42675-nyu_95-5 Sheet No. 3 Side A 11/05/2020 13:41:17 \\jciprod01\productn\N\NYU\95-5\NYU501.txt unknown Seq: 1 5-NOV-20 12:34 NEW YORK UNIVERSITY LAW REVIEW VOLUME 95 NOVEMBER 2020 NUMBER 5 ARTICLES RACIAL DISPARITIES IN MATERNAL MORTALITY KHIARA M. BRIDGES* Racial disparities in maternal mortality have recently become a popular topic, with a host of media outlets devoting time and space to covering the appalling state of black maternal health in the country. Congress responded to this increased societal awareness by passing the Preventing Maternal Deaths Act at the tail end of 2018. The law provides states twelve million dollars annually, for five years, to fund maternal mortality review commissions—interdisciplinary collections of experts that evaluate and investigate the causes of every maternal death in a jurisdiction. Fascinatingly, although activists, journalists, politicians, scholars, and other com- mentators understand that the maternal health tragedy in the United States is a racial tragedy, the Preventing Maternal Deaths Act completely ignores race. Indeed, the term “race” does not appear anywhere in the text of the statute. The irony is striking: An effort to address a phenomenon that has become salient because of its 42675-nyu_95-5 Sheet No. 3 Side A 11/05/2020 13:41:17 racial nature ignores race entirely. The racial irony embodied by the Preventing Maternal Deaths Act serves as an invitation to investigate not only the Act itself, but the national conversation that is currently taking place about racial disparities in maternal deaths. Indeed, in impor- tant respects, if the general discourse that surrounds racial disparities in maternal mortality is impoverished, then we should expect that the solutions that observers propose will be impoverished as well. This is precisely what this Article discovers. The analysis proceeds in four Parts. * Copyright 2020 by Khiara M. Bridges, Professor of Law, UC Berkeley School of Law. I am grateful to Yuvraj Joshi, Rosie Loring, and Russell Robinson for reading and critiquing earlier drafts. Thanks are also owed to participants at faculty workshops at Emory University School of Law, Florida State University College of Law, and the University of Arizona James E. Rogers College of Law, who engaged so generously with this piece. Thanks also to Simone Lieban Levine and Hayley MacMillen for truly excep- tional research assistance. And thank you to mijn perfecte echtgenoot, Gert Reynaert, for breaking the love scale. All errors remain my own. 1229 42675-nyu_95-5 Sheet No. 3 Side B 11/05/2020 13:41:17 \\jciprod01\productn\N\NYU\95-5\NYU501.txt unknown Seq: 2 5-NOV-20 12:34 1230 NEW YORK UNIVERSITY LAW REVIEW [Vol. 95:1229 Part I provides an overview of racial disparities in maternal mortality, identifying the various elements that have made pregnancy, childbirth, and the postpartum period much more dangerous for black women than their white counterparts in the United States. Part II then offers critiques of the national conversation around racial disparities in maternal mortality and warns of both the marginalizing effects it may have on black women and the possibility that it will lead to blaming black women for dying on the path to motherhood. Part III describes the Preventing Maternal Deaths Act in some detail. Part IV fol- lows with a critique of the Act, identifying three deficiencies. First, it notes the racial erasure contained in the Act—the fact that the Act nowhere mentions the racial dimensions of the nation’s maternal health debacle. It then observes the predica- ment created by the fact that erasing race likely was essential to the very passage of the Act. Second, it notes that because the Act does not direct the state maternal mortality review commissions to investigate the structural and institutional forces that produce excess maternal deaths in the United States, it leaves space for maternal mortality review commissions to simply blame the dead for dying. Third, it notes that the Act does no more than fund the gathering of more data about pregnancy-related deaths. However, it observes that there is a strong argument to be made that we do not need more data. We already know why women are dying, and we already know how to save them. In this way, the tragedy of maternal mortality in the United States is not a problem of information; it is a problem of political will. To the extent that Congress chose to intervene in the maternal health debacle not with policy changes, but rather with an attestation that we need more information, the Preventing Maternal Deaths Act demonstrates that we still lack the political will to make the concrete changes that will make pregnancy and childbirth safe. INTRODUCTION ................................................. 1231 R I. MATERNAL MORTALITY IN THE UNITED STATES ....... 1238 R A. Causes of Maternal Mortality ....................... 1243 R 1. Looking Narrowly .............................. 1243 R 2. Looking Broadly ............................... 1245 R 42675-nyu_95-5 Sheet No. 3 Side B 11/05/2020 13:41:17 B. Racial Disparities in Maternal Mortality ............. 1248 R 1. Explaining Racial Disparities in Maternal Mortality ........................................ 1252 R a. Biological Race—or a Problematic, if Popular, Explanation of Racial Disparities in Maternal Mortality ....................... 1253 R b. Less Problematic, and More Probable, Explanations of Racial Disparities in Maternal Mortality ......................... 1257 R i. Poverty and Access ..................... 1257 R ii. Stress and Weathering .................. 1260 R iii. Quality of Care ......................... 1262 R c. Individual Level ............................ 1262 R d. Systems Level .............................. 1265 R II. CRITIQUES OF THE GENERAL DISCOURSE AROUND MATERNAL MORTALITY IN THE UNITED STATES ....... 1267 R 42675-nyu_95-5 Sheet No. 4 Side A 11/05/2020 13:41:17 \\jciprod01\productn\N\NYU\95-5\NYU501.txt unknown Seq: 3 5-NOV-20 12:34 November 2020] RACIAL DISPARITIES IN MATERNAL MORTALITY 1231 A. A Critique of the Claim that Maternal Deaths Should Not Be Happening “Here” .......................... 1268 R B. A Critique of the Solutions Proposed to Eliminate Racial Disparities in Maternal Mortality ............. 1274 R C. A Critique of the Practice of Blaming Women for Dying ............................................... 1278 R III. THE PREVENTING MATERNAL DEATHS ACT ............ 1286 R IV. CRITIQUES OF THE PREVENTING MATERNAL DEATHS ACT ..................................................... 1293 R A. Racial Erasure ...................................... 1293 R 1. What Officer-Involved Homicides Can Teach Us About the Politics of Racial Erasure ............ 1299 R B. The Political Agnosticism of the Preventing Maternal Deaths Act and the Variable Political Commitments of State MMRCs .................................... 1308 R C. Data Fetishization ................................... 1312 R CONCLUSION ................................................... 1317 R INTRODUCTION Racial disparities in maternal mortality have become a popular topic, although the problem is not at all new. Black women1 in the United States have always died during pregnancy, childbirth, or shortly thereafter at higher rates than white women. Statistics com- piled in the early 1900s—when epidemiologists first began to docu- ment the frequency of pregnancy-related deaths—reveal that 42675-nyu_95-5 Sheet No. 4 Side A 11/05/2020 13:41:17 pregnancy and childbirth were much deadlier for black women than for their white counterparts.2 What was true at the dawn of the twen- tieth century remains true today.3 However, only recently have racial 1 While cisgender women are not the only people who can become pregnant, I use the term “woman” and “women” in this article to refer to those who can experience pregnancy. I do this solely because the data collected around maternal mortality employs the category of “woman” and “women.” 2 Population Council, CDC on Infant and Maternal Mortality in the United States: 1900- 99, 25 POPULATION & DEV. REV. 821, 824 (1999) (“The gap in maternal mortality between black and white women has increased since the early 1900s. During the first decades of the 20th century, black women were twice as likely to die of pregnancy-related complications as white women.”); see also Andreea A. Creanga, Maternal Mortality in the United States: A Review of Contemporary Data and Their Limitations, 61 CLINICAL OBSTETRICS & GYNECOLOGY 296, 298 (2018) [hereinafter Creanga, Maternal Mortality] (discussing trends in maternal mortality in the United States and critiquing available data). 3 Population Council, supra note 2, at 824 (“Today, black women are more than three times as likely to die as white women.”). 42675-nyu_95-5 Sheet No. 4 Side B 11/05/2020 13:41:17 \\jciprod01\productn\N\NYU\95-5\NYU501.txt unknown Seq: 4 5-NOV-20 12:34 1232 NEW YORK UNIVERSITY LAW REVIEW [Vol. 95:1229 disparities in maternal mortality become the subject of national attention.4 Media outlets like The New York Times,5 USA Today,6 ProPublica,7 and NPR8 have all published stories in the last few years about racial disparities in maternal mortality—each endeavoring to put names and faces on the fact that three to four times as many black women as white women die annually from pregnancy-related causes.9 Further, two of the most famous black women in the United States—if not the world—came forward with stories of having narrowly avoided death during their pregnancies. Tennis phenomenon Serena Williams published an account of developing a pulmonary embolism after the birth of her daughter.10 She stated that her healthcare providers ignored her when she reported her symptoms. Had she not been ada- mant in advocating for herself, the blood clot that had formed in her lung might have killed her.11 Further, pop star and cultural icon 4 The question of why racial disparities in maternal mortality have only recently become the subject of national attention, although they have always existed, is a topic that I intend to explore in future research. 5 See Linda Villarosa, Why America’s Black Mothers and Babies Are in a Life-or- Death Crisis, N.Y.