Termites in the Master’s House: Abortion Rap and Florynce Kennedy’s Contributions to Racial and Gender Justice

By Hayley Hahn*

Essay — Volume 107

Jan 29, 2021
107 Va. L. Rev. Online 48
Download PDF
*J.D. Candidate 2021, University of Virginia School of Law. I would like to thank the editors of the Virginia Law Review for their helpful editing assistance; Anna Cecile Pepper for her thoughtful comments throughout the revision process; AD, TF, HK, AL, and MR for their feedback and encouragement; and my family for their steadfast support. All errors are my own.Show More

Introduction

“[N]ever . . . take any shit from anyone.”1 1.Flo Kennedy, Color Me Flo: My Hard Life and Good Times 27 (1976).Show More This attitude guided radical Black feminist Florynce “Flo” Kennedy’s life and advocacy. Contemporaries recognized Kennedy as “an outspoken activist for the rights of African Americans, women, sex workers, and members of the LGBT community.”2 2.The Modern African American Political Thought Reader: From David Walker to Barack Obama 316 (Angela Jones ed., 2013).Show More In this way, Kennedy united social movements with divergent agendas. She believed that only through “unifying in struggle” could marginalized people achieve liberation.3 3.Id. at 317.Show More Though many might find this practice uncomfortable, Kennedy relished her work. Indeed, she reportedly remarked that “if you’re not living on the edge, then you’re taking up space.”4 4.Douglas Martin, Flo Kennedy, Feminist, Civil Rights Advocate and Flamboyant Gadfly, Is Dead at 84, N.Y. Times (Dec. 23, 2000), https://www.nytimes.com/2000/12/23/us/flo-kennedy-feminist-civil-rights-advocate-and-flamboyant-gadfly-is-dead-at-84.html [https://perma.cc/J6EQ-Y3YJ].Show More

Born in Kansas City, Missouri, on February 11, 1916,5 5.See id.Show More Kennedy made waves as both an undergraduate and law student at Columbia University, where she was one of the first Black women to receive a law degree.6 6.See Kennedy, supra note 1, at 39; Elizabeth Sepper & Deborah Dinner, Sex in Public, 129 Yale L.J. 78, 100 (2019) (observing that “Kennedy ultimately became one of the first African American female graduates of Columbia Law”).Show More As an undergraduate, Kennedy wrote an essay in which she argued that “[t]he similarities of the societal positions of women and Negroes are fundamental rather than superficial.”7 7.Kennedy, supra note 1, at 120.Show More This piece marked an early example of intersectional theory.8 8.See Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution 9 (2011) (noting that Kennedy’s work “reflected and anticipated a flowering of social science scholarship in the 1940s and 1950s that analogized ‘women’ to ‘Negroes’”).Show More But Kennedy’s political advocacy extended beyond the classroom.

During her life, Kennedy advocated on behalf of sex workers;9 9.Kennedy, supra note 1, at 5–6 (contending that “a government that cannot provide full employment for women who don’t have degrees, and even those who do, has a pretty big nerve making the most lucrative occupation [sex work] a crime”).Show More promoted racial equity and diversity in the recording industry by litigating on behalf of Black artists, including Billie Holiday and Charlie Parker, and by protesting record companies’ discriminatory hiring practices;10 10.See id. at 47–49; id. at 52 (describing her time picketing Atlantic and Columbia Records with Young Activists Now, which included “smashing records on the sidewalk to get them to hire some of the Black and Puerto Rican teenagers . . . in after-school and summer jobs”).Show More and displayed persistent solidarity with the LGBTQ community.11 11.See id. at 3–4.Show More As an attorney, she defended Black radicals, including Assata Shakur.12 12.See Assata Shakur, Assata: An Autobiography 97–98 (1987).Show More She also challenged the Catholic Church’s tax-exempt status “on the grounds that it engaged in political activity by lobbying against more liberal abortion laws.”13 13.Kennedy, supra note 1, at 132.Show More A bold and innovative advocate, Kennedy used her law degree to protect the vulnerable and challenge the powerful.

Citing her frustration with the repressive nature of the judiciary, Kennedy eventually transitioned from legal advocacy to other forms of political activism.14 14.See Diane Schulder & Florynce Kennedy, Abortion Rap 98 (1971).Show More One of her most noteworthy actions was organizing a “pee-in” to protest the lack of women’s restrooms at Harvard University.15 15.SeeEric Grundhauser, The Great Harvard Pee-In of 1973, Atlas Obscura (Dec. 23, 2016), https://www.atlasobscura.com/articles/the-great-harvard-peein-of-1973 [https://perma.cc/8N8E-UP9L].Show More During her speech to protestors, Kennedy proclaimed Harvard “the asshole of the world.”16 16.Nicholas Lemann, Black Activist Advocates Student Support of Strike, Harv. Crimson (Mar. 14, 1973), https://www.thecrimson.com/article/1973/3/14/black-activist-advocates-student-support-of/ [https://perma.cc/29UU-XRBT].Show More She also compared women’s exclusion from the restrooms at Harvard to race-segregated bathrooms under Jim Crow.17 17.See Irene Davall, To Pee or Not To Pee, Sexism at Harvard, On the Issues (1990), https://www.ontheissuesmagazine.com/1990summer/summer1990_DAVALL.php [https://perma.cc/Z54R-S4FE].Show More As Kennedy spoke, students dumped buckets of water, but did not actually urinate, on the steps of Lowell Hall.18 18.Kennedy, supra note 1, at 81.Show More However, Kennedy also warned that if the Dean failed to provide women with access to a restroom, activists would return the next year “doing the real thing.”19 19.Grundhauser, supranote 15.Show More Though the pee-in’s immediate impact is uncertain, as of 2012, Harvard had ninety-one unisex bathrooms on its campus.20 20.See id.Show More Regardless of its direct impact, the pee-in exemplified Kennedy’s willingness to deploy unconventional—and often humorous—strategies to combat injustice.

When Kennedy died on December 21, 2000, her contemporaries publicly mourned her loss.21 21.See Martin, supra note 4.Show More Former New York City Mayor David N. Dinkins remembered Kennedy as a consummate champion of every “cause for the downtrodden.”22 22.Id.Show More Judge Emily Jane Goodman of the New York Supreme Court, a close friend of Kennedy’s, credited Kennedy with “show[ing] a whole generation of us the right way to live our lives.”23 23.Rebecca Traister, Good and Mad: The Revolutionary Power of Women’s Anger 111 (2018).Show More

Despite her long and prolific career as an advocate and speaker,24 24.See Kennedy, supra note 1, at 41–66.Show More few pieces of legal scholarship make more than a passing reference to Kennedy.25 25.SeeMary Ziegler, The Price of Privacy, 1973 to the Present, 37 Harv. J.L. & Gender 285, 293–94 (2014) (briefly discussing Kennedy’s writing in support of abortion rights); Amber Baylor, Centering Women in Prisoners’ Rights Litigation, 25 Mich. J. Gender & L. 109, 117 (2018) (devoting a few sentences to Kennedy’s representation of women prisoners at Bedford Hills state prison); Sepper & Dinner, supra note 6, at 138 (noting Kennedy’s contributions to the creation of women’s restrooms at Harvard). Kennedy’s legacy also remains underexplored in popular culture. SeeEmma Specter, The Best Parts of FX’s Mrs. America Are Its Lesser-Known Feminists, Vogue (May 19, 2020), https://www.vogue.com/article/mrs-america-lesser-known-feminists [https://perma.cc/F8GX-TJBA] (expressing dismay that Niecy Nash’s portrayal of Kennedy did not feature more prominently in the television series).Show More Although Sherie M. Randolph’s recent biography of Kennedy provides a historical account of Kennedy’s life, additional legal scholarship dedicated to Kennedy’s work is also warranted.26 26.See Sherie M. Randolph, Florynce “Flo” Kennedy: The Life of a Black Feminist Radical (2015).Show More Moreover, as underscored by Randolph, acknowledgment of Kennedy’s abortion access advocacy, which served as a model for later abortion rights litigation, including Roe v. Wade,27 27.410 U.S. 113 (1973).Show More “is absent from most histories of post-war feminism and the reproductive rights battle.”28 28.Randolph, supranote 26, at 168–69.Show More This Essay aims to fill that gap.

Contemporary emphasis on intersectional politics29 29.See Intersectional Feminism: What It Means and Why It Matters Right Now, UN Women (July 1, 2020), https://www.unwomen.org/en/news/stories/2020/6/explainer-intersectional-feminism-what-it-means-and-why-it-matters [https://perma.cc/T296-FD2Y].Show More and renewed concern for abortion access30 30.SeeZoe Williams, Ruth Bader Ginsburg’s Death Means Pro-choicers Have a Fight on Their Hands, Guardian (Sept. 22, 2020), https://www.theguardian.com/commentisfree­/2020/sep/22/ruth-bader-ginsburg-pro-choicers-abortion-us-presidential-election [https://per­ma.cc/AD8P-NM7B] (describing the 2020 election as “among many other things, . . . a referendum on abortion”); Becca Andrews, We Need To Save Abortion Rights. But Roe Isn’t Enough—and RBG Knew It., Mother Jones (Sept. 21, 2020), https://www.motherjones.com/­politics/2020/09/ruth-bader-ginsburg-abor­tion-rights-roe/ [https://perma.cc/KH56-WFY6] (observing that Justice Ruth Bader Ginsburg’s death leaves the constitutional right to an abortion vulnerable to attack).Show More render a review of Kennedy’s legacy especially appropriate. As an early proponent of intersectional theory, Kennedy sets an important example for contemporary racial and gender justice advocates.31 31.SeeCaroline Chiappetti, Note, Winning the Battle but Losing the War: The Birth and Death of Intersecting Notions of Race and Sex Discrimination inWhite v. Crook,52 Harv. C.R.-C.L. L. Rev. 469, 488 n.114 (2017) (observing that in addition to attorney Pauli Murray, “[o]thers to make the analogy between race and sex included Columbia college student Flo Kennedy in a 1946 paper written for a sociology course”).Show More She displayed particularly masterful advocacy in relation to abortion access, seeking to legalize abortion “in all fifty states.”32 32.Randolph, supra note 26, at 168.Show More More specifically, Kennedy’s application of a reproductive justice framework, emphasis on intersectionality, and commitment to centering women’s experiences distinguished her activism for abortion access. Thus, Kennedy can serve as a role model for contemporary reproductive justice activists.

Revisiting Kennedy’s contributions is also timely given today’s broader political context. Currently, Black women such as Maxine Waters, Stacey Abrams, and Kamala Harris lead the nation. These women often face harsher backlash for perceived missteps33 33.See Traister, supra note 23, at 53–54 (recounting how media sites reported that Congresswoman Waters experienced a “meltdown” and came “unhinged” when she reclaimed her time while questioning Treasury Secretary Steve Mnuchin); see also Trina Jones & Kimberly Jade Norwood, Aggressive Encounters & White Fragility: Deconstructing the Trope of the Angry Black Woman, 102 Iowa L. Rev. 2017, 2057 (2017) (observing that when Black women face aggressive encounters, particularly those fueled by stereotypes or biases, “they risk backlash from the aggressor (and possibly others)[,] and . . . they may ultimately be blamed for the encounter” (footnote omitted)); Laura Morgan Roberts, Anthony J. Mayo, Robin J. Ely & David A. Thomas, Beating the Odds, Harv. Bus. Rev.(Mar.–Apr. 2018), https://hbr.org/2018/03/beating-the-odds [https://perma.cc/9DKS-ZGHK] (noting that Black women often experience “hypervisibility” in professional settings, prompting “an inhibiting and potentially limiting self-consciousness”).Show More and receive less credit for their successes than their white or male counterparts.34 34.See Patricia A. Broussard, Unbowed, Unbroken, and Unsung: The Unrecognized Contributions of African American Women in Social Movements, Politics, and the Maintenance of Democracy, 25 Wm. & Mary J. Race Gender & Soc. Just. 631,676 (2019) (“The black female body and intellect have been used as weapons against black women and have been used to portray them as less intelligent, less truthful, less moral, and less valuable than white men and women.”); Roberts et al., supra note 33 (underscoring that in business, “black women are sometimes made to feel as though they’re invisible[,]” and finding that some Black women professionals “report having been mistaken for secretaries or even members of the waitstaff when starting new jobs”); Rachel Thomas et al., McKinsey & Co., Women in the Workplace 2020, at 26, 28 (2020), https://wiw-report.s3.amazonaws.com/Women_in_the_Workplace_2020.pdf [https://perma.cc/CC95-RAFQ] (finding that, based on survey data, “Black women are less likely to feel supported at work during Covid-19” and ”are promoted more slowly than other groups of employees and are significantly underrepresented in senior leadership”); Zuhairah Washington & Laura Morgan Roberts, Women of Color Get Less Support at Work. Here’s How Managers Can Change That, Harv. Bus. Rev. (Mar. 4, 2019), https://hbr.org/2019/03/women-of-color-get-less-support-at-work-heres-how-managers-can-change-that [https://perma.cc/4FGS-ERMP] (reporting that “despite representing about 18% of the U.S. population, women of color represented only 4% of C-Level positions in 2018, falling far below white men (68%) and white women (19%)”).Show More Kennedy’s life provides occasion to reflect on these disparities.

Part I of this Essay discusses Kennedy’s advocacy for abortion access. Part II examines applications of Kennedy’s legacy to contemporary social justice movements. Part III concludes by emphasizing that Kennedy’s life and career can serve as a model for modern reproductive justice activists.

I. Kennedy’s Advocacy and the Dual Dimensions of Black Women’s Activism

Celebrated Black feminist scholar Patricia Hill Collins identifies two dimensions to Black women’s activism. First, “struggles for group survival,” which “consist of actions taken to create Black female spheres of influence within existing social structures.”35 35.Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment 204 (2d ed. 2000).Show More Second, “struggles for institutional transformation” comprised of “those efforts to change discriminatory policies and procedures” of prominent social institutions, such as the government and the workplace.36 36.Id.Show More In her abortion activism, Kennedy advocated along both dimensions.

A. Group Survival: Responding to the “Black Genocide” Argument

Through her advocacy for abortion rights, Kennedy demonstrated her commitment to Black women’s group survival. In 1969, Kennedy, collaborating with Diane Schulder, represented women challenging New York’s abortion laws.37 37.See Schulder & Kennedy, supranote 14, at xv–xvi.Show More During the trial, Kennedy reportedly “pushed the limits of courtroom behavior to make points about social and cultural stigma surrounding women’s roles, sexuality, and abortion.”38 38.Cynthia Greenlee, How Abortion Storytelling Was Born, Rewire News (Jan. 22, 2016), https://rewire.news/article/2016/01/22/abortion-storytelling-born/ [https://perma.cc/5EAH-W6F8].Show More Indeed, when counsel for one of the intervenors objected throughout a line of questions, Kennedy moved to exclude him.39 39.See Schulder & Kennedy, supranote 14, at 81.Show More Speaking directly to counsel for the intervenors, Kennedy intoned, “You have no business in the case, you are not entitled to be in this case, and I am simply not going to have my witness intimidated by these continual interruptions.”40 40.Id.Show More

Kennedy’s zealous advocacy asserted that “[w]omen were the experts of their own lives.”41 41.Greenlee, supra note 38.Show More She viewed the “case as a very definitive platform for exploring the extent of the legalized oppression of women.”42 42.Randolph,supra note 26, at 174 (piecing together quotes from the trial transcript from Schulder & Kennedy, supra note 14, at 32–35).Show More Her representation established a template for future challenges to abortion restrictions, including Roe v. Wade.43 43.See id. at 176.Show More Contemporary activists continue to employ Kennedy’s approach when organizing modern “abortion story-sharing” initiatives.44 44.Greenlee, supra note 38.Show More

In 1970, New York reformed its abortion laws, rendering the suit moot.45 45.See Schulder & Kennedy, supranote 14, at 178.Show More But Kennedy and other activists remained concerned. This inspired Kennedy and Schulder to write Abortion Rap.46 46.Greenlee, supranote 38.Show More In this book, Kennedy and Schulder aimed to demonstrate “how the abortion fight is relevant to the fight for freedom for women.”47 47.Schulder & Kennedy, supra note 14, at xvi.Show More To make their case before the general public, “a people’s tribunal,”48 48.Id. at xv.Show More Kennedy and Schulder presented stories of women who had obtained abortions;49 49.See id. at 6–88.Show More relayed an overview of the case;50 50.See id. at 89–102.Show More analyzed and challenged expert testimony;51 51.See id. at 103–06.Show More and responded to common criticisms of the right to abortion.52 52.See id. at xvi, 151–61 (responding to the argument that abortion propels Black Genocide).Show More The pair called on the Court to find the restrictions unconstitutional.53 53.See id. at 160, 199.Show More

In the chapter entitled “Black Genocide,” Kennedy brought feminism to bear on the Black Power movement.54 54.See The Modern African American Political Thought Reader: From David Walker to Barack Obama, supra note 2, at 317.Show More More specifically, Kennedy challenged the Black Panthers’ opposition to abortion and birth control.55 55.See id. at 318.Show More She framed Black women’s struggle for reproductive justice in terms of the Black Panthers’ overarching desire for “far less government interference in the lives of black people.”56 56.Id.Show More Citing “religious programming,” the persistence of “the slaver’s social values,” and “male chauvinism,” Kennedy attacked the foundations of the Black Panthers’ objections to abortion.57 57.Schulder & Kennedy, supra note 14, at 160.Show More

She also emphasized Black women’s expertise. Specifically, Kennedy observed that several Black women, including “Shirley Chisholm, first Black congresswoman, and the many Black women who contacted [Kennedy and Schulder] for abortion information,” supported access to abortion.58 58.Id. at 156.Show More For too long, Kennedy and Schulder observed, “the nonwhite, and the urban and rural poor,” bore the brunt of “enforced limitation on reproduction,” which amounted to “oppression of women” by the state.59 59.Id. at 185.Show More Weaving together these strands, Kennedy concluded that Black men needed to defer to Black women’s experiences and preferences. It was time, Kennedy argued, for the Black Panthers to support access to abortion and ensure that “free choice prevailed.”60 60.Id. at 161.Show More

Critically, Kennedy’s emphasis on Black women’s autonomy coincided with a concern for their security. During the trial proceedings, Kennedy and Schulder did not ask Black women to publicly testify, as they “feared for their safety.”61 61.Randolph, supra note 26, at 178.Show More Kennedy and Schulder recognized that Black women faced “hostile responses both within and outside the black community” for seeking abortions.62 62.Id.Show More Though Kennedy drew on Black women’s experiences in her advocacy, she did so in the aggregate, preventing any one Black woman from facing violent backlash.63 63.See Schulder & Kennedy, supra note 14, at 156.Show More In so doing, Kennedy exemplified the first prong of Collins’s formulation of Black women’s activism: ensuring Black women’s survival.64 64.See Collins, supra note 35, at 204.Show More

Additionally, Kennedy established abortion access as essential to the Black Power movement. Kennedy acknowledged the “bad stench of racism” attached to some family-planning activities.65 65.Schulder & Kennedy, supra note 14, at 158.Show More But she also underscored that “[w]omen hampered by children tend not to be in the vanguard” of the Black Power movement.66 66.Id. at 159.Show More Perhaps most pointedly, Kennedy emphasized that “Friends of the Fetus in the Black Community,” an anti-abortion group, “have permitted a number of potential revolutionaries to languish in orphanages and foster homes, despite widely broadcast pleas for rescue (for revolutionary or whatever purpose).”67 67.Id.at 160.Show More In other words, Kennedy concluded that the lack of abortion access actively harmed Black children. Accordingly, she argued that the repeal of abortion laws was necessary to prevent “state interference in the personal lives of Black people.”68 68.Id. at 161.Show More Hence, Kennedy established access to abortion as essential to both reproductive and racial justice.69 69.See also Ziegler, supra note 25, at 316 (underscoring the efficacy of Kennedy’s arguments linking Black women’s access to abortion and contraception to Black liberation).Show More

Kennedy’s advocacy “directly challenge[d] the legal and customary rules governing African-American women’s subordination.”70 70.Collins, supra note 35, at 204.Show More In the process, she furthered “[t]he black feminist ‘vanguard center’ ideology.”71 71.Benita Roth, “Organizing One’s Own” as Good Politics: Second Wave Feminists and the Meaning of Coalition, in Strategic Alliances: Coalition Building and Social Movements 99, 110 (Nella Van Dyke & Holly J. McCammon eds., 2010).Show More This ideology recognized that Black women’s multiple marginalized identities “best positioned [Black women] to lead a movement that would liberate all those dominated.”72 72.Id.Show More Kennedy took this call seriously.

In arguing for women’s liberation, Kennedy cautioned white feminists “not to use the Black women’s plight to make their case for them.”73 73.Schulder & Kennedy, supra note 14, at 161.Show More This is consistent with the second wave feminism’s “ethos of organizing one’s own.”74 74.Roth, supra note 71, at 105.Show More Activists initially adopted this strategy during the civil rights movement. Specifically, the Student Non-Violent Coordinating Committee introduced this model, as Black leaders dismissed white demonstrators from the group, calling on them to concentrate on combating racism within the white community.75 75.See id. at 107.Show More Women’s liberation activists still appreciated the gravity of racism.76 76.See id. at 108.Show More But most organizing occurred in intra-, not inter-, racial settings.77 77.See id. at 109–10.Show More Many contemporary social movements continue to organize around a single identity issue.78 78.See Veronica Terriquez, Intersectional Mobilization, Social Movement Spillover, and Queer Youth Leadership in the Immigrant Rights Movement, 62 Soc. Probs. 343, 346 (2015).Show More Thus, understanding intragroup organizing dynamics remains critical.

In sum, Kennedy’s work created “Black female spheres of influence within existing social structures” of the Black Power movement.79 79.Collins, supra note 35, at 204.Show More In so doing, Kennedy “equip[ped] Blacks”—both men and women—“to struggle.”80 80.Id.Show More Consequently, Kennedy’s advocacy promoted Black women’s “individual and collective empowerment.”81 81.Id.Show More By extension, she advanced the first dimension of Black women’s activism.82 82.See id.Show More

B. Institutional Transformation: Abortion Access and Intersectional Justice

Abortion Rap also sought to effect change along the second dimension of Black women’s activism identified by Collins: institutional transformation.83 83.See id.Show More Focused on “chang[ing] discriminatory policies and procedures of government, schools, the workplace, the media, stores, and other social institutions,” this dimension of Black women’s activism depends “on coalition-building strategies.”84 84.Id.Show More It is true that the chapter entitled “Black Genocide” targeted men in the Black Power movement.85 85.Seesupra Section I.A.Show More But understood in its entirety, Abortion Rap aimed to raze the broader legal landscape wherein “[r]estrictive abortions laws” remained on the books of “most states.”86 86.Schulder & Kennedy, supranote 14,at xvi.Show More The results were transformative.

First, Kennedy emphasized the connection between racial justice and abortion access. In contrast to the mainstream media’s practice of “whitewashing” the feminist movement,87 87.Sepper & Dinner, supra note 6, at 126 n.279.Show More Abortion Rap foregrounded the contributions of Black and Puerto Rican women.88 88.See Schulder & Kennedy, supranote 14, at 156 (emphasizing that “[a]t least three small groups of Black and Puerto Rican Women’s Liberation groups participated in plans” for “demonstration against abortion oppression”).Show More Moreover, Kennedy and Schulder gestured towards the formation of a broad women’s coalition to support abortion rights.89 89.See id. at 158.Show More Black and white women needed to form their “own ideas and strategies.”90 90.Id. at 161.Show More But no matter their race, in Kennedy’s view, all women deserved “the choice of deciding whether they wish to have babies.”91 91.Id. at 160.Show More This provided grounds for collaboration across racial lines.

Second, Abortion Rap anticipated contemporary critiques of the Supreme Court’s abortion jurisprudence, as it centered race- and class-based discrimination concerns.92 92.SeeKhiara M. Bridges, Elision and Erasure: Race, Class, and Genderin Harris v. McRae, in Reproductive Rights and Justice Stories 117, 118 (Melissa Murray, Katherine Shaw & Reva B. Siegal eds., 2019) (observing “that poor women of color bear the brunt of the Hyde Amendment,” Pub. L. No. 96-123, § 109, 93 Stat. 923, 926 (1979), which bars federal funding of abortion); Loretta J. Ross & Rickie Solinger, Reproductive Justice: An Introduction 54 (2017) (underscoring that “neither the Hyde Amendment nor the criminalization of the reproductive lives of poor women has been a major issue for mainstream reproductive rights organizations in the United States until very recently”).Show More More specifically, Kennedy and Schulder acknowledged the possibility of forced abortion or sterilization.93 93.See Schulder & Kennedy, supra note 14, at 160.Show More This threat was no mere theoretical specter.94 94.See id. (observing that “[e]nforced sterilization . . . has often been ordered in the case of welfare mothers, and has been used as well as a precondition for an abortion”).Show More In the 1970s, “women of color, Medicaid recipients, and women receiving welfare benefits were sterilized at” high rates, such that “sterilization was the fastest growing method of birth control in this era.”95 95.Ross & Solinger, supra note 92, at 51.Show More Accordingly, Kennedy and Schulder recognized that “there might easily come a time when all women will have to fight against the imposition of abortions.”96 96.Schulder & Kennedy, supra note 14, at 160.Show More But that time had not yet come. Rather, the pair emphasized that activists should focus on securing “a finding of unconstitutionality” for abortion restrictions.97 97.Id. at 184.Show More Though not a panacea, Kennedy and Schulder believed that such a development “would surely minimize the proliferation of government regulations, guidelines, amendments, and rules” restricting reproductive freedom.98 98.Id.Show More

Finally, Kennedy and Schulder cautioned that despite legislative reform, “the struggle [was] just beginning.”99 99.Id. at 166.Show More The pair recognized that “[f]reedom for women is still dependent upon a change in the power structure of male-dominated institutions.”100 100.Id.Show More The Supreme Court’s recent decision in June Medical Services L.L.C. v. Russo underscores the prescient nature of this critique.101 101.140 S. Ct. 2103, 2112–13 (2020) (holding that a Louisiana law requiring doctors who perform abortions to gain admitting privileges at a nearby hospital was unconstitutional).Show More Indeed, “women . . . are almost totally absent” from this and other recent abortion rights decisions by the Court.102 102.Dahlia Lithwick, Women Are Being Written out of Abortion Jurisprudence, Slate (July 2, 2020), https://slate.com/news-and-politics/2020/07/abortion-supreme-court-women.html [https://perma.cc/H8BY-J6MB]; see also id. (observing that in recent abortion cases, women “are being read out of a theoretical dialogue about which kind of balancing tests the men prefer to administer”).Show More This absence is more than a symbolic failing. It also coincides with the passage of an unprecedented number of state abortion restrictions.103 103.See Michele Goodwin, Policing the Womb: Invisible Women and the Criminalization of Motherhood 8 (2020) (“During the period 2010–15, state legislatures proposed and succeeded in enacting more regulations to restrict abortion and contraceptive access than in the prior three decades combined.”).Show More As a result, abortion is becoming more and more inaccessible.104 104.See K.K. Rebecca Lai & Jugal K. Patel, For Millions of American Women, Abortion Access Is out of Reach, N.Y. Times (May 31, 2019), https://www.nytimes.com/interactive/­2019/05/31/us/abortion-clinics-map.html [https://perma.cc/VEQ8-DBJR].Show More Today, then, Kennedy’s warning from 1971 seems prophetic. Abortion Rap is more than the musings of a couple of radicals. It also reflects the vision of a pair of American Cassandras.105 105.Cassandra is a woman from Greek mythology whose prophetic warnings—which came true—went unheeded. See Cassandra, Britannica.com, https://www.britannica.com/topic/­Cassandra-Greek-mythology [https://perma.cc/3N3U-VV6Z] (last visited Dec. 28, 2020).Show More

Ultimately, Kennedy worked to dismantle “the wringer” of systemic oppression,106 106.Kennedy, supra note 1, at 134, 136.Show More what civil rights activist Audre Lorde termed “the master’s house.”107 107.Audre Lorde, The Master’s Tools Will Never Dismantle the Master’s House,History Is a Weapon (1979), https://www.historyisaweapon.com/defcon1/lordedismantle.html [https://­perma.cc/U3JZ-NWNM].Show More Lorde cautioned that the master’s tools would never dismantle the master’s house.108 108.Id.Show More But Kennedy saw no need for fancy tools. She recognized the relative political powerlessness of marginalized individuals, describing the oppressed as “termites.”109 109.Kennedy, supra note 1, at 140.Show More Yet she also recognized that “if all the termites got together, the house would fall down.”110 110.Id.Show More Kennedy understood that bringing down institutions of oppression—most commonly the state, but also universities and other entities of centralized power111 111.SeeLemann, supranote 16 (describing Kennedy’s activism on behalf of students protesting Harvard’s lack of women’s restrooms).Show More—requires collective action. For Kennedy, this action depended on forming an intersectional coalition.112 112.SeeRandolph, supra note 26, at 223 (observing that “Kennedy’s advocacy of inclusive coalitions, especially those among white women, black women, and black men, had been part of her politics since the 1950s”).Show More

II. Lessons from Kennedy’s Life

A. Advancing Abortion Access Under a Reproductive Justice Framework

In the past decade, states have passed over 400 laws restricting access to abortion.113 113.See Nora Ellman, State Actions Undermining Abortion Rights in 2020, Ctr. for Am. Progress (Aug. 27, 2020), https://www.americanprogress.org/issues/women/­reports/2020/08/27/489786/state-actions-undermining-abortion-rights-2020/ [https://perma.cc/R2ZC-FRYG].Show More Alongside the recent death of United States Supreme Court Justice Ruth Bader Ginsburg, a staunch defender of reproductive rights, these developments jeopardize abortion access across the country.114 114.SeeAlexandra Svokos, Is Ginsburg’s Death the End of Roe v. Wade? This Time, Some Experts Say, It Could Be.,ABC News (Sept. 21, 2020), https://abcnews.go.com/politics/ginsburgs-death-end-roe-wade-time-experts/story?id=73119646/ [https://perma.cc/5HL6-BFS7].Show More Kennedy successfully advocated for abortion access in the pre-Roe v. Wade world.115 115.See Randolph, supranote 26, at 168–69; see also 410 U.S. 113 (1973) (holding that a woman possesses a fundamental right to terminate her pregnancy by abortion).Show More Channeling her legacy can empower contemporary reproductive justice activists to navigate a potential post-Roe future.116 116.See David Crary, Ginsburg’s Death Puts Roe v. Wade on the Ballot in November, AP News (Sept. 20, 2020), https://apnews.com/577f2ad123b356b47c801525ea4688be (discussing the potential overturning of Roe in light of Justice Ginsburg’s death).Show More

First, Kennedy’s work underscores the importance of adopting a reproductive justice—not just a reproductive rights—framework. The concept of reproductive justice was not formalized until the 1990s.117 117.See Ross & Solinger, supra note 92, at 56.Show More Nevertheless, Kennedy’s discussion of abortion access alongside forced sterilization reflects reproductive justice concerns.118 118.See Schulder & Kennedy, supra note 14, at 160.Show More Indeed, reproductive justice focuses on protecting “the right not to have a child” and “the right to have a child.”119 119.Ross & Solinger, supra note 92, at 9.Show More This expands on the “traditional reproductive rights” framework’s narrow focus on the rights to “abortion and contraception.”120 120.Marie-Amélie George, Queering Reproductive Justice, 54 U. Rich. L. Rev. 671, 680 (2020).Show More By extension, this approach better advances women’s equality and liberty.

Second, Kennedy’s legacy highlights the importance of intersectional advocacy. For too long, the reproductive rights movement has focused on the rights of middle-class and wealthy white women.121 121.SeeRoss & Solinger, supra note 92, at 47–48 (noting that “white advocates of legal and accessible contraception and abortion were often focused solely . . . on women’s right to prevent conception and unwanted births”).Show More This ignores the struggles faced by poor women,122 122.See id. at 51, 53–54 (underscoring the barriers poor women face when trying to exercise reproductive freedom).Show More women of color,123 123.See id. at 54 (discussing advocacy to address “the serious limits of choice” for women of color).Show More LGBTQ individuals,124 124.See George, supra note 120, at 673 (underscoring the shared concerns between the reproductive rights and LGBTQ rights movements).Show More and people with multiple marginalized identities. Kennedy recognized the link between distinct forms of oppression.125 125.See The Modern African American Political Thought Reader: From David Walker to Barack Obama, supra note 2, at 317 (emphasizing Kennedy’s theory of hegemony of the oppressed).Show More This recognition empowered Kennedy to build a broad coalition in support of reproductive rights.126 126.See id.Show More Adapting Kennedy’s approach, then, would enable contemporary reproductive justice advocates to better safeguard a host of reproductive freedoms—including, but not limited to, the right to a safe and accessible abortion.

Finally, Kennedy’s work highlights the importance of centering the voices of women. The erasure of women from discussion of abortion jurisprudence is not new.127 127.SeeBarbara J. Cox, Refocusing Abortion Jurisprudence To Include the Woman: A Response to Bopp and Coleson and Webster v. Reproductive Health Services, 1990 Utah L. Rev. 543, 545 (underscoring scholars’ failure to include “any reference to the future harm to women who are prohibited from legal access to abortion”).Show More But it is concerning.128 128.See Goodwin, supranote 103, at 4–5 (discussing heightened “attacks on women and surveillance of their bodies” in recent years).Show More Specifically, this erasure deprives women of agency, forcing them “to hope that powerful men will make really good choices on [their] behalf.”129 129.Lithwick, supra note 102.Show More To prevent further omission of women’s experiences from abortion jurisprudence, advocates can channel Kennedy’s influence by affirming a woman’s inherent right to control decisions about her body.130 130.See Greenlee, supra note 38.Show More Centering the experiences of those seeking abortions can highlight the need for legal reform, providing grounds for legislatures and courts to affirm and strengthen reproductive rights protections.131 131.See id.Show More Thus, Kennedy’s Abortion Rap provides a critical blueprint for contemporary reproductive justice advocates.

What would the Court’s reproductive rights jurisprudence look like if it were guided by Kennedy’s legacy? We can only speculate. But given Kennedy’s commitment to intersectionality, under this framework, the Court would conclude that economic barriers to abortion, such as the Hyde Amendment,132 132.Pub. L. No. 96-123, § 109, 93 Stat. 923, 926 (1979) (barring federal funding of abortions for situations outside rape, incest, or risk to the mother’s life); see also Harris v. McRae, 448 U.S. 297, 326 (1980) (affirming the constitutionality of the Hyde Amendment).Show More violate the Constitution.133 133.Schulder & Kennedy,supra note 14, at 184 (criticizing “opponents of free abortions”).Show More Similarly, the Court would hold that coerced sterilization is unconstitutional.134 134.See Skinner v.Oklahoma, 316 U.S. 535, 542 (1942) (striking down a statute that authorized coerced sterilization in the context of criminal sentencing, but expressly declining to overturn Buck v. Bell, 274 U.S. 200, 207 (1927), which held that Virginia’s compulsory sterilization program for institutionalized people with mental disabilities was constitutional); see also Miranda Bryant, Allegations of Unwanted ICE Hysterectomies Recall Grim Time in US History, Guardian (Sept. 21, 2020), https://www.theguardian.com/us-news/2020/sep/21/unwanted-hysterectomy-allegati­ons-ice-georgia-immigration (reporting the performance of unsolicited hysterectomies on women detained by United States Immigration and Customs Enforcement).Show More And the decisions would focus on the experiences of women and other people seeking to safeguard their reproductive liberties—not the government, not the doctors, not those intervening on behalf of fetuses.135 135.See Greenlee, supranote 38.Show More Such an approach would advance both liberty and equality along intersectional axes.136 136.See Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 304 (1997) (observing the need to recognize “the essential relationship between liberty and equality” to advance reproductive justice for Black women).Show More

B. Black Women’s Invisibility: A Call To Amplify Black Women’s Voices

During her lifetime, Kennedy’s race led to her intentional exclusion from media reports. For instance, Kennedy is conspicuously absent from photographs and news reports of a press event for Abortion Rap.137 137.See Sepper & Dinner, supranote 6, at 126 n.279.Show More This is consistent with the media’s pattern of “whitewashing [Kennedy] from other events where she was key” due to racism.138 138.Id.Show More Indeed, prior to a women’s liberation meeting at which Kennedy and Gloria Steinem were scheduled to speak, Betty Friedan reportedly called Steinem to insist that she disinvite Kennedy from the event, and she referred to Kennedy using a racial slur.139 139.See Traister, supra note 23, at 111.Show More Even within the feminist movement, then, Kennedy faced exclusion and resistance.

Kennedy’s colorful language also contributed to her erasure. Directing her ire at members of the clergy and judges,140 140.See Kennedy, supranote 1, at 8 (“It’s interesting to speculate how it developed that in two of the most anti-feminist institutions, the church and the law court, the men are wearing the dresses.”).Show More lawyers,141 141.See id. at 129 (“The lawyer . . . is analogous to a prostitute. The difference between the two is simple. The prostitute is honest . . . .”).Show More and even President Richard Nixon,142 142.See id. at 132 (“Humanism that extends to Nixon is like people picnicking on the beach while others are drowning in the ocean.”).Show More Kennedy refused to pull any punches. Her praxis boiled down to “kicking ass.”143 143.Id. at 14.Show More Kennedy believed in “[k]icking ass . . . where an ass is protecting the System . . . regardless of the sex, the ethnicity, or the charm of the oppressor’s agent.”144 144.Id. at 142.Show More As Gloria Steinem observed, Kennedy used her “humor [to] work for change, not against it.”145 145.Id. at 140 (emphasis added); see also id. at 6 (defending prostitution by observing that “to my knowledge, no one has ever died of a blow job”).Show More No matter the backlash. This style led People magazine to dub Kennedy “the biggest, loudest and, indisputably, the rudest mouth on the battleground” for radical feminist politics.146 146.Patricia Burstein, Lawyer Flo Kennedy Enjoys Her Reputation as Radicalism’s Rudest Mouth, People Mag. (Apr. 14, 1975), https://people.com/archive/lawyer-flo-kennedy-enjoys-her-reputation-as-radicalisms-rudest-mouth-vol-3-no-14/ [https://perma.cc/Y8RZ-3KP9].Show More It also contributed to Kennedy’s exclusion from accounts of the social justice movements she led.

The relative paucity of scholarship on Kennedy’s activism is consistent with the political phenomenon of treating Black women as invisible. Despite Black women’s critical contributions to social movements, they account for a disproportionately low number of elected officials.147 147.See Broussard, supra note 34, at 670.Show More Politically, “Black women became invisible through their dual minority status and its treatment by law and society.”148 148.Angela Mae Kupenda, Letitia Simmons Johnson & Ramona Seabron-Williams, Political Invisibility of Black Women: Still Suspect but No Suspect Class, 50 Washburn L.J. 109, 111 (2010).Show More Failure to account for the particular inequities Black women confront contributes to a host of problems,149 149.See id. at 112.Show More including “anti-Black misogyny” (“misogynoir”),150 150.Moya Bailey & Trudy, On Misogynoir: Citation, Erasure, and Plagiarism, 18 Feminist Media Stud. 762, 762 (2018).Show More mistreatment by the medical system,151 151.See Emily E. Petersen et al., Racial/Ethnic Disparities in Pregnancy-Related Deaths—United States, 2007–2016, 68 Morbidity & Mortality Wkly. Rep. 762, 762 (2019) (documenting the disproportionately high Black maternal mortality rate); Roberts, supranote 136, at 7 (detailing government policies aimed at curbing Black women’s fertility).Show More and murder by law enforcement officials.152 152.See Treva Lindsey, Black Women Have Consistently Been Trailblazers for Social Change. Why Are They So Often Relegated to the Margins?,Time (July 22, 2020), https://time.com/5869662/black-women-social-change/ [https://perma.cc/AWM7-N4RU].Show More Moreover, “more than sixty thousand black women are missing in America.”153 153.Christopher Lebron, The Invisibility of Black Women, Bos. Rev. (Jan. 15, 2016), http://bostonreview.net/race-literature-culture-gender-sexuality-arts-society/christopher-lebron-invisibility-black-women/ [https://perma.cc/AD44-6SWB].Show More This means that despite comprising less than ten percent of the United States’ population, Black women account for “nearly 37 percent of missing women.”154 154.Id.Show More In other words: Black women’s political erasure is not just a dignitary harm. Rather, reduced visibility correlates with heightened risk of bodily injury, including death.155 155.SeeRobin Young & Serena McMahon, #SayHerName Puts Spotlight on Black Women Killed by Police, WBUR (June 16, 2020), https://www.wbur.org/hereandnow/2020/06/16/­black-women-deaths-protests [https://perma.cc/NR73-DCXD] (discussing the #SayHerName campaign’s attempts to draw attention to Black women murdered by law enforcement).Show More To address these injustices, society must first acknowledge them. Thus, highlighting Black women’s experiences is critical to addressing gender- and race-based violence.

Black women’s anger is also consistently politicized. Regarded as “irrational, crazy, out of touch, entitled, disruptive, and not team players,” Black women who voice their discontent face dismissal and disparagement.156 156.Brittney Cooper, Eloquent Rage: A Black Feminist Discovers Her Superpower 2–3 (2018).Show More Perceived as “inconvenient citizens,”157 157.Id. at 3.Show More “Angry Black Women” face disproportionate censure for their activism.158 158.See Traister, supra note 23, at 67–79 (detailing the racist attacks on Michelle Obama and Maxine Waters in response to their political advocacy).Show More No wonder, then, that journalists and scholars often elide Kennedy’s contributions. How easy, under this racist and sexist framework, to dismiss Kennedy’s “radical, outspoken, and provocative rhetoric” as just the words of another “Angry Black Woman.”159 159.Grundhauser, supra note 15.Show More

Dismissal of Kennedy’s contributions on the basis of her fiery speech is misguided. As discussed above, Kennedy’s rhetoric served as a tool of survival.160 160.See supra Part I; see alsoAudre Lorde, The Uses of Anger, 9 Women’s Stud. Q. 7, 9 (1981)(“My anger has meant pain to me but it has also meant survival . . . .”).Show More Employing seemingly outrageous language enabled Kennedy to highlight the true ugliness in society: the exploitation of people through “the wringer” of the system.161 161.Kennedy, supra note 1, at 134.Show More Her “undisguised anger” constituted “a rhetorical super-power.”162 162.Traister, supranote 23, at 110.Show More Through displaying her righteous fury, Kennedy inspired others to fight against oppression.163 163.See id.Show More

Today, erasure of perceived “Angry Black Women” continues to exacerbate inequality.164 164.SeeBroussard, supranote 34, at 675 (underscoring that the stereotyping of Black women is “used to maintain a status quo system that benefits those who seek to obfuscate the contributions of black women”).Show More Movements such as #SayHerName have attempted to foreground Black women’s experiences,165 165.SeeKimberlé Williams Crenshaw & Andrea J. Ritchie, Afr. Am. Pol’y F., Say Her Name: Resisting Police Brutality Against Black Women 30 (2015), http://static1.squarespace.com/static/53f20d90e4b0b80451158d8c/t/560c068ee4b0af26f72741df/1443628686535/AAPF_SMN_Brief_Full_singles-min.pdf [https://perma.cc/S5SP-J7TT].Show More but additional work is needed to dismantle this sexist, racist trope. Rage is constructive, not just destructive.166 166.See Cooper, supranote 156, at 273 (“[R]age can help us build things, too. The clarity that comes from rage should also tell us what kind of world we want to see, not just what kind of things we want to get rid of.”).Show More To build a better world, society must stop reducing Black women to hidden figures of social movements.167 167.SeeMargot Lee Shetterly, Hidden Figures: The American Dream and the Untold Story of the Black Women Mathematicians Who Helped Win the Space Race (2016) (exploring the contributions of Black women scientists at NASA).Show More Recognition is not just a formality. Rather, recognition leads to liberation. Full recognition of an individual’s humanity is necessary to ensure that she is “fully free.”168 168.Isaiah Berlin, Political Liberty and Pluralism: Two Concepts of Liberty, in The Proper Study of Mankind: An Anthology of Essays 191, 228 (Henry Hardy & Roger Hausheer eds., 1997).Show More Thus, to secure equality, and with it, liberty, we must celebrate Black women leaders.169 169.See generally Ronald Dworkin, A Matter of Principle 203 (1985) (noting that liberalism requires “that human beings must be treated as equals by their government, not because there is no right and wrong in political morality, but because that is what is right”).Show More Honoring Kennedy’s legacy is a good place to start.

Conclusion

Florynce Kennedy significantly advanced racial and gender justice in the United States. As demonstrated by her abortion access advocacy, Kennedy’s contributions to social justice typify the two dimensions of Black women’s activism identified by Patricia Hill Collins. Kennedy’s fearlessness can galvanize contemporary activists. Whether one commits to “kicking ass”170 170.Kennedy, supra note 1, at 14.Show More or merely endeavors “not to lead an oatmeal existence,”171 171.Id. at 132.Show More Kennedy provides ample inspiration. Following her lead, contemporary reproductive justice activists can safeguard abortion rights while furthering broader racial and gender justice initiatives.

  1. * J.D. Candidate 2021, University of Virginia School of Law. I would like to thank the editors of the Virginia Law Review for their helpful editing assistance; Anna Cecile Pepper for her thoughtful comments throughout the revision process; AD, TF, HK, AL, and MR for their feedback and encouragement; and my family for their steadfast support. All errors are my own.  ↑
  2. Flo Kennedy, Color Me Flo: My Hard Life and Good Times 27 (1976). ↑
  3. The Modern African American Political Thought Reader: From David Walker to Barack Obama 316 (Angela Jones ed., 2013). ↑
  4. Id. at 317. ↑
  5. Douglas Martin, Flo Kennedy, Feminist, Civil Rights Advocate and Flamboyant Gadfly, Is Dead at 84, N.Y. Times (Dec. 23, 2000), https://www.nytimes.com/2000/12/23/us/flo-kennedy-feminist-civil-rights-advocate-and-flamboyant-gadfly-is-dead-at-84.html [https://perma.cc/J6EQ-Y3YJ]. ↑
  6. See id. ↑
  7. See Kennedy, supra note 1, at 39; Elizabeth Sepper & Deborah Dinner, Sex in Public,
    129

    Yale L.J.

    78, 100 (2019)

    (observing that “Kennedy ultimately became one of the first African American female graduates of Columbia Law”). ↑

  8. Kennedy, supra note 1, at 120. ↑
  9. See Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution 9 (2011) (noting that Kennedy’s work “reflected and anticipated a flowering of social science scholarship in the 1940s and 1950s that analogized ‘women’ to ‘Negroes’”). ↑
  10. Kennedy, supra note 1, at 5–6 (contending that “a government that cannot provide full employment for women who don’t have degrees, and even those who do, has a pretty big nerve making the most lucrative occupation [sex work] a crime”). ↑
  11. See id. at 47–49; id. at 52 (describing her time picketing Atlantic and Columbia Records with Young Activists Now, which included “smashing records on the sidewalk to get them to hire some of the Black and Puerto Rican teenagers . . . in after-school and summer jobs”). ↑
  12. See id. at 3–4. ↑
  13. See Assata Shakur, Assata: An Autobiography 97–98 (1987). ↑
  14. Kennedy, supra note 1, at 132. ↑
  15. See Diane Schulder & Florynce Kennedy, Abortion Rap 98 (1971). ↑
  16. See Eric Grundhauser, The Great Harvard Pee-In of 1973, Atlas Obscura (Dec. 23, 2016), https://www.atlasobscura.com/articles/the-great-harvard-peein-of-1973 [https://perma.cc/8N8E-UP9L]. ↑
  17. Nicholas Lemann, Black Activist Advocates Student Support of Strike, Harv. Crimson (Mar. 14, 1973), https://www.thecrimson.com/article/1973/3/14/black-activist-advocates-student-support-of/ [https://perma.cc/29UU-XRBT]. ↑
  18. See Irene Davall, To Pee or Not To Pee, Sexism at Harvard, On the Issues (1990), https://www.ontheissuesmagazine.com/1990summer/summer1990_DAVALL.php [https://perma.cc/Z54R-S4FE]. ↑
  19. Kennedy, supra note 1, at 81. ↑
  20. Grundhauser, supra note 15. ↑
  21. See id. ↑
  22. See Martin, supra note 4. ↑
  23. Id. ↑
  24. Rebecca Traister, Good and Mad: The Revolutionary Power of Women’s Anger 111 (2018). ↑
  25. See Kennedy, supra note 1, at 41–66. ↑
  26. See Mary Ziegler, The Price of Privacy, 1973 to the Present, 37 Harv. J.L. & Gender 285, 293–94 (2014) (briefly discussing Kennedy’s writing in support of abortion rights); Amber Baylor, Centering Women in Prisoners’ Rights Litigation, 25 Mich. J. Gender & L. 109, 117 (2018) (devoting a few sentences to Kennedy’s representation of women prisoners at Bedford Hills state prison); Sepper & Dinner, supra note 6, at 138 (noting Kennedy’s contributions to the creation of women’s restrooms at Harvard). Kennedy’s legacy also remains underexplored in popular culture. See Emma Specter, The Best Parts of FX’s Mrs. America Are Its Lesser-Known Feminists, Vogue (May 19, 2020), https://www.vogue.com/article/mrs-america-lesser-known-feminists [https://perma.cc/F8GX-TJBA] (expressing dismay that Niecy Nash’s portrayal of Kennedy did not feature more prominently in the television series). ↑
  27. See Sherie M. Randolph, Florynce “Flo” Kennedy: The Life of a Black Feminist Radical (2015). ↑
  28. 410 U.S. 113 (1973). ↑
  29. Randolph, supra note 26, at 168–69. ↑
  30. See Intersectional Feminism: What It Means and Why It Matters Right Now, UN Women (July 1, 2020), https://www.unwomen.org/en/news/stories/2020/6/explainer-intersectional-feminism-what-it-means-and-why-it-matters [https://perma.cc/T296-FD2Y]. ↑
  31. See Zoe Williams, Ruth Bader Ginsburg’s Death Means Pro-choicers Have a Fight on Their Hands, Guardian (Sept. 22, 2020), https://www.theguardian.com/commentisfree­/2020/sep/22/ruth-bader-ginsburg-pro-choicers-abortion-us-presidential-election [https://per­ma.cc/AD8P-NM7B] (describing the 2020 election as “among many other things, . . . a referendum on abortion”); Becca Andrews, We Need To Save Abortion Rights. But Roe Isn’t Enough—and RBG Knew It., Mother Jones (Sept. 21, 2020), https://www.motherjones.com/­politics/2020/09/ruth-bader-ginsburg-abor­tion-rights-roe/ [https://perma.cc/KH56-WFY6] (observing that Justice Ruth Bader Ginsburg’s death leaves the constitutional right to an abortion vulnerable to attack). ↑
  32. See Caroline Chiappetti, Note, Winning the Battle but Losing the War: The Birth and Death of Intersecting Notions of Race and Sex Discrimination in White v. Crook, 52 Harv. C.R.-C.L. L. Rev. 469, 488 n.114 (2017) (observing that in addition to attorney Pauli Murray, “[o]thers to make the analogy between race and sex included Columbia college student Flo Kennedy in a 1946 paper written for a sociology course”). ↑
  33. Randolph, supra note 26, at 168. ↑
  34. See Traister, supra note 23, at 53–54 (recounting how media sites reported that Congresswoman Waters experienced a “meltdown” and came “unhinged” when she reclaimed her time while questioning Treasury Secretary Steve Mnuchin); see also Trina Jones & Kimberly Jade Norwood, Aggressive Encounters & White Fragility: Deconstructing the Trope of the Angry Black Woman,
    102

    Iowa L. Rev.

    2017, 2057 (2017) (

    observing that when Black women face aggressive encounters, particularly those fueled by stereotypes or biases, “they risk backlash from the aggressor (and possibly others)[,] and . . . they may ultimately be blamed for the encounter” (footnote omitted)); Laura Morgan Roberts, Anthony J. Mayo, Robin J. Ely & David A. Thomas, Beating the Odds, Harv. Bus. Rev.

    (Mar.–Apr. 2018), https://hbr.org/2018/03/beating-the-odds [https://perma.cc/9DKS-ZGHK] (noting that Black women often experience “hypervisibility” in professional settings, prompting “an inhibiting and potentially limiting self-consciousness”). ↑

  35. See Patricia A. Broussard, Unbowed, Unbroken, and Unsung: The Unrecognized Contributions of African American Women in Social Movements, Politics, and the Maintenance of Democracy, 25 Wm. & Mary J. Race Gender & Soc. Just. 631, 676 (2019) (“The black female body and intellect have been used as weapons against black women and have been used to portray them as less intelligent, less truthful, less moral, and less valuable than white men and women.”); Roberts et al., supra note 33 (underscoring that in business, “black women are sometimes made to feel as though they’re invisible[,]” and finding that some Black women professionals “report having been mistaken for secretaries or even members of the waitstaff when starting new jobs”); Rachel Thomas et al., McKinsey & Co., Women in the Workplace 2020, at 26, 28 (2020), https://wiw-report.s3.amazonaws.com/Women_in_the_Workplace_2020.pdf [https://perma.cc/CC95-RAFQ] (finding that, based on survey data, “Black women are less likely to feel supported at work during Covid-19” and ”are promoted more slowly than other groups of employees and are significantly underrepresented in senior leadership”); Zuhairah Washington & Laura Morgan Roberts, Women of Color Get Less Support at Work. Here’s How Managers Can Change That, Harv. Bus. Rev.
    (

    Mar. 4, 2019), https://hbr.org/2019/03/women-of-color-get-less-support-at-work-heres-how-managers-can-change-that [https://perma.cc/4FGS-ERMP] (reporting that “despite representing about 18% of the U.S. population, women of color represented only 4% of C-Level positions in 2018, falling far below white men (68%) and white women (19%)”). ↑

  36. Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment 204 (2d ed. 2000). ↑
  37. Id. ↑
  38. See Schulder & Kennedy, supra note 14, at xv–xvi. ↑
  39. Cynthia Greenlee, How Abortion Storytelling Was Born, Rewire News (Jan. 22, 2016), https://rewire.news/article/2016/01/22/abortion-storytelling-born/ [https://perma.cc/5EAH-W6F8]. ↑
  40. See Schulder & Kennedy, supra note 14, at 81. ↑
  41. Id. ↑
  42. Greenlee, supra note 38. ↑
  43. Randolph, supra note 26, at 174 (piecing together quotes from the trial transcript from Schulder & Kennedy, supra note 14, at 32–35). ↑
  44. See id. at 176. ↑
  45. Greenlee, supra note 38. ↑
  46. See Schulder & Kennedy, supra note 14, at 178. ↑
  47. Greenlee, supra note 38. ↑
  48. Schulder & Kennedy, supra note 14, at xvi. ↑
  49. Id. at xv. ↑
  50. See id. at 6–88. ↑
  51. See id. at 89–102. ↑
  52. See id. at 103–06. ↑
  53. See id. at xvi, 151–61 (responding to the argument that abortion propels Black Genocide). ↑
  54. See id. at 160, 199. ↑
  55. See The Modern African American Political Thought Reader: From David Walker to Barack Obama, supra note 2, at 317. ↑
  56. See id. at 318. ↑
  57. Id. ↑
  58. Schulder & Kennedy, supra note 14, at 160. ↑
  59. Id. at 156. ↑
  60. Id. at 185. ↑
  61. Id. at 161. ↑
  62. Randolph, supra note 26, at 178. ↑
  63. Id. ↑
  64. See Schulder & Kennedy, supra note 14, at 156. ↑
  65. See Collins, supra note 35, at 204. ↑
  66. Schulder & Kennedy, supra note 14, at 158. ↑
  67. Id. at 159. ↑
  68. Id.at 160. ↑
  69. Id. at 161. ↑
  70. See also Ziegler, supra note 25, at 316 (underscoring the efficacy of Kennedy’s arguments linking Black women’s access to abortion and contraception to Black liberation). ↑
  71. Collins, supra note 35, at 204. ↑
  72. Benita Roth, “Organizing One’s Own” as Good Politics: Second Wave Feminists and the Meaning of Coalition, in Strategic Alliances: Coalition Building and Social Movements 99, 110 (Nella Van Dyke & Holly J. McCammon eds., 2010). ↑
  73. Id. ↑
  74. Schulder & Kennedy, supra note 14, at 161. ↑
  75. Roth, supra note 71, at 105. ↑
  76. See id. at 107. ↑
  77. See id. at 108. ↑
  78. See id. at 109–10. ↑
  79. See Veronica Terriquez, Intersectional Mobilization, Social Movement Spillover, and Queer Youth Leadership in the Immigrant Rights Movement, 62 Soc. Probs. 343, 346 (2015). ↑
  80. Collins, supra note 35, at 204. ↑
  81. Id. ↑
  82. Id. ↑
  83. See id. ↑
  84. See id. ↑
  85. Id. ↑
  86. See supra Section I.A. ↑
  87. Schulder & Kennedy, supra note 14, at xvi. ↑
  88. Sepper & Dinner, supra note 6, at 126 n.279. ↑
  89. See Schulder & Kennedy, supra note 14, at 156 (emphasizing that “[a]t least three small groups of Black and Puerto Rican Women’s Liberation groups participated in plans” for “demonstration against abortion oppression”). ↑
  90. See id. at 158. ↑
  91. Id. at 161. ↑
  92. Id. at 160. ↑
  93. See Khiara M. Bridges, Elision and Erasure: Race, Class, and Gender in Harris v. McRae, in Reproductive Rights and Justice Stories 117, 118 (Melissa Murray, Katherine Shaw & Reva B. Siegal eds., 2019) (observing “that poor women of color bear the brunt of the Hyde Amendment,” Pub. L. No. 96-123, § 109, 93 Stat. 923, 926 (1979), which bars federal funding of abortion); Loretta J. Ross & Rickie Solinger, Reproductive Justice: An Introduction 54 (2017) (underscoring that “neither the Hyde Amendment nor the criminalization of the reproductive lives of poor women has been a major issue for mainstream reproductive rights organizations in the United States until very recently”). ↑
  94. See Schulder & Kennedy, supra note 14, at 160. ↑
  95. See id. (observing that “[e]nforced sterilization . . . has often been ordered in the case of welfare mothers, and has been used as well as a precondition for an abortion”). ↑
  96. Ross & Solinger, supra note 92, at 51. ↑
  97. Schulder & Kennedy, supra note 14, at 160. ↑
  98. Id. at 184. ↑
  99. Id. ↑
  100. Id. at 166. ↑
  101. Id. ↑
  102. 140 S. Ct. 2103, 2112–13 (2020) (holding that a Louisiana law requiring doctors who perform abortions to gain admitting privileges at a nearby hospital was unconstitutional). ↑
  103. Dahlia Lithwick, Women Are Being Written out of Abortion Jurisprudence, Slate (July 2, 2020), https://slate.com/news-and-politics/2020/07/abortion-supreme-court-women.html [https://perma.cc/H8BY-J6MB]; see also id. (observing that in recent abortion cases, women “are being read out of a theoretical dialogue about which kind of balancing tests the men prefer to administer”). ↑
  104. See Michele Goodwin, Policing the Womb: Invisible Women and the Criminalization of Motherhood 8 (2020) (“During the period 2010–15, state legislatures proposed and succeeded in enacting more regulations to restrict abortion and contraceptive access than in the prior three decades combined.”). ↑
  105. See K.K. Rebecca Lai & Jugal K. Patel, For Millions of American Women, Abortion Access Is out of Reach, N.Y. Times (May 31, 2019), https://www.nytimes.com/interactive/­2019/05/31/us/abortion-clinics-map.html [https://perma.cc/VEQ8-DBJR]. ↑
  106. Cassandra is a woman from Greek mythology whose prophetic warnings—which came true—went unheeded. See Cassandra, Britannica.com, https://www.britannica.com/topic/­Cassandra-Greek-mythology [https://perma.cc/3N3U-VV6Z] (last visited Dec. 28, 2020). ↑
  107. Kennedy, supra note 1, at 134, 136. ↑
  108. Audre Lorde, The Master’s Tools Will Never Dismantle the Master’s House, History Is a Weapon (1979), https://www.historyisaweapon.com/defcon1/lordedismantle.html [https://­perma.cc/U3JZ-NWNM]. ↑
  109. Id. ↑
  110. Kennedy, supra note 1, at 140. ↑
  111. Id. ↑
  112. See Lemann, supra note 16 (describing Kennedy’s activism on behalf of students protesting Harvard’s lack of women’s restrooms). ↑
  113. See Randolph, supra note 26, at 223 (observing that “Kennedy’s advocacy of inclusive coalitions, especially those among white women, black women, and black men, had been part of her politics since the 1950s”). ↑
  114. See Nora Ellman, State Actions Undermining Abortion Rights in 2020, Ctr. for Am. Progress (Aug. 27, 2020), https://www.americanprogress.org/issues/women/­reports/2020/08/27/489786/state-actions-undermining-abortion-rights-2020/ [https://perma.cc/R2ZC-FRYG]. ↑
  115. See Alexandra Svokos, Is Ginsburg’s Death the End of Roe v. Wade? This Time, Some Experts Say, It Could Be., ABC News (Sept. 21, 2020), https://abcnews.go.com/politics/ginsburgs-death-end-roe-wade-time-experts/story?id=73119646/ [https://perma.cc/5HL6-BFS7]. ↑
  116. See Randolph, supra note 26, at 168–69; see also 410 U.S. 113 (1973) (holding that a woman possesses a fundamental right to terminate her pregnancy by abortion). ↑
  117. See David Crary, Ginsburg’s Death Puts Roe v. Wade on the Ballot in November, AP News (Sept. 20, 2020), https://apnews.com/577f2ad123b356b47c801525ea4688be (discussing the potential overturning of Roe in light of Justice Ginsburg’s death). ↑
  118. See Ross & Solinger, supra note 92, at 56. ↑
  119. See Schulder & Kennedy, supra note 14, at 160. ↑
  120. Ross & Solinger, supra note 92, at 9. ↑
  121. Marie-Amélie George, Queering Reproductive Justice, 54 U. Rich. L. Rev. 671, 680 (2020). ↑
  122. See Ross & Solinger, supra note 92, at 47–48 (noting that “white advocates of legal and accessible contraception and abortion were often focused solely . . . on women’s right to prevent conception and unwanted births”). ↑
  123. See id. at 51, 53–54 (underscoring the barriers poor women face when trying to exercise reproductive freedom). ↑
  124. See id. at 54 (discussing advocacy to address “the serious limits of choice” for women of color). ↑
  125. See George, supra note 120, at 673 (underscoring the shared concerns between the reproductive rights and LGBTQ rights movements). ↑
  126. See The Modern African American Political Thought Reader: From David Walker to Barack Obama, supra note 2, at 317 (emphasizing Kennedy’s theory of hegemony of the oppressed). ↑
  127. See id. ↑
  128. See Barbara J. Cox, Refocusing Abortion Jurisprudence To Include the Woman: A Response to Bopp and Coleson and Webster v. Reproductive Health Services, 1990 Utah L. Rev. 543, 545 (underscoring scholars’ failure to include “any reference to the future harm to women who are prohibited from legal access to abortion”). ↑
  129. See Goodwin, supra note 103, at 4–5 (discussing heightened “attacks on women and surveillance of their bodies” in recent years). ↑
  130. Lithwick, supra note 102. ↑
  131. See Greenlee, supra note 38. ↑
  132. See id. ↑
  133. Pub. L. No. 96-123, § 109, 93 Stat. 923, 926 (1979) (barring federal funding of abortions for situations outside rape, incest, or risk to the mother’s life); see also Harris v. McRae, 448 U.S. 297, 326 (1980) (affirming the constitutionality of the Hyde Amendment). ↑
  134. Schulder & Kennedy, supra note 14, at 184 (criticizing “opponents of free abortions”). ↑
  135. See Skinner v. Oklahoma, 316 U.S. 535, 542 (1942) (striking down a statute that authorized coerced sterilization in the context of criminal sentencing, but expressly declining to overturn Buck v. Bell, 274 U.S. 200, 207 (1927), which held that Virginia’s compulsory sterilization program for institutionalized people with mental disabilities was constitutional); see also Miranda Bryant, Allegations of Unwanted ICE Hysterectomies Recall Grim Time in US History, Guardian (Sept. 21, 2020), https://www.theguardian.com/us-news/2020/sep/21/unwanted-hysterectomy-allegati­ons-ice-georgia-immigration (reporting the performance of unsolicited hysterectomies on women detained by United States Immigration and Customs Enforcement). ↑
  136. See Greenlee, supra note 38. ↑
  137. See Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 304 (1997) (observing the need to recognize “the essential relationship between liberty and equality” to advance reproductive justice for Black women). ↑
  138. See Sepper & Dinner, supra note 6, at 126 n.279. ↑
  139. Id. ↑
  140. See Traister, supra note 23, at 111. ↑
  141. See Kennedy, supra note 1, at 8 (“It’s interesting to speculate how it developed that in two of the most anti-feminist institutions, the church and the law court, the men are wearing the dresses.”). ↑
  142. See id. at 129 (“The lawyer . . . is analogous to a prostitute. The difference between the two is simple. The prostitute is honest . . . .”). ↑
  143. See id. at 132 (“Humanism that extends to Nixon is like people picnicking on the beach while others are drowning in the ocean.”). ↑
  144. Id. at 14. ↑
  145. Id. at 142. ↑
  146. Id. at 140 (emphasis added); see also id. at 6 (defending prostitution by observing that “to my knowledge, no one has ever died of a blow job”). ↑
  147. Patricia Burstein, Lawyer Flo Kennedy Enjoys Her Reputation as Radicalism’s Rudest Mouth, People Mag. (Apr. 14, 1975), https://people.com/archive/lawyer-flo-kennedy-enjoys-her-reputation-as-radicalisms-rudest-mouth-vol-3-no-14/ [https://perma.cc/Y8RZ-3KP9]. ↑
  148. See Broussard, supra note 34, at 670. ↑
  149. Angela Mae Kupenda, Letitia Simmons Johnson & Ramona Seabron-Williams, Political Invisibility of Black Women: Still Suspect but No Suspect Class, 50 Washburn L.J. 109, 111 (2010). ↑
  150. See id. at 112. ↑
  151. Moya Bailey & Trudy, On Misogynoir: Citation, Erasure, and Plagiarism, 18 Feminist Media Stud. 762, 762 (2018). ↑
  152. See Emily E. Petersen et al., Racial/Ethnic Disparities in Pregnancy-Related Deaths—United States, 2007–2016, 68 Morbidity & Mortality Wkly. Rep. 762, 762 (2019) (documenting the disproportionately high Black maternal mortality rate); Roberts, supra note 136, at 7 (detailing government policies aimed at curbing Black women’s fertility). ↑
  153. See Treva Lindsey, Black Women Have Consistently Been Trailblazers for Social Change. Why Are They So Often Relegated to the Margins?, Time (July 22, 2020), https://time.com/5869662/black-women-social-change/ [https://perma.cc/AWM7-N4RU]. ↑
  154. Christopher Lebron, The Invisibility of Black Women, Bos. Rev. (Jan. 15, 2016), http://bostonreview.net/race-literature-culture-gender-sexuality-arts-society/christopher-lebron-invisibility-black-women/ [https://perma.cc/AD44-6SWB]. ↑
  155. Id. ↑
  156. See Robin Young & Serena McMahon, #SayHerName Puts Spotlight on Black Women Killed by Police, WBUR (June 16, 2020), https://www.wbur.org/hereandnow/2020/06/16/­black-women-deaths-protests [https://perma.cc/NR73-DCXD] (discussing the #SayHerName campaign’s attempts to draw attention to Black women murdered by law enforcement). ↑
  157. Brittney Cooper, Eloquent Rage: A Black Feminist Discovers Her Superpower 2–3 (2018). ↑
  158. Id. at 3. ↑
  159. See Traister, supra note 23, at 67–79 (detailing the racist attacks on Michelle Obama and Maxine Waters in response to their political advocacy). ↑
  160. Grundhauser, supra note 15. ↑
  161. See supra Part I; see also Audre Lorde, The Uses of Anger, 9 Women’s Stud. Q. 7, 9 (1981) (“My anger has meant pain to me but it has also meant survival . . . .”). ↑
  162. Kennedy, supra note 1, at 134. ↑
  163. Traister, supra note 23, at 110. ↑
  164. See id. ↑
  165. See Broussard, supra note 34, at 675 (underscoring that the stereotyping of Black women is “used to maintain a status quo system that benefits those who seek to obfuscate the contributions of black women”). ↑
  166. See Kimberlé Williams Crenshaw & Andrea J. Ritchie, Afr. Am. Pol’y F., Say Her Name: Resisting Police Brutality Against Black Women 30 (2015), http://static1.squarespace.com/static/53f20d90e4b0b80451158d8c/t/560c068ee4b0af26f72741df/1443628686535/AAPF_SMN_Brief_Full_singles-min.pdf [https://perma.cc/S5SP-J7TT]. ↑
  167. See Cooper, supra note 156, at 273 (“[R]age can help us build things, too. The clarity that comes from rage should also tell us what kind of world we want to see, not just what kind of things we want to get rid of.”). ↑
  168. See Margot Lee Shetterly, Hidden Figures: The American Dream and the Untold Story of the Black Women Mathematicians Who Helped Win the Space Race (2016) (exploring the contributions of Black women scientists at NASA). ↑
  169. Isaiah Berlin, Political Liberty and Pluralism: Two Concepts of Liberty, in The Proper Study of Mankind: An Anthology of Essays 191, 228 (Henry Hardy & Roger Hausheer eds., 1997). ↑
  170. See generally Ronald Dworkin, A Matter of Principle 203 (1985) (noting that liberalism requires “that human beings must be treated as equals by their government, not because there is no right and wrong in political morality, but because that is what is right”). ↑
  171. Kennedy, supra note 1, at 14. ↑
  172. Id. at 132. ↑

Click on a link below to access the full text of this article. These are third-party content providers and may require a separate subscription for access.

©Virginia Law Review Association. All rights reserved.