I. Introduction
Legal environmental protections have been on the rise, following an increase in scholarship on climate impacts as well as the passage of federal regulations within the last century.1 However, as environmental laws begin to take shape, they are systematically excluding a massive community of Americans - pregnant people. More specifically, environmental justice advocacy has acknowledged the inequitable impact environmental hazards have on poor people of color in the United States,2 but has not meaningfully accounted for maternal health within this demographic.
In spite of advocacy for health and “life”, maternal health has not been included as a prominent sticking point for environmental reform. As environmental legal advocacy has gained momentum in the wake of climate change, the urgent need to address maternal health within these frameworks has become increasingly apparent. The failure of current environmental laws to adequately address the disproportionate exposure of marginalized communities to pollutants raises significant legal and ethical concerns, particularly for pregnant people whose health is uniquely vulnerable to environmental harms.3 This essay argues that a comprehensive legal framework that integrates both reproductive justice and environmental justice principles is essential to safeguard maternal and fetal health, ensuring equitable protection from environmental hazards. The duty of both the courts and the legislature to defend pregnant people is tantamount to our nation’s alleged commitment to equitable protection from harm, regardless of judicial considerations of “life”, and our environmental laws should reflect such.
II. Environmental Justice
Alongside environmental law-making, intersectional activism aimed at equitable environmental protection has been the backdrop of most, if not all, initiatives to promote governmental defense against environmental hazards. As climate effects have taken their toll, these negative impacts are most drastically affecting marginalized communities, specifically communities of color. 4 The call for equity has motivated activists and caught the attention of both lawmakers and judiciaries.5 These movements, later labeled as environmental justice initiatives, were formerly acknowledged by the Environmental Protection Agency ("EPA"), prior to the current administration, and are defined as follows:
“Environmental justice” means the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision-making and other Federal activities that affect human health and the environment so that people: are fully protected from disproportionate and adverse human health and environmental effects (including risks) and hazards, including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers; and have equitable access to a healthy, sustainable, and resilient environment in which to live, play, work, learn, grow, worship, and engage in cultural and subsistence practices.4
Environmental justice advocacy’s roots can be traced back to Warren County, North Carolina - not as the first, but as one of the most prominent instances of change that combined multiple issues of injustice. Warren County residents, those of whom were primarily Black and low-income, were being systematically exposed to dangerous, toxic waste when their community became “designated to host a hazardous waste landfill” for polychlorinated biphenyls, or “PCBs”.7 While protests against this specific instance of dumping prevailed, it was a catalyst to unearthing widespread environmental injustice. Alternative instances of toxic exposures began to draw correlations between community demographics and environmental hazards, cultivating “a clear feeling in many minority communities (. . .) that they have been targeted for unwanted [toxic] land uses.”8 And this feeling was not unfounded. As of 2019, “[a]n estimated 70% of [] contaminated waste sites [were] located near low-income housing,”9 in addition to millions of people, notably low-income people of color, living near areas particularly susceptible to the negative effects of climate change.10 Given this clear overlap in issues, and the systemic targeting of poor communities, environmental justice activists have called for a holistic solution to environmental hazards¬¬—arguing that every person has the right to a healthy environment, regardless of race, class, or other demographic factors.11 This not only reflects an accumulation of overlapping issues but also suggests that the environmental crisis is more intersectional than it seems. Environmental justice “fundamentally links it to people, families, and communities.”12 With that, it is entirely reasonable to suggest there is ample room for the inclusion of reproductive justice and pregnant people as encompassed in the environmental protection framework that already exists.
In light of providing a comprehensive legal framework, and addressing the statutory nature of most environmental initiatives, there are several statutes whose passage was a step forward in environmental equity. Early federal environmental laws, such as the Refuse Act of 1899, sought to regulate waste disposal into navigable waters, and laid the groundwork for future legislation.13 However, the modern era of environmental protection began in the 1960s and 1970s, when concerns over air and water pollution, resource depletion, and ecosystem damage gained national attention. In the wake of increased urbanization, many communities began to weather the effects of poor air quality and contaminated water, particularly in areas of high industrialization.14 Notably, many of the communities bearing the brunt of these exposures were working class, people of color. In an effort to make a federal protective effort, the EPA and Congress passed a series of landmark laws, beginning with the Clean Air Act of 1970, which set federal standards for air quality and emission control. 15 The Clean Water Act of 1972 followed, significantly improving water quality by regulating pollution in U.S. waters. 16 While numerous state legislatures have since implemented local environmental protections, these federal initiatives were some of the first landmark steps towards sustainability in the U.S.
As environmental harm continues to affect communities and individuals alike, Americans have often looked to the courts for resolution. Environmental jurisprudence has evolved as societies recognized the need to protect natural resources, balancing human development with the preservation of ecosystems through legal frameworks and judicial decisions. While there is not an extensive litigation record, with most toxin and environmental-related actions settling, the introduction of “toxic torts” as a legal concept catalyzed environmental harm suits into action.17 While instances of harmful environmental exposures date back over 100 years,18 the record of its litigaiton most famously began in the 1970s, with large toxic tort class actions regarding exposure to "Agent Orange". The toxin was used as a method of “herbicidal warfare” by American troops during the Vietnam War.19 Exposure to the chemical made possible serious life-long health consequences for the many veterans who may have been exposed.20 While the actions (with subsequent landmark suits following) resulted in a settlement fund, this was a pivotal example of environmental harm being brought to the courts on a large scale.21 Currently, toxic torts is an enormously large practice in the American legal community and has substantially overlapped with other environmental actions across a variety of contexts.22
For example, in a case against the EPA in 2007, Massachusetts v. EPA plaintiffs petitioned the agency to regulate greenhouse gases being emitted by "new motor vehicles," reasoning that these emissions were contributing to the escalation of climate change.23 The petition made its way up to the Supreme Court in light of the EPA’s rejection to regulate the toxin as part of the Clean Air Act’s scope. However, in a 5-4 decision, the court ruled that there was no justification for the EPA to delay this regulation for the policy considerations they argued. 24 This decision further inspired suits against the federal agency, such as Michigan v. EPA - which took the EPA's power head on and turned to the court to determine agency power. In Michigan v. EPA, SCOTUS grappled with a "reasonableness" question to determine whether the EPA acted within its scope regarding the agency's decision to consider costs in denying to regulate electronic steam generating units (EUSGs).25 The 5-4 decision gave deference to the courts in determining whether the agency acted reasonably - with a spirited dissent by Justice Kagan condemning the court’s interference with agency regulatory decisions.26 This case exemplifies the increased overlap between litigation and environmental agency decisions.
In more recent cases, such as Sackett v. EPA, SCOTUS denied the scientifically backed evidence for the protection of wetlands (as put forth by the EPA) and asserted that the wetland’s lack of connection to federally protected bodies of water does not warrant regulation, because there is “no adequate remedy other than APA review.”27 However, the narrowness of this consideration (namely, not recognizing that harm to one body of water will inevitably affect another body, because water is a moving entity), not only stripped the EPA of their expertise but also weakened the power of the Clean Water Act.28 In one fell swoop, environmental litigation highlighted the court’s power to discredit both the legislature and the regulatory system.
However, this is not to say that the courts are wholly inconsiderate of the consequences of environmental harm and scientifically based climate patterns. These cases are limited examples of the scope in which environmental litigation has taken root in the judiciary. For all intents and purposes, this paper takes the reality of the climate crisis as fact. There is undeniable evidence that our climate is changing and that the environmental hazards being imposed upon our planet have a hand in these changes.29 While environmental concerns and climate advocacy have been hotly contested for decades, recent movements towards environmental initiatives have gained traction.30 Most notably relevant is Juliana v. United States, a suit filed in August 2015 by young plaintiffs' claims constitutional violations by the United States for exposure to a “climate system [in]capable of sustaining human life.”31 Plaintiffs called upon the courts to “phase out fossil fuel emissions and draw down excess atmospheric [carbon dioxide]” as a reparation to the alleged harm.32 However, in March of 2025, the Supreme Court of the United States ultimately denied certiorari, claiming that cases such as Juliana distract the Justice Department’s Environment and Natural Resources Division (ENRD) from pursuing their enforcement efforts.33 While this case is one of the most recent examples of advocacy turned litigation, its denial is also a reflection of the current court’s misunderstanding of environmental harm. Juliana plaintiff's assert that “this fight is far from over” and that “these claims will be heard, evidence will be presented, and the federal government will be held accountable.”34 There is no evidence to suggest that this denial has halted Americans desire to pursue environmental justice through the court system. Given the harm suffered and the wide scope of affected communities, as well as the enforcement of constitutional rights and wrongs, there is nothing to suggest that environmental litigation won't continue ensue. The court’s longstanding history with tortious environmental issues, as well as the increasing threat of climate harm, makes it so Americans very well may continue to turn to the courts for protection.35
II. Reproductive Justice
The history of reproductive rights, health, and justice in the United States has been tumultuous leading right into the most recent Supreme Court decision in Dobbs v. Jackson. In Griswold v. Connecticut, the court approached the issue of birth control and reproductive autonomy - ruling that married couples are entitled to the right to privacy in their bedroom when it comes to reproductive choices.36 While restrictive, the case established precedent for reproductive issues falling under a constitutionally protected privacy umbrella. However, this right to privacy was selectively extended. Only 13 years later in Madrigal v. Quilliagan, the defendants alleged they were subjected to coerced sterilizations while in acive labor.37 The defendants, all Latina women, were said to have “consented” to being sterilized in conjunction with their C-section deliveries. However, the consent was given while the women were under the duress of labor and with significant language barriers between the medical staff. 38 When brought to the courts, and on appeal, the judge’s unpublished opinion held that the clinic performing the sterilizations received informed consent from the women with no indication of coercion by their medical staff. 39 This marked a stark rejection of unfettered privacy protections for reproductive decisions. Madrigan also highlights the qualifiers that made Griswold a reproductive win, and this case not. Not only were the defendants in Griswold married, giving them particular protections by the state, but they were also white. Rejecting to protect the Latina defendants in Madrigal was arguably a pointed attack on the reproductive autonomy of people of color in the United States. Where some Americans were granted the constitutionally protected right to become or not become pregnant, others were left unguarded.
The juxtaposition of applied protections takes shape in more recent reproductive litigation – namely the overturning of Roe v. Wade. Similar to previous landmark cases, Roe’s argument rested on the right to privacy.40 While the right to privacy protected the defendant’s right to get an abortion within a certain trimester framework, Dobbs v. Jackson Women’s Health Organization held that there is no constitutionally protected right to an abortion.41 On its face, this may be true – but laws are not typically applied superficially. The nuance baked into the right to privacy includes a number of federally protected rights that are not explicitly named in the Constitution. So, in overturning Roe v. Wade, Dobbs gives state-level abortion bans the go-ahead to strip individuals of their privacy rights surrounding reproductive autonomy.42 The pattern of courts selectively granting reproductive rights is not new, but glaringly problematic, nevertheless. So, when considering maternal health as a reproductive justice tendril, it is crucial to acknowledge the unpredictability of how the courts consider bodily autonomy. While much of this law is more specifically related to topics such as abortion, healthcare coverage, and forced sterilization, these are each key aspects of the larger concerns regarding maternal health and the right to privacy.
In addition to maternal health and pregnancy safety, it can be safely assumed that fetal health is considered an extension of maternal health and concern. This, in no way, suggests fetal personhood, but rather acknowledges that maternal health often includes concern for fetal health and viability.43 Carrying a fetus, unequivocally, does not mean that the life of a pregnant person is set to the wayside. In fact, “granting full personhood to a fetus has an even more insidious outcome - undermining the legal personhood of women entirely and recategorizing them in the eyes of the law as non-person objects.”44 However, if a pregnant person intends to carry their fetus to term, they will likely be concerned with the viability of the fetus.45 Viability is of great interest to the courts and has served as the backdrop to most, if not all, reproductive jurisprudence to date. This includes Roe v. Wade’s trimester viability framework on abortion bans, as carried over by Dobbs, to suggest the viability of a fetus ultimately controls whether someone can be constitutionally protected.46 While this logic receives ample pushback, it highlights the court’s interest in fetal health. Although the court’s concern for maternal health wavers, precedent indicates that the preservation of fetal health often moves judicial opinions.
Moreover, turning to reproductive justice as a comprehensive framework, its mission is multi-faceted. The established pillars of reproductive justice call for the following: “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.”47 However, while the term was first formally used in the mid-90s, women of color have been activists for reproductive justice and inclusive reproductive autonomy for decades prior. SisterSong is recognized as an early leader in the reproductive justice movement. The organization initially put forth the principles the reproductive movement rests upon today.48 Based on the experiences of marginalized groups, reproductive justice attempts to address the limitations of mainstream reproductive rights discourse, which often centers white women’s experiences. Key figures in the movement, such as Loretta Ross and Rickie Solinger, emphasized the right to parent, the right not to parent and the right to parent in a safe and healthy environment in their advocacy.49 This framework moves beyond the legalistic approach to reproductive rights by stressing the importance of societal conditions that allow individuals to thrive in their reproductive lives, not merely survive. In this way, reproductive justice has become a vital tool for organizing around intersectional issues, helping to reshape the broader conversation about reproductive freedom in ways that are more inclusive and holistic.
IV. Intersection of Both Movements
The imperative to incorporate maternal health into environmental discussions has never been more critical. As a vulnerable population with unique needs, that is already often subject to equity disparities vis a vis race and class,50 inequity is furthered by the fact that marginalized communities are most impacted by both environmental hazards and inadequate maternal and fetal health care.51 In particular, Black women have been the subject of wildly inadequate maternal health treatment, with activists calling for the specific improvement of the environmental conditions for Black pregnant people.52 The environmental hazards associated with climate change are having drastic repercussions for pregnant people’s health, both directly and indirectly.53 Firstly, being pregnant already puts people in a physically vulnerable position. Environmental harm, including exposure to air pollution, hazardous chemicals, and climate change, has significant adverse effects on maternal health. Air pollution has been linked to increased risks of various adverse pregnancy outcomes.54 Climate change further exacerbates these risks, with extreme weather events and heatwaves contributing to stillbirth and preterm birth.55 These environmental hazards disproportionately affect vulnerable populations, particularly low-income and minority women, who are more likely to live in areas with high pollution levels and limited access to healthcare. As environmental conditions worsen, the need for targeted interventions to protect the health of pregnant women and their children becomes more critical.
Secondly, it would be short-sighted to not consider that a large part of maternal health and concern centers itself around the health of the fetus they are carrying. If someone has intentions to carry a fetus to term, and to maintain the health of that fetus, their intentions could be drastically overcome by the impact of climate hazards.56 In fact, “[a] fetus is particularly susceptible to environmental contaminants as it is developing at the time of pregnancy and is, therefore, more susceptible to [environmental contaminants’] effects.”57 Prenatal exposure to toxic chemicals, such as pesticides, heavy metals, and endocrine disruptors, interferes with fetal development and can lead to birth defects, neurodevelopmental impacts, and other health complications,58 such as increased potential for a miscarriage.59 It is undeniable that toxic exposure is not conducive to fetal health. However, what is even more compelling is that the majority of pregnant people facing environmental hazards potentially detrimental to themselves, or their fetuses are those who may not have access to better circumstances. As previously noted, the communities most adversely affected by environmental hazards are low-income communities of color.60 Even if pregnant people know they are being exposed to harmful toxins, many likely do not have access to the care they need nor the mobility to go elsewhere. 61
To that end, the right to have a child or become pregnant is also a part of the reproductive justice framework being affected by environmental hazards. For people with uteruses who want to get pregnant, the climate crisis poses major potential roadblocks. For example, many of the pollutants being released during toxic industrial and agricultural work are endocrine-disrupting chemicals.62 Exposure to these chemicals has been linked to decreased ovarian function, infertility, and earlier menopause.63 Additionally, many environmentalists have linked stressed related to climate concerns to increased “prenatal maternal stress…impact[ing]… pregnancy outcomes.”64 This is especially prevalent among pregnant people in underserved communities, particularly Black communities,65 struggling with “climate-related diseases, heat stress, and food insecurity.”66
While environmentalists look to create a sustainable future, reproductive justice advocates are working to ensure that this is possible through reproductive autonomy. If people are advocating for protection, the right to a healthy, safe environment involves both environmental justice and reproductive justice. This includes pregnant people having access to clean, healthy environments for themselves, and their fetuses, as well as ensuring that no one is “forced to make reproductive decisions based on the fact that their communities suffer disparate exposure to environmental hazards.”67
V. Barriers
This begs the question: if the intersection of these two initiatives is so obvious, then why hasn’t there been more overlap? From a legal perspective, there are a few reasons to consider. The first is an overarching pattern of pregnant people being treated differently in the eyes of the law. The Pregnancy Discrimination Act of 1978 amended Title VII to include pregnancy, but did not holistically address discrimination outside of the employment context.68 Although the statute concretized pregnancy treatment as a constitutional right, there were still several subsequent cases that permitted unfair treatment of pregnant people under the law. For example, in the 1986 Georgia case, University Health Services, Inc. v. Piazzi, Georgia Superior Court made a pointed decision to disregard a pregnant woman’s right to privacy after she was declared brain dead, but her fetus remained viable.69 The court disregarded the right to privacy granted by Roe v. Wade 70 and allowed the woman’s body to be treated as a vessel, at the expense of her family, to preserve a “life”; disregarding the effective conclusion of her own. This is one of many instances that the law has not critically addressed the repercussions of disregarding a pregnant life in favor of a “potential life.”
While it is not explicit, discrimination against pregnant bodies has not been halted as a result of the 1978 statute. It has merely underwritten much of reproductive legislation, judicial opinions, and reproductive materials being circulated in the U.S. For example, in 2002, the American College of Obstetricians and Gynecologists (“ACOG”) & the American Academy of Pediatrics released a guide for their recommendations on perinatal care. The recommendations included commentary on appropriate BMI, diet, and health routines for pregnant people. While many argued it was a generally positive thing to have standards in place for expectant mothers, the recommendations placed an enormous onus on the pregnant person to control their circumstances.71 Under the broad assumption that everyone has access to resources to realize health aspirations, the recommendations did not account for environmental hazards - particularly as they exist today.72 Furthermore, these recommendations exclusively speak to the physical act of being pregnant – not parenting.73 This insinuates that parental care is inherently biological. In addition, this made unfounded assumptions about reproductive intentions and only further affirms the treatment of pregnant lives as being second to a fetus. For a society and legal system insistent on valuing life, the U.S. has repeatedly disregarded the specific circumstances pregnant people may be grappling with. While recent years have included positive strides toward maternal health considerations, it is undeniable that legislators and practitioners have not protected pregnant people holistically.
Another reason maternal health and pregnancy have not necessarily been included in environmental advocacy and legal reform is our system’s resistance to positive rights frameworks. Judiciaries have already struggled with the notion that our laws should be supplementary, and have largely left positive rights frameworks to the states.74 Many legal minds believe that our government’s involvement is an injustice to autonomy, while others believe that autonomy comes with protection by the government so people have the freedom to live without harm.75 The debate is ongoing, but both environmental and reproductive justice take firm positive rights stances. Both initiatives see the law as a tool to protect against injustice, rather than a mechanism to keep the government out. This framework allows people to be shielded from injustice, so they have the liberty to thrive.
Finally, critics may see the intentional and explicit inclusion of pregnant people in environmental protections as a “kitchen sink” solution, allowing for any and all potential classes to make a case for specialized protection. However, this point is moot. Pregnancy poses a unique set of circumstances in a number of ways, the most relevant being that it directly falls into our ability to sustain life - a key pillar of environmental initiatives as they already stand. Rather than being an unwarranted add-on, this integration reflects a necessary recognition of how environmental justice intersects with reproductive justice. Ensuring that maternal health is protected within environmental regulations is not an irrelevant distraction, but rather a critical step in safeguarding vulnerable populations and promoting overall community well-being.
VI. Argument for Legal Reform
The need to address this issue at the legal level is crucial and even more important that the change be done on a federal level. There are several reasons why federal protections for pregnant people be instituted, but the most logical is that climate change is happening on an international scale. While certain areas may have more pointed harm than others, the issue is not appropriate for state-by-state regulation. To fairly protect pregnant people equitably, the legal argument must be made on a federal scale - particularly since those at the margins of our communities will be most affected.76 Assuming that not all states are representative of marginalized interests, widespread protections are necessary. If the harm is happening on a national scale, there is a valid reason to assert protections at the federal level.
While it can be tempting to make a constitutional equal protection argument here, regarding pregnant people as a suspect class being disproportionately affected by environmental hazards that are not being substantially prevented by the government, our legal framework has proven that the courts care about potential life selectively. For example, in Harris v. McRae, the court held that “potential life” is a legitimate governmental objective to justify rejecting federal Medicaid funding for abortions.77 The court’s concern with life applied not to the pregnant person seeking care, but to the theoretical life of an unborn fetus. Further case law, as detailed in Madrigal above,78 as well as the statute in (now overturned) Thornburgh v. ACOG,79 notoriously did not substantively prioritize reproductive rights, nor was there an explicit prioritization of maternal life and health. It is not facially neutral to ignore both potential and existing life and the quality of that life in the face of climate change. The current judicial climate has proven that the courts do not reliably protect the actual existing life of mothers. If “potential life” is truly a foundational element of our country’s history and traditions, environmental hazards affecting pregnant people should be considered a priority. For example, the negative rights framework in Dobbs that returns “power” to the legislature (as asserted by Justice Kavanaugh in his concurrence), and takes a formalist view on guaranteed rights, does not appear to be advocating for the protection of existing life. This logic is flawed as it does not make sense to argue about life if the government is not going to actually protect it. As environmental concerns grow, the legal community should be increasingly concerned about protecting those who will be most harmed. In other words, in the spirit of maintaining justice in a changing landscape, pregnant people must be prioritized as a disparately impacted class that, without proper protections (as opposed to arguments that only consider active harm), will suffer inequitably.
As part of both reproductive and environmental justice’s policy interests, there is also a legislative argument to be made here. Our federal legislature has enacted policies addressing both current environmental hazards and pregnancy protection. For example, the Clean Air Act, the Clean Water Act, and the Toxic Substances Control Act were all congressional initiatives interested in reducing environmental harm.80 Also, in alignment with environmental justice initiatives, the passage of Executive Order 12898 in the mid-1990s in an effort to address pollution in marginalized communities.81 More recently, while not written into law, numerous politicians have advocated for passage of the Green New Deal 82- an environmental proposal focused on intersectional reform. In relation to reproductive legislative interest, the Pregnancy Discrimination Act,83 as well as the Maternal and Health Bureau, address these precise public health concerns - including access to public healthcare and training public health officials on “the specific needs of maternal and child health populations."84 Beyond the more well-known federal policies, there are also various resolutions, such as the Social Determinants for Moms Act of 2020 (H.R. 6132) calling for congressional action to “address social determinants of health for women in the prenatal and postpartum periods, and for other purposes.” 85 In addition, H.R.1318 seeks to support states “to eliminate disparities in maternal health outcomes” and “identify solutions to improve health care quality and health outcomes for mothers.” 86
However, revocations of environmental statutes per the current administration, have not gone unnoticed. Executive Order 14096 was signed by President Biden in 2023 in an effort to “advance environmental justice for all by implementing and enforcing the Nation's environmental and civil rights laws, preventing pollution, addressing climate change and its effects, and working to clean up legacy pollution that is harming human health and the environment.”87 The initiative was swiftly revoked by the Trump Administration in its crusade against diversity, equity, and inclusion related programs.88 Given the current administration’s aversion to race and class-based government funding, statutory reform is not at top of mind in the current political climate. Despite this, there are still standing statutory initiatives addressing disproportionate environmental harm, as of now. But, again, none of which target pregnancy directly.
While these sets of policies operate in separate spheres, both aim to enhance health outcomes and safeguard the well-being of vulnerable populations. There is an obvious intersection here, providing an opportunity for collaboration between environmental and reproductive legislative initiatives. While it can be argued that protections in both spheres imply the other, an implication does not equate to truth. It is essential to explicitly state the convergence of environmental protections and pregnancy to ensure clarity in the law. The likelihood of maternal health being named as an explicit state objective in the wake of environmental hazards is novel, but not unfounded. While in a different domain of protection, the U.S. Equal Employment Opportunity Commission’s (“EEOC”) recent adoption of the Pregnant Workers Fairness Act (“PWFA”) rests upon the same principles that environmental reform for the protection of pregnant people would.89 The PWFA requires employers to provide reasonable accommodations to workers affected by pregnancy, childbirth, or related medical conditions.90 This law ensures that pregnant workers can continue to perform their jobs without facing discrimination, and mandates accommodations, as long as they don’t impose an unreasonable hardship on the employer.91 The Act recognized the susceptibility of pregnant people in this context and created a positive legal protection.
VII. Existing Frameworks & Potential Remedies
To that end, federal agencies have formally acknowledged pregnant people as both a vulnerable population and one uniquely affected by environmental harm. For example, the EPA notes that extreme heat incidents due to climate change can lead to dehydration and kidney failure in pregnant women.92 The agency also explicitly states that pregnant people are more susceptible to “insect-, food-, and water-related illness” 93; those of which are expected to increase as the climate crisis progresses.94 However, acknowledgment and protection have entirely different agendas. There is no current record of the federal government action for pregnant people in the wake of increased environmental hazards.95 In an ideal world, agencies would be able to further regulate environmental hazards to prevent them altogether. However, there is nothing to suggest intentions for this. Instead, legal initiatives have become reactionary, and the U.S. legal system has engaged in a whack-a-mole-like strategy to retroactively provide environmental remedies. This strategy has not only been ineffective, but it does not work for affected pregnant people. Given the 40 weeks of gestation that pregnant people must maintain their health, as well as their fetuses, it would be ideal to think that comprehensive environmental regulations and waste management should prevent the likelihood of exposure as soon as possible. However, Americans do not exist in a vacuum. The likelihood of preventing every pregnant person in the United States from being exposed to some side effect of the climate crisis is near impossible. Instead, in addition to pushing for comprehensive protections and explicit naming of pregnant people as a vulnerable population, the following initiatives could be implemented to improve maternal and fetal health amid the climate crisis.
First, a national expansion of accessible healthcare services for pregnant people who have been disproportionately exposed to environmental hazards should be written into law. This could include increased clinician availability in problem areas, as well as the mailing of relevant personal protective equipment, such as masks and filters for communities being disparately exposed. An increase in accessible care and subsidization of protective equipment has the potential to act as reproductive justice where environmental justice cannot catch all harm. Moreover, this kind of aid does not appear to have any legal barriers, as there are with medication abortion via the Comstock Act96, and this has already been done on the federal level previously with the distribution of COVID-19 testing kits as well as free administration of vaccines throughout and following the 2020 pandemic.97
Additionally, there should also be a federal funding effort to provide financial aid for social mobility for pregnant people in areas with notably harmful environmental exposures. Alternative proposals include a federal acknowledgement of environmental harm with pointed funding initiatives such as expanded insurance coverage.98 And, while specific proposals have the potential to be very effective, generalized federal funding could offer freedom of choice for affected individuals. tics of federal aid, and adopters of harmful tropes such as “welfare queens” and “hyper-fertile demographics”, may push back this assertion. However, the argument that reproduction and birthrates are so substantial to environmental harm that maternal health does not warrant protection is unfounded. The federal government and affiliated corporate associates are in much more powerful positions, with drastically higher impacts on our environmental future. Individual people, particularly those who have been disenfranchised by society, are not to blame for large-scale environmental harm. In change, “placing the burden of climate change mitigation efforts on women’s bodies diverts responsibility from governments and the private sector.”99 While financial aid does not compare to reproductive autonomy to exist in a healthy environment, the government has failed to holistically protect Americans from environmental harm thus far. So, the least to be done is to attempt to repair and prevent injury.
However, these are band-aid solutions for a monstrous problem that is only getting worse. At some point, the climate crisis will be drastically affecting every person on the planet in a harmful way - so much so that federal aid can’t be able to be provided to every single affected individual. However, the root of the issue is disregard for environmental health and lack of protection against hazards. Since there is no feasible legal solution to creating a sustainably healthy future as of now, our justice system has a duty to repair any harm being suffered in real-time. As noted above, if the preservation of life is actually a state interest protected by our nation’s laws, maternal health in the wake of detrimental environmental hazards should be a priority.
VIII. Conclusion
It is crucial to our freedom as both a nation and as individuals to invest in framing the future of environmental protections. While it is undeniably an uphill battle during the current judicial and political climate, it is critical to preserving the health and safety of current and future Americans as the climate crisis looms. Unlike many issues waiting on the steps of courthouses to be “ripe”, environmental hazards have already begun to erode the lives of Americans - particularly those most ill-protected.100 If governing bodies can reflect the dynamic nature of the suffering most prevalent for Americans, and our nation’s legal framework is truly committed to preserving life, the law should support the protection of maternal health through environmental reform judicially, legislatively, and morally.
*Gabrielle Fagan, Candidate for Juris Doctor, 2026, Northeastern University School of Law.
1 Press Release, United Nations Env’t Programme, Dramatic Growth in Laws to Protect Environment, but Widespread Failure to Enforce (Jan. 24, 2019); News Release, U.S. Env’t Prot. Agency, EPA Moved Further and Faster Than Ever Before in 2023 (Dec. 21, 2023).
2 Kelly Anne Smith, How Communities of Color Are Most Hurt by Climate Change, Forbes: Advisor (Korrena Bailie, ed., Jun. 7, 2021, 7:00am), https://www.forbes.com/advisor/personal-finance/communities-of-color-and-climate-change/.
3 Robert R.M Verchick, In a Greener Voice: Feminist Theory and Environmental Justice, 19 Harv. Women's L.J. 23, n.53 (1996)(‘“…firm scientific evidence that risk associated with maternal exposure is significantly higher than the risk associated with paternal exposure.’”).
4 Smith, supra note 2.
5 Sara Pirk, Expanding Public Participation in Environmental Justice: Methods, Legislation, Litigation and Beyond, 17 J. Env’t L. & Litig. 207 (2002).
6 Environmental Justice, U.S. Dep't of Energy, https://www.energy.gov/lm/environmental-justice-history, (last visited Dec. 5, 2024).[https://web.archive.org/web/20250123064809/https://www.energy.gov/lm/environmental-justice-history].
7 Environmental Justice History, U.S. Dep't of Energy,https://www.energy.gov/lm/environmental-justice-history, (last visited Dec. 5, 2024).[https://web.archive.org/web/20250123064809/https://www.energy.gov/lm/environmental-justice-history].
8 Id.
9 Megan Mayhew Bergman, 'They Chose Us Because We Were Rural and Poor': When Environmental Racism and Climate Change Collide, Guardian (Mar. 8, 2019), https://www.theguardian.com/environment/2019/mar/08/climate-changed-racism-environment-south.
10 Climate Change and the Health of Socially Vulnerable People, U.S. Env't Prot. Agency, https://www.epa.gov/climateimpacts/climate-change-and-health-socially-vulnerable-people, (last visited Jul.6, 2025).
11 Bergman, supra note 9 (“[if] the government does not act to protect all citizens, we may have several crises to choose from”).
12 Kristen Zimmerman & Vera Miao, Fertile Ground: Cultivating the Intersection of Environmental and Racial Justice (2009), https://movementstrategy.org/wp-content/uploads/2021/11/Fertile-Ground.pdf.
13 33 U.S.C. § 407 (1899).
14 James R. Elliot & Scott Frickel, The Historical Nature of Cities: A Study of Urbanization and Hazardous Waste Accumulation, 78(4) Am. Socio. Rev. 521 (2013), https://doi.org/10.1177/0003122413493285.
15 Clean Air Act, 42 U.S.C. § 7401 (1970).
16 Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. § 1251 (1972).
17 See e.g., Larry Cohan & Alison Russell, Toxic Torts, Chemicals, and the Litigation They Generate in Modern America, The Legal Intelligencer (Jan. 16, 2023, 9:11 AM), https://www.law.com/thelegalintelligencer/2023/01/16/toxic-torts-chemicals-and-the-litigation-they-generate-in-modern-america.
18 Ecological Disasters, Council on Foreign Rels. (Apr. 23, 2025) https://www.cfr.org/timeline/ecological-disasters ; See generally, Mary Cathern Hensinger, Agent Orange and Boyle: Leading the Way in Mass Toxic Tort Actions, 6 J. Contemp. Health. L. & Pol’y 359 (1990), https://scholarship.law.edu/jchlp/vol6/iss1/21.
19 What Is Agent Orange?, Aspen Inst. (Feb. 2025), https://www.aspeninstitute.org/programs/agent-orange-in-vietnam-program/what-is-agent-orange/.
20 Agent Orange Exposure, U.S. Dep't of Veteran Affs., https://www.publichealth.va.gov/exposures/agentorange/ (last visited Dec. 5, 2024).
21 See generally, Harvey P. Berman, The Agent Orange Veteran Payment Program, 37 Duke L. & Pol'y 123 (2023), https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4071&context=lcp (last accessed date); See also, Linda Mullenix, Introduction to the Problem of Mass Tort Litigation, U. Tex. Sch. of L., 14 (n.d.), (“The Agent Orange case is not the first mass tort litigation..., but it is probably the most revealing and perplexing example of the legal genre.), https://law.utexas.edu/faculty/lmullenix/info/mullenix2-35.pdf.
22 Causation in Environmental Law: Lessons From Toxic Torts, 128 Harv. L. Rev. 2256, 2256, (2015), (“Environmental and toxic tort suits constitute broad, amorphous, and sometimes overlapping categories.”).
23 Massachusetts v. EPA, 549 U.S. 497, 497-98 (2007).
24 Id.
25 Michigan v. EPA, 576 U.S. 743, 747 (2015).
26 Id.
27 Sackett v. EPA, 566 U.S. 120, 131 (2012).
28 James M. McElfish, Jr., What Comes Next for Clean Water? Six Consequences of Sackett v. EPA, Env’tl L. Inst.: Vibrant Ev’t Blog, (May 26, 2023), (“On May 25 the Supreme Court, ruling in Sackett v. EPA, sharply limited the scope of the federal Clean Water Act’s protection for the nation’s waters.”), https://www.eli.org/vibrant-environment-blog/what-comes-next-clean-water-six-consequences-sackett-v-epa.
29 See generally David Archer & Stefan Rahmstorf, The Climate Crisis: An Introductory Guide to Climate Change, (Cambridge Univ. Press 2010).
30 Press Release, Climate litigation more than doubles in five years, now a key tool in delivering climate justice, UNEP (July 27, 2023), https://www.unep.org/news-and-stories/press-release/climate-litigation-more-doubles-five-years-now-key-tool-delivering.
31 Juliana v. United States, 947 F.3d 1159, 1164 (9th Cir. 2020).
32 Id.
33 Office of Public Affairs, Justice Department Statement on Juliana Case, U.S. Dep’t Of Just. (Mar. 24, 2025), https://www.justice.gov/opa/pr/justice-department-statement-juliana-case/.
34 Dana Drugmand, Top US Court Officially Ends Landmark Youth Climate Suit Against The Federal Government, CTS (Mar. 24, 2025), https://www.climateinthecourts.com/top-us-court-officially-ends-landmark-youth-climate-suit-against-the-federal-government/.
35 United Nations Environment Programme, supra note 30.
36 Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
37 Maya Manion, The Story of Madrigal v. Quilligan: Coerced Sterilization of Mexican-American Women, Univ. Of S. F. Sch. Of L., Paper No. 2018-04, 3 (2018).
38 Id.
39 Id. at 13 (“By denying the women any relief in an unpublished opinion, Curtis also silenced the Madrigal Ten’s stories, suppressing any legal recognition of the harms endured by the women.”).
40 Roe v. Wade, 410 U.S. 113, 114 (1973).
41 See generally, Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).
42 Id. at 221.
43 World Health Organization, Maternal Health, Overview (2024), https://www.who.int/health-topics/maternal-health#tab=tab_1, (“Maternal health refers to the health of women during pregnancy, childbirth and the postnatal period.”).
44 Meghan M. Boone & Benjamin J. McMichael, Reproductive Objectification, 108 Minn. L. Rev. 2493, 2494 (2024).
45 Katherine Fleming & Emma Roth, When Fetuses Gain Personhood: Understanding the Impact on IVF, Contraception, Medical Treatment, Criminal Law, Child Support, and Beyond, Pregnancy Just., 48 (2023), (“…fetal personhood exposes its underlying denial of liberty and autonomy to pregnant and postpartum people.”), https://www.pregnancyjusticeus.org/wp-content/uploads/2023/05/fetal-personhood-with-appendix-UPDATED-1.pdf.
46 Roe, 410 U.S. at 163-64.
47 Reproductive Justice, Sister Song, https://www.sistersong.net/reproductive-justice (last accessed Dec. 5, 2024).
48 Id.
49 Loretta Ross & Rickie Solinger, Reproductive Justice: An Introduction, 1–8 (N.Y. UNIV. PRESS 2017).
50 Zimmerman & Miao, supra note 12.
51 Felicia Isaac, Climate Change Is Hurting Expectant Black Mothers, 35 WTR Nat. Res. & Env't 57 (2021).
52 Dorothy E. Roberts, Race and the New Reproduction, 47 Hastings L.J. 935, 948 (1996) (“Black women in particular would be better served by a focus on the basic improvement of conditions…, such as occupational and environmental hazards…”).
53 Sandie Ha, The Changing Climate and Pregnancy Health, 9 Current Environ. Health Rep. 263, 264 (2022).
54 Radim J. Šrám, Blanka Binková, Jan Dejmek & Martin Bobak, Ambient Air Pollution and Pregnancy Outcomes: A Review of the Literature, 113 Env’t Halth Persp. 375, 375–82 (2005).
55 Leeann Kuehn & Sabrina McCormick, Heat Exposure and Maternal Health in the Face of Climate Change, 14 Int. J. Env’t Res. & Pub. Health 853 (2017).
56 Prerna Rani & Archana Dhok, Effects of Pollution on Pregnancy and Infants, Cureus 1, 1 (2023).
57 Id.
58 David C. Bellinger, Prenatal Exposures to Environmental Chemicals and Children's Neurodevelopment: An Update, 4 Safety And Health At Work 1, 1–11 (2013).
59 Sacha A. Krieg, Lora K. Shahine, Ruth B. Lathi, exposure to endocrine-disrupting chemicals and miscarriage, 106 Fertility And Sterility 941, 941, (2016) (“Not only can environmental toxins impact the developing embryo, there is also a potential for alteration of the endometrium of pregnancy, that is, the decidua...These early interactions allow for implantation to occur and ultimately for establishment of pregnancy. Environmental alteration of these early uterine events can also disrupt an early pregnancy or potentially result in miscarriage or other adverse pregnancy outcomes.”).
60 Zimmerman & Miao, supra note 12.
61 Kristine Perry, Jessica Sugarman & Ariel Silverman, Reproductive Justice Is Environmental Justice, Env’t L. Inst. (2023)(“Climate change and its harms fall disproportionately on…people in low-income communities and communities of color due to a systematic lack of access to economic and healthcare resources, a product of historical and current racism and classism in the United States.”).
62 Guillermina Girardi & Andrew A. Bremer, Effects of Climate and Environmental Changes on Women's Reproductive Health, 31 J. Of Women’s Health 755 (2022), 10.1089/jwh.2021.0631.
63 Supra note 60; See also, Lindsey Konkel, Taking the Heat: Potential Fetal Health Effects of Hot Temperatures, 127 Env’t Health Persp.10 (2019).
64 Girardi & Bremer, supra note 62.
65 The Link Between Climate Change and Sexual and Reproductive Health and Rights – An Evidence Review, Women Deliver 7 (2021) (“Black women could be at a greater risk for preterm births and low-weight births due to higher exposure to air pollution”), https://womendeliver.org/wp-content/uploads/2021/02/Climate-Change-Report.pdf.; See also, Roberts, supra note 52 at 48.
66 Women Deliver, supra note 65 at 13.
67 If You Really Care about Environmental Justice, You Should Care about Reproductive Justice!, Nat'l Women's l. Ctr. (2015), https://nwlc.org/wp-content/uploads/2015/08/FactSheetEnvironmentalJusticeandReproJustice.pdf.
68 Pub. L. No. 95-555, 92 Stat. 2076 (1978) (codified at 42 U.S.C. § 2000e(k)).
69 University Health Services, Inc. v. Piazzi, No. CV86-RCCV-464, 1986 WL 1167470, at *1 (Ga. Super. Aug. 4, 1986).
70 Roe, 410 U.S. at 129.
71 The American College of Obstetricians and Gynecologists & American Academy of Pediatrics, Guidelines for Perinatal Care at 2, (7th ed. 2012).
72 United States Environmental Protection Agency, Climate Change Impacts on Health, https://www.epa.gov/climateimpacts/climate-change-impacts-health (last visited Apr. 23, 2025) (“Climate change can disrupt access to health care services, threaten infrastructure, and pose physical and mental health risks.”)
73 Id.
74 Dustin Coffman, Pathways to Justice: Positive Rights, State Constitutions, and Untapped Potential, 24 Marq. Benefits & Soc. Welfare L. Rev. 181, 181–82 (2023).
75 See, David P. Currie, "Positive and Negative Constitutional Rights," 53 U. Of Chi. L. Rev. 864 (1986).
76 Perry, et al., supra note 61.
77 Harris v. McRae, 448 U.S. 297, 316 (1980).
78 Manion, supra note 37.
79 See Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986) (holding that the PA statute forcing physicians to give information that would make abortion-seekers reluctant to proceed was unconstitutional).
80 42 U.S.C. § 7401 et seq. (1970); 33 U.S.C. § 1251 (1972); 15 U.S.C. § 2601–2697 (1976).
81 Exec. Order No. 12,898, 3 C.F.R. 859 (1994), reprinted as amended in 42 U.S.C. 4321 (1994 & Supp. VI 1998); Exec. Order No. 13045, 62 Fed. Reg. 19,885 (Apr. 23, 1997).
82 H. R. 109, 116th Cong. (2019).
83 42 U.S.C. § 2000e(k).
84 Maternal Health and Child Bureau, Health Resources and Services Administration, (last accessed Dec. 5, 2024), https://mchb.hrsa.gov/.
85 H.R. 6132, 117th Cong. (2022).
86 H.R. 1318, 115th Cong. (2018).
87 Exec. Order No. 14,096, 88 Fed. Reg. 25,251 (Apr. 26, 2023).
88 Rollback: Trump Rescinded Biden’s Executive Order 14096 to Advance Environmental Justice, Harv. L. Sch. Env’t & Energy L. Program, (Jan. 22, 2025), https://eelp.law.harvard.edu/tracker/president-biden-issued-executive-order-14096-to-advance-environmental-justice/.
89 H.R. 1065, 117th Cong. (2021); See also, Summary of Key Provisions of EEOC’s Final Rule to Implement the Pregnant Workers Fairness Act (PWFA), U.S. Equal Emp. Opportunity Comm’m, (last visited Apr. 23, 2025), https://www.eeoc.gov/summary-key-provisions-eeocs-final-rule-implement-pregnant-workers-fairness-act-pwfa.
90 Id.
91 Id.
92 Climate Change and the Health of Pregnant Women, U.S. Env’t Prot. Agency (May 2016), https://19january2017snapshot.epa.gov/sites/production/files/2016-10/documents/pregnant-health-climate-change-print-version_0.pdf.
93 Climate Change and Health: Pregnant, Breastfeeding, and Postpartum Women, U.S. Env’t Prot. Agency (May 20, 2025), https://www.epa.gov/climateimpacts/climate-change-and-health-pregnant-breastfeeding-and-postpartum-women.
94 See U.S. Env’t Pro. Agency, supra note 72 (“climate change can also lead to more diseases spread by insects and ticks, and it can affect the quality and safety of air, water, and food, including through the spread of harmful bacteria or viruses.”)
95 See, e.g., Exec. Order No. 14,008, 86 Fed. Reg. 7619, 7622 (Feb. 1, 2021) (directing federal agencies to consider climate change as a public health crisis but not explicitly addressing pregnancy-related risks); 42 U.S.C. § 7401 (authorizing the government agencies to regulate air pollutants harmful to general human health), H.R. 959, 117th Cong. (2021) (proposing funding and policy reforms to address climate-related maternal health risks but not yet enacted into law).
96 Comstock Act, ch. 258, 17 Stat. 598 (1873).
97 See, Dep’t of Health and Hum. Serv., Coronavirus (COVID-19) Testing, https://www.hhs.gov/coronavirus/testing/index.html (last visited Apr. 24, 2025); COVID-19 Vaccines, HHS.GOV, https://www.hhs.gov/coronavirus/covid-19-vaccines/index.html; See also, COVID-19 Test Distribution Kit Audit Report, Office of Inspector General, U.S. Postal Serv., Report No. 22-076-R22, (Sept. 28, 2022), https://www.uspsoig.gov/reports/audit-reports/covid-19-test-kit-distribution (last visited Apr. 24, 2025).
98 Mickaela J. Fouad, Down and Dirty: Remedies and Reparations for Intersected Environmental and Reproductive Justice, 87 Brook. L. Rev. 1423, 1425 (2022).
99 Women Deliver, supra note 65, at 17.
100 Smith & Bailie, supra note 2.