When pregnancy is an injury: rape, law, and culture.

• Author: Bridges, Khiara M.
• Position: III. Other Contexts through Conclusion, with footnotes, p. 490-516

3. OTHER CONTEXTS

This Part considers other areas of law in which pregnancy is represented. It reveals that the sexual assault statues under discussion are somewhat exceptional because it is rare for the law to embrace and reflect subversive understandings of pregnancy. The consideration begins with areas of law in which it is surprising that pregnancy is not constructed as an injury: abortion jurisprudence and birth-related torts. This analysis demonstrates that the law frequently embodies positive constructions of pregnancy even when negative constructions might be expected. The Part next considers areas of law in which pregnancy is constructed as an injury. However, this representation of pregnancy as an injury occurs when laws index the social effects of pregnancies. Accordingly, while the law in these instances represents pregnancy as an injury, the injury is to the body politic. Thus, the representation's subversiveness is mitigated, as it does not endeavor to describe a bodily experience of pregnancy as an injury. It only seeks to represent the societal effects of pregnancies--usually borne by problematized women (that is, minors and the poor).

This Article does not contend that the two conceptualizations are mutually exclusive. It does not argue that when pregnancy is recognized as an injury to the body politic, it is never recognized as an injury to the woman, and vice versa. Instead, the two conceptualizations may be poles on a spectrum, and judicial and legislative treatment of pregnancy may fall in a shade of gray in between. However, it is also true that the weight of any particular treatment of pregnancy is usually toward one pole--and usually dramatically so. Thus, the schematization offered in this Article remains valuable, as it demonstrates the uniqueness of the sexual assault laws in their unhedged and unapologetic construction of pregnancy as an injury.

Moreover, it is significant that the law, as a general matter, refuses to recognize that pregnancy can be an injury to women: in so doing, it refuses to reflect a critical, yet common aspect of women's experiences. Indeed, the law has ignored, or silenced, countless women because of its enduring commitment to positive constructions of pregnancy. Perhaps it is inevitable that, as women gain more power in the public sphere, the subversive construction of pregnancy will be reflected in law; as women's voices are heard and respected, the law will come to reflect their truths. Perhaps the reflection of this truth in the sexual assault laws discussed is a foreshadowing of things to come. If so, it will be interesting to observe how the recognition that pregnancy is an injury when unwanted may unsettle bodies of law--like abortion jurisprudence and birth-related torts--that, arguably, remain stunted due to their failure to listen to women.

1. When Pregnancy Is Not an Injury

   1. The abortion cases

      Intuitively, it would seem like the abortion cases would offer the most subversive understandings of pregnancy. After all, they constitutionalize the right of a woman who experiences her pregnancy as an injury to terminate that same pregnancy. Undeniably, then, the abortion cases certainly contain some recognition by the law that pregnancy is not always a life-affirming event in the life of the woman; instead, pregnancy may be experienced as a bad thing. However, the decisions themselves are reluctant to say as much. They are, at best, ambivalent.

      The most ambivalent of all of the abortion cases that remain good law is Gonzales v. Carhart (Carhart II). (124) In Carhart II, the Court upheld the federal Partial-Birth Abortion Ban Act, which prohibited a particular method of performing second- and third-trimester abortions. The Court reasoned that the Act was a legitimate exercise of a government interested in "promot[ing] respect for life, including life of the unborn." (125)

      According to the majority opinion, pregnancy establishes a woman as a mother--an identity a woman occupies even after she has successfully undergone an abortion and has no child. (126) Most importantly, her decision to terminate her pregnancy--motivated as it is by all the reasons of which the majority was surely well aware--is frequently one that she regrets. (127) It is a decision that she all too often bemoans, that hurts her, despite the compelling reasons that led her to undergo an abortion during her second or third trimester of pregnancy. (128) As such, the story that Carhart II tells is one in which pregnancy, consistent with positive notions, is a burdensome, painful, and anxiety-producing, but nevertheless good, thing for a woman. The opinion suggests that it is the misrecognition of the goodness of the thing--the miscalculation of the bitter versus the sweet--that leads women to choose abortion. Moreover, it is a miscalculation that women realize after the fact, resulting in regret and depression. Nevertheless, as an "abortion case" that applied the principles set out in Planned Parenthood of Southeastern Pennsylvania v. Casey (129) and, in so doing, implicitly affirmed Casey as good law and perpetuated the abortion right, (130) Carhart II could be apprehended as implicitly offering a subversive notion of pregnancy. However, the text and the reasoning of the opinion itself explicitly offer a representation of pregnancy that is consistent with prevailing, positive constructions.

      Now, because the concern here is with discourse and culture, the text of the opinion may not matter at all. One may argue that, when the interest is in the dissemination of ideas into and throughout culture, it is more important what the opinion establishes, not what the opinion says. The argument is that culture is not produced by the words that a court or a legislative body uses, but rather by the ideas that the laws produced by the court or legislative body manage to embody. Accordingly, Carhart II's ontology of pregnancy (as a positive event) would be unimportant; most important would be that, because the Court did not use Carhart II as an opportunity to overrule Roe, Carhart II embodies the idea that abortion has some constitutional protection and, in so doing, simultaneously embodies the idea that pregnancy may be a "bad" thing--an injury--for some women. Nevertheless, while this may be true, it is also true that Carhart II, in its refusal to afford constitutional protection for a particular method of performing abortion, limits the abortion right and, in so doing, embodies the idea that abortion may be a bad thing for women. This is the messiness of culture--where discourses and counterdiscourses exist side by side.

      Like Carhart II, Casey plays a prominent role in the messiness of culture through its perpetuation of a discourse and counterdiscourse simultaneously. Decided nineteen years after Roe, Casey overturned Roe's much-criticized trimester framework and replaced it with the undue burden standard. (131) While Roe's trimester framework had prevented governments from regulating abortion during the first trimester, (132) Casey's undue burden standard allowed for the government to regulate abortion during all stages of pregnancy in order to promote fetal life. (133) So, on the one hand, Casey reaffirmed Roe, (134) thus continuing the constitutionalization of the abortion right and, as a result, embodying and disseminating the idea that pregnancy is, at times, an injurious, "bad" thing for some women. On the other hand, Case), limited the abortion right (135) and, as a result, embodied and disseminated a competing idea that pregnancy is not an injurious, "bad" thing for as many women as Roe allowed. (136)

      Casey participates in the messiness of culture because it is a profoundly ambiguous decision. It certainly acknowledges that women may experience their pregnancies as injuries. (137) However, it also disbelieves the correctness of that experience in many cases. The thrust of Casey is to assert that women would actually experience their bodies differently if given the proper information. (138) Accordingly, it overturns Roe to the extent that the trimester framework prohibited the state from providing women with a lens through which they could see that what they thought was an injury was actually a gift. (139) Indeed, Roe is overturned because it proscribed states from attempting to refigure, to reconstitute, the phenomenologies that women have of their bodies. As such, Casey's ambiguity is that it simultaneously recognizes women's negative experiences of pregnancy while being profoundly suspicious of them. Nonetheless, it reaffirms the abortion right because women must "ultimately" determine the ontology of their pregnancy. (140)

      Then, there is the text of the opinion. In the course of refashioning the abortion right, the Casey majority waxed philosophically about pregnancy:

      The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear.... [T]hese sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love.... (141) The Court here acknowledges that pregnancy is burdensome and painful--both mentally and physically. However, it is ultimately a blessing, producing an "infant" with whom the woman shares a "bond of love." Indeed, for the Court, pregnancy is a noble event. The Court in this passage appears to suggest that women suffer, both physically and mentally, during all pregnancies--including wanted ones. The Court is loath, however, to interpret the Constitution such that the state may compel women to endure this inherent suffering by proscribing abortion.

      Moreover, even when the Court appears to acknowledge discourses that run counter to its positive description, the acknowledgment remains ambivalent:

      One view [of abortion] is based on such reverence for the wonder of creation that any pregnancy ought to be...