Academic journal article Columbia Journal of Gender and Law

Dangerous Terrain: Mapping the Female Body in Gonzales V. Carhart

Academic journal article Columbia Journal of Gender and Law

Dangerous Terrain: Mapping the Female Body in Gonzales V. Carhart

Article excerpt

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.

I. 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 . … 
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