Regulating for Birth Justice

Authors

• Jamille Fields Allsbrook Howard University School of Law

First Page

649

Abstract

Impacted persons have shared accounts of traumatic birthing experiences, and advocates have raised the alarm on the urgent need to advance birth justice. Despite this raised awareness, women and birthing people are still dying and suffering unnecessarily. Even more, systems are still structured to impede birthing choices, particularly those from marginalized communities such as Black and Indigenous women. Notably, over 80% of U.S. maternal deaths are preventable, according to federal government data. Ironically, the same laws and systems that have created, perpetuated, and tolerated birth injustices can be leveraged to move the country towards birth justice. On the national level, federal agencies are positioned to address complicated health care issues such as maternal health inequities, and executive branch interventions are a necessary complement to congressionally enacted laws and judicially created rights.

Congress has directed the Department of Health and Human Services (HHS) to advance the nation’s health and well-being, including pregnant andbirthing people. To illustrate, this Article outlines select statutory provisions granting federal administrative agencies the authority to act pursuant to the Affordable Care Act, Medicaid, and the Public Health Service Act statutes. This Article also outlines how the federal government has exercised existing authorities to improve health care access and quality, while also outlining how government actions have created and perpetuated maternal health inequities. Finally, this Article proposes policy recommendations for HHS, while also tracking how recent efforts threaten maternal health outcomes. Despite political and legal hurdles to regulatory and other administrative actions, there remains a path forward. The Supreme Court overturned the Chevron deference doctrine in Loper Bright Enterprises v. Raimondo and revived the major questions doctrine in West Virginia v. EPA. These cases represent a significant hurdle to a robust regulatory agenda, but the decisions are not insurmountable. There is no doubt that the shifting legal landscape will limit agencies’ ability to address maternal health inequities and no one action alone will solve the decades-old systemic failures. However, regulators can—and should—continue to move forward pursuant to clear statutory authorities and consistent with long-standing regulations. But, of course, there must be a functioning federal government to implement health laws, and gutting the federal government could be insurmountable. The dismantling of the federal government represents not only a failure to progress, but a retrenchment backwards, threatening pregnant people’s lives. Even more, a failure to stop the administrative state from crumbling is a birth justice issue and a public health concern. Through examining the maternal health crisis, this Article illustrates the human costs of allowing the administrative state to crumble.

Recommended Citation

Jamille Fields Allsbrook Howard University School of Law, Regulating for Birth Justice, 29 Lewis & Clark L. Rev. 649 (2026).
Available at: https://lawcommons.lclark.edu/lclr/vol29/iss4/2