Restoring Rights for Reproductive Justice
Chen, Elizabeth J., The American University Journal of Gender, Social Policy & the Law
Ever since women gained the right to vote in the United States nearly 100 years ago, women have exercised that right. In fact, women's voting rates now outstrip those of men's,1 and the number of women of color2 voting has increased steadily over time.3 In the 2008 election, black women's turnout rate even outstripped that of white women's.4 The growth in voting rates has nearly doubled for both Latina and Asian women between 2000 and 2012.5 Much has been made of the "woman's vote" and its impact on the 2012 election. Commentators and pollsters suggested that President Obama's second term was secured through a gender gap larger than any other in recorded history.6 While those votes certainly reflected the politics of gender as they played out in the rhetoric of both campaigns, theirs is not the only story.
This Article considers the women who did not vote in the election because of felon disenfranchisement laws, and the impact on reproductive rights from leaving out their voices. The 2012 election season was rife with discussions about voter suppression, and separately, the "war on women."7 The story coming out of the election was about the gender gap, wider than ever before in particular because of reproductive rights concerns drawn out during the election.8 Moreover, with politicians making scientifically inaccurate statements, such as the contention that raped women have ways of "shutting that whole thing down" and preventing pregnancy,9 it is understandable that women voted in force to make their opinions known, and even to protect their rights. While former Massachusetts Governor Mitt Romney seemed to gain votes with women by making the tie between gender and the economy,10 President Obama understood that reproductive rights themselves are economic issues.11 As a result, he won the "women's vote."12
That gender gap was driven by women of color. While attempts to suppress the votes of people of color were rampant, they were largely unsuccessful because of the protections of Section 5 of the Voting Rights Act in combination with advocates pointing out the extreme rarity of voter fraud and taking extensive measures to ensure that eligible voters were not disenfranchised.13 While President Obama lost the white woman's vote, he overwhelmingly won the support of Black and Latina women.14 Women of color provided the margin for President Obama's win of the so-called "women's vote."
Yet any conversation about the women who voted begs the question of which women were left out. While the women who voted managed to speak out on the issues that mattered most to them, what of the women precluded from voting? In this Article, I extend my previous consideration of the impact of newly enacted voter suppression laws on women of color15 to a much more pervasive and deep-rooted form of voter suppression, namely felon disenfranchisement.
Felon disenfranchisement is but one collateral consequence of imprisonment, and a mere symptom of a larger system of mass incarceration. The system itself has received increased attention recently upon the release of Michelle Alexander's book, The New Jim Crow.16 Alexander makes the argument that mass incarceration is just the next iteration of the system of legalized racial oppression in the United States, following directly from slavery and Jim Crow de jure segregation.17 She acknowledges, however, that The New Jim Crow does not address a number of populations affected by mass incarceration-among them women, Latinos, and immigrants-and calls for work building upon hers to further explore the issues raised in those particular contexts.18 This Article attempts to answer that call by specifically examining the impact of mass incarceration on women.
By linking the laws, regulations, and policies that produce reproductive oppression in prison with the breadth of felon disenfranchisement laws throughout the country, this Article provides the first attempt to tie together each of these social justice movements to show the urgency and importance of not forgetting those most marginalized by both society and law. …