FILE – A doctor uses a hand-held Doppler probe on a pregnant woman to measure the heartbeat of the fetus, Dec. 17, 2021, in Jackson, Miss. (AP Photo/Rogelio V. Solis, File) Is preventing the deaths of Black mothers and babies compelling? In a recent lawsuit, a conservative legal organization answers this question with a brutal “no.”
Jimenez v. Pan is a challenge to California’s Black Infant Health program, which describes itself as focusing “exclusively on empowering Black/African American women by connecting them with the vital care and support needed to promote healthy behaviors during pregnancy.”
The program responds to the fact that Black people are more than three times more likely than white people to die from a pregnancy-related cause, and Black babies die at twice the rate of white babies.
Some observers are inclined to blame Black people for these statistics, oftentimes suggesting that Black people have race-specific genetic variations that predispose them to all manner of death. However, the weight of the science does not support this view. The higher rates of Black maternal and infant deaths are not a function of Black people’s race-specific biology, but rather society.
Research suggests that if our efforts to combat racial disparities in health ignore race, they will fail.
Scholars have generated a body of literature exploring the efficacy of racially concordant care — patient-provider relationships in which the parties share racial identities. While the studies constituting this literature do not demonstrate that racially concordant care universally improves outcomes for patients, there are a number of studies that provide persuasive proof that in some contexts, Black patients will do better if they receive their care from Black doctors.
Perhaps the most disturbing of these studies examined the outcomes of Black babies who had been hospitalized in a neonatal intensive care unit in Florida. Researchers found that overall, Black babies were more likely to die than their white counterparts, suffering a mortality penalty. However, when Black babies received their care from Black providers, that penalty was cut in half.
This study and others show that paying attention to race in healthcare delivery can quite literally save lives. And this is why California’s Black Infant Health program pays attention to race in its effort to reduce Black infant and maternal mortality.
Nevertheless, plaintiffs have challenged the program as an unconstitutional violation of non-Blacks’ equal protection rights.
It was easy to predict this lawsuit. After the Supreme Court handed down Students for Fair Admissions v. Harvard, holding that the challenged race-based affirmative action programs were illegal, conservative organizations leapt into action. They claimed that the court had issued a blanket prohibition on race consciousness, mandating colorblindness across American society. In the wake of the verdict, endeavors like the Black Infant Health program essentially had a target on their backs.
The plaintiffs in Jimenez v. Panargue that because the Black Infant Health program explicitly considers race, courts must review the effort with strict scrutiny — a test that requires that the program pursue a “compelling governmental interest” in “narrowly-tailored” ways.
The plaintiffs certainly are correct on that score. The court has long determined that strict scrutiny is appropriate for laws and policies that have race on their face, which the Black Infant Health program certainly does. However, the plaintiffs also argue that the program cannot survive strict scrutiny review because it does not pursue a compelling governmental interest.
To be clear, the Black Infant Health program attempts to save Black people’s lives. It attempts to save the lives of Black mothers and babies. Plaintiffs argue that this simply is not compelling.
Some may refuse to believe that a federal court would credit this argument, believing instead that while the program may be struck down for other reasons, a judge would never be so cruel as to openly declare that the interest in saving Black mothers and babies is not compelling.
However, the Supreme Court has been this cruel before.
In the 1980s and 1990s, plaintiffs challenged a number of explicitly race-conscious programs that benefited historically disadvantaged racial groups. Defenders argued that these programs attempted to remedy the effects of past societal discrimination against nonwhite people. This interest, they argued, was compelling, satisfying strict scrutiny review.
The court disagreed, explaining in one case that “societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy.”
This is actually a stunning declaration — the impudence of which jurists and lawyers fail to appreciate. How could it not be compelling to try to repair the systems, institutions and ways of thinking that racism has corrupted?
In 2026, this proposition is understood to be unremarkable. In law schools, professors explain to students that, decades ago, the court held that the interest in remedying past societal discrimination is not compelling. Students record this truth in their notes. And no one bats an eye. This cruelty has been completely normalized.
In the coming year, a federal court may strike down the Black Infant Health program on the grounds that it fails to pursue a compelling governmental interest. Jimenez v. Paneventually may be taught in law school classrooms, and professors will explain to students that the Black Infant Health program was deemed unconstitutional because the interest in saving Black mothers and babies is not compelling.
Students will dutifully record this truth in their notes. And Black mothers and babies will continue to die wholly preventable deaths.
Khiara M. Bridges is the Earl Warren Professor of Public Law at UC Berkeley School of Law. Her most recent book is, “Expecting Inequity: How the Maternal Health Crisis Affects Even the Wealthiest Black Americans.”
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