Quasi-Colonial Bodies: An Analysis of the Reproductive Lives of Poor Black and Racially Subjugated Women


QUASI-COLONIAL BODIES: AN ANALYSIS OF
THE REPRODUCTIVE LIVES OF POOR BLACK
AND RACIALLY SUBJUGATED WOMEN

KHIARA M. BRIDGES*

This Article analyzes the relationship between the struggle for the
recognition of Black women's reproductive rights in the United States and
the fight for racial justice. Specifically, it argues that the problematization
of poor Black women's fertility--evidenced by the depiction of single
Black motherhood as a national crisis,1 the condemnation of poor Black
women who rely on public assistance,2 and the portrayal of their children as

* Center for Reproductive Rights-Columbia Law School Fellow 2008-2010. Ph.D.
(anthropology), Columbia University; J.D., Columbia Law School; B.A., Spelman College. I
would like to gratefully acknowledge the Wenner-Gren Foundation for Anthropological
Research for awarding me a generous grant to support my fieldwork research. Special thanks
to Chinyere Ezie for her editorial brilliance, Nick De Genova for his insight, Joe Risico for
his support, and Eva Cherniavsky, whom I have never met, but whose book, Incorporations,
was the inspiration for many of the arguments that appear in this Article.

Anxiety about single Black motherhood has existed for decades. In 1965, Senator
Daniel Moynihan (D-NY) sounded the alarm with his release of The Negro Family. This
report concluded that Black family life was "a tangle of pathology," due, in large part, to the
fact that unmarried Black mothers had assumed male roles-leading to a "matriarchal," and,
consequently, pathological-Black family. See DANIEL P. MOYNIHAN, THE NEGRO FAMILY:
THE CASE FOR NATIONAL ACTION 218-19 (1965).

2 A recent example of this condemnation can be found in Representative John

LaBruzzo's (R-LA) proposal to pay poor women to undergo tubal ligations. See Mark
Waller, LaBruzzo Sterilization Plan Fights Poverty: Tying Poor Women's Tubes Could Help
Taxpayers, Legislator Says, THE TIMES PICAYUNE (New Orleans, LA), Sept. 24, 2008, at I.
LaBruzzo's proposal conceptualizes the poor mother as a "dangerous demographic trend"
that responsible governments should seek to curb. Id. ("LaBruzzo said he worries that people
receiving government aid such as food stamps and publicly subsidized housing are
reproducing at a faster rate than more affluent, better-educated people who presumably pay
more tax revenue to the government."). When the poor mother is conceptualized as a
"human debit" with the ability to somehow transmit the germ of her dependency to her
offspring, her reproductive capacity may be justifiably precluded. See id. ("He described a
sterilization program as providing poor people with better opportunities to avoid welfare,
because they would have fewer children to feed and clothe."). Sociologist Loic Wacquant
offers a particularly useful description and analysis of the condemnation of poor mothers in
political and popular discourse. See Loic Wacquant, Decivilizing and Demonizing: The
Remaking of the Black American Ghetto, in THE SOCIOLOGY OF NORBERT ELIAS 95 (Steven
Loyal & Stephen Quilley eds., 2004). He argues that the poor mother, together with the



610 Columbia Journal of Gender and Law [Vol. 18:2

an embryonic "criminal class"3 -ought to be understood as a form of

figure of the "gang-banger," compose the iconography of the "underclass." Id. at 108.
Paradigmatic teenage mothers "subsist 'on the backs' of the taxpayer via receipt of social
assistance in large public housing estates [and] typically get photographed complacently
sitting doing nothing, infants sprawled across their knees, in front of their lit television sets."
Id. Poor mothers are condemned for the threat that they "pose for the integrity of American
values and the nation itself." Id. As Wacquant explains:

[T]he 'gang-bangers' represent moral dissolution and social
disintegration on the public side, in the streets; the 'welfare mothers' are
the bearers of the same dangers on the private side, inside the domestic
sphere .... [I]t is not so much their poverty and desperation that is a
problem as their social cost, which must be reduced by all means
necessary.

Id.

3 Some of the most damning evidence that the children of poor women are
conceptualized as the future scourges of the nation comes from the federal government. The
Personal Responsibility and Work Opportunity Reconciliation Act, which authorized the
replacement of the Aid for Families with Dependent Children social welfare program with
Temporary Aid for Needy Families (TANF), describes several "congressional findings" that
are offered in support of TANF's emphasis on encouraging poor mothers to marry. Readers
of the findings may be left with the impression that the children of welfare recipients are the
primary causes of any and all social malaise within the nation, as such children are described
as being "3 times more likely to be on welfare when they reach adulthood than children not
born into families receiving welfare," as having compromised "school performance and peer
adjustment," as having "lower cognitive scores, lower educational aspirations, and a greater
likelihood of becoming teenage parents themselves," as being "3 times more likely to fail
and repeat a year in grade school than are children from intact 2-parent families," as being "4
times more likely to be expelled or suspended from school," as living in neighborhoods with
"higher rates of violent crime," and as overpopulating the "[s]tate juvenile justice system."
See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No.
104-193, 110 Stat. 2105 (1996) (codified as amended in scattered sections of 42 U.S.C.
§601). Many scholars have criticized the marriage promotion provisions of TANF. See, e.g.,
Julia M. Fisher, Marriage Promotion Policies and the Working Poor: A Match Made in
Heaven?, 25 B.C. THIRD WORLD L.J. 475, 491 (2005) (arguing that enabling states to spend
TANF funds on non-poor families in order to promote marriage is a gross injustice to the
poor mothers who could benefit greatly from the monies); Judith E. Koons, Motherhood,
Marriage, and Morality: The Pro-Marriage Moral Discourse of American Welfare Policy,
19 WIS. WOMEN'S L.J. 1, 5-6 (2004) (conducting a "socio-theo-historical" evaluation of
moral keywords present in the debate surrounding welfare reform and TANF
reauthorization); Angela Onwuachi-Willig, The Return of the Ring: Welfare Reform's
Marriage Cure as the Revival of Post-Bellum Control, 93 CAL. L. REV. 1647, 1653 (2005)
(likening TANF's marriage promotion provisions to post-Civil War marriage laws, which
were used to "privatize responsibility for individual economic stability within the families of
newly-emancipated Blacks so that states' economic responsibility to provide for former
slaves would be minimized"); Cara C. Orr, Comment, Married to a Myth: How Welfare
Reform Violates the Constitutional Rights of Poor Single Mothers, 34 CHAP. L. REV. 211,
212 (2005) (arguing that TANF's marriage promotion provisions may violate beneficiaries'



2009] Quasi-Colonial Bodies 611

contempt for Black women's reproductive rights.4 Differently stated, the
lack of acknowledgment in legal, political, and popular discourse that
motherhood is a legitimate choice for poor Black women demonstrates that
their right to reproduce is disparaged. Further, this censure of poor Black
women's fertility ought to be understood not only as a failure of the
reproductive rights movement, but also as a matter of racial injustice. That
is, the struggle of poor Black women to have their reproductive choices
respected is a struggle for racial equality.

Conceptualizing Black women's reproductive rights struggles as a
racial injustice may seem counterintuitive. This is in part due to the
widespread exclusion of gender-related issues from social movements for
racial equality.5 Many Black feminists have noted that the paradigmatic
subject of racial justice movements has been the Black man, while the
paradigmatic subject of gender justice movements has been the White
woman.6 As political scientist Shatema Threadcraft recently commented,

fundamental right not to associate); Phoebe G. Silag, Note, To Have, To Hold, To Receive
Public Assistance: TANF and Marriage-Promotion Policies, 7 J. GENDER RACE & JUST. 413,
435-36 (2003) (critiquing the heteronormativity of TANF marriage promotion provisions
insofar as they "simply erase people who are involved in same-sex relationships" due to the
fact that "the federal government and many states have passed laws that define marriage as a
union between a man and a woman").

4 Representative LaBruzzo's proposal to pay poor women to sterilize themselves
should also be understood as an implicit condemnation of the children of poor women. While
the proposal aims to prevent the state from having to assist women with the costs of raising
their children, the proposal's more tacit aim is to prevent the state from having to assist the
children of poor women with the costs of raising their own children. See Waller, supra note
2, at I (quoting Rep. LaBruzzo's statement, "What I'm really studying is [sic] any and all
possibilities that we can reduce the number of people that are going from generational
welfare to generational welfare.").

5 For example, although "Health Advocacy" is one of ten initiatives articulated in
the National Association for the Advancement of Colored People's "Strategic Plan," it fails
to articulate a specific need for advocacy for the reproductive rights of Black women.
NAACP, Strategic Plan Initiatives, http://www.naacp.org/pdfs/about-strategicplan.pdf (last
visited Oct. 1, 2009).

6 Kimberld Crenshaw argued this point persuasively over a decade ago. She wrote,

"[R]acism as experienced by people of color who are of a particular gender-male-tends to
determine the parameters of antiracist strategies, just as sexism as experienced by women
who are of a particular race-white-tends to ground the women's movement." See
Kimberl6 Crenshaw, Mapping the Margins: Intersectionality, Identity, Politics, and Violence
Against Women of Color, 43 STAN. L. REV. 1241, 1252 (1991). Similarly, Angela Harris has
noted that "gender essentialism-the notion that a unitary, 'essential' women's experience
can be isolated and described independently of race, class, sexual orientation, and other
realities of experience," results in the experiences of White women being represented as the
experience of all women. See Angela P. Harris, Race and Essentialism in Feminist Legal



Columbia Journal of Gender and Law

"that our understanding of contemporary race problems is dominated by
issues of criminal justice and public education, and that our understanding
of gender politics assumes that the biggest struggles that women have faced
are around access to legitimate public roles, reveals troubling gender and
racial bias, respectively.",7

In a similar vein, legal theorist Dorothy Roberts recounts an
incident where she was asked to speak at a forum entitled Civil Rights
Under Attack. Recent Supreme Court Decisions.8 After giving a speech
addressing obstacles facing Black women in their struggle for reproductive
autonomy, Roberts was criticized by a male audience member, who
admonished her to "stick to traditional civil rights concerns, such as
affirmative action, voting rights, and criminal justice." 9 This list of civil
rights priorities reveals a Black male subject-the subject for whom matters
of racial justice have historically, and now intuitively, been thought to
concern. This paper seeks to regender the subject of racial justice
movements and to comprehend the denial of Black women's reproductive
rights as a contemporary race problem.

Two conceptualizations of race influence this paper. The first is a
commonsensical understanding of race, which conceives of it as a visually
distinct expression of phenotype. In Parts I and II, this definition of race
predominates. Thus, references to "Black women" here refer to women who
are Black because they possess the skin color, facial features, and hair
texture that are commonly associated with the "Black race."10 However,

Theory, 42 STAN. L. REV. 581, 585 (1990). Although antiracism has been limited, inasmuch
as it has failed to articulate the specific concerns of Black women, this limitation is not an
inherent one. Instead, this Article argues that the subject of such movements has been
unnecessarily circumscribed as male. When a female subject also comes to occupy the center
of such discourses, antiracism will be capable of advancing Black women's interests.

7 Shatema Threadcraft, Black Feminist Theory and the Post-Emancipation Struggle
for Intimate Equality (Nov. 1, 2008) (unpublished manuscript at 3, on file with author).

8 DOROTHY ROBERTS, KILLING THE BLACK BODY: RACE REPRODUCTION AND THE

MEANING OF LIBERTY 4-5 (1997).

91d. at 5.

10 It is worth noting that many theorists have challenged the idea of phenotypic

race, arguing that the conditions of inclusion in phenotypic racial groups-and, therefore,
who is deemed to be appropriately included within phenotypic racial groups-have been
contested and, likely, will continue to be contested. See e.g., Robert J. Cottrol, The Historical
Definition of Race Law, 21 LAW & SoC'Y REV. 865, 868 (1988) (describing an eighteenth
century Creole culture in Louisiana that racialized as "mulatto" French speaking persons of
Black and White ancestry-persons who would be racialized as "Black" according to Anglo-
American definitions of phenotypic race).

612 [Vol. 18:2



2009] Quasi-Colonial Bodies 613

subsequent Parts rely on a more expansive understanding of race-using the
term to denote categories of phenotypic expression as well as relative
stations of marginalization and privilege. As Cheryl Harris aptly explains:

"Black" and "White" signify ideological concepts and do not
operate as phenotypic markers . . . . [They] are relationally
constructed. Whiteness is the position of relative privilege
marked by distance from Blackness; Blackness, on the other
hand, is a legal and social construction of disadvantage and
subordination marked by the distance from White privilege.1'

Accordingly, Blackness is a position occupied not only by women
who are "Black" because their appearance accords with historical
understandings of race, but also those who, for sundry reasons, find
themselves disqualified from White privilege. Under this definition, poor
women, immigrant women, and women who receive welfare can all be
understood to occupy a certain degree of Blackness, irrespective of their
racial ascriptions. 12 This Article uses the term "racially subjugated

11 Cheryl I. Harris, Whitewashing Race: Scapegoating Culture, 94 CAL. L. REv.
907, 916 (2006). However, this binary ought to be complicated by the addition of a third
term-the "foreigner," historically occupied by the Native American. This complication is
discussed in Part I, infra, and even more expansively in Khiara M. Bridges, Wily Patients,
Welfare Queens, and the Reiteration of Race in the U.S., 17 TEX. J. WOMEN & L. 1 (2007);
see also Nicholas De Genova, Introduction: Latino and Asian Racial Formations at the
Frontiers of U.S. Nationalism, in RACIAL TRANSFORMATIONS: LATINOS AND ASIANS
REMAKING THE U.S. 1, 122 (Nicholas De Genova ed., 2006) (arguing that the figure of the
Native American as the inexorable savage that lay outside of the U.S. borders, together with
the figure of the African American as the subjugatable other within the borders, was essential
to the construction of Whiteness as synchronous with the nation).

12 There is a long line of thinkers that conceptualize race in this relatively radical
manner-that is, thinking of race as a mark of distance from privilege rather than as a
phenotypic expression. See, e.g., Barbara J. Flagg, Foreword: Whiteness as Metaprivilege,
18 WASH U. J.L. & POL'Y 1, 1, 6 (2005) (arguing that Whiteness has "the capacity to
disguise [unearned] privileges behind structures of silence, obfuscation and denial"); RUTH

FRANKENBERG, THE SOCIAL CONSTRUCTION OF WHITENESS: WHITE WOMEN, RACE MATTERS

1 (1999) ("[W]hiteness is a location of structural advantage, of race privilege."); Faye V.
Harrison, Introduction, Expanding the Discourse on Race, 100 AM. ANTHROPOLOGIST 609,
612 (1998) ("In this country as well as in many others, unfortunately, blackness has come to
symbolize the social bottom."); CHARLES W. MILLS, THE RACIAL CONTRACT 127 (1997)
("[W]hiteness is not really a color at all, but a set of power relations."); DAVID R. ROEDIGER,

THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS 136
(1991) [hereinafter ROEDIGER, WAGES OF WHITENESS] (studying how the Irish were initially
treated as a stigmatized minority group, and how they went on to achieve "whiteness,"
"entitling them to both political rights and to jobs"); DAVID R. ROEDIGER, TOWARDS THE

ABOLITION OF WHITENESS 12 (1994) (noting that "whiteness and Blackness" are not
"scientific (or natural) racial categories," but ideologies); John Tehranian, Performing



614 Columbia Journal of Gender and Law [Vol. 18:2

women"-referring to phenotypically Black women as well as unprivileged
women of all races-to denote this expanded notion of race. It is important
to note that this broad conception of race is not reducible to class; more
affluent women and men who are phenotypically Black are not stripped of
their Blackness by virtue of their wealth or education level. Stated
differently, Black racial ascription is a mark that, regardless of the class
status of the individual, disqualifies those so marked from enjoying the
privileges associated with Whiteness. 3 Accordingly, Blackness denotes the
experience of marginalization shared by all persons who, because of

Whiteness: Naturalization Litigation and the Construction of Racial Identity in America, 109
YALE L.J. 817, 819 (2000) (arguing that because one's status as a "white person" determined
the rights that one would have in the United States during much of the nation's history,
"[w]hiteness was transformed into a material concept imbued with rights and privileges").

13 That Black racial ascription, acting independently of class, disqualifies those
with such an ascription from the privileges enjoyed by "White persons" is demonstrated
most tangibly with reference to statistics documenting racial disparities in health. Infant
mortality for phenotypically Black babies is nearly two-and-a-half times higher than the rate
for phenotypically White babies. See Centers for Disease Control, Eliminate Disparities in
Infant Mortality, http://www.cdc.gov/omhd/AMH/factsheets/infant.htm (last visited Oct. 1,
2009). The maternal mortality rate for Black women is almost four times the rate than that
for White women. Centers for Disease Control, State-Specific Maternal Mortality Among
Black and White Women-United States, 1987-1996, MMWR WEEKLY, June 18, 1999, at
492, available at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm4823a3.htm. Moreover,
White men and women can be expected to live almost ten years longer than their Black
counterparts. See INST. OF MED., ADDRESSING RACIAL AND ETHNIC HEALTH CARE
DISPARITIES: WHERE Do WE Go FROM HERE? 3 (2005) [hereinafter INST. OF MED., HEALTH
CARE DISPARITIES]. Although Black people are disproportionately poorer than White people
in the United States-and are therefore more likely to be uninsured and, consequently, to
lack access to regular healthcare-poverty, alone, does not explain why Black people
experience higher rates of morbidity and mortality. See generally INST. OF MED., UNEQUAL
TREATMENT: CONFRONTING RACIAL AND ETHNIC DISPARITIES IN HEALTH CARE (2002). The
Institute of Medicine (IOM) found that "racial and ethnic minorities receive lower-quality
healthcare than White people-even when insurance status, income, age, and severity of
conditions are comparable." INST. OF MED., HEALTH CARE DISPARITIES, supra, at 3. "Lower-
quality health care" is not an amorphous, intangible concept; instead, it signifies the
concrete, inferior care that physicians give their Black patients. Other studies have shown
that African Americans are less likely to be offered similar therapeutic and non-therapeutic
health care options as are their White counterparts, such as cardiac catheterization, treatment
for early-stage malignancy, and adequate analgesia. See Margaret Harper et al., Why African
American Women are at Greater Risk for Pregnancy-Related Death, 17 ANNALS OF
EPIDEMIOLOGY 180 (2007). The IOM has spoken about the "uncomfortable reality [that] ...
some people in the United States were more likely to die from cancer, heart disease, and
diabetes simply because of their race or ethnicity, not just because they lack access to health
care." See INST. OF MED., HEALTH CARE DISPARITIES, supra, at 3. Racial disparities in health
suggest that Blackness is not reducible to class; indeed, the privilege denied to those with
Black racial ascription is often the "privilege" of remaining alive.



Quasi-Colonial Bodies

phenotype, belong to the socially constructed "Black race," as well as the
experience of those who lack privilege due to poverty or immigration status,
among other things. However, that said, this Article only discusses the
reproductive lives of poor women-leaving discussion about wealthy Black
women for another article.

This Article begins by discussing the obstetrics clinic of Alpha
Hospital, 4 a large public hospital in New York City where I conducted a
year of ethnographic field research. Noting the hostility and antipathy that
characterized interactions between clinic staff' 5  and their poor
(predominately phenotypically non-White) patients, this Article explores
the reproductive rights possessed by patients at the clinic-patients who
provoked condemnation and scorn by the mere fact of their pregnancies.
Therein, Part I questions the quality of the "reproductive rights" that poor
Black women possess, considering that their decision to procreate jettisons
them into a reviled and censured social position.

Part II goes on to examine the reproductive rights of poor, pregnant,
racially subjugated women by turning to Eva Cherniavsky's brilliant
exploration of capitalism and racialization-Incorporations: Race, Nation,
and the Body Politics of Capital.16 Through the lens of postcolonial theory,
Cherniavsky analyzes racial embodiment 17 as it occurs in capitalist
economic systems.'I Cherniavsky defines colonies not merely as sites of
capitalist expansion, but rather as sites where contradictory economic
systems collide and coexist. Under this view, racialized difference is
triggered, in part, by the imbrication of economic systems.' 9 This Part uses

14 Pursuant to standard ethnographic practice, this Article has attempted to protect
the identity of the Hospital through the use of a pseudonym.

15 By "staff," I refer to the various categories of workers who provide support

services for the clinic's physicians, midwives, and nurse practitioners. Accordingly, "staff'
refers to the predominately Black and Latina registered nurses, who can perform minimally
invasive procedures for patients (e.g., colposcopies, injections of prescribed medicines,
blood draws); to "Patient Care Associates," who assist the providers by weighing patients
before their examinations, taking their blood pressure, testing their urine for the presence of
glucose and protein, and scheduling follow-up appointments; and to administrative workers,
who work behind the reception desk and conduct patient intake.

16 EVA CHERNIAVSKY, INCORPORATIONS: RACE, NATION, AND THE BODY POLITICS

OF CAPITAL (2006).

17 The concept of embodiment is discussed below in infra notes 85-94.

IS CHERNIAVSKY, supra note 16, at 1-17.

'9 Id. at 8-11.

2009]



Columbia Journal of Gender and Law

Cherniavsky to argue that the Alpha Hospital obstetrics clinic resembles the
classic colony-an analogy that explains the racialization of the women
seeking healthcare there.

Moreover, Cherniavsky's work elucidates why the reproductive
rights and bodily integrity of Black and other racially subjugated women
are compromised at the moment of their exercise. Part III considers
Cherniavsky's argument that race ultimately signifies the ability or inability
of a body to defend itself against invasive market forces 20 -linking this
theory to the mandatory work requirements with which poor women are
forced to comply when they receive welfare. This Part criticizes these
programs for transforming the Black and racially-subjugated body into a
laboring body. A brief conclusion follows.

I. THE ALPHA OBSTETRICS CLINIC AND THE
REPRODUCTIVE RIGHTS OF POOR, BLACK WOMEN

Once described as the "best shot at public health care in the
country,"2' Alpha Hospital serves as the backdrop to this Article's
ruminations on reproductive rights and racial justice. The vast majority of
patients who receive care from Alpha, and who specifically receive care
from Alpha's overtaxed obstetrics clinic, are Black and Latina women,
including many undocumented immigrants. 22  However, Alpha is
remarkable for the sheer diversity of its patients: on any given day, English,
Spanish, Arabic, Mandarin, Cantonese, Bengali, French, and Hindi can be
overheard in the halls and waiting rooms of the hospital. Most pregnant
patients at Alpha are poor, and almost all rely upon Medicaid-specifically
the Prenatal Care Assistance Program (PCAP) 23 -to cover the costs of their
prenatal healthcare expenses.

20 Id. at xvii.

21 Personal communication with Rayna Rapp, Professor of Anthropology, New

York University, in New York, N.Y. (May 2008).

22 Phenotypically White women were a small minority of the women served in the

Alpha obstetrics clinic. These patients tended' to be undocumented immigrants
themselves-women from Poland, Russia, and the former Soviet Union who had overstayed
their visas.

23 The Prenatal Care Assistance Program (PCAP) is a special program within the

New York State Medicaid program that provides comprehensive prenatal care services to
otherwise uninsured or underinsured women. N.Y. STATE DEP'T OF HEALTH, PRENATAL CARE
ASSISTANCE PROGRAM (PCAP): MEDICAID POLICY GUIDELINES MANUAL 5 (2007), available
at http://www.emedny.org/ProviderManuals/Prenatal/PDFS/Prenatal-PolicySection.pdf
[hereinafter PCAP POLICY MANUAL]. PCAP is a generous extension of the Medicaid

616 [Vol. 18:2



2009] Quasi-Colonial Bodies 617

From May 2006 until September 2007, I conducted ethnographic
research in the obstetrics clinic, participating in and observing its quotidian
life.24 The vantage point from which I made my observations was ever-
shifting-moving from the waiting areas to the receptionists' intake desk, to
the nurses' triage rooms, to physicians' and midwives' examination rooms,
to the offices of social workers, nutritionists, geneticists, health educators,
and Medicaid financial officers. Over the course of my research, I compiled
over 120 hours of in-depth interviews with patients, staff, and providers
who were kind enough to let me ask questions about their experiences at
Alpha and, with respect to resident doctors, their experiences at Omega
Hospital, the private hospital where they spent half of their time.25

Elsewhere I have described the enmity that characterized the
relationship between Alpha staff and their patients.26 In that piece, I
concluded that patient-staff hostility-a banality that could be observed
whenever one spent more than a passing moment in the hospital-stemmed
from the fact that Alpha patients were viewed by the staff as uneducated
and unintelligent, yet exceptionally crafty manipulators of the Alpha
"system., 2 7 These contradictory characteristics yielded the fiction of the
"wily patient"-a figure who, although dim-witted and simple-minded, is
nonetheless capable of shrewdly exploiting the hospital and gaining
undeserved healthcare.28 The wily patient parallels the fictive "welfare

program insofar as it is available to undocumented immigrant women as well as women who
earn up to 200% of the federal poverty level and who would otherwise be ineligible for
Medicaid. Id. at 5. With PCAP insurance, the pregnant woman can avail herself of not solely
obstetrical services, but also the wide range of other healthcare services covered by Medicaid
insurance, including dental, optometric, and dermatologic care. See N.Y. STATE DEP'T OF

HEALTH, A HEALTHY BABY STARTS WITH A HEALTHY PREGNANCY (2008), available at
http://www.health.state.ny.us/nysdoh/pcap/index.htm. PCAP coverage terminates eight
weeks after the woman gives birth. PCAP POLICY MANUAL, supra, at 5.

24 This research was made possible by a generous grant from the Wenner-Gren

Foundation for Anthropological Research. Alpha became my field site through the help of
Professor Rayna Rapp, author of Testing Women, Testing the Fetus (1999), and an expert in
the field of medical anthropology.

25 Residents split their residency between the public Alpha Hospital and the private
Omega Hospital, a hospital owned and operated by the Omega University School of
Medicine. My research was only authorized at Alpha Hospital. As a result, I acquired
information about Omega not through direct observation, but rather through second-hand
sources.

26 See Bridges, supra note 11, at 2-3.

27 Id. at 3.

28 id.



618 Columbia Journal of Gender and Law [Vol. 18:2

queen"-a similarly uneducated and unintelligent woman with the uncanny
ability to exploit government beneficence and obtain undeserved cash
assistance. That article argued that the welfare queen and wily patient
parallel one another because the wily patient is the welfare queen as she is
envisioned in the context of a public hospital's obstetrics clinic, where poor

29women get "free" prenatal care to support their "illegitimate" pregnancies.

A. Wily Patients, Welfare Queens, and the Reproductive Rights of Poor
Black Women

Temporary Aid for Needy Families (TANF),3 ° the federal program
that provides cash assistance to poor families, reinforces the welfare queen
trope by describing and treating its beneficiaries as problematic subjects.
While TANF extends government assistance to poor mothers, it does so
only begrudgingly: the unambiguous intent of the statute is not to support
poor mothers, but rather to discipline them and eradicate the shameful
qualities they are thought to possess. 31 In seeking out government
subsidized prenatal care, wily patients become suspected welfare queens-
women whose pregnancies are not read as positive events, 32 but rather are

291d. at 31.

30 42 U.S.C.S. § 601 et seq. (LexisNexis 1997). Temporary Aid for Needy Families

is a federal block grant program that replaced Aid for Families with Dependent Children
(AFDC) and provides cash assistance to indigent families. TANF, heralded as the "end of
welfare as we know it," contains provisions that prohibit the disbursement of funds to an
individual for more than sixty consecutive or non-consecutive months, 42 U.S.C.S. §
608(a)(7) (LexisNexis 1997), as well as provisions that require beneficiaries to work outside
of the home. 42 U.S.C.S. § 607 (LexisNexis 1997). This Article explores the specificities of
this latter characteristic of TANF in Part II1.

3" See 42 U.S.C.S. § 601(a)(2) (stating that the purpose of the statute is to prevent
out-of-wedlock pregnancy as well as ending "the dependence of needy parents on
government benefits by promoting job preparation, work, and marriage").

32 See ROBERTS, supra note 8, at 9 ("White childbearing is generally thought to be

a beneficial activity: it brings personal joy and allows the nation to flourish."). Roberts goes
on to describe childbearing by Black women as "a form of degeneracy. Black mothers are
seen to corrupt the reproduction process at every stage." Id. (emphasis omitted). There is a
large literature on the different meanings that attach to reproduction for White and non-
White women. See, e.g., Bridges, supra note 11, at 43 (describing the condemnation of the
fertility of a population of women because of their status as poor women of color); Faye D.
Ginsburg & Rayna Rapp, Introduction to CONCEIVING THE NEW WORLD ORDER: THE
GLOBAL POLITICS OF REPRODUCTION 1, 3 (Faye D. Ginsburg & Rayna Rapp eds., 1995)
("Low-income African American mothers . . . are stereotyped as undisciplined 'breeders'
who sap the resources of the state through incessant demands on welfare .... [T]he concept
of stratified reproduction helps us see the arrangements by which some reproductive futures



2009] Quasi-Colonial Bodies 619

understood as the means that will enable the women to manipulate
government systems. The pregnancies of these indigent wily patients make
the welfare queen possible; pregnancy is the condition precedent of the
"lamentable" TANF apparatus. 33 Accordingly, the pregnant wily patients at
Alpha are treated with the same disdain that society shows for welfare
queens.

In essence, staff contempt toward Alpha obstetrics clinic patients
can be understood as a reflection of political and popular disgust of mothers
who rely on the welfare state. The welfare queen and the wily patient are
symbols of delegitimized motherhood. Because motherhood for the poor
woman-particularly the poor, unmarried woman-has traditionally been
construed as an illegitimate choice, Alpha staffers treat their pregnant
patients as legitimate objects of scorn.34 Patient-staff acrimony can thus be
explained as a contest over the propriety of the poor woman's claim to the
identity of "mother."

Yet, given the high cost of private prenatal care, the Alpha
obstetrics clinic and Medicaid's Prenatal Care Assistance Program (PCAP)
help poor, pregnant women realize their reproductive capacities-that is,
the basic ability to procreate. 35 Without access to public funding, the ability

are valued while others are despised."); Leith Mullings, Households Headed by Women. The
Politics of Race, Class, and Gender, in CONCEIVING THE NEW WORLD ORDER, supra,
(arguing that "[w]omen as mothers-who are involved in both biological and cultural
reproduction-become master symbols of family, race, and civility, and are central to the
authorized definition of the national community," and consequently, "[w]hen boundaries are
threatened, rhetoric about fertility and pollution escalates, and native Euro-American
women, preferably those of the dominant class, are exhorted to have children"); RICKIE
SOLINGER, WAKE UP LITTLE SUSIE: SINGLE PREGNANCY AND RACE BEFORE ROE V. WADE 8-9
(1992) (arguing that White unwed pregnant women were perceived as having the "potential
to become a wife and mother in the post-crisis phase of her life" and noting that these
women escaped condemnation because they were thought to be "in the process of producing
a white baby of value on the postwar adoption market," while Black unwed mothers, in
contrast, "were often portrayed by politicians, sociologists, and others in the postwar period
as unrestrained, wanton breeders, on the one hand, or as calculating breeders for profit on the
other"); RICKIE SOLINGER, PREGNANCY AND POWER: A SHORT HISTORY OF REPRODUCTIVE

POLITICS IN AMERICA 28-46 (2005) (describing how African and Native American
reproduction was degraded at the dawn of the founding of the nation).

33 For further discussion, see Bridges, supra note 11, at 31.

34 See MOYNIHAN, supra note 1, at 35 (saying "Negro children without fathers
flounder-and fail"); see also supra notes 2-4 and accompanying text.

35 The relationship between prenatal care and low infant and maternal mortality

and morbidity has been well-established in the sociomedical literature. A monograph
released in 1994 by the Centers for Disease Control surveyed the existing research pertaining
to prenatal healthcare and birth outcomes and found that the evidence overwhelmingly



620 Columbia Journal of Gender and Law [Vol. 18:2

of poor women to have safe and healthy pregnancies would be substantially
eroded-leaving them with a theoretical reproductive right to bear children,

36secured by the Constitution, but little else. However, describing the

indicated the significance of prenatal care to the health of the infant and mother. See John L.
Kiely & Michael D. Kogan, Reproductive Health of Women: Prenatal Care, in FROM DATA

TO ACTION: CDC's PUBLIC HEALTH SURVEILLANCE FOR WOMEN, INFANTS, AND CHILDREN

105 (Lynne S. Wilcox & James S. Marks eds., 1994), available at
http://www.cdc.gov/Reproductivehealth/ProductsPubs/DatatoAction/DataToAction.htm
(noting that "Adequate use of prenatal care has been associated with improved birth weights
and the amelioration of the risk of preterm delivery. Inadequate use of prenatal care has been
associated with increased risks of low-birth-weight births, premature births, neonatal
mortality, infant mortality, and maternal mortality."). The importance of prenatal care in
preventing poor birth outcomes is especially true for low-income women. See id. at 105
("Several researchers have suggested that the beneficial effects of prenatal care are strongest
among socially disadvantaged women.") (citations omitted). However, it is important that
prenatal care not be understood as always synonymous with highly medicalized,
intervention-driven care, which I have criticized elsewhere. Khiara M. Bridges, Pregnancy,
Medicaid, State Regulation, and the Production of Unruly Bodies, 3 Nw J. L. & Soc. POL'Y
62, 99 (2008) (arguing that because the prenatal care provided by the state through Medicaid
is delivered in accordance with a highly technological, biomedical paradigm of pregnancy,
poor women are produced as possessors of "unruly bodies," resulting in a "medicalization of
poverty," with poor people "treated as biological dangers within the body politic"). Some
scholars have argued that the therapeutic effects of prenatal care are not a result of medical
intervention as such, but rather result from the creation of communities for pregnant women.
For example, Alexander and Korenbrot have noted that "(w]hile lack of prenatal care has
been highly associated with low birth weight in numerous studies, this relationship has been
difficult to understand from a medical point of view as it has been observed that there is little
done during the standard prenatal care visit that could be expected to reduce low birth
weight." See Greg R. Alexander & Carol C. Korenbrot, The Role of Prenatal Care in
Preventing Low Birth Weight, in THE FUTURE OF CHILDREN 103, 113 (Greg R. Alexander &
Carol C. Korenbrot eds., 1995). The authors conclude that "[t]he ultimate success of prenatal
care in reducing current low birth weight percentages in the United States may hinge on the
development of a much broader and more unified conception of prenatal care than currently
prevails. It has yet to be explored if interventions focused on building cohesive, functional
communities can do as much or more to provide women effective social support and a
caring, safe environment." Id. at 113-14.

36 It should be noted that the reproductive rights of poor women are rather anemic

within current interpretations of the Constitution and are, in practice, dramatically different
from non-poor women's reproductive rights. The Court has found that, although women
have the right to seek an abortion under Roe v. Wade, 410 U.S. 113, 154 (1973), the
government is not obliged to help indigent women realize the right if they do not have the
money to pay for an abortion. See Maher v. Roe, 432 U.S. 464, 470 (1977) (holding that the
Connecticut Medicaid program did not violate the Constitution by denying funds for
nontherapeutic abortions); Harris v. McRae, 448 U.S. 297, 317 (1980) (holding that the
Hyde Amendment, which prohibits the use of federal Medicaid funds to pay for poor
women's abortions-including those that are "medically necessary"-does not violate the
Constitution). The abortion right is a negative right of governmental nonintervention, not a
positive right to government assistance. See Maher, 432 U.S. at 473-74 (arguing that the



Quasi-Colonial Bodies

pregnancies of Alpha patients, and PCAP patients more generally, as an
exercise of reproductive rights is perhaps a misnomer. Although privileged
White women garner the "legitimate intimate identity" of mother when they
bear a child, 37 poor Black women become objects of disdain.38 Put in the
context of lived reality-a context made knowable by ethnographic
research-the reproductive rights that poor Black women possess are
inverted rights: rights which disenfranchise and take possession of the
rights-holder when materially enacted by her body. To the extent that this is
a "right" at all, it is one that poor Black women exercise at their peril.39

abortion right only "protects the woman from unduly burdensome interference with her
freedom to decide whether to terminate her pregnancy"); Harris, 448 U.S. at 316
("[A]lthough government may not place obstacles in the path of a woman's exercise of her
freedom of choice, it need not remove those not of its own creation. Indigency falls in the
latter category. The financial constraints that restrict an indigent woman's ability to enjoy the
full range of constitutionally protected freedom of choice are the product not of
governmental restrictions on access to abortions, but rather of her indigency."). Accordingly,
the federal and state governments have no affirmative obligation to pay for abortion services
to poor women.

Moreover, the Court has never found that an affirmative right to prenatal care
exists within the Constitution. Fortunately, the question has been, for the most part,
irrelevant because states, if electing to participate in the Medicaid program by receiving
federal funds under Title XIX, must provide prenatal care as part of their individual
programs of medical assistance. See 42 U.S.C.S. § 1396a(a)(10)(c)(iii)(ll) (LexisNexis 2009)
(providing that participating states' medical assistance programs must include "prenatal care
and delivery services"). However, under the reasoning of Maher and Harris, if the federal
government elected to amend Title XIX and eliminate funding for prenatal care for poor
women, it is unlikely that the Court would find the amendment unconstitutional, for it is
unlikely that the Court will find the government has an affirmative obligation to pay for
prenatal care. See Maher, 432 U.S. at 469 ("The Constitution imposes no obligation on the
States to pay the pregnancy-related medical expenses of indigent women, or indeed to pay
any of the medical expenses of indigents.").

37 See Threadcraft, supra note 7, manuscript at 2.

38 See supra notes 1-2, and accompanying text.

39 The use of "reproductive rights" here may be different from its use by legal
practitioners and academics. Whereas "reproductive rights" commonly refers to a
constellation of freedoms, the phrase is used narrowly here, only referring to a woman's
entitlement to bear a child if she so desires, despite what others may desire. See, e.g., Center
for Reproductive Rights, Our Mission, http://reproductiverights.org/en/about-us/mission (last
visited Oct. 1, 2009) (defining "reproductive rights" not only as the freedom "to decide
whether and when to have children," but also the right "to have access to the best
reproductive health care available," as well as the right to "exercise . . . choices without
coercion"). Further, although this Article is critical of describing that which poor Black
women presently possess as "reproductive rights"-inasmuch as, in theory, they appear
comparable to the rights possessed by their privileged counterparts, while, in practice, the

2009]



622 Columbia Journal of Gender and Law [Vol. 18:2

Moreover, as I argued at the start of this Article, the false promise of poor
Black women's reproductive rights is not just a failure of the women's
movement; it is a failure of racial justice.

The Alpha obstetrics clinic, however, exemplifies more than just
the mutually constitutive nature of reproductive rights and racial injustices.
It is also a site where the critical scholar can observe the reproduction of
race-that is, the reiteration of racialized differences and the meanings that
attach to them. The argument that the Alpha obstetrics clinic is a site where
racial reproduction can be observed assumes that race is not a biological
essence possessed by genetic fiat, 40 but rather that it is a social construction

exercise of poor Black women's "rights" produces a vastly dissimilar discursive result-this
Article is not advocating for the dissolution of "reproductive rights" discourse. Patricia
Williams' argument in favor of the continued utility to the dispossessed of rights discourse,
as opposed to a discourse of "needs" that was advanced by many scholars within the Critical
Legal Studies movement, is convincing. See Patricia Williams, Alchemical Notes:
Reconstructing Ideals from Deconstructed Rights, 22 HARV. C.R.-C.L. L. REV. 401, 409-10
(1987). She writes that although rights might be unstable, indeterminate, and "overlaid with
capitalist connotations of oppression, universalized alienation of the self, and excessive
power of an external and distancing sort," for those who have had to exist within this nation
without rights, it is incredibly transformative to be able to assert a right. Id. at 414. She goes
on to say:

For the historically disempowered, the conferring of rights is symbolic of
all the denied aspects of humanity: rights imply a respect which places
one within the referential range of self and others, which elevates one's
status from human body to social being. For blacks, then, the attainment
of rights signifies the due, the respectful behavior, the collective
responsibility properly owed by a society to one of its own.

Id. at 416. Accordingly, this Article cannot, in good faith, argue that because of the vastly
dissimilar results that accompany the exercise of (narrowly understood) reproductive rights
by poor, Black women and their wealthier complements, we need to replace the language of
"reproductive rights" with "reproductive needs" or some other alternative. Rather, the
reproductive rights of the poor and non-poor ought to be made equivalent to one another. A
first step towards achieving this goal is to recognize their present dissimilarity.

40 In 1998, the American Anthropological Association issued a Statement on

'Race' that might be understood as representative of philosophies that deny the biological
basis of race while maintaining its social origins. The statement attempts to expiate some of
the guilt that the discipline of anthropology carries as a result of its complicity with
colonialism and the idea of race as radical difference locatable in the biology of individuals.
Specifically, it states:

With the vast expansion of scientific knowledge in this century ... it has
become clear that human populations are not unambiguous, clearly
demarcated, biologically distinct groups. Evidence from the analysis of
genetics (e.g., DNA) indicates that most physical variation, about 94%,
lies within so-called racial groups. Conventional geographic "racial"



2009] Quasi- Colonial Bodies 623

that can be produced through institutional operations. 41 To elaborate
further: I began fieldwork at Alpha with the purpose of examining the
mechanisms by which race is maintained as a relevant category of

groupings differ from one another only in about 6% of their genes. This
means that there is greater variation within "racial" groups than between
them. In neighboring populations there is much overlapping of genes and
their phenotypic (physical) expressions.

AM. ANTHROPOLOGICAL ASS'N, STATEMENT ON "RACE" (1998)
http://www.aaanet.org/stmts/racepp.htm. The statement offers race as a social "invention,"
reflecting the scholarship of those that argue that "'race' as it is understood in the United
States was a social mechanism invented during the eighteenth century to refer to those
populations brought together in colonial America: the English and other European settlers,
the conquered Indian peoples, and those peoples of Africa brought in to provide slave labor."
Id. This understanding of race is the platform from which this Article analyzes the
production of race and the reiteration of racial inequalities.

4 1 For several decades, social constructionists have been convincingly arguing that
"races" are the products of social, and not biological, processes. Socio-cultural
anthropologist Kamala Visweswaran offers a particularly poignant formulation of this
argument:

The middle passage, slavery and the experience of racial terror produce a
race of African Americans out of subjects drawn from different cultures.
Genocide, forced removal to reservations, and the experience of racial
terror make Native American subjects drawn from different linguistic
and tribal affiliations: a race. War relocation camps, legal exclusion, and
the experience of discrimination make Asian American subjects drawn
from different cultural and linguistic backgrounds: a race. The process of
forming the southwestern states of the United States through conquest
and subjugation and the continued subordination of Puerto Rico
constitute Chicanos and Puerto Ricans as races.

Kamala Visweswaran, Race and the Culture ofAnthropology, 100 AM. ANTHROPOLOGIST 70,
78 (1998). See also Robert S. Chang, Critiquing 'Race'and Its Uses: Critical Race Theory's
Uncompleted Argument, in CROSSROADS, DIRECTIONS, AND A NEW CRITICAL RACE THEORY

87, 87, 89 (Francisco Valdes et al. eds., 2002) (noting that the phrase "[r]ace is a social
construct" has become a "mantra," and pondering why social construction has not "caught
on"); FRANKENBERG, supra note 12, at 6 (examining how Whiteness is constructed by
interviewing White women who have lived their lives with racial privilege); Ian F. Haney-
Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and
Choice, 29 HARV. C.R.-C.L. L. REv. 1, 11, 27 (1994) (rejecting biological race and
concluding that "[r]ace must be viewed as a social construction"); IAN F. HANEY-LOPEZ,

WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE 7 (1997) (exploring the ways in which
the law helped to produce the "White race" via a study of several naturalization cases and
arguing "that to say that race is socially constructed is to conclude that race is at least
partially legally produced"); ROEDIGER, WAGES OF WHITENESS, supra note 12, at 13
(documenting how the Irish came to be socially constructed as "White").



Columbia Journal of Gender and Law

experience in the United States. If race is a social construct, how is it
constructed? By what processes? By what means? I proceeded from the
assumption that race is constructed all the time-all day, every day. Hence,
I approached the obstetrics clinic at Alpha as a site (among, probably, an
infinite number of sites) of the social construction of race-a location
where phenotypic differences are given racialized meanings and persons are
treated accordingly. I was not interested in giving an account of when
people are first perceived or treated as belonging to a particular race; nor
was I interested in giving an account of when people first identify with a
particular race or acquire a racial subjectivity. Instead, I aimed to tell a story
about racialization processes-processes that can be duplicated (and
contradicted) several times over the course of a day and boundless times
over the course of an individual's life. So, while Alpha obstetrics patients
are racialized during many other areas of their lives, they are most certainly
racialized when at Alpha Hospital. Alpha, then, could be studied as a site of
the reiteration, or reproduction, of race.

Given this background, Part II analyzes how and why race is
reproduced when women attempt to exercise their reproductive rights at
Alpha. This Article now turns to Eva Cherniavsky's treatise,
Incorporations, as the theoretical groundwork for these explorations.42

II. THE (RE)PRODUCTION OF RACE:
ALPHA AS A QUASI-COLONY

Eva Cherniavsky takes on the project of using subaltern studies-a
discipline which has traditionally examined the extra-territorial colonized
peoples outside of the colonial power-to analyze U.S. history as well as
current events.43 Her aim is to construct a conceptual framework through

42 
CHERNIAVSKY, supra note 16, at 1-17.

43 Id. at 1-3. The school of "subaltern studies" began in the 1970s when a motley
crew of "marginalized academics-graduate students yet to complete their dissertations, two
or three very young scholars only recently admitted to the teaching professions, and an older
man stuck at its lowest rung apparently for good"-confronted what they perceived to be
major problems in studies of colonial India: histories of India focused on colonial authorities
and dominant groups of the indigenous society to the exclusion of the non-elite majority.
RANAJIT GUHA, Introduction to A SUBALTERN STUDIES READER: 1986-1995, ix, xiv (Ranajit
Guha ed., 1997) [hereinafter GUHA, SUBALTERN STUDIES READER]. The scholars in the new
discipline of "subaltern studies" define "subaltern" as those "classes and groups constituting
the mass of the labouring population and the intermediate strata in town and country-that
is, the people." See Ranajit Guha, On Some Aspects of the Historiography of Colonial India,
in SUBALTERN STUDIES 1: WRITINGS ON SOUTH ASIAN HISTORY & SOCIETY 1, 4 (Ranajit Guha
ed., 1982). Subaltern studies scholars have strived to make "the subaltern" central to Indian
historiography. By taking the subaltern as the point of departure for investigations of India's

[Vol. 18:2



2009] Quasi-Colonial Bodies

which to map "the colonial dimensions of metropolitan life in Europe and
North America, ' '44 or the historic inside of colonial power. Cherniavsky
situates "subaltern studies in a U.S. frame, 45 by refusing to conceive of

colonial past and postcolonial present, subaltern studies would not only avoid marginalizing
"the people" (again), but it would also reveal new, previously overlooked sites of politics,
rebellion, and resistance. See GUHA, SUBALTERN STUDIES READER, supra, at xvi-xxi.

For examples of formative subaltern studies scholarship, see SHAHID AMIN, EVENT,
METAPHOR, MEMORY: CHAURI CHAURA 1922-1992, at 94-95 (1995) (looking for evidence
of the subaltern in legal texts); Edward Said, Foreword to SELECTED SUBALTERN STUDIES V,
vi (Ranajit Guha & Gayatri Chakravorty Spivak eds., 1988) (defining the "subaltern" as "the
emergent class of the much greater mass of people ruled by coercive or sometimes mainly
ideological domination from above"); Gayatri Chakravorty Spivak, Subaltern Studies:
Deconstructing Historiography, in SELECTED SUBALTERN STUDIES 11 (Ranajit Guha &
Gayatri Chakravorty Spivak eds., 1988) (noting that although the purpose of subaltern
studies is to recover the voice of the subaltern in the annals of history, the task is frequently
thwarted because the subaltern voice is usually, if not always, mediated by the voices of the
dominant groups and classes); Gayatri Chakravorty Spivak, Can the Subaltern Speak?, in
MARXISM AND THE INTERPRETATION OF CULTURE 271, 308 (Cary Nelson & Lawrence
Grossberg eds., 1988) (concluding that the subaltern cannot speak, because if they could,
they would not be subaltern).

Although subaltern studies began with examinations of the specific case of
colonialism in South Asia, it has expanded to include inquiries of colonialism in Latin
America and the United States. See generally JOHN BEVERLEY, SUBALTERNITY AND
REPRESENTATION: ARGUMENTS IN CULTURAL THEORY 5-24 (1999) (reflecting on the
similarities and differences between the South Asian Subaltern Studies Group and the Latin
American Subaltern Studies Group); Eva Cherniavsky, Subaltern Studies in a U.S. Frame,
23(2) BOUNDARY 85, 94 (1996) (arguing that subaltern studies might be applied to
investigations of the U.S., enabling scholars to see similarities between colonization in South
Asia via extra-territorial dominance and colonial practices of and in the United States, as
marked by imperialism on U.S. soil).

44 CHERNIAVSKY, supra note 16, at 9.

45 An important component to Cherniavsky's argument is the conceptualization of
the U.S. as a colonial power, this despite ideas of U.S. exceptionalism that have argued
against understanding the United States as having ever engaged in colonialism. See, e.g.,
Ann Laura Stoler, Tense and Tender Ties: The Politics of Comparison in North American
History and (Post) Colonial Studies, 88 J. AM. HIST. 829, 833 (2001) (citing Amy Kaplan,
'Left Alone with America': The Absence of Empire in the Study of American Culture, in

CULTURES OF UNITED STATES IMPERIALISM 3-21 (Amy Kaplan & Donald E. Pease eds.,
1993)) (discussing scholarship that suggested the existence of a "'resilient paradigm' of
United States domestic and foreign scholarship . . . [that] cordoned off empire as a 'mere
episode' in American history, little more than a twenty-year blip on the democratic and
domestic national horizon," which, in turn, resulted in the "absence of empire from the study
of American culture, and an absence of the United States from postcolonial studies of
empire"). Cherniavsky's argument that colonialism necessitates the interface of incongruent
economic modalities holds true when applied to the antebellum U.S.-providing further
support for the position that the United States has indeed engaged in colonialism. She notes



Columbia Journal of Gender and Law

colonialism as simply a stage in the development of capitalism--or
alternately, a mechanism by which the capitalist modem state may
"generalize itself' throughout the world.46 Instead, Chemiavsky emphasizes
that, as realized at specific sites throughout history, colonialism has not
been coextensive with the logic of capitalism. 47 She explains, "rather than
one particular form of capitalist expansion (among others) ... colonialism
represents an expansion of capital that falls at least partially outside the
logic of capitalist production.4 8

Chemiavsky's views regarding colonial expansion suggest that
colonialism should not be understood as the simple replacement of
precapitalist modes of production with capitalist forms in extraterritorial
sites. Instead, the actual practice of colonialism has been characterized by
the coexistence in the colony of capitalist and precapitalist modes of
production. Indeed, the profitability of colonialism for the colonial power
traditionally depended on the underdevelopment of the colony-that is, the
forced stagnation of indigenous economies while capitalist industries are
built alongside the stagnated indigenous economy. And so, "[t]he
heterogeneity of the 'combined formation' signals not the incompleteness
of the colonial project, the still-unfinished business of assimilating the
periphery, but rather the irreducible discontinuity between metropolis and
colony, which capital not only tolerates but requires., 49 The colonial
project, then, is identified by the juxtaposition of incommensurate economic
modalities within an overarching capitalist framework:

Colonialism in nearly all its permutations involves expanding
metropolitan capital into zones of precapitalist production ....
Arguably, then, a defining feature of colonialism in general is its
absorption of colonized populations into heterogeneous
regimes.

50

that "[a]lthough the disparity in [the U.S.] is not between an indigenous and an imported
mode of production, since commercial capital and chattel slavery are equally foreign to the
pre-invasion Americas, nonetheless capitalist development in the antebellum United States is
crucially heterogeneous to its proper productive modes." CHERNIAVSKY, supra note 16, at 9.

46 CHERNIAVSKY, supra note 16, at 8.

47 Id. at 8-11.

48 Id. at 8 (emphasis in original).

49 Id. at xviii.

50 Id. at xvii-xviii.

626 [Vol. 18:2



2009] Quasi-Colonial Bodies 627

Cherniavsky's discussion is illuminating when applied to the Alpha
obstetrics clinic. Taking her work as a foundation, the next Section
theorizes the ways that the Alpha obstetrics clinic may be conceived of as
an analogue (albeit an imperfect one) to the classic colony.

A. The Illogic of Alpha within a Capitalist Frame

Documenting the similarities between Alpha and the classic colony
requires the recognition that the Medicaid PCAP program lies outside the
logic of capitalism. Within capitalist economic systems, goods and services
are commodities that are ultimately sold on the market in exchange for
money. 51 Healthcare services in the United States have not been shielded
from commodity markets; 52 instead, they are goods that are traded and
made available for purchase, largely through the mechanism of private
health insurance.

53

PCAP is not simply a "public version" of private health insurance;
many of the programs' features are exceptional. First, PCAP is distinctive
because of its temporariness: whereas most private insurance plans cover
prenatal care as part of a larger healthcare program of unlimited duration

51 Perhaps the most expansive study of capitalism, as well as its most compelling

critique, is presented in KARL MARX, CAPITAL: VOLUME I (Ben Fowkes trans., Vintage
Books 1976) (1867). In his work, Marx explains the logic of capitalism through the dual
form of commodities-goods that are both useful (i.e., possessing a use value) and
exchangeable (possessing an exchange value, which itself assumes a monetary form). As
Marx observes, "[T]hey only appear as commodities, or have the form of commodities, in so
far as they possess a double form, i.e., natural form and value form .... Everyone knows...
that commodities have a common value-form which contrasts in the most striking manner
with the motley natural forms of their use-values. I refer to the money-form." Id at 138-39.

52 Peter P. Budetti, Market Justice and U.S. Health Care, 299 J.A.M.A. 92, 92

(2008) ("In the United States, health care competes for consumers with other items in the
marketplace. Individual resources and choices determine the distribution of health care, with
little sense of collective obligation or a role for government.").

53 CARMEN DENAVAS-WALT ET AL., INCOME, POVERTY, AND HEALTH INSURANCE
COVERAGE IN THE UNITED STATES: 2005 at 21 (2006), available at
http://www.census.gov/prod/2006pubs/p60-23 l.pdf (showing that in 2005, 67.7% of persons
in the U.S. had health insurance coverage through a private insurer, 27.3% of persons had
health insurance coverage through government insurance, and 15.9% of persons remained
uninsured entirely). The failure of the mechanism of private health insurance to distribute
healthcare to more individuals in the United States forms the basis of most calls for the
systemic reformation of the distribution of healthcare in the nation. For an example of this
argument, see Mark A. Hall, Paying for What You Get and Getting What You Pay For: Legal
Responses to Consumer-Driven Health Care, 69 LAW & CONTEMP. PROBS. 159, 159-60
(2006).



628 Columbia Journal of Gender and Law [Vol. 18:2

(that is, as long as the insured remains employed by her employer or pays
directly into the program), PCAP coverage terminates sixty days after a
woman's pregnancy ends.54 Second, PCAP is notable for the invasiveness
of its application process. Upon enrolling in PCAP, low income women are
required to submit to mandatory consultations with nutritionists, 55 social
workers, 56 and Medicaid financial officers; 57 they are forced to reveal
private, intimate information about themselves that frequently exceeds the
purview of their medical care. The arguable effect of these statutorily
obliged consultations is to eviscerate the poor pregnant woman's right to
privacy. 58 Lastly, and most importantly to the present argument, PCAP
differs from private health insurance programs because governmental
subsidization of health care services-the government's assumption of the
private health insurer's role-radically changes the nature of the enterprise
by which healthcare services are distributed. Instead of the consumer
entering the market and purchasing healthcare goods and services through
the private health insurance mechanism, PCAP essentially amounts to the
government entering the market, purchasing the goods and services, and
then distributing these healthcare commodities to non-consumers. If

54 Hope v. Perales, 83 N.Y.2d 563, 571-73, 577 (1994) (comparing PCAP to other
related programs and recognizing the validity of PCAP's denial of funding for medically
necessary abortions under the New York Constitution).

55 See N.Y. COMP. CODES R. & REGS. tit. 10, § 85.40(f) (2009) ("The PCAP
provider shall establish and implement a program of nutrition screening and counseling
which includes: (1) individual risk assessment including screening for specific nutritional
risk conditions at the initial prenatal care visit and continuing reassessment as needed...
[and] (3) documentation of nutrition assessment, risk status and nutrition care plan in the
patient medical record.").

56 See id tit. 10, § 85.40(h) ("A psychosocial assessment shall be conducted and

shall include: (1) screening for social, economic, psychological and emotional problems; and
(2) referral, as appropriate to the needs of the woman or fetus, to the local Department of
Social Services, community mental health resources, support groups or social/psychological
specialists.").

57 See id. tit. 10, § 85.40(b)(2) ("Following the determination of a pregnant
woman's presumptive eligibility for Medicaid benefits, the PCAP provider shall act as a
pregnant woman's authorized representative in the completion of the Medicaid application
process if the woman provides consent for such action.").

58 See Bridges, supra note 35, at 83-86. Although it may seem counterintuitive,

this is especially true when the information requested is relatively benign. Forced to confess
the details of their relationships as well as daily cravings for food, in addition to less benign
information like histories of substance abuse or sexual violence, women become the targets
of total state surveillance.



Quasi- Colonial Bodies

capitalism presupposes that consumers will acquire commodities through
the exchange of money, PCAP lies decidedly outside of the logic of
capitalism insofar as it provides healthcare commodities to consumers
without requiring a commodity exchange.

Accordingly, as it actualizes the PCAP program, the Alpha
obstetrics clinic may be understood as an incongruous, exceptional moment
within an overarching capitalist system. Its means of service provision is a
decidedly non-capitalist transaction, existing within the general capitalist
healthcare market. If the distinctive feature of colonies is the juxtaposition
of disparate economic forms, as Cherniavsky asserts, Alpha might be
understood as a "quasi-colony," since it represents a juxtaposition of
disparate forms of commodity distribution. 59 Although Cherniavsky's
framework is not perfectly conducive to an analysis of Alpha-inter alia,
Cherniavsky describes the classic colony as having both non-capitalist and
capitalist modes of production within its borders, while I describe Alpha as
having solely a non-capitalist mode of commodity distribution within
borders that, importantly, buttress a capitalist healthcare market-this
Article describes Alpha as a quasi-colony to denote its discontinuities with
Chemiavsky's analysis, as well as its similarities to the colony proper. 60

59 The analysis on quasi-colonies is only implicated in cases where subsidies
themselves are "heterogeneous," when the market for a particular good is subsidized for
some, but not all. Accordingly, the Canadian healthcare system, for which the Canadian
government subsidizes healthcare goods and services for all of its citizens, can and should be
distinguished from the U.S. case. See Sierra Dean, Canada's Landmark Chaoulli Decision: A
Vital Blueprint for Change in the Canadian Health Care System, 13 LAW & Bus. REV. AM.
417, 421 (2007) (describing the Canadian healthcare system as a "single-payer system where
the government is the sole financier of healthcare"). Thus, the Canadian state cannot be said
to also engage in a quasi-colonial enterprise. In Canada, the distribution of the entire market
of healthcare goods and services lies outside the logic of capitalism; although the Canadian
healthcare market exists within a larger capitalist landscape, the healthcare market itself is
homogeneously non-capitalist. Id. In contrast, the distribution of goods and services in the
U.S. healthcare market is heterogeneous, with capitalist distributions abutting non-capitalist
distributions of the same commodities. As such, the U.S. market exhibits the "disparate
economic forms" that describe the colonial encounter, while the Canadian market fails to
exhibit the same feature.

60 Chemiavsky does not assert that colonies are a permanent feature of

capitalism-that is, that capitalism requires the existence of colonies at all times. She
recognizes that colonialism proper has ended and we are now living in the era of
postcolonialism. CHERNIAVSKY, supra note 16, at 13 (describing the "postcolonial contexts"
in which "'the poor, black and female' subject in the United States" presently lives). So, the
perception of Alpha as a "quasi-colony" is a bit anachronistic in its lack of fidelity to the
postcoloniality that characterizes the present. Nevertheless, the analogy is a productive one.

2009] 629



Columbia Journal of Gender and Law

In exploring the links between quasi-colonialism and racial
reproduction at Alpha, the critical scholar returns to Cherniavsky's
Incorporations. Cherniavsky does not proffer a theory on how racialized
difference is exploited or exacerbated during colonial expansions. This is
because such inquiry presumes the existence of racial difference prior to
colonial contact-a premise that Cherniavsky rejects. Instead, taking as her
starting point the presupposition that "[t]here is no raced body prior to or
apart from [the] relation between subjects, 61 Cherniavsky explores how
racial differences are produced in the contacts between colonial powers and
the colonized. She concludes that race appears, or is produced, at sites of

62contact between dissimilar economic modes of production. Here, she cites
to cultural theorist Stuart Hall, who makes similar observations, pointing to
"the way different modes of production can be combined within the same
social formation leading ... to differential modes of incorporating so called
'backward' sectors within the social regime of capital. 63 Hall provides
several examples of this differential incorporation-for instance, the
significance of slave societies in "primitive capitalist development of
metropolitan powers," and the importance of migrant workforces within
domestic labor markets. 64 Ultimately Hall concludes that "what needs to be
noticed is the persistent way in which these specific, differentiated forms of
'incorporation' have consistently been associated with the appearance of
racist, ethnically segmentary and other similar social features. 65 Reading
Hall to suggest that "race or ethnicity marks the social relations of
production in 'differentially incorporated' sectors, 6 6  Chemiavsky
concludes:

[T]he racialized body registers the irreducible contradiction of
capital's social regime, which cannot assimilate the colonized if it
is to dominate them; at the same time, the racialized body veils

61 CHERNIAVSKY, supra note 16, at xiii.

61ld. at 10.

63 Stuart Hall, Gramsci's Relevance for the Study of Race and Ethnicity, 10 J.

COMM. INQUIRY 5, 24 (1986) (cited in CHERNIAVSKY, supra note 16, at 10-11).

64 Id. at 25 (cited in CHERNIAVSKY, supra note 16, at 11).

65 id.

630 [Vol. 18:2



2009] Quasi-Colonial Bodies 631

the contradiction by assuming it as a 'fact' of its own visible
difference.

67

Since Alpha Hospital is not a site of initial contact between those
who will dominate and those who will be subjugated, Cherniavsky's
analysis must be adapted. If, as Cherniavsky argues, "there is no raced body
prior to or apart from [the] relation between subjects, 68 patients receiving
prenatal care at Alpha already inhabit raced bodies, due to the long history
of racialized relations in the United States. Although Alpha is not a site of
initial racial production, it can nevertheless be apprehended as a site of
racial reproduction, where extant racialized differences are reiterated,
exacerbated, and filled with new content. When understood as a quasi-
colonial enterprise, standing as a non-capitalist or non-market irruption on a
capitalist landscape, 69 the Alpha obstetrics clinic is a point of contact
between incongruous economic modes. That is, if one thinks of Alpha as a
circle of non-capitalism, and if one imagines that circle floating on a
capitalist plane (representing the larger healthcare market in the United
States), then the borders of the Alpha circle-its circumference-are points
of contact between capitalism and non-capitalism. Moreover, consistent
with Hall's observations concerning the link between the appearance of
"racist and ethnically segmentary" social features at sites of contact of
differing economic modalities, 70 the appearance of race-indeed, the
reproduction of race-can be observed in the Alpha obstetrics clinic.

As described in Part I and elsewhere, the wily patient at Alpha
parallels the figure of the welfare queen, insofar as both are contradictorily
described as woefully stupid, yet uncannily cunning.7' However, another

67 ld. at 11 (quoting Hall, supra note 63, at 24-25).

68 Id. at xiii.

69 Referring to PCAP, or any other social welfare program, as "non-capitalist"

should be done with caution because it may elide how the capitalist state must attend to the
excesses of capitalism through the provision of various forms of social security. See
generally FRANCIS Fox PIVEN & RICHARD A. CLOWARD, REGULATING THE POOR: THE

FUNCTIONS OF PUBLIC WELFARE (1971). That is, the capitalist state has to alleviate the effects
of the intemperance that frequently accompanies capitalist exploitation by providing social
welfare programs where private capital cannot or will not do so. Such social security is
necessary to capitalism. Inasmuch as PCAP is an example of the state's indispensable
attempt at mitigating the effects of the capitalist economic system, it may rightfully be
considered a "capitalist" feature.

70 Hall, supra note 63, at 25 (cited in CHERNIAVSKY, supra note 16, at 11).

71 See supra notes 27-34 and accompanying text.



Columbia Journal of Gender and Law [Vol. 18:2

characteristic is shared by the wily patient and the welfare queen: an
implicit racialization. Like the welfare queen, the wily patient is implicitly
racialized, or raced, as non-White. A critical review of the wily patient
reveals that the perceived stupidity of Alpha patients is often a function of
their ascribed "racial Otherness. 72 Likewise, perceptions of patient
duplicity are oftentimes a function of the "foreignness" ascribed to non-
English speaking patients, or patients who come more generally from Latin
American backgrounds. 73

The racialization of Alpha patients involves a complex process of
74being "Blackened" or disqualified from Whiteness. Patients are

"Blackened" when they are figured as the undeserving recipients of
Medicaid and welfare. However, this "Blackening" is not mutually
exclusive to patients' figuration as non-White, "alien outsiders"-a
racialization that occurs when patients are perceived through the lens of
their "foreignness," "immigrantness," "Third World-liness," and/or "U.S.
Otherness. 75 When "Blackened," patients become the despicable bottom of

72 Bridges, supra note 11, at 25.

73 Id.
74 Id. at 47-48.

75 There is a robust literature that discusses the processes by which certain
racialized groups have been constructed as possessing characteristics that are not
"American." Such characteristics form the substance of "foreignness," "immigrantness,"
etc., while "American-ness" becomes defined as the absence of those problematized traits,
etc. See, e.g., Robert S. Chang, A Meditation on Borders, in IMMIGRANTS OUT! THE NEW
NATIVISM AND THE ANTI-IMMIGRANT IMPULSE IN THE UNITED STATES 244, 249 (Juan F. Perea
ed., 1997) (discussing the way foreignness is imputed to Asian American bodies in order to
"render[] them suspect, subject to the violence of heightened scrutiny at the border, in the
workplace, in hospitals, and elsewhere"); De Genova, supra note 11, at 12-13 (discussing
the "racialized equation of Latinos and Asians with foreignness and their figuration as
inassimilable aliens and permanent virtual immigrants"); Neil Gotanda, Comparative
Racialization: Racial Profiling and the Case of Wen Ho Lee, 47 UCLA L. REV. 1689, 1692-
94 (2000) (examining how "foreignness" was attributed to a Chinese nuclear scientist
accused of espionage and noting that attributions of "foreignness" to Asian-Americans
characterize the United States's relationship to its Asian citizens and immigrants); Natsu
Taylor Saito, Alien and Non-Alien Alike: Citizenship, 'Foreignness,' and Racial Hierarchy
in American Law, 76 OR. L. REV. 261, 268-78 (1997) (considering how "foreignness" is a
characteristic or a set of characteristics that prevent the "foreigner" from being able to be
considered "American" and allowing that which is "American" to be constructed in a way
that excludes certain racialized groups); Natsu Taylor Saito, Model Minority, Yellow Peril:
Functions of 'Foreignness' in the Construction of Asian American Legal Identity, 4 ASIAN
L.J. 71, 80 (1997) (discussing "the construct of foreignness, based more on what is perceived
as not-American than on the realities of another nationality or culture"); Francisco Valdes,
Under Construction: LatCrit Consciousness, Community, and Theory, 85 CAL. L. REV. 1087,
1122-25 (1997) (discussing how Asian Americans and Latinas/os share a label of



Quasi-Colonial Bodies

American society; when "U.S. Othered," they are figured as "un-American"
outsiders who have managed to penetrate the U.S. borders.76 These racial
figurations are dynamic and interrelated, occurring simultaneously yet
distinctly. Importantly, whether "Blackened" or "U.S. Othered," the poor
patients who rely on the Alpha obstetrics clinic are always disqualified from
Whiteness. 77 In this manner, the Alpha obstetrics clinic can be understood
as a site of the reproduction of race, through the reiteration of racial
meanings and racial inequalities.7 8

While the above explains how race is reproduced in the Alpha
obstetrics clinic, Cherniavsky's and Hall's theories offer an explanation for
why race is reproduced there at all. Namely, Alpha Hospital is a site for
racial reproduction because it is a node where differing economic logics
meet-with race marking or registering the contradictory logic of
capitalism at a site of its own contradiction.7 9

Moreover, if race in the classic colony functioned to justify the
"withholding of modernity's social benefits (democracy, rule of law) from
the colonized," 80 then race in Alpha Hospital functions to justify the censure
of Alpha patient's reproductive rights. At times "Blackened," at times
"foreign," yet always racially subjugated, the wily patients of the Alpha
obstetrics clinic invite stigma and disapproval of their reproductive
capacities because of their imbrications within and dependence upon public
assistance-an apparatus that defies capitalist modes of distribution.
Furthermore, the "fact" of their racial difference is commonly tendered as a
cause, rather than an effect, of this dependency. Therefore, race in the
quasi-colony signals when a woman illegitimately claims the identity of
mother, and indicates when her reproductive rights can and should be
legitimately denounced.

foreignness); Neil Gotanda, "Other Non-Whites" in American Legal History: A Review of
Justice at War, 85 COLUM. L. REv. 1186, 1188 (1985) (book review) (commenting on the
importance of the idea of "foreignness" to understanding the treatment of Asian Americans
in law and writing: "One of the critical features of legal treatment of other non-Whites [i.e.,
non-Black racial minorities] has been the inclusion of a notion of 'foreignness' in
considering their racial identity and legal status").

76 Bridges, supra note 11, at 47-48.

" Id. at 48.

78 Id.

79 CHERNIAVSKY, supra note 16, at 8-11.

80 Id. at xviii.

2009] 633



Columbia Journal of Gender and Law

B. Alpha, Omega, and the Play of Racial Differences

Enriching this analysis is the fact that Alpha is located only steps
away from the privately-funded Omega Hospital-an institution that refuses
to accept Medicaid insurance. 81 Patients who seek treatment at Omega are
privately-insured persons who tend to be wealthier, Whiter and more
privileged than patients at Alpha Hospital. As a result, Omega Hospital
provides an important site of comparison against which the raced bodies of
Alpha patients become intelligible. As Chemiavsky argues, bodies are
raced only when they are put in relationship with other bodies; moreover,
once races are produced, one race inevitably will be subordinate to the
other.82 Consistent with the view that race is a logic of hierarchies, Alpha
patients are the differentiated term, subordinated to the privileged social
position inhabited by Omega patients. What is at stake in this play of racial
differences are the reproductive rights of Alpha patients and the respect that
will be given to their claim of the identity of "mother."

III. RACE, CAPITAL, AND TANF
MANDATORY WORK REQUIREMENTS

Having considered the role that capitalism plays in the racialization
of Alpha patients-specifically, through their dependence upon non-
capitalist distributions (represented by Alpha), which serves to justify the
condemnation of their reproductive rights-this Part considers the role that
capitalism plays in weakening the bodily integrity of Alpha's racially
subjugated patients and how this enervation relates to their exercise of
reproductive rights.

Chemiavsky struggles to find a conception of race that explains it
as more than a bodily mark or inscribed difference. Notions of racial
inscription presuppose an essential bodily likeness across racial lines and
thus ignore the possibility that race may effect and signal the differing
embodiment of racialized subjects.83 Refusing to presume corporeal
similarity across racial lines, and holding open the possibility that race is
not an inscription of difference onto bodies that are organically and
corporeally similar, Chemiavsky arrives at the following thesis, which
describes race as:

81 See supra note 25 and accompanying text.
82 

CHERNIAVSKY, supra note 16, at xiii.

83 Id. at xiv, 84.

[Vol. 18:2



Quasi-Colonial Bodies

[A]n apparatus (a set of institutionalized practices) for the
(re)production-the (dis)assembly--of human bodies, rather than
an apparatus for their inscription. In this reading, race signals the
radically uneven capacity of bodies to serve as the shell (the
organic container) of the subjects they embody. Even if one
wishes to insist that our sense of the body as a bounded domain is
only the perception of our "real" biological condition as discrete
organism, there is certainly nothing given or immediate in the
way that boundary is observed, maintained, patrolled,
investigated, and violated. 84

For Cherniavsky, embodiment is that which holds together a subject
that is threatened by her own dispersal.85 This dispersal of the subject comes
from the requirement within capitalism that the individual alienate herself
by selling her own capacities: her labor power. 86 Within capitalism, the
subject's physical, organic body cannot be sold; that is, persons cannot sell
themselves or others as slaves.8 7 But, slavery and the selling of entire,
physical, organic bodies is not made illegal because it is repugnant in some
way; rather, it is prohibited so that individuals are able to sell their physical
and intellectual capacities-that is, so that individuals may disperse their
labor power.88 So that individuals may disperse themselves. In this way,
Cherniavsky conceptualizes bodies and embodiment as mechanisms that
protect the subject from dispersion by market forces.

Further, for Cherniavsky, the body's race signals its effectiveness
as a protective entity against those forces. 89 Moreover, U.S. history
demonstrates that non-White racial embodiments fail to protect the
dispersion of the subject; the non-Whiteness of bodies functions to render
them more soluble to capital and more susceptible to the taking of their
labor power. 90 Cherniavsky offers the case of plantation slavery in the
United States as a dramatic demonstration of her point. She writes:

84 Id. at xiv-xv.

85 Id. at xv, 84.

86 Id. at xv.

87 Id. at xvii.

88 Id.

89 Id. at xiv, xx, 85.

90 Id. at 84 ("[W]here the European colonizer claims an inalienable property in the

body (one may commodify one's bodily or intellectual labor, but not one's flesh), the bodies
of the colonized are made in varying degrees susceptible to abstraction and exchange."). The

2009] 635



Columbia Journal of Gender and Law

[I]t is not sufficient to think of plantation slavery as inscribing
bodies with a servile condition, although no doubt the obsession
with the legible servility of the captive body's surfaces was
pervasive, encompassing enlightened men of science no less than
slavery's most vulgar apologists. But the very primeness of the
slave body's surfaces for inscription, for the breathtaking
superfluity of bizarre and contradictory renderings ... is an index
to the crisis in-the suspension of-incorporated embodiment for
the slave. The captive body is all surfaces; it is the scene of the
evacuation of the captive person, rendered wholly soluble in
capital. Rather than incorporate the mobile subject of contractual
social relations, then, this body tropes the conditions of the
chattel slave's dispersal as so many atomized, exchangeable
quantities. In the context of plantation slavery, I am proposing
that race marks the status of the body that is not one-an
inorganic body, fully opened to capital. 91

Accordingly, Black racial ascription in the context of plantation
slavery indexed the failure of bodies to resist capitalist exploitation. Slaves
were subject to commodification, expropriation, and alienation in every
conceivable aspect, through a "most thorough extroversion of
personhood. ' '92 Although chattel slavery represents an extreme case of
capitalist dispersion, race maintains a similar operation outside of those
conditions. Today, raced subjects are open and exposed to capitalist
exchange-lacking the legal, social, and political protections that "wholly

93embodied" individuals would have. As such, Cherniavsky proffers race as
a present day indicator of the body's ability to shield itself from capital,
with Whiteness representing the most effective shield available.94

springboard for Chemiavsky's analysis is Cheryl I. Harris's article, Whiteness as Property.
She quotes Harris's argument that "[b]ecause whites could not be enslaved or held as slaves,
the racial line between white and Black was extremely critical; it became a line of protection
and demarcation from the potential threat of commodification, and it determined the
allocation of the benefits and burdens of this form of property." See Cheryl I. Harris,
Whiteness as Property, 106 HARV. L. REV. 1709, 1720-21 (1993) (emphasis added).

91 CHERNIAVSKY, supra note 16, at xvii.

92 Id. at xix.

93 Id. at xx.

94 Id. at 85 (concluding that only White people can claim "an organic embodiment,
in which the body functions as a naturalized limit on capitalist abstraction or, in [Walter]
Benjamin's terms, as the 'shell' that restricts what may be 'pried' from the human subject").

636 [Vol. 18:2



2009] Quasi-Colonial Bodies 637

Cherniavsky's theory apprehends the bodies of Black and other
racially subjugated individuals as indicating a compromised ability to resist
capitalism's demand that the subject's labor power be alienated on the
market. Although the total loss of the body is rare today (complete bodily
loss only occurs under conditions of chattel slavery), living within
conditions of global market capitalism, modem raced bodies are marked by
their relative openness to the demands of capital-that is, their relative
inability to resist the demand that their labor power be sold. Viewing race as
an indication of the body's permeability to capital helps explain the work
requirements contained within Temporary Aid for Needy Families (TANF),
the federal welfare program that has arguably had the most adverse effect
on the reproductive rights of racially subjugated women.

A. TANF Work Requirements and the Porosity Of Bodies

A major, controversial component of the 1996 welfare reform-
reflected in the replacement of Aid for Families with Dependent Children
(AFDC) by Temporary Aid for Needy Families (TANF)-was the
requirement that the individuals who received TANF benefits perform work
outside their homes. 95 TANF work requirements only affect some women

95 The mandatory work requirements in TANF have been roundly criticized by
scholars. See, e.g., Craig. L. Briskin & Kimberly A. Thomas, The Waging of Welfare: All
Work and No Pay?, 33 HARV. C.R.-C.L. L. REV. 559, 591 (1993) (arguing that TANF
beneficiaries who are compelled to work outside of their homes in satisfaction of the
mandatory work requirements set out in the legislation should be protected under the Fair
Labor Standards Act and the National Labor Relations Act); Tonya L. Brito, The
Welfarization of Family Law, 48 U. KAN. L. REV. 229, 250 (2000) (arguing that mandatory
work requirements deny welfare recipients the "freedom that other parents enjoy to make
their own choices regarding how to rear their children" as a result of a state disregard of their
interest in parental autonomy and an assumption that "[b]ecause their mothering is deemed
to set a bad example, the government is justified in placing limitations on it"); Karen Syma
Czapanskiy, Parents, Children, and Work-First Welfare Reform: Where is the C in TANF?,
61 MD. L. REv. 308, 361 (2002) (critiquing the mandatory work requirements because
"welfare officials often do not engage in discussions and planning with recipients as to what
kind of work situation is respectful of the recipient's family and work responsibilities,"
because "the work available to former recipients is usually low-wage work in family-hostile
environments," and, finally, because "when a low-wage worker loses a job because her
employer is disrespectful of her family responsibilities, the welfare system is permitted to
label her a failure rather than a person who is struggling to meet responsibilities both at work
and at home"); Andrew S. Gruber, Promoting Long-Term Self-Sufficiency for Welfare
Recipients: Post-Secondary Education and the Welfare Work Requirement, 93 Nw. U. L.
REV. 247, 299 (1998) ("[F]ederal welfare law should be amended to include participation in
a four-year post-secondary education program as a work activity."); Shruti Rana, Restricting
the Rights of Poor Mothers: An International Human Rights Critique of 'Workfare,' 33
COLUM. J.L. & Soc. PROBS. 393, 394 (2000) (examining TANF mandatory work
requirements through the lens of international human rights and arguing that they violate



Columbia Journal of Gender and Law

relying on PCAP/Medicaid insurance who receive their prenatal care from
Alpha. This is because TANF's strict eligibility requirements make it so
that people who qualify for TANF are considerably needier than those who
qualify for Medicaid's PCAP program. In New York, a pregnant woman
whose income is at or below 200% of the federal poverty line is eligible for
Medicaid assistance through the PCAP program; moreover, no other
resource limits affect eligibility-meaning that the woman can own a
house, car, and other assets and still qualify for the program.96 In contrast,
TANF eligibility limitations are more constricted: qualified applicants
whose households include a pregnant women must have family income that
does not exceed 100% of the federal poverty line, nor 185% of the "Public
Assistance Standard of Need"-a measurement containing "six separate
items whose value must be added together to arrive at a needs level for a
particular applicant/recipient. 97 Consequently, not all Alpha patients who
are eligible for PCAP are also eligible for cash assistance under TANF.
Moreover, while PCAP/Medicaid is available to undocumented immigrants
in New York, TANF cash assistance remains unavailable to them.98

Although only a portion of Alpha patients receive TANF as well as
Medicaid, at the Alpha obstetrics clinic it was generally assumed that all
patients were receiving TANF "welfare" assistance. This is partially
because it is impossible to know, without looking into a patient's records,
whether she receives Medicaid assistance alone, or TANF cash assistance
as well. The result is that when Alpha patients are spoken about in the

"the human rights of poor single mothers through [their] attempt to define and restrict their
roles as mothers, workers, and citizens"); Dorothy Roberts, Low Income Mothers' Decisions
About Work at Home and in the Market, 44 SANTA CLARA L. REV. 1029, 1031 (2004)
(arguing that TANF's incentives "devalue and penalize poor mothers' care work"); Lindsay
Mara Schoen, Note, Working Welfare Recipients: A Comparison of the Family Support Act
and the Personal Responsibility and Work Opportunity Reconciliation Act, 24 FORDHAM
URB. L.J. 635, 662 (1997) (arguing that TANF work requirements "simply forc[e] welfare
recipients to work" and suggesting that "[i]f work requirement programs are to succeed in
actually reducing poverty, they must combine services such as education, training, child
care, and health care, enabling people to attain long-term employment and self-sufficiency").

96 Human Resources and Services Administration, New York Medicaid and S-Chip
Availability, http://www.hrsa.gov/reimbursement/states/New-York-Eligibility.htm (last
visited Oct. 1, 2009).

97 Id.

98 See N.Y. STATE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE, NEW YORK

STATE PLAN AND EXECUTIVE CERTIFICATION 4 (2006) (providing the categories of persons
that are eligible for the Family Assistance Program, which is administered with TANF
funds).

638 [Vol. 18:2



Quasi-Colonial Bodies

abstract in the clinic, it is almost assumed that they all receive TANF cash
assistance. Clinic staff rely on familiar stereotypes when speaking about
Alpha women, disparaging them as "women who don't work," who sit at
home, and who "collect welfare. ' ' 99 Consistent with the trope of the welfare
queen, staffers also decry patients' consumption habits and their
expenditures on clothing. As one nurse stated, "[Patients] have Dooney &
Burke bags and all this stuff that I can't afford-stuff that, if I bought it, I
wouldn't be able to eat." Indeed, even some Alpha patients assume that all
Alpha patients receive welfare. Representative of this was the time when
one patient who was complaining about the long wait that she was
experiencing, said to me, "I can't sit around here all day. These people
[pointing to the other women in the waiting area] can wait all day because
they don't have jobs. They sit at home and get a check every month. I don't.
I have a job."

With respect to work requirements, TANF is clear. TANF
recipients are expected to work an average of thirty hours per week,100 with
"work activities" defined as:

(1) unsubsidized employment;

(2) subsidized private sector employment;

(3) subsidized public sector employment;

(4) work experience (including work associated with the
refurbishing of publicly assisted housing) if sufficient private
sector employment is not available;

(5) on-the-job training;

(6) job search and job readiness assistance;

(7) community service programs;

(8) vocational educational training (not to exceed 12 months with
respect to any individual);

(9) job skills training directly related to employment;

99 Discussions with Clinic Staff, in New York, N.Y. (January 2007).

100 42 U.S.C.S. § 607(c)(1)(B)(i) (LexisNexis 2009).

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640 Columbia Journal of Gender and Law [Vol. 18:2

(10) education directly related to employment, in the case of a
recipient who has not received a high school diploma or a
certificate of high school equivalency;

(11) satisfactory attendance at secondary school or in a course of
study leading to a certificate of general equivalence, in the case
of a recipient who has not completed secondary school or
received such a certificate; and

(12) the provision of child care services to an individual who is
participating in a community service program. 1°1

Although the definition of "work" encompasses a rather
heterogeneous group of activities, the work of raising a child is notably
excluded. Therefore, the unmarried mother who engages in the all-
consuming task of caring for a newborn is not "working" within the letter of
the law. 102 Instead, while she may be "exempted" from TANF work
requirements, she is not understood to have fulfilled them via the rigors of
caring for an infant on her own.10 3 The single mother who devotes her time
to raising a child between the ages of twelve months and six years does not
"work" either; instead, the time that she devotes to parenting earns her a
ten-hour credit on her mandatory labor ledger.10 4 Finally, the married
mother who cares for her child engages in no cognizable work under
TANF, irrespective of the child's age. 05 In circumstances where a

0 42 U.S.C.S. § 607(d) (LexisNexis 2009).

102 See 42 U.S.C.S. § 607(a)(5) (LexisNexis 2009) (providing states with the
"option for participation requirement exemptions," and stating that "a State may, at its
option, not require an individual who is a single custodial parent caring for a child who has
not attained 12 months of age to engage in work") (emphasis added).

103 42 U.S.C.S. § 607(a)(5).

04 42 U.S.C.S. § 607(c)(1)(B)(i) (LexisNexis 2009) ("[A] recipient who is the only
parent or caretaker relative in the family of a child who has not attained 6 years of age is
deemed to be engaged in work for a month if the recipient is engaged in work for an average
of at least 20 hours per week during the month."). For a similar reading of the TANF statute
as providing for a ten-hour labor credit for single parents of young children, as opposed to
recognizing parenting as ten hours of "work," see Noah Zatz, Welfare to What?, 57
HASTINGS L.J. 1131, 1142 (2006) (stating that TANF recognizes the care of young child
"only as a basis for an excuse from or a reduction in work requirements, not as a way to meet
them").

105 However, the married mother whose husband works outside of the home for at

least thirty-five hours per week is, herself, not compelled to seek out-of-home employment,
as her husband's labor satisfies the statute's mandatory work requirement. 42 U.S.C.S. §



2009] Quasi-Colonial Bodies 641

beneficiary fails to meet the TANF mandatory work requirements, the
statute accords states vast discretion to reduce the level of assistance
provided or to terminate it altogether. 0 6

The requirement that mothers get a job-any job-outside of the
home facilitates the ease with which the market can access their labor.
Insofar as the statute understands job training, job search, and unpaid
childcare services for others as "work," it does not require the strict
exchange of labor power for money. 10 7 Nevertheless, the statute effects the
commodification of poor mothers by forcing women located in the state
welfare apparatus to make their labor available for exchange-whether for
cash, or solely for continued government assistance. °8 In so doing, the state

607(c)(2)(B) (LexisNexis 2009) (stating that beneficiaries within "2-parent families" are
"engaged in work" for the purposes of the statute if "the individual and the other parent in
the family are participating in work activities for a total of at least 35 hours per week"). If the
family receives federally funded child care assistance, however, the husband must labor at
least fifty-five hours outside of the home in order to satisfy the statute. Id. These provisions
are fascinating because they impute, in one swift, fantastical movement, the husband's
commoditized labor to the body of the wife, since the statute presumes that she has engaged
in work that satisfies the statute's mandates. These provisions make such a fantastical switch
possible because they give greater focus to the institution of patriarchal heteronormative
marriage. Under this interpretation, her private labor is the condition of possibility for his
public labor; yet her labor is made invisible inasmuch as it is subsumed by his. Accordingly,
the statute secures the woman's body either for capital or, alternately, for her husband,
provided that his body belongs to capital.

106 42 U.S.C.S. § 607(e)(1) (LexisNexis 2009). However, the statute does provide

that a State cannot reduce or terminate the benefits of a single parent who is caring for a
child under the age of six and who does not work within the meaning of the statute because
of the unavailability of appropriate child care. 42 U.S.C.S. § 607(e)(2) (LexisNexis 2009).

107 Zatz offers helpful examples of "work" as defined by TANF. See Zatz, supra

note 104, at 1140-41. While a beneficiary "works" within the meaning of the statute when
she is conventionally compensated by an employer for her time and labor, she also "works"
when she is compensated by her employer with a combination of federal and state funds. Id.
She "works" when she receives nothing for her time and labor but a continuation of welfare
benefits. She also "works" when she engages in activities that relate to future employment,
like job search and job training. Id. However, the latter category of activities is not
sufficiently capacious to include "non-vocational post-secondary education." Id. at 1142.
Moreover, lest the statute be misconstrued as providing for the unfettered vocational
education of poor mothers by understanding them as "working" when they are simply
engaged in job training, the statute limits the number of individuals understood as working
"by reason of participation in educational activities" to thirty percent of all TANF
beneficiaries in any given state. 42 U.S.C.S. § 607(c)(2)(D) (LexisNexis 2009).

108 Zatz similarly concludes that the statute's emphasis is on moving welfare

recipients into the unsubsidized labor market. He writes that, although "'work' cannot be
encapsulated in a single definition or concept under TANF," insofar as "one can be 'engaged
in work' without getting paid, and even without being prepared to get paid," he remains



642 Columbia Journal of Gender and Law [Vol. 18:2

exposes poor women's bodies to capital and invasive market forces and, in
turn, renders them vulnerable to capitalist expropriation.' 0 9

To the extent that poor persons are racialized by virtue of their
"undeserving" receipt of TANF, 110 race once again comes to mark the body
that is made porous to capital. In line with Cherniavsky's theory that race
indicates the body's compromised ability to shield itself from the pressures
of labor alienation, race for TANF recipients signals a decreased ability to
keep invasive market forces at bay.

For the phenotypically Black women who disproportionately
receive TANF, 111 the TANF work requirements reiterate that the identity of

convinced that "there is also an undeniable emphasis on paid employment." Zatz, supra note
104, at 1143. His conclusion is based not only on the letter of the statute, but also on how the
statute has been applied in the states. Not only is some connection to current or future
employment required for most of the specified work activities, but TANF also provides for
"individual responsibility plans... for moving the individual immediately into private sector
employment." Id. at 1142. More generally, TANF has been implemented in ways that
consistently prioritize employment. At both the federal and state levels, the relevant agencies
place great emphasis on a pervasive, albeit informal, message that welfare recipients should
be seeking a paycheck in order to avoid a welfare check. This more symbolic aspect can be
seen, for instance, in renaming "Income Maintenance Centers" as "Job Centers" and in
hanging banners in welfare offices with messages like "Welcome Job Seekers!" and "You
Have A Choice, Choose a Job-Work First." In this less technical sense, the ubiquitous
references to work-in state programs named "CalWorks" and "Wisconsin Works," in
federal "Welfare-to-Work" grants, and elsewhere--clearly invoke unsubsidized, private
sector employment. Zatz, supra note 104, at 1142-43 (citations omitted). See also Roberts,
supra note 95, at 1029-30 ("The primary goal of [TANF] is to move mothers from welfare
to the paid workforce.").

109 Interestingly, Cherniavsky cites welfare reform as an example of "dominance

without hegemony," where subjects are subordinated (that is, dominated) by the state
without the state simultaneously working, hegemonically, to integrate the subordinated
subjects as a "nation." CHERNIAVSKY, supra note 16, at 26-3 1. Whereas dominance without
hegemony was once only a feature of the colony, Cherniavsky notes that the technique "is
now becoming generalized in the metropole." Id. at 28. For Cherniavsky, welfare reform
"force[s] the unemployed into service work at below-subsistence wages ... thereby actively
support[ing] the expansion of a prostrated (sub)proletariat absolutely marginal to the
traditional institutions of civic discipline ... and to the arena of consumption through which
civic entitlement is increasingly secured." Id. (footnote omitted). Since the Alpha obstetrics
clinic can be likened to a colony, see discussion supra Part II, Alpha patients, as subjects of
punitive welfare reforms, may be likened to a "colonial population," insofar as a technique
of colonial rule is now being used to manage them. See infra Part lll.B for expanded
discussion.

110 See supra notes 60-64 and accompanying text.

1 According to statistics compiled by the Department of Health and Human
Services and released in 2006, Black women accounted for 35.7% of persons receiving
welfare in the form of TANF; the percentages accounted for by White, Latina, Asian, and



2009] Quasi-Colonial Bodies 643

"mother" is not a legitimate one for them, to the same extent as enjoyed by
wealthier White women throughout this nation's history. White mothers are
recognized as empowered to provide for the quotidian needs and desires of
the child within the home, and they are lauded for doing so.

Further, the work requirements reiterate that the Black female body,
which disproportionately represents the body of TANF recipients and which
has at least some causal relationship to the punitive turn that TANF has
made," 2 is a laboring body." 3 In addition, they reproduce the Black female
body as a public body, rather than one secured in the privacy of a domestic
realm." 4 Lastly, they reproduce the raced body as one that is permeable to
the expropriation of its capacity to labor." 5

Native American women were 33.4%, 26.5%, 1.8% and 1.4%, respectively. U.S. Dep't of
Health and Human Servs. Admin. for Children and Families, Table 8: Temporary Assistance
for Needy Families-Active Cases, Percent Distribution of TANF Families by
Ethnicity/Race, October 2005-September 2006, http://www.acf.hhs.gov/programs/ofa/
character/FY2006/tab08.htm (last visited Oct. 1, 2009).

112 Onwuachi-Willig makes this point forcefully when she writes:

Racist assumptions have turned public opinion and policy against
providing the American poor with welfare benefits as the image of its
primary beneficiaries changed from deserving, chaste white widows to
lazy, never-married black baby-makers. As welfare recipients became
racialized as black, standard rhetoric changed to implicitly blame unwed
welfare mothers for the impoverished conditions in which they and their
families live.

Onwuachi-Willig, supra note 3, at 1664.

113 See generally JACQUELINE JONES, LABOR OF LOVE, LABOR OF SORROW: BLACK

WOMEN, WORK, AND THE FAMILY FROM SLAVERY TO THE PRESENT 165-85 (1985)
(demonstrating that, throughout history, Black women have worked as laborers outside of
the home).

114 This domestic realm, of course, may be one that is patriarchal-where a

woman's labor is still wholly "owned" and subordinate to a husband. This suggests that the
"privileges" of White womanhood are at least analogous to the loss of the body-the
openness to the expropriation of labor power-attributed to slavery. Future scholarship
might analyze how Chemiavsky's conception of race would be complicated, and revised, by
recognizing and addressing White women's subordination as wives. Thanks to Nick De
Genova for this point.

Cherniavsky is, in the last instance, interested in applying her theory of race to
studies of film. She enunciates a theory of the commodified filmic image as one of
"inorganic, depthless form," and juxtaposes this depthlessness with the recognition that the
bodies of White women are frequently the substance from which the filmic image is derived.
See CHERNIAVSKY, supra note 16, at 85. She observes a contradiction between the White
body as the "naturalized limit on capitalist abstraction" and the commoditized White filmic



644 Columbia Journal of Gender and Law [Vol. 18:2

Moreover, when one considers that motherhood is the condition
precedent for the operation of the TANF statute-namely, that it is the
exercise of her reproductive rights and her status as mother that brings a
woman within the punitive mandatory work requirements set out in
TANF-one better understands the complicity that this "reproductive right"
has with the attenuation of the body's ability to repel the forces of market
capitalism. It is the reproductive rights of poor Black and racially
subjugated women that attenuate their bodies. Again, do we overstate that
which is possessed when we call this a "right"?

B. Reflections on Decolonization

One could argue that TANF underdevelops poor mothers through a
combination of denying them the opportunity to mother their children in the

body as completely opened to capitalist abstraction. She concludes, "[W]hiteness manifests
in Hollywood cinema as the impossible lure of protection from the invasive forces of capital
(the prying open of human shells) through ecstatic consumption." Id. at 89. Hence the
hyperbolic whiteness of White bodies-they appear to positively glow as they excessively
refract light-in the "soft style" that characterized Hollywood productions in the early 20th
century. Id. at 86-90. Although White women in film appear to experience a "loss of the
body" that is tantamount to the loss that Cherniavsky attributes to slavery, they experience a
total bodily loss only infilm; her argument does not speak to the bodily loss that they may
experience as wives.

115 It is essential to recognize that prior to TANF, welfare assistance (in the form of

AFDC) could actually be seen to have shielded beneficiaries from capital. This was precisely
the meaning of the "end of welfare as we know it" and the welfare-to-work doctrine. A.
Mechele Dickerson has argued this position:

Congress ended "welfare as we knew it" in 1996 because of its
conclusion that too many non-working but able-bodied mothers were
receiving welfare benefits, that they were financially dependent because
they were lazy, that lazy people did not deserve welfare benefits, and
that the best way to force these lazy, able-bodied women to become
economically self-sufficient was to push them off the welfare rolls and
into the work force .... The "problem" with welfare, critics argued, is
that welfare recipients are lazy and refuse to earn wages to support
themselves and their children. Welfare reforms then proceeded based on
the premise that non-work created the welfare crisis and that the
"solution" to the non-work problem is to force people into the labor
market. This solution should solve the welfare problem if laziness (as
evidenced by non-work) is the cause of the problem.

A. Mechele Dickerson, America's Uneasy Relationship with the Working Poor, 51 HASTINGS
L.J. 17, 17 (1999). TANF thus reasserted the disciplinary power of money and the market
over bodies that could previously evade the mandates of capital.



Quasi-Colonial Bodies

home and in the capacity that they see fit, while forcing them to labor in
jobs that offer little in terms of stability, advancement, or fulfillment.
Further, one could argue that TANF does not help poor, racially subjugated
women become equal, respected citizens of the nation; rather, it compels
them into a project of exploitation. This interpretation is persuasive, since in
the process of turning poor women into wage laborers, the program coerces
them to labor in jobs that are avoided by those with a choice in the matter.
If these arguments are accepted, then TANF appears to do to poor women
what the classic colony did to its subjects: underdevelop and exploit them
without actually bestowing equal citizenship upon them.1 6 The analogy
between the poor mothers populating Alpha and classically colonized
peoples is compelling, and the conclusion that poor mothers are colonized
by PCAP and TANF appears irresistible.

However, an important divergence between the classic colony and
the quasi-colony that Alpha represents may be the intention of the
"metropole." In the former, the colonizing state engages in the colonial
project with the aim of exploiting the indigenous peoples while denying
them the benefits of citizenship. In the quasi-colony, the intentions of the
authors of PCAP and TANF are not quite so clear. While there are
persuasive arguments to be made that PCAP and TANF, like other
regulations that target the poor, are intended to exploit their beneficiaries
while denying them the rights and dignity enjoyed by non-poor citizens,' 1 7

it is not an argument that this Article makes.118 This Article does not try to
divine the intent of the state with regard to PCAP and TANF; rather, it is
enough to establish that while colonization was achieved subsequent to
clear intention in the classic colony, in the quasi-colony, quasi-colonization
is achieved without such clear intention. Although this difference in the
"mens rea" of the colonial and quasi-colonial state is quite significant, the
distinction does not exculpate the quasi-colonial state. The similarities

116 See CHERNIAVSKY, supra note 16, at 28 (describing the condition of colonial

rule as one where the "subordination of the colonized does not coincide with their
interpellation as citizen-subjects").

"7 See, e.g., PIVEN & CLOWARD, supra note 69 (arguing that, throughout history,
programs that have provided relief to the poor have been enacted by governments that have
been captured by the interests of capital and, consequently, have been intended to produce a
workforce incapable of defending itself from capitalist exploitation).

118 Moreover, it is likely that a review of the legislative history of PCAP, if not
TANF, would reveal ambivalent, conflicted intentions: some legislators may actually have
intended to help poor women by providing them with prenatal care, while others may have
intended to punish them for being poor and pregnant by compromising their reproductive
rights through the conditions that attach to the program of prenatal care.

2009]



Columbia Journal of Gender and Law

between the colony and the quasi-colony -the compromising of rights, the
production of subjugated races, and the underdevelopment and exploitation
of subjects-are sufficiently damning that society ought to demand a
change in the policies that produce the quasi-colony and, consequently,
demand its decolonization.

So the question becomes: what would the "decolonization" of
Alpha Hospital entail? Other scholars are better situated to make
suggestions regarding solutions. However, if, as this Article has argued,
Alpha can be analogized to the classic colony because of the contact of non-
capitalist and capitalist economic forms (e.g., the distribution of healthcare
goods at Alpha, and the modes of production in the colony proper), then the
decolonization of Alpha might be accomplished by homogenizing the
distribution of healthcare goods. This solution means eliminating the United
States' current dual system of healthcare-one that is composed of private,
capitalist distribution of goods alongside a public system where goods are
distributed by non-capitalist means. Simply put, the decolonization of
public hospitals like Alpha, and a step towards the realization of racial
justice and reproductive freedom, may require the implementation of a
system of universal healthcare in the United States.

IV. CONCLUSION

This Article has tried to illuminate a facet of the complex, tangled
relationship of capitalism, reproductive injustice, and racial inequality, and
to demonstrate that each node in the trinity supports and reinforces the
other. As such, it is futile to strive for reproductive justice without
simultaneously imagining an end to racial inequality; likewise, it is folly to
hope for racial justice without concurrently planning for reproductive
freedom. Indeed, for poor Black and other racially subjugated women, those
two goals are one and the same. Furthermore, it appears patent that
capitalism has played some role in producing and maintaining the racial and
reproductive inequities that poor Black and racially subjugated women
experience on a daily basis in the United States.

Although it may seem odd for a discussion of reproductive rights to
utilize insights from anthropology, subaltern studies, and theories of the
body and embodiment, hopefully such interdisciplinary examinations will
become more common as more scholars unpack the complex and embedded
ways that motherhood is stigmatized and pathologized when it is pursued
by poor women. There is much work to be done; the reproductive lives of
Black and racially subjugated women lie in the balance.

646 [Vol. 18:2