The Overturning of Roe v. Wade and A History of Sexual Violence Towards Women of Color, Black Women, Indigenous Women, and Trans and Gender Non-Conforming People.

The following is a guest post by Bernadine Marie Hernández, author of Border Bodies: Racialized Sexuality, Sexual Capital, and Violence in the Nineteenth-Century Borderland, available wherever books are sold.

On June 24, 2022, the Supreme Court overturned Roe v. Wade, the landmark 1973 Supreme Court decision that affirmed the constitutional right to abortion. On June 7, 2022, my book about the sexual history of women of color on the borderlands in the nineteenth century titled Border Bodies: Racialized Sexuality, Sexual Capital, and Violence in the Nineteenth-Century Borderlands was published with UNC Press. It was an uncanny feeling when Roe v. Wade was overturned because I felt like I had just spent the last ten years of my life unearthing unlawful violence against women of color on the borderlands. I knew we weren’t past it, but I felt that we were in a moment of reprieve. I was wrong. The question my book asks and we should all be asking ourselves now is: as women of color, black women, indigenous women, trans and gender non-binary people, did we ever have complete bodily autonomy over ourselves to begin with? The short answer to this question is no. Let me take you down a brief but nuanced history of bodily autonomy for women of color, black women, indigenous women, trans and gender non-binary people on the borderlands through the many changing colonial and imperial powers that have made their mark here on the borderlands.

As women of color, black women, indigenous women, trans and gender non-binary people, did we ever have complete bodily autonomy over ourselves to begin with?

In 1858, the American Medical Association launched a successful campaign to criminalize abortion at all stages of pregnancy. Virtually every state had passed laws criminalizing abortion by 1890, and most gave physicians authority to decide when abortion was medically necessary. Many of these laws remained unchanged until vacated by the Supreme Court’s 1973 Roe v. Wade decision. Nineteenth-century abortion politics concerned gender relations—specifically, that physicians argued for the passage of anti-abortion laws by asserting that society was damaged by women’s refusal of motherhood. Physicians addressed men’s fears of women’s changing social roles, in particular, of suffragists’ demand for women’s right to a place in the public sphere. But we must ask ourselves, who are the women these physicians are most concerned with? If you are mumbling under your breath right now that 19th century American abortion politics focused on the white women and the domestic space, you are correct. My book and my line of thought for this brief talk attempts to think about the effects of the sexual history on women of color, black women, indigenous women, trans and gender non-binary people. 

Sex has always been a technology of power that has been used by the state to control our bodies. While the conversation on anti-abortion politics were taking hold in the mid-nineteenth century, which I should mention revolved around how abortion endangered society because it threatened the Anglo-Saxon race, the exact same conversation was happening on the US-Mexico border. Mexicana’s were being targeted by immigration officials for volitional prostitution, which became firmly rooted in moral-reform politics and suffrage during the Progressive Era. In 1907, the intersection of eugenics, the savior complex, and purist movements were at the core of the eradication of prostitution nationwide and Mexican prostitutes in Arizona became racially sexualized through immigration laws, which made prostitution dangerous for them because of deportation in the borderlands as they were being equated with foreignness. It all began with the Page Act of 1875 that foreshadowed the Immigration Act of 1907, where brown women who had sex were surveilled, many times violated, and deported. Where traditional immigration scholars will mark the year 1917, the passage of the immigration Act of 1917, as the year the southern border began to be militarized and policed against Mexican nationals, if we think about the sexual control of brown women’s bodies, that year moves up tenfold to 1907. I have a whole chapter on this in my book if you want to read more and connect the dots.  

Before some parts of the borderlands even became part of US empire, under territorial rule, New Mexico became the focal point in exemplifying how sex was central to economics in the region. An important social and economic system in the Southwest borderlands and México, debt peonage was invested in labor control and the evolution of the Americas through racial capital. Debt peonage was not slavery, and it was not free labor; it sat at the interstices of these two economic and labor systems. And while debt peonage was not slavery in that the patrón (bosses) did not own the peon’s body, he did own his or her labor, and the economic system carried the same hereditary condition as slavery. However, unlike chattel slavery in the US South, which followed the status of the enslaved mother, debt peonage followed the status of whomever was indebted, most times the father. And while scholars agree that males and females both labored in debt peonage, there was a clear masculine component to the economic system that not only specifically indebted sons after a father or mother passed or ran away, but also created working conditions that were male centered. However, my book unravels the violent gendered and sexual components of debt peonage, and the poor Nuevomexicana women who were at the center of it. 

Sex has always been a technology of power that has been used by the state to control our bodies.

I unravel this by looking at the 1857 New Mexico Supreme Territorial Case titled Marcellina Bustamento v. Juana Analla, which paved the way to interrogate the sexual economy of debt peonage, kinship ties within the institution, and the legality of bondage of a minor. The case states that Catalina Bustamento was a child born out of wedlock between a patrón, Carpio Bustamento, and his peon, Juana Analla. In the case, the judge stressed that Catalina was the illegitimate child of Carpio, but the power dynamics within the case that reveal the violence of pleasure and power were never questioned or examined. Carpio’s wife, Marcellina Bustamento, took Analla to court because she claimed the child belonged to her and wanted to keep her in her care, most likely to utilize her labor. When the judge asked Marcellina Bustamento if the child was an indebted servant, she refused to respond. Bustamento repeatedly stated in the court case that Analla was an unfit mother because of her social and racial status. Interestingly, the judge ruled for Catalina Bustamento to be returned to Analla not because of kinship and blood ties, but because Marcellina Bustamento did not respond to the allegations that she was holding the child in peonage and servitude. Bustamento made it clear in her response that Analla was a woman of “immoral habits and conduct, and unfit to have the care and custody of the said Catalina.” The judge, James J. Davenport, ruled that Catalina Bustamento was illegally detained as a peon. The 1857 Marcellina Bustamento v. Juana Analla case established just how important sex, and violent miscegenation was to the economic systems in the Southwest borderlands. The economic systems of debt peonage could not function without sex or the brown women who produced children. While Analla had her daughter under debt peonage by her patrón and the judge ruled it unconstitutional to keep the child or any child of a peon indebted, the patrones did not follow the law. The case exemplifies how kinship and sexual capital worked within debt peonage and how it was the poor Nuevomexicana’s body that was exploited for her racialized sex and her reproduction. 

These brief flashpoints are the subject of my book Border Bodies, but more importantly they show that the overturning of Roe v. Wade didn’t come out of nowhere and it exemplifies just how different sex and sexual history is for women of color, black women, indigenous women, trans and gender non-conforming people. From violent miscegenation at the expense of our bodies to usher in capital and money to the history of how violent sexual heteronormativity was forced upon our bodies and how that becomes unseen labor in our stained history in the United States, this ruling is catastrophic for a community that has been dealing with the control of our bodies for centuries. 

There is much more work to be done in uncovering a history of sexual violence towards women of color, black women, indigenous women, trans and gender non-conformingpeople borderlands. Probably more important, there is much more work to be done to create a trans-feminist connection to keep each other safe. The violent systems and constructions of racialized sex, sexuality, and gender that inform the sexual history that I examine in my book present us with an opportunity to enter into the fissures of that violence. These fissures can offer us new possibilities of collective action, mutual aid, and alternative worlds. Because as cliché as the saying goes: Another world is possible.

Bernadine Marie Hernández is assistant professor of English at the University of New Mexico.