San Diego Law Review

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This Article opens with Truth baring her breasts for four reasons. First, for many women like Truth who survived enslavement, lactation was a specifically gendered and racialized site of atrocity. Under chattel slavery in the United States, enslaved women were prevented from breastfeeding their infants as needed, compelled to wean their children far too early at the demands of their enslavers, or made to wet-nurse their enslavers’ White children in place of their own. This lactational coercion was part of a larger atrocity of reproductive abuse perpetuated against enslaved women.

Second, as Truth notes, enslaved women’s children were harmed when their mothers were denied agency over their own lactation. Indeed, any affront to a woman’s bodily autonomy harms not only her but also her family and the wider community.

Third, the anecdote anticipates how structural racism and misogyny would continue curtailing Black women’s bodily autonomy during Jim Crow. The seeds had already been planted during the slavery era. The Indiana heckler demanded Truth show her breasts less than two years after Scott v. Sandford, as courts across the United States built on that precedent to further deny the agency and self-determination of Black people. For example, the Supreme Court of North Carolina held that enslaved married couples were not truly married because they were not legally persons. The Michigan Supreme Court held that a steamboat company could refuse to sell overnight accommodations to a Black passenger. And in a California reprise of the famous 1772 English Somerset trial, Archy Lee only narrowly escaped being sent back to enslavement when a federal judge overruled the Supreme Court of California’s order that would have returned him to Mississippi, even though California was supposedly a free state.

Fourth and finally, this anecdote about Sojourner Truth lays bare the intergenerational trauma around lactation that persists for women descended from the victims of enslavement and Jim Crow. As of 2014, 85% of all Black women in the United States have had at least one child by the age of forty-four, so the experience of Black mothers forms a significant part of Black women’s experience in the aggregate. Black women with infants in California are almost 18% less likely than White or Hispanic women to have ever attempted breastfeeding and 23% less likely to continue breastfeeding by the time their children are six months old. This racial disparity in breastfeeding sheds light on the fact that Black infants are still almost twice as likely as White infants to die before their first birthday, and Black children suffer higher rates of diseases that breastfeeding may prevent. At the same time, “Black collective memory of historical traumas surrounding slavery [and] the historical indignations related to Black women wet-nursing White infants” persists. This Article outlines the structural racism that undergirds this lactation disparity, exposing a web of facially race-neutral laws and policies around breastfeeding that have failed to adequately protect Black women’s lactation agency.

Even as lactation remains a site of historical trauma from enslavement, the ongoing denial of Black women’s agency over the internal processes of their own bodies remains a “badge and incident of slavery.” As such, lactation is ripe as a site for redress. Affirming and supporting the rights of people who are descended from the victims of enslavement and Jim Crow to decide whether, when, and how to feed their infant children is an appropriate reparation for the harms that their forebearers suffered. For simplicity’s sake, this Article will refer to people who lactate as “women,” although transgender people may also lactate, and children may be the parents of infants. In addition, this Article will refer to the descendants of the victims of enslavement and segregation primarily as “Black,” although Native people were also victims of unfree labor and Jim Crow in California. By affirming and supporting Black women’s lactation agency as a form of redress, California can show its sincerity in atoning for the harms it perpetuated against women, children, and families during enslavement and Jim Crow.

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