Dangerous terrain: mapping the female body in Gonzales v. Carhart.

• Author: Hill, B. Jessie
• Position: Gender on the Frontiers: Confronting Intersectionalities

The body occupies an ambiguous position within the law. It is, in one sense, the quintessential object of state regulatory and police power. (1) The body is the object that the state acts both upon and for; the body of the individual may, indeed, be subject to regulation and even physical intrusion in the name of the state's power and duty to protect the health and safety of the "body politic." (2) At the same time, the body is often constructed (3) in legal discourse as the site of personhood--our most intimate, sacred, and inviolate possession--implying that it is in some sense beyond the reach of the law. (4)

The inherent tension between these two concepts of the body permeates the law, but it is perhaps nowhere more prominent than in the constitutional doctrine pertaining to abortion. Abortion is one of the most heavily regulated medical procedures in the United States, and yet it is at the same time the subject of relatively robust constitutional privacy protections--often even treated as synonymous with the word "privacy" itself. (5)

This brief Article focuses on the rhetoric of the body in abortion law and more specifically on how the Supreme Court's language constructs the female body in the recent case of Gonzales v. Carhart, (6) which upheld the federal Partial Birth Abortion Ban Act ("PBABA") (7) against a constitutional challenge. (8) A number of commentators have already remarked on the troubling rhetoric employed by Justice Kennedy's majority opinion in that case, primarily because of its paternalistic and sentimental view of motherhood. (9) But the focus of this Article is on the often overlooked, yet equally striking, language of the Court's opinion that graphically describes and details the regulated abortion procedure itself.

Part I of this Article briefly explains the background of Gonzales, describing both the "partial-birth" abortion law at issue in that case and the relevant constitutional doctrine. Part II then delves into the language of the opinion, with a particular emphasis on the technical portions of the Court's opinion detailing the abortion procedure and explaining how that procedure is regulated by the challenged law. Part II draws from that rhetoric several themes: disappearance, dismemberment and displacement of borders. These themes intertwine to construct the female body as a sort of geographical space, a dangerous terrain that not only permits but also requires regulation. Although these themes in part reflect the insights of many other feminist scholars and the motifs that they, too, have uncovered in abortion regulation and rhetoric, this Article contends that Gonzales represents a uniquely literal and uniquely visual representation of those concepts. Indeed, this Article argues that the notions of disappearance, dismemberment, and displacement of borders arc united by their association with this case's uniquely graphic--that is to say visual--approach. Part III concludes with some brief reflections on the meaning of the Court's language in the context of abortion law in general.

1. THE LEGISLATIVE AND DOCTRINAL BACKDROP

   In Gonzales v. Carhart, a 5-4 decision written by Justice Anthony Kennedy, the U.S. Supreme Court upheld the federal Partial Birth Abortion Ban Act of 2003 against constitutional challenge. (10) The federal PBABA imposes criminal and civil penalties--including up to two years' imprisonment---on any physician performing a particular abortion procedure. (11) The regulated procedure is known medically as "dilation and extraction," "D&X," "intact dilation and evacuation," or "intact D&E," but is often referred to, in more politically charged terms, as "partial-birth abortion." (12) That procedure is defined in the Act as:

   deliberately and intentionally vaginally deliver[ing] a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and ... perform[ing] the overt act, other than completion of delivery, that kills the partially delivered living fetus. (13) Because the procedure may be used as early as sixteen weeks' gestation, the ban thus has both pre-viability and post-viability application. (14) Importantly, numerous medical authorities confirm--though the Government disputed--that the procedure is safer than the available alternatives for women with certain medical or physiological conditions. (15)

   The plaintiffs had challenged the law on several grounds, but the Gonzales Court considered only three alleged flaws. First, the law lacked an exception allowing the procedure to be performed where necessary to preserve the health of the woman; second, it was void for vagueness in its description of the regulated procedure; and third, it imposed an undue burden on the abortion right because it was written so broadly as to sweep within its prohibition the most common second-trimester abortion procedure, known simply as dilation and evacuation (D&E). (16) The Court rejected all of those claims, at least insofar as they were presented in the context of a facial challenge, and kept the federal ban in place. (17)

   In doing so, however, the Court was not writing on a blank slate. The Supreme Court had already resolved nearly identical questions, in a nearly identical case, quite differently seven years earlier. In Stenberg v. Carhart, by a 5-4 vote (with Justice Kennedy in dissent), the Court had held Nebraska's "partial-birth abortion" law unconstitutional due to the overbroad language of its prohibition and its lack of a health exception. (18) When the Nebraska ban fell, so did numerous other states' laws by implication, as they, too, contained one or both of those flaws. (19) The federal law was thus in some sense a response to the Court's holding in Stenberg, though not exclusively motivated by that opinion. (20) Congress had passed similar bills in 1996 and 1997, but they were met with vetoes by President Clinton. (21) Perhaps enraged by the Court's holding in Stenberg, but also likely emboldened by the election of Republican President George W. Bush, who had stated his support for the law during the presidential campaign, (22) as well as by the likelihood--soon come to fruition--that that President would have the opportunity to appoint at least one Supreme Court Justice, (23) Congress tried again and finally succeeded in passing a federal "partial-birth" abortion ban in 2003. (24) That ban contained more precise language describing the forbidden procedure than the unconstitutional Nebraska ban. But rather than including a health exception and thereby fully complying with the Supreme Court's holding in Stenberg, Congress included a long list of "findings" purporting to demonstrate that the health exception was not needed. (25)

   Given this background, commentators have remarked upon the apparent inconsistencies in the Supreme Court's decision in the second "partial-birth" abortion case. (26) First, despite the Supreme Court's clear holding in Stenberg that the ban was unconstitutional without a health exception, Congress did not include a health exception in the 2003 Act. The Supreme Court nonetheless upheld the Act in Gonzales without explicitly overruling Stenberg. (27) Second, despite the fact that the Court had struck the statute on its face in Stenberg, it asserted the inappropriateness of a facial challenge in the nearly identical later case without convincingly distinguishing Stenberg. (28)

   In addition, commentators have remarked upon Justice Kennedy's rhetoric. In particular, many scholars were troubled by the passage in which Justice Kennedy invoked the "bond of love the mother has for her child" as a basis for concluding that some women are likely to regret their abortion decision. (29) According to the Court, this potential for regret in turn justifies protecting women from their choice to terminate a pregnancy, since:

   [i]t is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form. (30) As Justice Ginsburg rightly points out in her Gonzales dissent, this language draws on archaic and discredited stereotypes about women's roles in society---casting the woman as a "mother" who will, almost by nature, regret the decision to reject a relationship with her "child." (31) It also raises the question why Justice Kennedy did not--in light of his concerns about women's lack of knowledge about the intact D&E procedure--advocate "requir[ing] doctors to inform women, accurately and adequately, of the different procedures and their attendant risks" rather than "depriv[ing] women of the right to make an autonomous choice, even at the expense of their safety." (32)

   The paternalistic and romanticized sentiment conveyed by Justice Kennedy's flowery language is no doubt troubling for its implications regarding his, and the Court's, attitude toward the meaning of the abortion decision and the conditions under which it is often made. (33) But there is another aspect of this language that is striking--namely, the way it invokes, amid its linguistic flourishes, the image of the "doctor ... pierc[ing] the skull and vacuum[ing] the fast-developing brain of [the] unborn child" who, like an actual child, "assume[s] the human form." This graphic--indeed, horrifying--image of a "child" having its brain suctioned out while the unknowing mother absently permits this crime to occur echoes the Court's earlier description of the intact D&E procedure itself. The Court's language in the "bond of love" passage...