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Common formulations of the concept of white privilege propose that white privilege guarantees white people positive results. So, when bad things happen to white people — when the jobs and the industries on which they once relied disappear, when they are denied admission to their preferred university, when they lose a promotion to a nonwhite candidate, when they die from suicide and drug overdoses at unprecedented rates — we are left to believe that white people experiencing these adverse consequences did not have white privilege or that their white privilege did not work for them. That is, we are left to conclude that white privilege is meaningless when white disadvantage is present. Further, given the undeniable fact of widespread white disadvantage, we are left vulnerable to the claim that for many, if not most, white people, white privilege is inconsequential, insignificant, or altogether nonexistent. In reality, the fact of white privilege is much more complicated than this facile, mechanical formulation suggests. This Article proposes that we ought to understand white privilege to be something that can lead to unfavorable results just as capably as it can lead to favorable ones. That is, white privilege is a double-edged sword. Theorizing both edges of white privilege provides a more nuanced rendering of the concept. This complexly rendered formulation may help us understand how white privilege can coexist with white disadvantage. Indeed, it might help us understand how white privilege actively produces white disadvantage. The Article uses the recent arrests and prosecutions of women for using opioids during their pregnancies as an opportunity to engage with and theorize the idea of white privilege. The analysis proceeds in four Parts. Part I explains the origins of the opioid epidemic as well as the government’s response to it, emphasizing that the current drug crisis has hit white people and white communities the hardest and, further, that pregnant women have not been immune from it. Part II explores how the State has responded to substance use during pregnancy. At times, the State has responded with its civil systems, choosing to involve the child welfare system and child protective services; at other times, it has responded with its criminal systems, choosing to arrest and prosecute women for using substances while pregnant. Part III then analyzes the demographics of these arrests and prosecutions. It explains that prosecuting women for substance use during pregnancy began in earnest in the 1980s and 1990s, when the crack cocaine scare gripped the nation. During this time, those who were prosecuted were largely black women. However, the opioid epidemic (and the methamphetamine scare before it) has hit white communities particularly hard. Consequently, the demographics of arrests and prosecutions for substance use during pregnancy have shifted, with white women coming to predominate among those subjected to penal state power. Part IV theorizes the significance of these shifted demographics — investigating what they might mean for the concept of white privilege. A brief Conclusion follows.

We hear the term \"poor people and people of color\" regularly. For example, the term frequently pops up in discussions of the criminal justice system. As a case in point, a recent report by The Sentencing Project describes racial disparities in sentencing and criticizes the United States for effectively operating \"two distinct criminal justice systems: one for wealthy people and another for poor people and people of color.\" The term also appears in analyses of the ubiquitous presence that the state has in the lives of disempowered populations. In a report published by The Century Foundation, the authors assert that \"[w]e do not need a unified theory of privacy to show that... marginal communities enjoy far less of it in practice. In some contexts, poor people and people of color have legal rights to privacy, but no means to exercise them.\" Variations of the term are also common. For example, a Center for American Progress article, which condemns the Hyde Amendment for making abortion inaccessible to women who cannot afford to pay for the procedure, is titled \"How the Hyde Amendment Discriminates Against Poor Women and Women of Color.\"

Reproducing Race, an ethnography of pregnancy and birth at a large New York City public hospital, explores the role of race in the medical setting. Khiara M. Bridges investigates how race--commonly seen as biological in the medical world--is socially constructed among women dependent on the public healthcare system for prenatal care and childbirth. Bridges argues that race carries powerful material consequences for these women even when it is not explicitly named, showing how they are marginalized by the practices and assumptions of the clinic staff. Deftly weaving ethnographic evidence into broader discussions of Medicaid and racial disparities in infant and maternal mortality, Bridges shines new light on the politics of healthcare for the poor, demonstrating how the \"medicalization\" of social problems reproduces racial stereotypes and governs the bodies of poor women of color.

What does racial justice - and racial injustice - look like with respect to artificial intelligence in medicine (\"medical AI\")? This article offers that racial injustice might look like a country in which law and ethics have decided that it is unnecessary to inform people of color that their health is being managed by a technology that likely encodes the centuries of inequitable medical care that people of color have received. Racial justice might look like an informed consent process that is reformed in light of this reality. This article makes this argument in four Parts. Part I canvases the deep and wide literature that documents that people of color suffer higher rates of illness than their white counterparts while also suffering poorer health outcomes than their white counterparts when treated for these illnesses. Part II then provides an introduction to AI and explains the uses that scholars and developers predict medical AI technologies will have in healthcare, focusing specifically on the management of pregnancy. Part III subsequently serves as a primer on algorithmic bias - that is, systematic errors in the operation of an algorithm that result in a group being unfairly advantaged or disadvantaged. This Part argues that we should expect algorithmic bias that results in people of color receiving inferior pregnancy-related healthcare, and healthcare generally, because medical AI technologies will be developed, trained, and deployed in a country with striking and unforgivable racial disparities in health. Part IV forms the heart of the article, making the claim that obstetricians, and healthcare providers generally, should disclose during the informed consent process their reliance on, or consultation with, medical AI technologies that likely encode inequities. To be precise, providers should have to tell their patients that an algorithm has informed the recommendation that the provider is making; moreover, providers should inform their patients how racial disparities in health may have impacted the algorithm's accuracy. It supports this argument by recounting the antiracist, anti-white supremacist-indeed radical-origins of informed consent in the Nuremberg Trials' rebuke of Nazi \"medicine.\" This Part argues that the introduction into the clinical encounter of medical AI - and the likelihood that these technologies will perpetuate racially inequitable healthcare while masking the same - is an invitation to reform the informed consent process to make it more consistent with the commitments that spurred its origination. This Part proposes that, given the antiracist roots of the doctrine of informed consent, it would be incredibly ironic to allow the informed consent process to permit a patient - and, particularly, a patient of color - to remain ignorant of the fact that their medical care is being managed by a device or system that likely encodes racism. This Part argues that informing patients about the likelihood of race-based algorithmic bias - and the reasons that we might expect race-based algorithmic bias - may, in fact, be a prerequisite for actually transforming the inequitable social conditions that produce racial disparities in health and healthcare.

In several jurisdictions in the United States, a rapist who causes his victim to become pregnant commits an aggravated sexual assault. Having committed an aggravated crime, he will be subjected to a longer prison sentence relative to his counterpart whose victim does not become pregnant consequent to the rape. The rapist who causes a woman to become pregnant will be treated as if he broke his victim's leg, gave her severe head trauma, or shot her with a gun. That is, 'the victim's pregnancy is treated the same as a broken bone, a concussion, or a gunshot wound'. This intriguing result is the product of sexual assault statutes that provide that pregnancy is a \"substantial bodily injury\" that can aggravate a crime. These laws, which function to construct pregnancy as an injury, are interesting for many reasons, two of which this Article explores in depth.

To see race as a natural phenomenon creates barriers for understanding how the human-made environment produces disease outcomes. [...]the connections between social policy and racial disparities in health go unacknowledged at the level of research design within the laboratory. Rarely does the notion that society shapes biology become a guiding principle in doctor/patient relationships or those between researchers and human subjects. [...]attention to the social determinants of health and behavior is vital for moving the health sciences toward more innovative conceptions of human biodiversity. [...]one of the major interventions of CRT within the context of law has been documenting the instability of legal protections and exposing the contradictions of rights discourse. [...]incorporating CRT into the study of human populations prompts us to go beyond the quantitative measures fetishized in medical and scientific research.

This Article conducts a critique of class-based affirmative action, identifying and problematizing the narrative that it tells about racial progress. The Article argues that class-based affirmative action denies that race is a significant feature of American life. It denies that individuals-and groups-continue to be advantaged and disadvantaged on account of race. It denies that there is such a thing called race privilege that materially impacts people's worlds. Moreover, this Article suggests that at least part of the reason why class-based affirmative action has been embraced by those who oppose race-based affirmative action is precisely because it denies that race matters, has mattered, and probably will continue to matter unless we make conscious efforts to make race matter less. The Article proceeds in two Parts. Part I locates class-based affirmative action doctrinally. Specifically, this Part identifies class-based affirmative action as the heir of the \"suspect class\" to \"suspect classification\" shift-a shift that tells its own lie about race. The substance of this lie is that those who exist at the top of racial hierarchies are as vulnerable to denigration, stigmatization, and subordination on account of race as are those who exist at the bottom of racial hierarchies. Part II goes on to demonstrate that class-based affirmative action suffers from the same infirmities from which race-based affirmative action is charged to suffer. It argues that the reason why proponents of class-based affirmative action are sanguine about these infirmities when they are present in class-based programs, but loathe them when they are present in race-based programs, is because their opposition to race-based affirmative action is not due to these infirmities. Rather, it is due to their disdain of the work that race-based affirmative action performs. That is, race-based programs function to assert, loudly, that race still matters and does so in powerful ways. Many proponents of class-based affirmative action resist this function. Moreover, class-based affirmative action functions to assert that we, as a society, have entered a post-racial future. That is, class-based affirmative action tells a lie about the insignificance of race. Many proponents of class-based programs likely find these programs attractive and comforting for that very reason. The importance of this Article is that it uncovers the narrative work that class-based affirmative action performs, and it argues that those who are interested in racial justice ought to resist these programs because of their dangerous discursive effects.

Scholars and activists interested in racial justice have long been opposed to surrogacy arrangements, wherein a couple commissions a woman to become pregnant, give birth to a baby, and surrender the baby to the couple to raise as its own. Their fear has been that surrogacy arrangements will magnify racial inequalities inasmuch as wealthy white people will look to poor women of color to carry and give birth to the white babies that the couples covet. However, perhaps critical thinkers about race should reconsider their contempt for surrogacy following the Supreme Court's recent decision in United States v. Windsor. In the decision, the Court envisions same-sex couples and the families that they head as valuable threads in the fabric of American society. Surrogacy arrangements are vehicles for same-sex couples to produce the families that Windsor celebrates. This fact may encourage opponents of surrogacy arrangements who have been concerned about the racial implications of the practice to reconsider their opposition. This Article conducts that reconsideration, ultimately concluding that while surrogacy arrangements are beneficial because they enable persons who are unprivileged by virtue of sexual orientation to have children, they may reaffirm extant racial hierarchies and exacerbate the marginalization of persons and families that are already unprivileged by virtue of race and class. However, instead of calling for a ban on surrogacy for these reasons, the Article argues that there are more desirable avenues for destabilizing racial hierarchies and undoing the marginalization of unprivileged persons and families.

Perhaps the difference between the example of animal slaughter and the issue of abortion is that, while advocates of animal rights might admit that there is some ambiguity to their claim as compared to the claim of religious observers, advocates of fetal rights tend to express absolute conviction that fetal interests should in most, if not all, cases trump the interests of women bearing unwanted pregnancies. [...]the reverse is true of advocates of women's reproductive rights. [...]the likelihood that opponents and supporters of abortion would agree to a \"middle ground\" -- in which there is a rule prohibiting abortion, but exemptions are allowed for individual women who make convincing arguments about their need to have their normative convictions honored -- is low.