religious institutions’ autonomy, and facilitate peaceful religious pluralism in their communities. But increasingly, the Supreme Court appears not to care about these values. Instead, religious freedom these days goes only one way — in favor of religious institutions and against the separation of church and state.

Heather L. Weaver, Senior Staff Attorney, ACLU Program on Freedom of Religion and Belief