When Pregnancy Is an Injury: Rape, Law, and Culture

Article excerpt

III. 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.

A. 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. …