By Courtney Mason

The U.S. maternal mortality rate is consistently growing, and certain demographics are suffering the most.[1] Each year, 50,000 women in the United States experience severe pregnancy-related complications and 700 women die.[2] Black women are two to three times more likely to die from pregnancy-related causes than white women.[3] This number is even higher when including non-cisgender Black women. Black birthing persons, which are people who identify as racially Black and have the physiologic capacity for pregnancy and childbirth, like Transgender men, experience significantly higher rates of pregnancy-related morbidity and die from pregnancy-related complications at three to four times the rate of their white counterparts.[4]

These disparities are directly linked to a culture of racism that is engrained in U.S. medical and social systems. Systemic racism contributes to a number of barriers to accessing care for Black women and Black birthing persons including distrust of the health care system due to past mistreatment and harm by medical professionals, fear of government interference as Black mothers are deemed unfit by Child Welfare workers at a higher rate than white mothers, and logistical barriers such as transportation to and from appointments, time off from work, and childcare that prevent Black women and birthing persons from seeking care.[5]

The potential remedies for Black women and Black birthing persons who have died or been otherwise harmed before, during, and after childbirth are limited, in part due to access to remedies and in part due to the law itself. Litigation is expensive and time consuming. Some of the contributing elements to the disparities in medical care for Black mothers and birthing persons comes down to their ability to afford or seek care, so legal remedies requiring even more time and money only exacerbate that barrier.[6] Medical malpractice and wrongful death claims seem to be an obvious choice of remedy, but they provide less protection than may be assumed. To succeed in a medical malpractice suit, a plaintiff must prove duty, breach, causation, and damages, but proving that a doctor failed to reach their duty or standard of care in the event of an unfortunate outcome is hard to accomplish.[7] Additionally, doctors are able to use their own personal judgement as long as they act reasonably and are not deemed negligent, unless their course of treatment was clearly outside of the acceptable alternatives.[8] Because access to the legal remedy of a medical malpractice claim is based so heavily in a reasonableness standard, proving liability is difficult and frequently unlikely.[9] Wrongful death suits present some of the same difficulties for remedy as medical malpractice because to succeed under a wrongful death claim, a plaintiff’s best course is to first prove the elements of medical malpractice.[10] Thus, the same struggle with the reasonableness standard as aforementioned is still present. The reasonableness standard does not account for discrimination, thus creating the issue.[11] The standard is defined by physicians within the very profession where the discrimination is occurring, so until there is a major overhaul in how medical professionals view racial discrimination in their workplace, proving that a medical professional acted unreasonably will remain difficult.[12]

Medical mistreatment of Black women and Black birthing persons is a tragic outcome of a social and medical system rooted in racism. Black parents are dying and, with a difficult path to legal remedy, there is no end to this issue in sight. With the level of evidence in existence that demonstrates these tragic disparities in maternal health and morbidity, work needs to start now – socially, medically, and legally – to formulate and execute solutions for the consistent injustices against Black women and birthing persons.

 

[1] Kelsey Butler, U.S. Maternal Mortality Rate Among Black Women is Nearly Triple That of White, Hispanic Peers, Bloomberg (Feb. 23, 2022), https://www.bloomberg.com/news/articles/2022-02-23/u-s-black-maternal-mortality-rate-triple-that-of-white-hispanic-women-in-2020?leadSource=uverify%20wall.

[2] Wanda Barfield, Matte Article: Health Disparities, Ctr. for Disease Control & Prevention (Feb. 16, 2022), https://www.cdc.gov/hearher/resources/news-media/addressing-health-inequities.html.

[3] Id.

[4] Zahada Gillette-Pierce, Black Birthing Persons Matter – All of Them, Harv. Med. Sch. Primary Care Rev. (Apr. 14, 2022), https://info.primarycare.hms.harvard.edu/review/black-birthing-persons-matter.

[5] Why Black Women are Dying, Maternal Mental Health Leadership All. (May 26, 2022), https://www.mmhla.org/why-black-women-are-dying/.

[6] See Black Women’s Maternal Health: A Multifaceted Approach to Addressing Persistent and Dire Health Disparities, Nat’l P’ship for Women and Families (Apr. 2018), https://www.nationalpartnership.org/our-work/health/reports/black-womens-maternal-health.html (demonstrating the economic barriers Black women face in accessing medical care and remedies).

[7] Kenya Glover, Can You Hear Me?: How Implicit Bias Creates a Disparate Impact in Maternal Healthcare for Black Women, Campbell L. Rev. (2021), ://scholarship.law.campbell.edu/cgi/viewcontent.cgi?article=1711&context=clr.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.