On September 15, 2021, the U.S. Commission on Civil Rights issued a new report entitled “Racial Disparities in Maternal Health.” The report was intended to evaluate the federal government’s role in addressing maternal health disparities with a focus on maternal mortality. The report comes among a flurry of recent federal, state, and local government efforts to address racial disparities in maternal health, including the Black Maternal Health Momnibus Act of 2021, the Kira Johnson Act, the California Momnibus Act, several Perinatal Equity Initiatives funded by the California Department of Public Health, and San Francisco’s Abundant Birth Project. Various non-profit organizations are also attempting to address these disparities, including the Black Mamas Matter Alliance, Mamatoto Village, and Black Mothers in Power).

All four Republican-appointed commissioners—Commissioners Adams, Gilchrist, Heriot, and Kirsanow—wrote separate statements contained in the report.

Commissioner Gail Heriot’s dissent specifically took issue with several of the report’s claims, including: (1) mothers today are 50% more likely to die in childbirth than their mothers were a generation ago; and (2) racism is the root cause of maternal mortality.

Firstly, Commissioner Heriot noted that the “[a]ll or nearly all” of alleged 50% increase in maternal mortality can be contributed to a change in record-keeping methodology:

In 2003, a pregnancy question was added to the revision of the U.S. Standard Certificate of Death. This question includes a series of checkboxes designed to elicit whether the decedent was pregnant at the time of her death or whether she had been pregnant in the last year.

These checkboxes were added for a reason: Researchers feared that pregnancy-related deaths were being under-reported and hoped the checkboxes would improve the likelihood that a pregnancy-related death would be reported as such.

The checkboxes made it more likely that a physician preparing a death certificate would inquire into the decedent’s pregnancy status. If it turned out she was or had recently been pregnant, the physician could be more attentive to the possibility that pregnancy increased the likelihood of the death. Such cases could, for example, be referred to medical professionals with expertise in making a judgment about pregnancy relatedness.

The federal government, however, does not directly control the form of death certificates. Individual states do. Not all states were quick to adopt the checkbox recommendation (and some had made efforts even before 2003 to improve the likelihood that a pregnancy-related death would be reported as such). As each state eventually fell into line, the reported rate of maternal mortality ticked up in that state—not because more pregnancy-related deaths were occurring, but rather because more deaths were being classified as pregnancy-related. This is exactly what those who recommended the checkboxes had hoped for. We shouldn’t be surprised that what they intended is what actually happened.

The National Center for Health Statistics recognizes this: “Estimated trends suggest that the observed increases in [maternal mortality rates] from 1999 through 2017 reported in the literature were largely due to the staggered implementation of the checkbox. Potential misclassification of pregnancy status using the pregnancy checkbox likely also contributed, which disproportionately inflated [maternal mortality rates] among women aged 40 and over.”

Next, Commissioner Heriot addressed the allegation that racism is the root cause of maternal mortality. She noted that the report appeared to “deliberately obscure[e]” that the Hispanic maternal mortality rate is lower than the white maternal mortality rate, and that the disaggregation of Asian subgroups would likely show that Japanese Americans, Chinese Americans, and many other subgroups have extraordinarily low maternal mortality rates based on their respective rates of characteristics associated with maternal mortality. She noted that the proximate causes of racial disparities in maternal mortality are complicated and may include disparities in twin birthrates, hypertension, diabetes, and obesity.

Ultimately, Commissioner Heriot expressed concern that “accusations of racism, racial bias, and discrimination” will “make things worse . . . . [by] frighten[ing] African American (and possibly other minority) mothers into being unduly suspicious of medical care providers.” She concluded:

It is well established that African American mothers are less likely than other mothers to see a doctor early in their pregnancies. As far as I know, no one has studied exactly why. But this lack of early medical attention probably accounts for some portion of the high rate of maternal mortality among that group. Suggesting to these mothers that the medical profession is racist is unlikely to make them seek that help more readily. More likely it will do the opposite.

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