By Gwyneth K. Shaw
Berkeley Law Professor Khiara M. Bridges has built her career considering questions of race, class, and reproductive rights, and how the three intersect. A flurry of new work—a Harvard Law Review article, an amicus brief in what could be a landmark abortion case at the U.S. Supreme Court, and a pointed essay in a special joint law review issue about women and the law—showcases the breadth and depth of her scholarship.
In “Race, Pregnancy, and the Opioid Epidemic: White Privilege and the Criminalization of Opioid Use During Pregnancy,” Bridges looks at the demographics of women who have been prosecuted for using opioids while pregnant. In the years since opioid use became a crisis, white women have dominated the numbers of those charged.
The prosecution of these women isn’t a demonstration that the idea of white privilege does not exist, Bridges argues, but rather that it can be a “disloyal friend” to white people.
“This is especially true with respect to white people who exist at the intersections of other categories of disadvantage—like those who are poor, transgender, not straight, or disabled,” she writes.
Bridges, who has written extensively on reproductive justice issues as well as the question of white privilege versus white disadvantage, says the idea for the article emerged from the 2016 election.
“The election forced a lot of us to think about things differently and to question some of the things we thought we knew,” she explains. “For example, we had to really think about the significance of the fact that there are large communities—white communities—in the United States that are not doing well. We had to try to figure out what that means.”
The opioid crisis has hit these communities hard, and yet the response to many opioid users, many of them white, has been oriented around treatment rather than criminal punishment. Still, when Bridges began looking at the statistics, she found that pregnant women were, in fact, being charged with crimes for using opioids—just as black women had been during the crack cocaine era of the 1980s.
“This is Intersectionality 101, in that the multiple characteristics one has will influence how society treats you,” Bridges says. “If you’re white and don’t have the capacity to become pregnant, we obey the inclination not to punish you for your substance use. But if you’re white and you do have the capacity to become pregnant—or if you are pregnant—the privilege that you otherwise would enjoy is going to be diminished almost to the point of being entirely eliminated.”
The lesson, Bridges asserts, is that when white privilege doesn’t provide the expected benefit, it would be wrong to presume the privilege doesn’t exist.
“This underscores the need to pay attention to the multiple characteristics people have,” she says.
Reproductive justice takes center stage in the amicus brief Bridges captained in the June Medical Services v. Gee case, set to be heard at the Supreme Court March 4. As the first abortion-related case since Justice Brett Kavanaugh joined the court, the case is being closely watched by advocates on both sides of the abortion rights debate.
Bridges and University of Pennsylvania Carey School of Law Professor Dorothy Roberts are the lead scholars on the brief; Berkeley Law Professor Kathryn Abrams and eight other reproductive justice scholars also joined it.
“I’m proud of that brief for a lot of reasons, mostly because I think it serves as a really effective response to Justice Clarence Thomas’ comment that he made [in Box v. Planned Parenthood], that abortion is black genocide,” Bridges says. “It’s really important to respond to that.”
The brief argues that the Louisiana law at issue, which requires abortion providers to have admitting privileges at a local hospital, fails the court’s precedent that abortion restrictions not put an “undue burden” on a woman’s ability to obtain an abortion before a fetus is viable.
The law “unnecessarily and dangerously” hinders black women’s ability to get abortion care, the brief contends, and “coerces black women into pregnancy and parenthood.” The brief notes that black women disproportionately access abortions in Louisiana, are overrepresented among the state’s poor, and have a harder time accessing contraception.
In addition, the maternal mortality rate nationwide is much higher for black women.
The brief emphasizes the structural violence that leads black women to have to rely on abortion services at higher rates than their nonblack counterparts.
Bridges says she’s especially proud of the brief because she worked on it with students in the Reproductive Rights and Justice seminar she taught last semester.
“When the Center for Reproductive Rights, who is litigating the case, called me about doing the brief, I wasn’t sure I had the time to do it,” she says. “But I had these wonderful students, and 16 of them volunteered to help with research and initial drafts of the sections.
“It ended up being this really beautiful, coherent brief. It was the most meaningful thing I did last semester, and I hope it was as good for them.”
Samira Seraji ’20, a student in the class who worked on the brief, says the group had already developed a close academic relationship during the seminar. The opportunity to collaborate on work that reaches far beyond the law school’s walls provided a powerful reminder of why they went to law school.
“It was exciting to be engaged so heavily with a classroom of other brilliant minds who are all passionate about reproductive justice,” Seraji says. “There’s a sense of meaning that comes with channeling your knowledge and beliefs into a brief that you hope will sway the court in a fundamental decision on the future of reproductive rights and self-determination for people who can conceive children.
“Being part of this larger movement reinvigorates my studies and funnels a feeling of purpose in my education.”
Audacity in academia
Bridges also penned an essay for the special journal issue, a collaborative effort between the flagship journals at the 14 top-ranked law schools—including the California Law Review—which are all edited by women this year. The 16 essays are written by women in legal academia; Bridges was invited to contribute by the Columbia Law Review.
In “The Nerve: Women of Color in the Legal Academy,” Bridges reflects on her own journey from law school and graduate school—she has a Ph.D. in anthropology—and what the future might hold. As a student at Columbia Law, she writes, she never had a black, Asian, Latinx, or indigenous woman as a professor.
“I describe my desire to enter the legal academy as audacious because I had to look to the mostly white men who I had seen assume this lofty role and say, ‘yeah, I can do that,’” Bridges writes. “In retrospect, I can see that I had some nerve.”
Progress, she argues, will be measured not just by increasing the diversity of law school faculties, but in the ability of women of color to be seen as experts in fields that aren’t race- or gender-related—“when women of color in the legal academy are as likely to publish an influential, oft-cited article on federal income tax as they are on the simultaneous over- and underpolicing of communities of color,” Bridges writes.
“The piece was really personal to me,” she says. “It gave me an opportunity to reflect on how far I’ve come since I was that scared 1L who felt completely in over her head in law school. I hope that the piece inspires audacity in other scared 1Ls.”