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 commentators 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 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 important 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.
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 follows 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 predicament 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.
