Amicus Curiae Brief — Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitioners v. Jackson Women's Health Organization, et al.

Supreme Court briefSep 20, 2021

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Text

No. 19-1392

IN THE

Supreme Court of the United States

————

THOMAS E. DOBBS, M.D., M.P.H., IN HIS OFFICIAL

CAPACITY AS STATE HEALTH OFFICER OF THE

MISSISSIPPI DEPARTMENT OF HEALTH, et al.,

Petitioners,

JACKSON WOMEN’S HEALTH ORGANIZATION, ON

BEHALF OF ITSELF AND ITS PATIENTS, et al.,

Respondents.

————

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

————

BRIEF OF AMICI CURIAE LEGAL VOICE,

ASIAN PACIFIC INSTITUTE ON GENDERBASED VIOLENCE, COALITION ENDING

GENDER-BASED VIOLENCE, UJIMA, INC.,

FUTURES WITHOUT VIOLENCE, IDAHO

COALITION AGAINST SEXUAL & DOMESTIC

VIOLENCE, LOS ANGELES LGBT CENTER,

NATIONAL ALLIANCE TO END SEXUAL

VIOLENCE, NATIONAL COALITION AGAINST

DOMESTIC VIOLENCE, NATIONAL DOMESTIC

VIOLENCE HOTLINE, NATIONAL NETWORK

TO END DOMESTIC VIOLENCE, SANCTUARY

FOR FAMILIES, SEXUAL VIOLENCE LAW

CENTER, AND WASHINGTON STATE

COALITION AGAINST DOMESTIC VIOLENCE,

IN SUPPORT OF RESPONDENTS

————

KIM CLARK, ESQ.

Counsel of Record

LEGAL VOICE

907 Pine Street, Suite 500

Seattle, WA 98101

(206) 682-9552

kclark@legalvoice.org

Counsel for Amici Curiae

Legal Voice et al.

Additional counsel listed on inside cover

AMANDA J. BEANE, ESQ.

LAUREN WATTS STANIAR, ESQ.

PERKINS COIE LLP

1201 Third Avenue

Suite 4900

Seattle, WA 98101

(206) 359-8000

abeane@perkinscoie.com

lstaniar@perkinscoie.com

COURTNEY CHAPPELL, ESQ.

CATHERINE WEST, ESQ.

LEGAL VOICE

907 Pine Street

Suite 500

Seattle, WA 98101

(206) 682-9552

cchappell@legalvoice.org

cwest@legalvoice.org

CARRIE AKINAKA, ESQ.

PERKINS COIE LLP

1888 Century Park East

Suite 1700

Los Angeles, CA 90067

(310) 788-9900

cakinaka@perkinscoie.com

Counsel for Amici Curiae Legal Voice et al.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.......................................iii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 4

ARGUMENT................................................................ 9

A. Violence and coercive control by abusers

coupled with systemic inequities leave

survivors from marginalized communities

vulnerable to unintended pregnancy and

undermine their reproductive autonomy. .. 9

1. Abusers use violence and “coercive

control” to create the conditions for

unintended pregnancy. ........................ 10

2. Systemic inequities compound the

control that abusers exert over survivors

from marginalized communities, leaving

them even more vulnerable to IPV...... 11

3. Survivors of IPV experience

disproportionately high rates of forced

pregnancy resulting from rape. ........... 16

4. Reproductive coercion by abusers also

leads to higher rates of unintended

pregnancy, exacerbating the already

high rates of unintended pregnancy

among communities of color. ............... 18

TABLE OF CONTENTS–Continued

Page

B. Coerced pregnancy and forced childbearing

carry significant risks to survivors of IPV,

risks that are even greater for survivors of

color. ........................................................... 22

1. Coercive control by abusers and

systemic inequities prevent pregnant

survivors of IPV from receiving

adequate prenatal care. ....................... 22

2. Having a child with an abusive partner

makes it more difficult to leave,

especially for survivors of color. .......... 24

C. Survivors need meaningful access to

abortion. ..................................................... 26

1. There is a strong association between

IPV and pregnancy termination.......... 26

2. Survivors of IPV face significant

barriers to accessing abortion care...... 28

D. Mississippi’s 15-week ban will have grave

consequences for the lives and health of

IPV survivors, especially the most

marginalized. ............................................. 30

CONCLUSION .......................................................... 32

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Gonzales v. Carhart,

550 U.S. 124 (2007) .............................................. 32

Jackson Women’s Health Org. v. Currier,

349 F. Supp. 3d 536 (S.D. Miss. 2018)........... 11, 32

Nicholson v. Williams,

203 F. Supp. 2d 153 (E.D.N.Y. 2002)................... 25

Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833 (1992) .......................................... 9, 32

Whole Women’s Health All. v. Rokita,

No. 1:18-cv-01904 (S.D. Ind. Aug. 10,

2021), ECF No. 425 .............................................. 28

STATUTES & LAWS

H.R. 2518, 103rd Cong. § 510 (1993) ........................ 29

H.R. 14232, 94th Cong. § 209 (1976) ........................ 29

RULES

Rule 37.2(a).................................................................. 1

Rule 37.6 ...................................................................... 1

TABLE OF AUTHORITIES–Continued

Page(s)

OTHER AUTHORITIES

Alexia Cooper & Erica L. Smith, U.S.

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08.pdf ...................................................................... 7

Alison Siskin, et al., Cong. Rsch. Serv.,

Treatment of Noncitizens Under the

Patient Protection and Affordable

Care Act (2011),

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R43561.pdf............................................................ 20

Am. Bar Ass’n Comm’n on Domestic

Violence, 10 Custody Myths and How

to Counter Them, 4 ABA Comm’n on

Domestic Violence Quarterly ENewsletter (July 2006),

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/files/ABACustodymyths.pdf................................ 25

TABLE OF AUTHORITIES–Continued

Page(s)

Am. Coll. of Obstetricians &

Gynecologists, Comm. on Health

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les /committee-opinion/articles/

2013/02/reproductive-and-sexualcoercion.pdf..................................................... 17, 18

Amaranta D. Craig et al., Exploring

Young Adults’ Contraceptive

Knowledge and Attitudes: Disparities

by Race/Ethnicity and Age, 24

Women’s Health Issues e281 (2014).................... 20

Andrea J. Ritchie, #SayHerName:

Racial Profiling and Police Violence

Against Black Women, 41 Harbinger

187 (2016) ............................................................. 14

Ann L. Coker, Does Physical Intimate

Partner Violence Affect Sexual

Health? A Systematic Review, 8

Trauma, Violence, & Abuse 149

(2007) .............................................................. 18, 19

Anne M. Moore et al., Male Reproductive

Control of Women Who Have

Experienced Intimate Partner

Violence in the United States, 70 Soc.

Sci. & Med. 1737 (2010) ....................................... 18

TABLE OF AUTHORITIES–Continued

Page(s)

Best State Rankings, Measuring

Outcomes for Citizens Using More

than 70 Metrics, U.S. News,

https://www.usnews.com/news/beststates/rankings (last visited

Sept. 15, 2021)...................................................... 29

Beth A. Bailey, Partner Violence During

Pregnancy: Prevalence, Effects,

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Calandra Davis & Sara Miller, Dream

Deferred: The Lasting Legacy of

Racist Redlining in Mississippi and

the Deep South, Miss. Free Press

(Apr. 8, 2021), https://www.mississ

ippifreepress.org/11089/a-dreamdeferred-the-lasting-legacy-of-racistredlining-in-the-deep-south/ .................................. 5

Carmela DeCandia et al., Closing the

Gap: Integrating Services for

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stic%20Violence%20toolkit.pdf............................ 27

vii

TABLE OF AUTHORITIES–Continued

Page(s)

Charlene Collier et al., Miss. State Dep’t

of Health, Mississippi Maternal

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https://msdh.ms.gov/msdhsite/index.c

fm/31,8127,299,pdf/MS_Maternal_M

ortality_Report_2019_Final.pdf....................... 8, 31

Christine Dehlendorf et al., Disparities

in Family Planning, 202 Am. J.

Obstetrics & Gynecology 214 (2010).................... 20

Christine Metusela et al., “In My

Culture, We Don’t Know Anything

About That”: Sexual and

Reproductive Health of Migrant and

Refugee Women, 24 Int’l J. Behav.

Med. 836 (2017) .................................................... 20

Claudia Garcia-Moreno et al., World

Health Organization, Understanding

and Addressing Violence Against

Women: Intimate Partner Violence

(2012), http://apps.who.int/iris

/bitstream/10665/77432/1/WHO_RHR

_12.36_eng.pdf........................................................ 4

Ctr. for Miss. Health Pol’y, A Profile of

Health Insurance Coverage for

Mississippi Adults: 2019 Data (Mar.

2021), https://mshealthpolicy

.com/wp-content/uploads/2021/06

/Profile-of-Adult-Coverage-in-2019Nov-2021.pdf ........................................................ 12

viii

TABLE OF AUTHORITIES–Continued

Page(s)

Cynthia K. Sanders, Economic Abuse in

the Lives of Women Abused by an

Intimate Partner: A Qualitative

Study, 21 Violence Against Women 3

(2015) .................................................................... 30

Cynthia Prather et al., Racism, African

American Women, and Their Sexual

and Reproductive Health: A Review

of Historical and Contemporary

Evidence and Implications for Health

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David C. Maurer, Homeland Security &

Just., GAO Letter Re: U.S.

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assets/gao-11-167r.pdf ......................................... 15

David Frazee, An Imperfect Remedy for

Imperfect Violence: The Construction

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Gender & L. 163 (1993)........................................ 15

Devon W. Carbado, Blue-on-Black

Violence: A Provisional Model of

Some of the Causes, 104 Geo. L. J.

1479 (2016) ........................................................... 14

TABLE OF AUTHORITIES–Continued

Page(s)

Dorothy A. Brown, The Whiteness of

Wealth: How the Tax System

Impoverishes Black Americans – and

How We Can Fix It (2021)...................................... 5

Elise Andaya & Rajani Bhatia, The

Impact of COVID-19 on Minority

Disparities in Sexual and

Reproductive Health Care in New

York State (2021).............................................. 8, 25

Elizabeth A. Armstrong et al., Silence,

Power, and Inequality: An

Intersectional Approach to Sexual

Violence, 44 Ann. Rev. Soc. 99 (2018).................... 6

Elizabeth M. Schneider, Battered

Women and Feminist Lawmaking

(2000) .................................................................... 10

Elizabeth M. Schneider et al., Domestic

Violence and the Law: Theory and

Practice (3d ed. 2013) ........................................... 28

Elizabeth Miller et al., Editorial:

Reproductive Coercion: Connecting

the Dots Between Partner Violence

and Unintended Pregnancy, 81

Contraception 457 (2010)..................................... 20

Elizabeth Miller et al., Pregnancy

Coercion, Intimate Partner Violence,

and Unintended Pregnancy, 81

Contraception 316 (2010)............................... 18, 19

TABLE OF AUTHORITIES–Continued

Page(s)

Erica Hensley & Nick Judin, Disrupted

Care: Mississippi Legislature Kills

Postpartum Medicaid Extension,

Affecting 25,000 Mothers Yearly,

Miss. Free Press (Apr. 2, 2021),

https://www.mississippifreepress.org/

10868/disrupted-care/..................................... 31, 32

Gunnar Karakurt et al., Mining

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Health Effects, 3 J. of Fam. Violence

79 (2016) ............................................................... 23

Health Equity in Mississippi, Miss.

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44,0,236.html (last visited

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Heike Thiel de Bocanegra et al., Birth

Control Sabotage and Forced Sex:

Experiences Reported by Women in

Domestic Violence Shelters, 16

Violence Against Women 601 (2010) ................... 19

Indian Health Manual,

https://www.ihs.gov/ihm /pc/part3/p3c13/#3-13.14B ................................................ 29

TABLE OF AUTHORITIES–Continued

Page(s)

Inst. for Women’s Pol’y Rsch., Status of

Women in the States, Fact Sheet

#R505 (2018), https://statusofwome

ndata.org/wp-content/themes/wits

full/ factsheets/economics/factsheetmississippi.pdf...................................................... 11

Jacquelyn Campbell et al., Risk Factors

for Femicide in Abusive

Relationships: Results from a

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J. Pub. Health 1089 (2003) .................................. 16

Jane K. Stoever, Enjoining Abuse: The

Case for Indefinite Protection Orders,

67 Vand. L. Rev. 1015 (2014)............................... 16

Jennifer Medina, Too Scared to Report

Sexual Abuse. The Fear: Deportation,

N.Y. Times (Apr. 30, 2017),

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com/2017/04/30/us/immigrantsdeportation-sexual-abuse.html............................ 14

Jillian Hernández, Racialized Sexuality:

From Colonial Product to Creative

Practice, Oxford Rsch. Encyc. of

Liter. 1 (2020)......................................................... 6

xii

TABLE OF AUTHORITIES–Continued

Page(s)

Joan S. Meier, Domestic Violence, Child

Custody, and Child Protection:

Understanding Judicial Resistance

and Imagining the Solutions, 11 Am.

U. J. Gender Soc. Pol’y & L. 657

(2003) .................................................................... 27

Judith McFarlane, Pregnancy Following

Partner Rape: What We Know and

What We Need to Know, 8 Trauma,

Violence, & Abuse 127 (2007) ........................ 17, 22

Julie A. Gazmararian et al., Prevalence

of Violence Against Pregnant Women,

275 J. of Am. Med. Ass’n 1915 (1996).................. 24

Julie Goldscheid, Gender Violence and

Work: Reckoning with the Boundaries

of Sex Discrimination Law, 18

Colum. J. Gender & L. 61 (2008) ......................... 10

Kaiser Fam. Found., State Health Facts:

Health Insurance Coverage of Women

19–64 (2019), https://www.kff.org/

other/state-indicator/healthinsurance-coverage-of-nonelderlyadult-women/?currentTime

frame=0&sortModel=%7B%22colId%

22:%22Location%22,%22sort%22:%2

2asc%22%7D......................................................... 12

xiii

TABLE OF AUTHORITIES–Continued

Page(s)

Karen Oehme et al., Unheard Voices of

Domestic Violence Victims: A Call to

Remedy Physician Neglect, 15 Geo. J.

Gender & L. 613 (2014)........................................ 23

Karla Fischer et al., The Culture of

Battering and the Role of Mediation

in Domestic Violence Cases, 46 SMU

L. Rev. 2117 (1993)............................................... 10

Karuna S. Chibber et al., The Role of

Intimate Partners in Women’s

Reasons for Seeking Abortion, 24

Women’s Health Issues e131 (2014).............. 26, 27

Kelli Stidham Hall et al., Determinants

of and Disparities in Reproductive

Health Service Use Among Adolescent

and Young Adult Women in the

United States 2002-2008, 102 Am. J.

Pub. Health 359 (2012) ........................................ 20

Lauren Maxwell et al., Estimating the

Effect of Intimate Partner Violence on

Women’s Use of Contraception: A

Systematic Review and MetaAnalysis, 10 PLoS ONE e0118234

(2015) .................................................................... 19

xiv

TABLE OF AUTHORITIES–Continued

Page(s)

Legal Servs. Corp., Documenting the

Justice Gap in America: The Current

Unmet Civil Legal Needs of LowIncome Americans (2009),

http://mlac.org/wpcontent/uploads/2015/08/Documentin

g-the-Justice-Gap.pdfhttp.................................... 24

Leigh Goodmark, A Troubled Marriage:

Domestic Violence and the Legal

System (2012) ....................................................... 10

Leigh Goodmark, Law is the Answer? Do

We Know That for Sure?: Questioning

the Efficacy of Legal Interventions for

Battered Women, 23 St. Louis Univ.

Pub. L. Rev. 7 (2004) ............................................ 25

Leslye E. Orloff et al., Battered

Immigrant Women’s Willingness to

Call for Help and Police Response, 13

UCLA Women’s L.J. 43 (2003)............................. 13

Leslye Orloff & Oliva Garcia, Nat’l

Immigrant Women’s Advoc. Project,

Dynamics of Domestic Violence

Experienced by Immigrant Victims 2,

in Breaking Barriers: A Complete

Guide to Legal Rights and Resources

for Battered Immigrants (2013),

http://library.niwap.org/wpcontent/uploads/2015/pdf/FAMManual-FullBreakingBarriers07.13.pdf .................................. 21

TABLE OF AUTHORITIES–Continued

Page(s)

Lisa R. Pruitt & Marta R. Vanegas,

Urbanormativity, Spatial Privilege,

and Judicial Blind Spots in Abortion

Law, 30 Berkeley J. Gender L. &

Just. 76 (2015) ...................................................... 29

Lynn Evans, Maternal Deaths Still on

the Increase, Clarion Ledger (Mar.

31, 2018), https://www.clarionledger.

com/story/opinion/2018/03/31/

maternal-deaths-stillincrease/473125002/ ............................................. 32

Madeline Y. Sutton et al., Racial and

Ethnic Disparities in Reproductive

Health Services and Outcomes, 2020,

137 Obstet. Gynecol. 225 (2021) .......................... 21

Maze of Injustice: A Summary of

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Amnesty Int’l (Aug. 8, 2011),

https://www.amnestyusa.

org/reports/maze-of-injustice/ .............................. 15

Megan Hall et al., Associations Between

Intimate Partner Violence and

Termination of Pregnancy: A

Systematic Review and MetaAnalysis, 11 PLoS Med. e1001581

(2014) ........................................................ 19, 24, 26

xvi

TABLE OF AUTHORITIES–Continued

Page(s)

Melisa M. Holmes et al., Rape-Related

Pregnancy: Estimates and

Descriptive Characteristics from a

National Sample of Women, 175 Am.

J. Obstetrics & Gynecology 320

(1996) .................................................................... 26

Meredith E. Bagwell-Gray et al.,

Intimate Partner Sexual Violence: A

Review of Terms, Definitions, and

Prevalence, 16 Trauma, Violence, &

Abuse 316 (2015) .................................................. 17

Merle H. Weiner, A Parent-Partner

Status for American Family Law

(2015) .................................................................... 16

Michele C. Black et al., Ctrs. For

Disease Control & Prev., Nat’l Ctr.

for Injury Prev. & Control, The

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Sexual Violence Survey: 2010

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n/pdf/nisvs_report 2010-a.pdf ............................ 4, 7

Michele K. Evans et al., Diagnosing and

Treating Systemic Racism, 383 The

New Eng. J. of Med. 274 (2020)........................... 21

xvii

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Page(s)

Michele Troutman et al., Are Higher

Unintended Pregnancy Rates Among

Minorities a Result of Disparate

Access to Contraception?, 5

Contraceptive & Reprod. Med. 1

(2020) .................................................................... 20

Michelle J. Anderson, Marital

Immunity, Intimate Relationships,

and Improper Inferences: A New Law

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Hastings L. J. 1465 (2003) ................................... 17

Mississippi Maternal Mortality Report

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Monika Batra Kashyap, U.S. Settler

Colonialism, White Supremacy, and

the Racially Disparate Impacts of

COVID-19, 11 Cal. Law. Rev. Online

517 (2020) ............................................................. 12

Naomi R. Cahn, Civil Images of Battered

Women: The Impact of Domestic

Violence on Child Custody Decisions,

44 Vand. L. Rev. 1041 (1991)............................... 24

Nat’l Acads. of Scis., Eng’g & Med., The

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xviii

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Nat’l P’ship for Women & Fams., Despite

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xix

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Page(s)

Natalie J. Sokoloff & Ida Dupont,

Domestic Violence at the Intersections

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Nimish R. Ganatra, The Cultural

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Understanding the Additional

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TABLE OF AUTHORITIES–Continued

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xxi

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xxii

TABLE OF AUTHORITIES–Continued

Page(s)

Sarah CM Roberts et al., Risk of

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violenceprevention/ pdf/nisvsstatereportbook.pdf ................................................ 7

xxiii

TABLE OF AUTHORITIES–Continued

Page(s)

Shaye Beverly Arnold, Reproductive

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Theresa Y. Kim et al., Racial/Ethnic

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Tom Dart, Fearing Deportation,

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undocumented-immigrants-waryreport-crimes-deportation.................................... 14

xxiv

TABLE OF AUTHORITIES–Continued

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U.S. Dep’t of Just. Off. of Victims of

Crime, 2018 NCVRW Resource

Guide: Intimate Partner Violence

Fact Sheet (2018), https://ovc.ojp.gov

/sites/g/files/xyckuh226/files/ncvrw20

18/info_flyers/fact_sheets/2018NCVR

W_IPV_508_QC.pdf.............................................. 11

Warren Kulo, Mississippi Still Nation’s

Most Poverty Stricken State (Mar. 5,

2020), https://www.gulflive.com/

news/2020/03/mississippi-stillnations-most-poverty-strickenstate.html ............................................................. 29

INTEREST OF AMICI CURIAE1

Amici are experts in law, social science, and

advocacy supporting survivors of intimate partner

violence (“IPV”).

The Asian Pacific Institute on Gender-Based

Violence is a national resource center on domestic

violence, sexual violence, trafficking, and other forms

of gender-based violence impacting Asian and Pacific

Islander and immigrant communities.

Coalition Ending Gender-Based Violence is a

group of over 30 member organizations in the King

County, Washington region that works to end genderbased violence and promote safe and equitable

relationships through collective action for social

change.

Futures Without Violence, a national health and

social justice organization working to end violence for

over 35 years, recognizes that health access including

a full range of reproductive health access is important

for all people and particularly survivors of IPV.

The Idaho Coalition Against Sexual &

Domestic Violence is a member-based organization

with the mission of engaging voices to create change

in the prevention, intervention, and response to sexual

assault, domestic violence, dating violence, and

stalking.

1 Pursuant to Rule 37.2(a), counsel for all parties have consented

to the filing of this brief. Pursuant to Rule 37.6, no counsel for a

party authored this brief in whole or in part and no person or

entity other than Amici, its members, or counsel made a

monetary contribution to its preparation or submission.

Legal Voice is a non-profit public interest

organization that works to protect and advance

reproductive rights for women and LGBTQ+ people

and to improve protections for survivors of IPV.

The Los Angeles LGBT Center is the world’s

largest LGBT organization of any kind and has long

been at the forefront of addressing, responding, and

drawing national attention to the problem of LGBTQ

domestic violence.

The National Alliance to End Sexual Violence

is the national voice on behalf of 56 state and

territorial sexual assault coalitions and 1500 rape

crisis centers working to end all forms of sexual

violence and support survivors.

The National Coalition Against Domestic

Violence’s mission is to lead, mobilize and raise our

voices to support efforts that demand a change of

conditions that lead to domestic violence such as

patriarchy, privilege, racism, sexism, and classism.

National Domestic Violence Hotline provides

lifesaving tools and immediate support to enable

victims to find safety and live lives free of abuse.

National Network to End Domestic Violence is

a non-profit organization that serves as the national

voice of millions of people victimized by domestic

violence through its network of the 56 state and

territorial domestic violence and dual coalitions and

their over 2,000 member programs.

Sanctuary for Families is a New York City-based

non-profit organization dedicated to the safety,

healing, and self-determination of victims of domestic

violence and related forms of gender violence.

Sexual Violence Law Center is a non-profit legal

services organization based in Washington that aims

to protect the privacy, safety, and civil rights of

survivors of sexual violence through legal

representation and victim advocacy.

Ujima Inc., The National Center on Violence

Against Women in the Black Community’s

mission is to mobilize the community to respond to and

end domestic, sexual, and community violence in the

Black community through research; public awareness

and community engagement; resource development;

education and outreach for comprehensive, traumainformed services for survivors; and public policy

initiatives.

Washington State Coalition Against Domestic

Violence works to end domestic violence through

advocacy and action for social change.

Each organization has a strong interest in ensuring

that survivors of sexual and domestic violence have

full access to reproductive health options, including

abortion. These experts are united in their opposition

to Mississippi’s “Gestational Age Act,” which bans

abortion at 15 weeks at grave risk to the lives and

health of pregnant people (the “Ban” or “15-week

ban”). The Ban is an affront to the rights of all people

who can become pregnant but will impact

disproportionately survivors of IPV—especially

survivors of color.

SUMMARY OF ARGUMENT

The Ban and the State’s brief in defense of it reflect

a privileged view of reality that disregards the lived

experience of survivors of intimate partner violence

(“IPV”)—especially survivors of color.2 The suggestion

that access to abortion is no longer necessary because

“on a wide scale women [now] attain both professional

success and a rich family life,” and contraceptives are

readily available to anyone who wants them is, at best,

grossly ignorant of the reality on the ground for

pregnant people—even more so for survivors of IPV.3

IPV affects nearly one third of women4 in the United

States.5 Perpetrators of IPV maintain power within

their relationships by undermining their partners’

economic security, health, safety, and autonomy to

make reproductive decisions.

Survivors of color stand at the intersection of

multiple forms of state-sanctioned oppression based

on race, gender, sexual orientation, immigration, and

2 “Intimate partner violence” is abuse in intimate relationships.

See Claudia Garcia-Moreno et al., World Health Organization,

Understanding and Addressing Violence Against Women:

Intimate

Partner

Violence

n.1

(2012),

http://apps.who.int/iris/bitstream/10665/77432/1/WHO_RHR_12.

36_eng.pdf.

3 Br. for Pet’rs 4–5.

4 People with a range of gender identities experience IPV and

become pregnant. This brief uses gender-neutral terms unless

referencing a quotation or a research population.

5 Michele C. Black et al., Ctrs. For Disease Control & Prev., Nat’l

Ctr. for Injury Prev. & Control, The National Intimate Partner

and Sexual Violence Survey: 2010 Summary Report 2 (2011),

http://www.cdc.gov/violenceprevention/pdf/nisvs_report

2010-a.pdf (women are more likely than men to experience IPV).

socioeconomic status,6 all of which raise systemic

inequities that make them particularly vulnerable to

IPV. As difficult as it is for survivors of IPV both to

escape abusive relationships and exercise their

reproductive autonomy, these systemic inequities—in

access to healthcare, employment, housing, education

and many other resources necessary to secure the

basic necessities of living—make it even more

challenging for survivors of color.7

6 Federal and state policies historically sanctioned racism and

discrimination through redlining and segregated neighborhoods,

tax policies that prevent marginalized communities from

accumulating wealth, restricted access to health care,

underfunding of public education and unequal disciplinary

policies, and barriers to equal pay for equal work. Calandra Davis

& Sara Miller, Dream Deferred: The Lasting Legacy of Racist

Redlining in Mississippi and the Deep South, Miss. Free Press

(Apr. 8, 2021), https://www.mississippifreepress.org/11089/adream-deferred-the-lasting-legacy-of-racist-redlining-in-thedeep-south/; Dorothy A. Brown, The Whiteness of Wealth: How the

Tax System Impoverishes Black Americans – and How We Can

Fix It 12–17 (2021); Rugaiijah Yearby, The Impact of Structural

Racism in Employment and Wages on Minority Women’s Health,

Am. Bar Ass’n, https://www.americanbar.org/groups/crsj/

publications/human_rights_magazine_home/the-state-ofhealthcare-in-the-united-states/minority-womens-health/ (last

visited Sept. 13, 2021); Roby Chatterji, Fighting Systemic Racism

in K-12 Education: Helping Allies Move from the Keyboard to the

Schoolboard, Ctr. for Am. Prog. (July 8, 2020),

https://www.americanprogress.org/issues/education-k12/news/2020/07/08/487386/fighting-systemic-racism-k-12education-helping-allies-move-keyboard-school-board/;

Nat’l

P’ship for Women & Fams., Fact Sheet: Black Women and the Age

Gap

(2021),

https://www.nationalpartnership.org/ourwork/resources/economic-justice/fair-pay/african-americanwomen-wage-gap.pdf.

7 Natalie

J. Sokoloff & Ida Dupont, Domestic Violence at the

Intersections of Race, Class, and Gender: Challenges and

Beyond the practical challenges that survivors of

color face due to a lack of resources, would-be

perpetrators may be more likely to target those from

marginalized communities precisely because they fall

at the bottom of the racial hierarchy and power

structure.8 “Sexual violence is about domination—

across race, nation, class, gender, and other

dimensions of inequality . . . . [S]exual violence does

not only result from individual deviancy. Rather, it is

structurally organized around political ends.”9

Stereotypes that fetishize women of color, paint them

as sex objects and devalue their humanity are

ubiquitous in the United States.10 To make matters

worse, survivors of color often cannot rely on

government and non-profit services and programs

(such as the police, the courts and the healthcare

system) to keep them safe.11

The less support survivors have, the easier it is for

abusers to exert control over them. As a result, four in

ten Black and Native American women, and one in two

Contributions to Understanding Violence Against Marginalized

Women in Diverse Communities, 11 Violence Against Women 38,

44 (2005).

8 Id. at 43.

9 Elizabeth A. Armstrong et al., Silence, Power, and Inequality:

An Intersectional Approach to Sexual Violence, 44 Ann. Rev. Soc.

99, 101 (2018).

Jillian Hernández, Racialized Sexuality: From Colonial

Product to Creative Practice, Oxford Rsch. Encyc. of Liter. 1

(2020) (discussing “pervasive tropes” of “the sexual excess of

Native and African peoples,” “the sexual submissiveness of Asian

peoples,” and “insatiable lust and spitfire of Black and Latina

[peoples]” are based on centuries-old “colonial and racist

underpinnings”).

11 See infra § A.2.

multiracial women, will be raped, physically

assaulted, or stalked by an intimate partner in their

lifetime.12 Women in Mississippi suffer IPV at rates

even higher than the national average.13

Not only do survivors of IPV face increased barriers

to accessing care, they also are more likely to be forced

into unintended pregnancy, to need abortions, and

risk being trapped in violent relationships if they are

unable to access abortion care. The consequences of

such entrapment range from heightened abuse during

pregnancy to being killed.14 Here again, the risks are

even greater for survivors from marginalized

communities,

who

already

experience

disproportionately high rates of unintended

pregnancy and dramatically increased health risks

associated with unintended pregnancy.15 Indeed, rates

of maternal mortality among pregnant people of color

in the United States and Mississippi in particular, far

exceed that of other wealthy nations.16

12 Black et al., supra note 5, at 3.

13 Sharon G. Smith et al., Ctrs. for Disease Control & Prev., Nat’l

Ctr. for Injury Prev. & Control, The National Intimate Partner

and Sexual Violence Survey (NISVS): 2010-2012 State Report 49

(2017), https://www.cdc.gov/violenceprevention/pdf/nisvs-state

reportbook.pdf.

14 Alexia Cooper & Erica L. Smith, U.S. Dep’t of Just., Bureau of

Just. Stats., Homicide Trends in the United States, 1980-2008,

Annual Rates for 2009 and 2010, at 10 (2011),

http://bjs.gov/content/pub/pdf/htus8008.pdf.

15 Theresa Y. Kim et al., Racial/Ethnic Differences in Unintended

Pregnancy: Evidence From a National Sample of U.S. Women, 50

Am. J. Preventative Med. 427, 427 (2016).

16 Roosa Tikkanen et al., Maternal Mortality and Maternity Care

in the United States Compared to 10 Other Developed Countries,

The global COVID-19 pandemic has further

undermined access to reproductive health care

particularly for communities of color, thereby

increasing the risk of unintended pregnancy, as well

as the risks associated with carrying an unintended

pregnancy to term.17

Precedent dictates that the Court consider how the

15-week ban will impact not just the privileged few,

but all pregnant people. The 15-week ban, if upheld,

will compound the control that abusers already exert

over survivors. It will force a significant number of

pregnant people to carry their pregnancies to term

against their will, at great risk to their lives and

health. Others will be forced to resort to unsafe

methods, or to self-manage their abortions without the

benefit of medical assistance. The suggestion that the

health of pregnant people is somehow served by this

law reflects a callous disregard for the devastating

impact the Ban will have on survivors of color in

particular, who will suffer disproportionately its

consequences.

States should be providing support to survivors that

enable them to regain control over their lives and

striving to atone for the centuries of racial and gender

Commonwealth Fund (Nov. 18, 2020), https://www.common

wealthfund.org/publications/issue-briefs/2020/nov/maternalmortality-maternity-care-us-compared-10-countries; Charlene

Collier et al., Miss. State Dep’t of Health, Mississippi Maternal

Mortality

Report

2013-2016,

(2019),

https://msdh.ms.gov/msdhsite/index.cfm/31,8127,299,pdf/MS_M

aternal_Mortality_Report_2019_Final.pdf.

17 Elise Andaya & Rajani Bhatia, The Impact of COVID-19 on

Minority Disparities in Sexual and Reproductive Health Care in

New York State 1 (2021).

oppression that have left survivors of color especially

vulnerable to IPV and unintended pregnancy, not

doubling down on that oppression by further

restricting their reproductive autonomy.

ARGUMENT

Violence and coercive control by

abusers coupled with systemic

inequities leave survivors from

marginalized

communities

vulnerable to unintended pregnancy

and undermine their reproductive

autonomy.

This Court has long recognized that abortion

restrictions are particularly harmful to survivors of

IPV. See Planned Parenthood of Se. Pa. v. Casey, 505

U.S. 833, 893–94 (1992) (“We must not blind ourselves

to the fact that the significant number of women who

fear for their safety and the safety of their children are

likely to be deterred from procuring an abortion as

surely as if the Commonwealth had outlawed abortion

in all cases.”).

Coercive control by abusers and systemic failures

that further disempower survivors undermine the

ability of survivors to escape abusive relationships and

to exercise their reproductive autonomy. As a result,

survivors also face a heightened risk of unintended

pregnancy, which poses particularly significant risks

to their health and safety.

Abusers use violence and

“coercive control” to create

the conditions for unintended

pregnancy.

IPV typically involves more than physical harm.

Abusive partners also exert “coercive control” over

their partners, including undermining their partners’

reproductive autonomy. “Coercive control” describes a

variety of tactics that an intimate partner uses to

undermine the other partner’s physical safety,

economic security, and sense of self-worth.18 These

tactics include isolating the abused person from family

and friends and monitoring their whereabouts and

relationships.19 Abusers may limit their partners’

access to financial resources and track their use of

transportation and time away from home.20 They

frequently threaten to harm or kidnap children as a

means of control.21

Economic control is another aspect of coercive

control and may include sabotaging employment or

severely restricting access to money.22 Together, these

actions position the abuser to use violence with

Elizabeth M. Schneider, Battered Women and Feminist

Lawmaking 61 (2000).

19 Karla Fischer et al., The Culture of Battering and the Role of

Mediation in Domestic Violence Cases, 46 SMU L. Rev. 2117,

2126–27 (1993).

20 Id. at 2121–22, 2131–32; see also Leigh Goodmark, A Troubled

Marriage: Domestic Violence and the Legal System 42 (2012).

21 Karla Fischer et al., supra note 19, at 2122–23.

22 Goodmark,

supra note 20, at 42; see also Julie Goldscheid,

Gender Violence and Work: Reckoning with the Boundaries of Sex

Discrimination Law, 18 Colum. J. Gender & L. 61, 75–77 (2008).

relative impunity because the abused person’s support

system, economic security, and resources to seek

safety from abuse are severely compromised.

Systemic inequities compound

the control that abusers exert

over

survivors

from

marginalized

communities,

leaving them even more

vulnerable to IPV.

Survivors from marginalized communities face

systemic inequities that further limit their access to

the resources necessary to seek safety from abuse and

exercise reproductive autonomy.23 For example,

compared to every dollar paid to white men, Latinas

are paid 55 cents, Native American women are paid 60

cents, Black women are paid 63 cents, and some

ethnicities of Asian and Pacific Islander women are

23 As

noted by the district court, Mississippi has the greatest

share of women living in poverty of any state in the country.

Jackson Women’s Health Org. v. Currier, 349 F. Supp. 3d 536, 542

n.36 (S.D. Miss. 2018); Inst. for Women’s Pol’y Rsch., Status of

Women in the States, Fact Sheet #R505, at 1 (2018),

https://statusofwomendata.org/wp-content/themes/witsfull/

factsheets/economics/factsheet-mississippi.pdf.

Relatedly,

women of color experience disproportionately high rates of sexual

assault—by intimate partners and in general. See U.S. Dep’t of

Just. Off. of Victims of Crime, 2018 NCVRW Resource Guide:

Intimate

Partner

Violence

Fact

Sheet

(2018),

https://ovc.ojp.gov/sites/g/files/xyckuh226/files/ncvrw2018/info_fl

yers/fact_sheets/2018NCVRW_IPV_508_QC.pdf (noting more

than 45 percent of American Indian, Alaska Native, Black, and

multi-racial women experience IPV; the same is true for 34

percent of Hispanic women and 18 percent of Asian/Pacific

Islander women).

paid as little as 52 cents.24 Women of color “have

higher rates of many preventable diseases and chronic

health conditions,” due to access barriers,

environmental factors (i.e., forced relocation of

Indigenous communities to polluted lands), and

residential segregation that isolates, for example,

Black people in neighborhoods that are “over-policed

and lack access to healthy food options, healthcare

resources, green spaces, clean, air, clean water,

recreational facilities, and safe schools,” among other

factors.25 Still, women of color are significantly less

likely to have health insurance, especially during their

reproductive age.26 Mississippi in particular has

among the highest uninsured rates for women in the

nation, with the rates even higher among women of

color as compared to white women.27 Nationwide, due

24 Nat’l P’ship for Women & Fams., Quantifying America’s Gender

Wage

Gap

Race/Ethnicity,

1–3

(2021),

https://www.nationalpartnership.org/ourwork/resources/economic-justice/fair-pay/quantifying-americasgender-wage-gap.pdf.

25 Nat’l P’ship for Women & Fams., Despite Significant Gains,

Women of Color Have Lower Rates of Health Insurance Than

White Women, at 1–2 (Apr. 2019), https://www.nationalpartner

ship.org/our-work/resources/health-care/women-of-color-havelower-rates-of-health-insurance-than-white-women.pdf; Monika

Batra Kashyap, U.S. Settler Colonialism, White Supremacy, and

the Racially Disparate Impacts of COVID-19, 11 Cal. Law. Rev.

Online 517, 521, 524 (2020).

26 Nat’l P’ship for Women & Fams., supra note 25, at 1–2.

Kaiser Fam. Found., State Health Facts: Health Insurance

Coverage of Women 19–64 (2019), https://www.kff.org/other/stateindicator/health-insurance-coverage-of-nonelderly-adultwomen/?currentTimeframe=0&sortModel=%7B%22colId%22:%2

2Location%22,%22sort%22:%22asc%22%7D; Ctr. for Miss.

Health Pol’y, A Profile of Health Insurance Coverage for

Mississippi Adults: 2019 Data, at 13 (Mar. 2021),

to disparities in pay as well as in leasing and lending

practices, women of color are more likely to be behind

on their rent or mortgage payment and be burdened

by subprime mortgages, leaving them more

susceptible to foreclosure and debt.28 Additionally,

Black, Native American, and Latina women trail

white women in attaining higher education, with half

as many Native American and Latina women (15%)

attaining a bachelor’s degree as compared to white

women (32%).29 With limited access to stable jobs,

affordable healthcare, stable housing, and higher

education, it is nearly impossible to summon the

resources necessary to escape abusive relationships

and/or meaningfully exercise one’s reproductive

autonomy.

Compounding this lack of access, the resources

available to survivors of IPV often are not culturally

or linguistically appropriate.30 Investigations by law

enforcement are not as thorough when the survivor

https://mshealthpolicy.com/wp-content/uploads/2021/06/Profileof-Adult-Coverage-in-2019-Nov-2021.pdf.

28 Nat’l Women’s Law Ctr., Gender and Racial Justice in Housing,

1–2

(2021),

https://nwlc.org/wp-content/uploads/2021/

02/Gender-and-Racial-Justice-in-Housing.pdf.

29 Spotlight on Women of Color: Poverty & Opportunity Data, Inst.

for Women’s Pol’y Rsch., https://statusofwomendata.org/womenof-color/spotlight-on-women-of-color-poverty-opportunity-data/

(last visited Sept. 15, 2021).

Nimish R. Ganatra, The Cultural Dynamic in Domestic

Violence: Understanding the Additional Burdens Battered

Immigrant Women of Color Face in the United States, 2 J. L. Soc’y

109, 112–13 (2001); see also Leslye E. Orloff et al., Battered

Immigrant Women’s Willingness to Call for Help and Police

Response, 13 UCLA Women’s L.J. 43, 55 (2003).

does not speak fluent English.31 Survivors may not

have access to interpreters or may rely on friends or

family who may know or be related to the perpetrator

to serve as informal interpreters. All of these factors

impede a victim’s ability to access critical services.32

Immigrant survivors face the additional fear of

deportation if they turn to the authorities for help.33

As a result, immigrant women are far less likely to

report sexual violence.34 And many immigrants—

unfamiliar with U.S. law—do not know that IPV is a

crime.35

Moreover, many survivors of color lack trust in the

criminal justice system due to the long history of

excessive law enforcement intervention, high

frequency of police brutality, and the mass

criminalization of people in their communities.36

Beyond concerns for themselves, survivors of color

31 Ganatra, supra note 30, at 125–26.

32 Id.

33 Jennifer Medina, Too Scared to Report Sexual Abuse. The Fear:

Deportation, N.Y. Times (Apr. 30, 2017), https://www.nytimes.

com/2017/04/30/us/immigrants-deportation-sexual-abuse.html.

see also Tom Dart, Fearing Deportation, Undocumented

Immigrants Wary of Reporting Crimes, Guardian (Mar. 23, 2017),

https://www.theguardian.com/us-news/2017/mar/23/

undocumented-immigrants-wary-report-crimes-deportation.

34 Id.;

35 Ganatra, supra note 30, at 112–13.

Devon W. Carbado, Blue-on-Black Violence: A Provisional

Model of Some of the Causes, 104 Geo. L. J. 1479 (2016); see also

Andrea J. Ritchie, #SayHerName: Racial Profiling and Police

Violence Against Black Women, 41 Harbinger 187, 196 (2016)

(Black women, especially transgender and gender nonconforming Black women, are profiled by police and subjected to

sexual harassment, violence, and neglect.).

may fear turning a member of their community over to

an oppressive criminal justice system.37 Even when

survivors of color do report, they are less likely to be

believed and supported.38

American Indian and Alaska Native women who

report sexual violence face additional obstacles. They

are caught in a jurisdictional maze that federal, state,

and tribal police struggle to sort out.39 Negotiating

who has jurisdiction can cause significant delays,

resulting in such confusion that no one intervenes.40

Again, the less access survivors have to the

resources necessary to escape an abusive relationship

37 David Frazee, An Imperfect Remedy for Imperfect Violence: The

Construction of Civil Rights in the Violence Against Women Act,

1 Mich. J. Gender & L. 163, 235–73 (1993) (quoting Angela

Harris: “Black women have simultaneously acknowledged their

own victimization and the victimization of black men by a system

that has consistently ignored violence against women while

perpetrating it against men.”).

Shannon B. Harper et al., Interactions Between Law

Enforcement and Women of Color at High-Risk of Lethal Intimate

Partner Violence: An Application of Interpersonal Justice Theory,

34 Crim. Just. Stud. 7 (2021) (“[O]fficers often patronized

[women-of-color] participants . . . doubted the validity of their

abuse accounts, and/or were reluctant to respond at a pace in kind

to the immense danger and crisis communicated by

participants.”).

Maze of Injustice: A Summary of Amnesty International’s

Findings, Amnesty Int’l (Aug. 8, 2011), https://www.amnestyusa.

org/reports/maze-of-injustice/.

40 According to a 2010 study by the Government Accountability

Office, federal prosecutors decline to prosecute 67 percent of

sexual abuse cases. David C. Maurer, Homeland Security & Just.,

GAO Letter Re: U.S. Department of Justice Declinations of Indian

Country

Criminal

Matters

(Dec.

13,

2010),

https://www.gao.gov/assets/gao-11-167r.pdf.

and to programmatic support from government and

non-profit sources, the easier it is for abusers to exert

control over survivors and the more difficult it is for

them to exercise their reproductive autonomy.

Survivors of IPV experience

disproportionately high rates

of forced pregnancy resulting

from rape.

Compounding the various means by which abusers

exert control over survivors to entrap them in the

relationship is the increased likelihood of severe

violence—including homicide—when the survivor

seeks to leave.41 Indeed, separation is the most

dangerous time for a survivor42—a danger that is

exacerbated if the survivor is pregnant43 or has

children with the abuser.44

It is not surprising then, that abusers also

frequently use sexual attacks and reproductive

41 Jane

K. Stoever, Enjoining Abuse: The Case for Indefinite

Protection Orders, 67 Vand. L. Rev. 1015, 1025 (2014).

42 Shannon Catalano, U.S. Dep’t of Just., Bureau of Just. Stats.,

Special Report: Intimate Partner Violence, 1993-2010, at 6 (Sept.

29, 2015), http://www.bjs.gov/content/pub/pdf/ipv9310.pdf; see

also Jacquelyn Campbell et al., Risk Factors for Femicide in

Abusive Relationships: Results from a Multisite Case Control

Study, 93 Am. J. Pub. Health 1089 (2003).

43 Merle H. Weiner, A Parent-Partner Status for American Family

Law 331–32 (2015).

44 Robert Walker et al., An Integrative Review of Separation in the

Context of Victimization: Consequences and Implications for

Women, 5 Trauma, Violence, & Abuse 143, 161 (2004).

coercion to exert power over their partners.45 Rape

frequently co-occurs with IPV.46 Survivors who are

raped by intimate partners are more likely to suffer

multiple rapes and more likely to suffer acute and

chronic physical and reproductive injuries.47 In

addition to these injuries, survivors of rape risk forced

pregnancy.48 Approximately one in four survivors who

are raped by their partners become pregnant, a rate

five times the national average for rape-related

pregnancy.49

45 Am. Coll. of Obstetricians & Gynecologists, Comm. on Health

Care for Underserved Women, Committee Opinion No. 554:

Reproductive

and

Sexual

Coercion

(Feb.

2013),

https://www.acog.org/-/media/project/acog/acogorg/clinical/files

/committee-opinion/articles/2013/02/reproductive-and-sexualcoercion.pdf.

Meredith E. Bagwell-Gray et al., Intimate Partner Sexual

Violence: A Review of Terms, Definitions, and Prevalence, 16

Trauma, Violence, & Abuse 316, 317 (2015).

Michelle J. Anderson, Marital Immunity, Intimate

Relationships, and Improper Inferences: A New Law on Sexual

Offenses by Intimates, 54 Hastings L. J. 1465, 1511–12 (2003).

48 Judith McFarlane, Pregnancy Following Partner Rape: What

We Know and What We Need to Know, 8 Trauma, Violence, &

Abuse 127, 128 (2007).

49 Id. at 129–30.

Reproductive

coercion

abusers also leads to higher

rates

unintended

pregnancy, exacerbating the

already

high

rates

unintended pregnancy among

communities of color.

A significant number of women and girls in violent

relationships experience reproductive coercion

resulting in unintended pregnancies.50 “Reproductive

coercion” describes a spectrum of conduct, ranging

from rape to threats of physical harm to sabotaging a

partner’s birth control, used primarily to force

pregnancy.51 “Survivors of IPV face compromised

decision-making regarding, or limited ability to enact,

contraceptive use and family planning . . . .”52

Abusers may interfere with their partners’

contraceptive use by discarding or damaging

contraceptives, removing prophylactics during sex

without consent, forcibly removing internal use

contraceptives, or retaliating against or threatening

50 Elizabeth Miller et al., Pregnancy Coercion, Intimate Partner

Violence, and Unintended Pregnancy, 81 Contraception 316

(2010); see also Anne M. Moore et al., Male Reproductive Control

of Women Who Have Experienced Intimate Partner Violence in the

United States, 70 Soc. Sci. & Med. 1737 (2010).

51 Miller et al., supra note 50, at 316–17; Moore et al., supra note

50, at 1738; see also Committee Opinion No. 554, supra note 44,

at 411–15.

52 Miller et al., supra note 50, at 316–17; see also Ann L. Coker,

Does Physical Intimate Partner Violence Affect Sexual Health? A

Systematic Review, 8 Trauma, Violence, & Abuse 149, 151–53

(2007).

harm.53 As a result of these and other factors,

survivors of IPV are significantly less likely to be able

to use contraceptives as compared to their nonvictimized counterparts.54 While this reality seems to

be lost on the State and their amici, the availability of

contraception means little if one cannot access it.

It is hardly surprising, therefore, that the presence

of reproductive coercion in abusive relationships

dramatically increases the risk of unintended

pregnancy.55 When the National Domestic Violence

Hotline surveyed over 3,000 women seeking help,

more than 25 percent reported that their abusive

partner sabotaged birth control and tried to coerce

pregnancy.56

53 Coker, supra note 52, at 151–53 (2007); see also Miller et al.,

supra note 50, at 319; see also Lauren Maxwell et al., Estimating

the Effect of Intimate Partner Violence on Women’s Use of

Contraception: A Systematic Review and Meta-Analysis, 10 PLoS

ONE e0118234 (2015).

Megan Hall et al., Associations Between Intimate Partner

Violence and Termination of Pregnancy: A Systematic Review and

Meta-Analysis, 11 PLoS Med. e1001581 (2014); see also Maxwell

et al., supra note 53.

Elizabeth Miller et al., Editorial: Reproductive Coercion:

Connecting the Dots Between Partner Violence and Unintended

Pregnancy, 81 Contraception 457, 457 (2010) (reproductive

coercion is associated with a range of negative health outcomes,

including poor mental health, unintended pregnancy, and

sexually transmitted infections).

56 National Domestic Violence Hotline, 1 in 4 Callers Surveyed at

the Hotline Report Birth Control Sabotage and Pregnancy

Coercion,

Hotline

News

(Feb.

18,

2011),

http://www.thehotline.org/2011/02/1-in-4-callers-surveyed-atthe-hotline-report-birth-control-sabotage-and-pregnancycoercion/; see also Heike Thiel de Bocanegra et al., Birth Control

Sabotage and Forced Sex: Experiences Reported by Women in

Systemic inequities further compound the risks

associated with reproductive coercion. Marginalized

communities already experience disproportionately

high rates of unintended pregnancy,57 largely due to a

lack of access to sexual health information,58 health

insurance, and affordable contraceptives.59 For many

immigrant survivors, federal law denies health care

coverage for their first five years of residency.60

Moreover, recent immigrants often do not know

Domestic Violence Shelters, 16 Violence Against Women 601,

601–12 (2010).

57 Kim et al., supra note 15, at 427.

Amaranta D. Craig et al., Exploring Young Adults'

Contraceptive Knowledge and Attitudes: Disparities by

Race/Ethnicity and Age, 24 Women’s Health Issues e281, e287

(2014) (citations omitted); see also Christine Metusela et al., “In

My Culture, We Don’t Know Anything About That”: Sexual and

Reproductive Health of Migrant and Refugee Women, 24 Int’l J.

Behav. Med. 836, 839–40 (2017).

59 Christine Dehlendorf et

al., Disparities in Family Planning,

202 Am. J. Obstetrics & Gynecology 214, 215 (2010); Michele

Troutman et al., Are Higher Unintended Pregnancy Rates Among

Minorities a Result of Disparate Access to Contraception?, 5

Contraceptive & Reprod. Med. 1, 3 (2020); Sadia Haider et al.,

Reproductive Health Disparities: A Focus on Family Planning

and Prevention Among Minority Women and Adolescents, 2 Glob.

Advances Health & Med. 94, 96 (2013); Kelli Stidham Hall et al.,

Determinants of and Disparities in Reproductive Health Service

Use Among Adolescent and Young Adult Women in the United

States 2002-2008, 102 Am. J. Pub. Health 359, 366 (2012).

Alison Siskin, et al., Cong. Rsch. Serv., Treatment of

Noncitizens Under the Patient Protection and Affordable Care Act

7 (2011), https://sgp.fas.org/crs/misc/R43561.pdf (explaining that

in passing the Affordable Care Act, Congress maintained the fiveyear residency requirement for eligibility for Medicaid).

60 See

where, how, and whether they can access health

care.61

For survivors of color who are able to access health

care, implicit bias, stereotyping by providers, and

disregard for cultural experiences dramatically

undermine the quality of medical care they receive.62

This lack of culturally appropriate care may

exacerbate existing mistrust in the medical profession

given its long history of forced medical

experimentation and racial mistreatment.63 As the

Mississippi State Department of Health has observed,

the result is that a disproportionate burden of disease,

illness, and poor health outcomes are borne by those

who already experience systemic oppression because

61 Leslye Orloff & Oliva Garcia, Nat’l Immigrant Women’s Advoc.

Project, Dynamics of Domestic Violence Experienced by

Immigrant Victims 2, in Breaking Barriers: A Complete Guide to

Legal Rights and Resources for Battered Immigrants (2013),

http://library.niwap.org/wp-content/uploads/2015/pdf/FAMManual-Full-BreakingBarriers07.13.pdf.

62 Madeline

Y. Sutton et al., Racial and Ethnic Disparities in

Reproductive Health Services and Outcomes, 2020, 137 Obstet.

Gynecol. 225, 229–30 (2021) (detailing how “racism and

biases . . . contribute to reproductive health disparities” among—

particularly—“Black, Hispanic, and Native American women in

the United States”).

63 Michele

K. Evans et al., Diagnosing and Treating Systemic

Racism, 383 The New Eng. J. of Med. 274, 274 (2020) (explaining

that a “long and troubled history” of using people of color,

particularly slaves, as “economic security for physicians and

clinical material” for research and training “has permeated the

physician-patient relationship with mistrust” for decades).

of their race, ethnicity, gender, immigration status,

sexual orientation, and geographic location.64

Coerced pregnancy and forced

childbearing carry significant risks

to survivors of IPV, risks that are

even greater for survivors of color.

Coercive control by abusers

and

systemic

inequities

prevent pregnant survivors of

IPV from receiving adequate

prenatal care.

Every pregnancy carries some level of risk.

Unintended pregnancies, however, have significantly

more health consequences.65 This is especially

problematic in Mississippi, which has the highest rate

of unintended pregnancy in the nation at 44.6

percent.66

And the problem is compounded for survivors of

IPV. It is common for abusers to prevent survivors

Equity in Mississippi, Miss. State Dep’t of Health,

https://msdh.ms.gov/msdhsite/_static/44,0,236.html (last visited

Sept. 18, 2021).

64 Health

65 McFarlane, supra note 48, at 130 (noting that women abused

during pregnancy are more likely to experience pregnancy

complications and poor birth outcomes, including miscarriage or

stillbirth); see also Pub. Health Impact, Unintended Pregnancy,

America’s Health Rankings: United Health Found., https://

www.americashealthrankings.org/explore/health-of-women-andchildren/measure/unintended_pregnancy/state/U.S (last visited

Sept. 15, 2021) (unintended pregnancies are “associated with

adverse health outcomes for mother and baby, including: low

birthweight”).

66 Unintended Pregnancy, supra note 65.

from making or keeping medical appointments, or

from having private conversations with health care

providers.67 As a result, survivors of IPV are less likely

to receive prenatal care and more likely to miss

doctors’ appointments than pregnant people in nonviolent relationships.68 Survivors of color are further

burdened by the effects of transgenerational racism

and poverty on their health, making them especially

vulnerable to pregnancy-related complications.69

Indeed, the rate of maternal mortality of Black women

in Mississippi is nearly three times that of white

women.70

Not only do pregnant people in abusive

relationships face increased health risks associated

with pregnancy itself, the violence they suffer is likely

to increase both in frequency and intensity during

67 Karen

Oehme et al., Unheard Voices of Domestic Violence

Victims: A Call to Remedy Physician Neglect, 15 Geo. J. Gender

& L. 613, 633 (2014).

68 Gunnar

Karakurt et al., Mining Electronic Health Records

Data: Domestic Violence and Adverse Health Effects, 3 J. of Fam.

Violence 79–87 (2016).

69 Cynthia Prather et al., Racism, African American Women, and

Their Sexual and Reproductive Health: A Review of Historical

and Contemporary Evidence and Implications for Health Equity,

2 Health Equity 249, 253 (2018).

70 Mississippi Maternal Mortality Report 2013-2016, Miss. State

Dep’t

Health,

https://msdh.ms.gov

/msdhsite/_static/resources/8127.pdf (last updated Mar. 2021).

pregnancy.71 In fact, the leading cause of maternal

death in the United States is homicide.72

Having a child with an abusive

partner makes it more difficult

leave,

especially

for

survivors of color.

If a survivor who is coerced into pregnancy goes on

to have a child with the abuser, it becomes even more

difficult to sever that abusive relationship.73 The

abused parent must navigate the legal system to

obtain custody and ensure protective parenting

arrangements, commonly without legal advice or

representation.74 Violent partners have learned to use

this system to their advantage; abusive fathers are

more likely to seek child custody than non-abusive

71 Beth A. Bailey, Partner Violence During Pregnancy: Prevalence,

Effects, Screening, and Management, 2 Int’l J. Women’s Health

183 (2010); see also Julie A. Gazmararian et al., Prevalence of

Violence Against Pregnant Women, 275 J. of Am. Med. Ass’n 1915,

1918 (1996).

72 Megan Hall et al., supra note 54.

73 See, e.g., Naomi R. Cahn, Civil Images of Battered Women: The

Impact of Domestic Violence on Child Custody Decisions, 44 Vand.

L. Rev. 1041, 1051 (1991).

See Legal Servs. Corp., Documenting the Justice Gap in

America: The Current Unmet Civil Legal Needs of Low-Income

Americans

(2009),

http://mlac.org/wpcontent/uploads/2015/08/Documenting-the-Justice-Gap.pdfhttp

://www.americanbar.org/content/dam/aba/migrated/marketresea

rch/PublicDocuments/JusticeGaInAmerica2009.authcheckdam.p

df (an extremely high percentage of litigants in family law cases

appear pro se).

fathers, and when they do, they succeed in gaining it

more than 70 percent of the time.75

At the same time, the child welfare system wrongly

punishes survivors—especially survivors of color—for

failure to protect their children from IPV.76 This

“damned if you do, damned if you don’t” legal response

undermines the civil rights of survivors and provides

abusive partners with yet another weapon of control.77

Again, immigrant women have the added fear that if

they disclose the abuse in a legal proceeding they may

be separated from their children or deported, a

common threat used by abusers.78

75 Am.

Bar Ass’n Comm’n on Domestic Violence, 10 Custody

Myths and How to Counter Them, 4 ABA Comm’n on Domestic

Violence

Quarterly

E-Newsletter

(July

2006),

https://xyonline.net/sites/xyonline.net/files/ABACustodymyths.p

df.

76 Leigh Goodmark, Law is the Answer? Do We Know That for

Sure?: Questioning the Efficacy of Legal Interventions for Battered

Women, 23 St. Louis Univ. Pub. L. Rev. 7, 23 (2004).

77 Nicholson v. Williams, 203 F. Supp. 2d 153, 248, 250 (E.D.N.Y.

2002) (finding that New York City’s policy of removing children

from their homes solely because their mothers suffered domestic

violence violated the Fourteenth Amendment).

78 Andaya & Bhatia, supra note 17, at 7.

Survivors need meaningful access to

abortion.

There is a strong association

between IPV and pregnancy

termination.

Countless studies have found a strong association

between IPV and pregnancy termination.79 A survivor

may choose to terminate a pregnancy that results from

rape or coercion80 or out of fear of increased violence

and/or being trapped in the relationship if the

pregnancy continues.81 Indeed, research shows that

having a baby with the abuser is likely to result in

ongoing violence.82 Conversely, “having an abortion

was associated in a reduction over time in physical

violence . . . .”83

A survivor of IPV also may terminate a pregnancy

to avoid exposing a child to violence.84 Many survivors

79 See Megan Hall et al., supra note 54 (identifying 74 studies

from the United States and around the world that demonstrated

a correlation between IPV and abortion).

80 Melisa M. Holmes et al., Rape-Related Pregnancy: Estimates

and Descriptive Characteristics from a National Sample of

Women, 175 Am. J. Obstetrics & Gynecology 320, 322 (1996) (50

percent of women pregnant through rape had abortions).

81 Sarah CM Roberts et al., Risk of Violence from the Man Involved

in the Pregnancy After Receiving or Being Denied an Abortion, 12

BMC Med. 1, 2, 5 (2014).

82 Id. at 5.

83 Id.

Karuna S. Chibber et al., The Role of Intimate Partners in

Women’s Reasons for Seeking Abortion, 24 Women’s Health

Issues e131, e134 (2014).

have children whom they already struggle to protect.85

Research has shown that having a child, or another

child, with an abusive partner increases the risks of

poverty and homelessness upon leaving the abuser.86

Some women in violent relationships may be coerced

into the abortion decision.87 Far more often, however,

the pregnancy itself and continuing the pregnancy are

coerced,88 as this is a more powerful tool for the abuser

to maintain long-term control over an intimate

partner. Abortion opponents argue that the risk of

being coerced into having an abortion is a reason to

further limit the bodily autonomy of survivors.89 Both

types of coercion—to carry an unwanted pregnancy to

term or to have an abortion—are a violation of the

85 See, e.g., Joan S. Meier, Domestic Violence, Child Custody, and

Child Protection: Understanding Judicial Resistance and

Imagining the Solutions, 11 Am. U. J. Gender Soc. Pol’y & L. 657

(2003) (describing the skepticism that protective parents,

particularly mothers, face when seeking to protect their children

from abuse through the family law system).

86 Carmela DeCandia et al., Closing the Gap: Integrating Services

for Survivors of Domestic Violence Experiencing Homelessness,

The National Center on Family Homelessness 2 (2013),

https://www.air.org/sites/default/files/downloads/report/Closing

%20the%20Gap_Homelessness%20and%20Domestic%20Violenc

e%20toolkit.pdf.

87 See Chibber et al., supra note 84, at e132.

88 Id. at e136.

89 See, e.g., Amicus Brief of The American Center for Law and

Justice in Support of Petitioners at 22, Dobbs v. Jackson Women’s

Health Organization, No. 19-1392 (July 17, 2020); Brief of Amici

Curiae Advancing American Freedom, et al., in Support of

Petitioners at 20, Dobbs v. Jackson Women’s Health

Organization, No. 19-1392 (July 29, 2021).

dignity and autonomy of survivors.90 The solution,

however, is not to disempower and demean survivors

by further depriving them of control over their own

bodies. If Mississippi is concerned about abusers

coercing survivors into having abortions, its response

should target the abusive behavior, not the rights of

survivors.

Survivors

IPV

significant

barriers

accessing abortion care.

face

Obtaining abortion services requires a survivor to

locate a provider, find transportation and lodging,

gather financial resources, arrange childcare for

existing children, take time off from work, and comply

with any applicable waiting period—all while

suffering

the

cognitive,

psychological,

and

physiological effects of significant trauma. Worse, a

survivor must accomplish all this without the abuser

finding out.91

All of this requires substantial resources, which

abortion patients often lack. Abortion patients

disproportionately work in jobs with low wages and

90 Elizabeth M. Schneider et al., Domestic Violence and the Law:

Theory and Practice 188 (3d ed. 2013).

91 Findings of Fact and Conclusions of Law at 28, Whole Women’s

Health All. v. Rokita, No. 1:18-cv-01904 (S.D. Ind. Aug. 10, 2021),

ECF No. 425 (The burdens of accessing abortion care “intensify

for women experiencing intimate partner violence, who often face

the necessity of hiding their pregnancies from their

perpetrators.”); see also Megan Hall et al., supra note 54 (noting

that survivors of IPV are three times more likely than others

seeking abortion care to conceal that they are seeking services).

little flexibility (if they are working at all).92

Mississippi has among the highest rates of poverty in

the nation, with dramatically higher rates of poverty

among women of color.93 To make matters worse, the

Hyde Amendment, a yearly rider on the Congressional

appropriations bill for the U.S. Department of Health

and Human Services, prohibits the use of federal

money including Medicaid funds for abortion care.94

The Hyde Amendment also applies to Indian Health

Services (“IHS”).95 As a result, people with low

incomes who rely on Medicaid or IHS must pay out of

pocket for abortion care while already struggling to

make ends meet.

Restrictive regulatory environments add to these

challenges by limiting the number of clinics that

92 Rachel K. Jones & Jenna Jerman, Population Group Abortion

Rates and Lifetime Incidence of Abortion: United States, 20082014, 107 Am. J. Pub. Health 1904, 1907 (2017); Lisa R. Pruitt &

Marta R. Vanegas, Urbanormativity, Spatial Privilege, and

Judicial Blind Spots in Abortion Law, 30 Berkeley J. Gender L.

& Just. 76, 82 (2015).

93 Warren Kulo, Mississippi Still Nation’s Most Poverty Stricken

State, Gulflive.com (Mar. 5, 2020), https://www.gulflive.com/

news/2020/03/mississippi-still-nations-most-poverty-strickenstate.html; see also Best State Rankings, Measuring Outcomes for

Citizens Using More than 70 Metrics, U.S. News,

https://www.usnews.com/news/best-states/rankings (last visited

Sept. 15, 2021).

94 H.R. 14232, 94th Cong. § 209 (1976) (restricting funding except

in cases of life endangerment); H.R. 2518, 103rd Cong. § 510

(1993) (adding exceptions for “rape, and incest”).

95 Indian

Health Manual § 3-13.14(B), https://www.ihs.gov/ihm

/pc/part-3/p3c13/#3-13.14B; see also Shaye Beverly Arnold,

Reproductive Rights Denied: The Hyde Amendment and Access to

Abortion for Native American Women Using Indian Health

Service Facilities, 104 Am. J. Pub. Health 1892, 1892 (2014).

provide care and the number of appointments those

clinics offer, even though abortion is as safe or safer

than other medical procedures that are readily

accessible in doctors’ offices across the country.96

These barriers combined with the control that abusers

exert over survivors delay survivors’ ability to access

abortion care, if they are able to obtain care at all.97

Mississippi’s 15-week ban will have

grave consequences for the lives and

health of IPV survivors, especially

the most marginalized.

Given the almost insurmountable barriers that

pregnant people already face in accessing abortion

care, all of which are exacerbated for survivors of IPV,

many simply are not able to obtain abortions prior to

15 weeks of pregnancy. Traveling out of state to obtain

an abortion is prohibitive for most pregnant people

and especially for survivors, whose time outside the

home, and access to transportation and financial

resources are extremely limited and tightly controlled.

Consequently, Mississippi’s 15-week abortion ban will

force many survivors to self-manage their care without

medical support, resort to unsafe methods, or carry to

term pregnancies that may be coerced. These

pregnancies in turn trap them in abusive relationships

and threaten their health and safety.98

96 Nat’l Acads. of Scis., Eng’g & Med., The Safety and Quality of

Abortion Care in the United States 10 (2018).

97 Cynthia K. Sanders, Economic Abuse in the Lives of Women

Abused by an Intimate Partner: A Qualitative Study, 21 Violence

Against Women 3, 3 (2015).

Here again, the State’s assertion that because “the vast

majority of abortions take place in the first trimester,” the 1598

Being forced to carry an unintended pregnancy to

term exposes survivors of IPV to a high likelihood of

further violence, including homicide, and poses

significant health risks. Indeed, it could cost some

pregnant people—especially those from communities

of color—their lives. Between 2013 and 2016, the rate

of maternal mortality in Mississippi was nearly twice

the United States average, and the rate for Black

women was nearly three times that of white women.

As the Mississippi State Department of Health has

acknowledged:

The dramatic disparity in pregnancyrelated mortality between Black and

White women in Mississippi demands

urgent attention and acknowledgement

of how factors like social determinants of

health and implicit bias can affect

women’s health and health care.99

week ban will “not prohibit any woman from making the ultimate

decision to terminate her pregnancy” completely ignores the

reality for many pregnant people, especially survivors of color in

Mississippi. See Br. for Pet’rs at 47–48 (cleaned up).

99 Collier

et al., supra note 16, at 25. Among the factors that

contribute to the high rate of maternal mortality in Mississippi

are insufficient access to insurance and medical care during the

postpartum period through one year after the end of pregnancy.

Id. at 22; see also Erica Hensley & Nick Judin, Disrupted Care:

Mississippi Legislature Kills Postpartum Medicaid Extension,

Affecting 25,000 Mothers Yearly, Miss. Free Press (Apr. 2, 2021),

https://www.mississippifreepress.org/10868/disrupted-care/.

Indeed, Mississippi is one of only nine states that have not

extended Medicaid benefits to one-year postpartum. Status of

State Medicaid Expansion Decisions: Interactive Map, Kaiser

Fam. Found. (Sept. 8, 2021), https://www.kff.org/medicaid/issuebrief/status-of-state-medicaid-expansion-decisions-interactive-

Given the long legacy of state and federal policies

that have left communities of color more vulnerable to

IPV, unintended pregnancy, and higher rates of

maternal mortality, the imposition of a 15-week

abortion ban that will force many survivors of color to

carry pregnancies to term against their will reflects a

profound disregard for their lives and wellbeing and

that of their existing children.100

CONCLUSION

The right to abortion is vital to the ability to

participate equally in “the economic and social life of

the Nation.” Casey, 505 U.S. at 856; see also Gonzales

v. Carhart, 550 U.S. 124, 172 (2007) (Ginsberg, J.,

dissenting) (“[A]t stake in cases challenging abortion

restrictions is a woman’s ‘control over her [own]

map/. Medicaid covers more than two thirds of births in

Mississippi. Hensley & Judin, supra.

100 As the district court observed, Mississippi is “‘the state with

the most [medical] challenges for women, infants, and children’

but is silent on expanding Medicaid. . . . Its leaders are proud to

challenge Roe but choose not to lift a finger to address the

tragedies lurking on the other side of the delivery room . . . . No,

legislation like H.B. 1510 is closer to the old Mississippi—the

Mississippi bent on controlling women and minorities.” Jackson

Women’s Health Org. v. Currier, 349 F. Supp. 3d 536, 540 n.22

(S.D. Miss. 2018) (quoting Ryan Sit, Mississippi has the Highest

Infant Mortality Rate and is Expected to Pass the Nation’s

Strictest Abortion Bill, Newsweek (Mar. 19, 2018); citing Lynn

Evans, Maternal Deaths Still on the Increase, Clarion Ledger

(Mar.

31,

2018),

https://www.clarionledger.com/story/

opinion/2018/03/31/maternal-deaths-still-increase/473125002/;

Danielle Paquette, Why Pregnant Women in Mississippi Keep

Dying,

Wash.

Post

(Apr.

24,

2015),

https://www.washingtonpost.com/news/wonk/wp/2015/04/24/why

-pregnant-women-in-mississippi-keep-dying/).

destiny.’” (brackets in original) (quoting Casey, 505

U.S. at 869)). For survivors of IPV, the stakes are even

higher. The loss of a meaningful abortion right will

enable abusers to exert even greater, more dangerous

control over them. It is not an exaggeration to say that

a survivor’s ability to have an abortion may mean the

difference between life and death. This is especially

true for survivors of color.

States should support the efforts of survivors to

break free of abuse and reclaim control of their lives.

But here the State does the opposite, compounding the

control that abusers already exert over survivors and

further undermining survivors’ constitutional right to

reproductive decision-making at the moment when it

is most critical. For the foregoing reasons, Amici

request that this Court find Mississippi’s Gestational

Age Act unconstitutional.

Respectfully submitted,

KIM CLARK, ESQ.

Counsel of Record

LEGAL VOICE

907 Pine Street, Ste. 500

Seattle, WA 98101

(206) 682-9552

kclark@legalvoice.org

Counsel for Amici Curiae

Legal Voice et al.

September 20, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.