Abstract
The Dobbs decision revoking the constitutional legality of abortion in the United States was widely characterized as a use of raw power. That gives rise to the questions: What kind of power is in question? How does the post-Dobbs moment encapsulate a number of hinges between formations of power characterized in post-Foucauldian theory? How is fluency in the combinations of power at work in the Dobbs decision and aftermath enhanced by a vocabulary of such hinges, including “revocability,” “exception,” and “disqualification”? The article opens up the relationship between rights-bearing and the differential distribution of expectations (for some) that rights be accompanied by particular kinds of good conduct from which others are exempt. Asking how and why abortion has served as a device for setting aside a broad range of rights, the article gives special attention to “exemption” and “self-exemption” in the reproductive governance of abortion.
The Court's derisive framing of women and their capacities . . . ultimately creates the very double standards it is charged with dismantling.
—Michele Goodwin, Policing the Womb
1. A-leak-o, Trollito, and “Raw Power”
In May 2022, as a draft of the US Supreme Court's Dobbs v. Jackson decision was leaked, one word ricocheted through activist, celebrity, political, and legal commentary.1 Alicia Keys tweeted that the decision was not only about abortion but about “who has power over you,”2 and Erin Ryan called out the professed concern for children and parents among Republicans and conservative Supreme Court justices: “All they give a shit about is exerting power over people that they can exert power over.”3 Kate Shaw pinpointed the outcome-driven constitutional interpretation cherry-picked for conservative agendas: Dobbs was “really just raw power . . . an exercise of power, they have the votes and they did it.”4
But the term's widespread usage was also an occasion to ask what was meant by “power,” and what kind of power this was. As if in answer, ingenious terminologies proliferated in contexts ranging from comedians’ political commentary to law professors’ public-facing podcasts. The hosts of Strict Scrutiny were at the forefront of this field. They decried the Supreme Court's opportunistic itinerancy, its alternating appeals to and disregard for precedent, impact, established principles, consequences, facts, consistency, competency, and empathy. They named it the “YOLO court” and pointed to its use of doublespeak, bad faith, trolling, vibes, fan fiction, and “gaslighting”5—Merriam-Webster's word of the year. When several judges were accused of having misled Congress, Jon Stewart suggested that the Supreme Court had devolved into the “Fox News of justice.” The semblances of journalism and justice were giving the patina of fairness and balance to cynically political institutions.6 These accounts have been particularly attuned to the use of judicial and sovereign power with flagrant contradiction, indifference, disdain, displacement, and a performance of the “impunity” analyzed as a political concept by Zahid Chaudhary.7
Post-Foucauldian theory is another domain in which terminological innovation has been a means of promoting fluency in novel interrelations of power. In this context, a frequently made point is that sovereign, juridical, pastoral, psychiatric, neoliberal, securitizing, biopolitical, and disciplinary forms are not best understood as alternatives that replace each other. Instead, post-Foucauldian theory has proposed vocabularies to variously characterize combinations of heterogeneous forms of power such as biosovereignty (Bargu), the sovereign right to maim (Puar), necropolitics (Mbembe), gore capitalism (Valencia), and numerous terms at the intersections of Black and surveillance studies, including the banopticon and the synopticon.8
Among the most significant of these post-Foucauldian conceptual interventions is Saidiya Hartman's notion of burdened individuality. As a nexus of sovereign and disciplinary power, it transformed the understanding of the latter within Black, surveillance, and Foucauldian studies. Today, I will argue, that nexus illuminates vividly the post-Dobbs moment. In this essay, I ask how it can be understood in tandem with recent work in the field of reproductive politics exemplified by Michele Goodwin's Policing the Womb. The most relevant post-Dobbs disciplinary techniques might seem to be articulated by current warnings to block tracking by menstrual cycle apps, search engine caches, cellphone and similar GPS data, and the social media posts that led to the recent incarceration of Jessica Burgess in the United States.9 Yet Goodwin's and Hartman's combined analyses also highlight the continuing relevance of “responsibilization” as a disciplinary technology, particularly as linked to the histories of racial domination, postslavery freedom, and moralized reproduction in the United States.
This essay explores some of the singular forms of that responsibilization by concentrating on three terms: revocability, exception, and qualification. These, too, can be understood as hinges of power in proximity with some of the plural combinations of biopolitical, disciplinary, sovereign, pastoral, and securitizing power of interest to post-Foucauldian theory: combinatory grammars, sometimes termed “assemblages,” of meaning and force that act both to intensify and to displace domination. While the following discussion is largely limited to a North American literature, many of the phenomena it addresses are transnational. Abortion politics and its activism and policing assume transborder relations and stimulate multiple national exceptionalisms, transit politics, and cross-border solidarities and obstructions. In the operation of its rules, exceptions, and possibilities of resistance, the history of abortion's interstate and international cross-referencing is long.
2. Dobbs v. Jackson
When the US Supreme Court revoked its previous affirmations of the right to abortion in Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), it seized the opportunity to reclassify those earlier decisions as a type of “exercise in raw judicial power”10 from which it seemed to exempt itself. At the same time, the Dobbs decision could not refer to reproduction without greatly proliferating the types and techniques of power apparently in question—at least in its wording. It referred to regulative conditions articulating a state interest in optimizing maternal health,11 to the state's legitimate interest in “protecting” fetal and “potential” life,12 and to a biopolitically inflected report on the shortage of “domestic supply of infants relinquished at birth or within the first month of life and available to be adopted.”13 There was thanatopolitical reference to the nation's overall abortion patterns, conceived demographically, as having negative racial impact.14 Governmentally, national disorder was depicted as available for possible repair,15 as were the problematic affective states of a nation and its political culture.16 Legitimate interest was also associated with preserving the overall integrity of the medical profession and with a putatively enlightened discouragement of “particularly gruesome or barbaric” procedures.17 Women were framed, neoliberally, by the question of whether pregnancy hindered their ability to invest in themselves and their careers and to plan futures.18 A disciplinary appeal to optimized capacity manifested in John Roberts's assenting comment that women would retain “adequate opportunity”19 to seek abortion. As if to invalidate complaint about abortion's inaccessibility, the availability of multiple resources and forms of support for pregnancy was indicated: medical insurance, governmental assistance,20 safe-haven facilities for the anonymous relinquishment of newborns.21 Referring to pregnancy's modes of subjectivation, the ruling asserted that unmarried pregnancy no longer incurs stigma.22 Moreover, when it referred to the capacity of modern sonogram techniques to individualize embryos to prospective parents as “their daughter or son,” the decision attached the meaningfulness of anticipated life to the specification of sex difference.23
A genealogical story could be told about the conditions for each of these understandings of reproduction.24 That is also true of the sovereign perspective, which treated pregnancy and fetal life as matters of domain relevant to possible stakeholders (federal, state, and individual) competing for jurisdiction and decision-making authority.25 The decision spoke to a return of jurisdiction from federal law to individual states. But how were the relevant political bodies understood? Here was the occasion for a further proliferation of forms of power within which histories of race and gender were both presupposed and displaced.
Most generally, within this construction of “return” there is a displacement between (a) those who are deemed to have political standing, (b) those who are deemed to have biopolitical interests, and (c) those who are deemed to be of biopolitical interest. In a biopolitical sense, pregnant persons are both assigned responsibility for the life and are the lives in which states are said to have a legitimate interest. Insofar as they belong to or reside in those states, they are also assumed to belong to the collective political bodies to whom that interest is ascribed. Women are also referred to as an electoral group, bearing an abstract, or an electorally transactional, citizenship that survives (and can express itself politically in relation to) the loss of reproductive rights.26 Yet pregnancy is further linked to expectations of good conduct, in a way that is easily confused with an innocuous interest in maximizing health. Conjoined, the ramifications of these combinations prove still more complex. The result is that differentially precarious forms of rights-bearing manifest heterogeneous techniques of power and backgrounds of racial and gender domination as simultaneous yet divergent means of producing subjects and bodies. While they may overlap and operate in tandem, the responsibilized, individualizing, disciplinary version of power is, for example, quite different from the population-based, biopolitical, “resource” version.
In what follows, I first turn to some of the ways in which reproduction has recently been deemed relevant to rights-bearing and contemporary party politics.
3. Lesser Rights-Bearing and Heterogeneities of Power
Examples of the redoubling of roles seen when constituencies are said to have a collective interest in legal and political decisions over “life” impacting the conduct and positioning of the prospective lives about which these decisions are made can be found in the far-right platforms in a cluster of European countries (Hungary, Poland, Italy) whose policies are at once antiabortion and anti-immigration. The Orbán government in 202227 imposed additional legal restrictions on abortion for which credit was claimed by the far-right opposition party Our Homeland Movement (Mi Hazánk Mozgalom).28 The political advertising of the Alternative für Deutschland, an extreme-right, antiabortion, and anti-immigration party in Germany, further literalized such links by accompanying its image of a heavily pregnant smiling white woman with the slogan “New Germans? We'll make them ourselves.”29
Here, reproduction is presented as an alternative to immigration in a (bio)political assertion of interest in the national availability of reproductive capacity. Reproduction is construed as a governable resource relevant to a political platform's vision of national futures. That situates some voters as belonging to the political bodies whose support is sought through far-right images of nationally defensive pregnant bodies, and as the biopoliticized reproductive bodies about which those appeals are made. In this redoubling of guises in which reproduction is politicized, some pregnant persons are included by becoming their own political medium while thereby pitted against other pregnant persons not associated with idealized national futures.
But this essay seeks to discuss this phenomenon in conjunction with the further type of politicized reproduction mentioned above: the association of rights with the expectation of responsible conduct. When pregnancy and child-rearing bear biopolitical meaning, while conjoining with rights-bearing, they acquire a differentially projected culpability. In the sense used here, “responsibilization” is not best understood as a capacity but as a technique for producing and distributing irresponsibility. It is a technique of power that has been illuminated by Saidiya Hartman's work and (as I will argue) Michele Goodwin's recent attention to how such expectations are applied, to whom, and to what end.
4. Irresponsibilization
When interviewed about his introduction of an antiabortion trigger bill that passed into state law in Oklahoma in anticipation of Roe v. Wade's dismantlement, Republican state representative Jim Olsen (Oklahoma City) expressed his interest in hypothetical fetal life as a concern for “innocent babies.”30 Where, then, he was inevitably asked, was Republican concern for universal pre-K, for health care, parental leave, child support, the easy availability of contraception, and, his interviewer might have added, for sex education and health care to reduce the rate of miscarriages and infant mortality?31 In his interview with Jenn White of National Public Radio (NPR), Olsen projected a victim who could be defended against an abortion in advance of its own existence:32
White (NPR): What are you doing to ensure financial and social support for these parents and children is there after pregnancy?
Olsen: There is a case for appropriate welfare programs in certain situations. But the overarching reality is that responsibility belongs to the parents.
White (NPR): So are you extending access to contraceptive care as part of your plan?
Olsen: There is not really a need, they are widely available.
White (NPR): And do you plan to ensure they remain so in Oklahoma?
Olsen: That, that's really a nonissue. But the overarching truth is that parents are responsible for taking [sic] their own children.
Olsen executes a shunting between fields of arguments. His answer seems to imply support for contraception, if not its public funding, but he is not making a case for either. His reference to contraception's ready availability is not favorable but provisional. Indifferent to its own falsity, its only role is to bolster his condemnation of unwanted pregnancies. Challenged, Olsen can simply displace his culpabilization to new grounds, such as the moral requirement that sex (as he construes it) be accompanied by prior reflection that is reproductively oriented:
Olsen: Well, let's understand where the responsibility primarily lies . . . people need to make decisions—ahh, before they, before the clothes come off.33
The reminder that some unwanted pregnancies result from imbalances of power, coercion, or sexual assault would only lead to further displacements by antiabortion politicians. Some have seized opportunities to blame cases of rape on immigration policy.34 Facilitated by this mobile rerouting between alternative possible reasons, pregnancy acquires a cumulative culpability: it is as if contraception were freely and easily available and immune to failure, as if all sex were free of assault, the product of reflection and mutual consent.
This intensified responsibilization35 professes to a general application all the while that it falls most heavily on the economically vulnerable. It is better understood as a more targeted and individualizing irresponsibilization whose double standards have been closely analyzed by theorists working at the intersections of reproductive justice, Black feminism, and legal studies.36 Those double standards have, in turn, been characterized in terms of an accelerating expansion at the point of application. This has, for example, been addressed by Goodwin, whose Policing the Womb opens with a warning from the organization National Advocates for Pregnant Women about recent legal conditions converting into potential child abuse felonies the pregnancies of those who are exposed to violence, have health problems, are on low incomes, or are uninsured.37 Goodwin points out that politicized reproduction has expanded the reach of a criminalization that is both anticipatory and racialized.38 Its techniques for irresponsibilized maternal conduct have culminated in an onus of “fetal protection” now legally applicable in some thirty-eight states in North America.39 Before asking what the opposite of this responsibilization is,40 I first turn to the background to Goodwin's analysis, made available in Hartman's work.
5. The Double Standard and the Double Bind
In short, Olsen's negative responsibilization of pregnancy is not just unequally applied. It is underwritten by a race-, class-, and poverty-based differentiating culpabilization41 that manifests in the contemporary legal politics of reproduction analyzed by Goodwin,42 which continues the long North American trajectory analyzed by Hartman.43 Three arguments can be situated at the nexus of their analyses. The result is that double standards, to which Hartman and Goodwin both refer, are shown to be double binds effected by coordinations of heterogeneous forms of power.
First, according to Hartman's account of racialized burdened individuality,44 the disciplinary responsibilization that appeared to capacitate postslavery's “freedmen” and women interrelated in a particular way with privative, violent, and extractive forms of sovereign power.45 This facilitated the displacement of responsibility for the systemic structures supporting slavery and racism onto a culpabilized Black individuality, burdening the latter's “admission” to freedom. In pointing to the ambiguity of the freedom seemingly delivered by the Emancipation Proclamation to formerly enslaved persons, Hartman shows how poverty, unemployment, lack of education, and indebtedness were assigned new meaning as moral faults attributed to a freed person's “faulty” self-management. She points to the heterogeneity of the forms of power “generative of this condition [as] encompass[ing] repression, domination, techniques of discipline, strategies of self-improvement, and the regulatory interventions of the state.”46 In the hinging together of these techniques, responsibility for one kind of power (the continuing forms of racial domination and repression) is displaced onto another: the construal of Black freedom as a “burdened individuality” bearing personal responsibility for “good-conduct” and self-improvement. Postslavery Blackness is further projected to fail by those same criteria since the prospect of the “successful” conduct and self-improvement promoted by variations of pastoral and disciplinary power is simultaneously undermined by the continuing structures of domination and repression that are veiled by moral freedom's individualization.
The hinging together of sovereign and disciplinary forms of power to intensify effects of racial domination occurs, Hartman also points out, with a range of gendered and heteronormative implications given that the expectations burdening this individuality extend to the maintenance of well-ordered, healthy, pleasant, stable, and prosperous households and responsible child-rearing.47 Further, this background provides critical texture to Goodwin's account of the double bind through which contemporary legislators frame pregnancy “as being controlled and conditioned by women.” This becomes clear when Goodwin responds by addressing the complexity with which reproductive culpabilization is gendered, raced, and criminalizing. Though frequently attributed blame for the outcomes, “women alone do not create pregnancies, nor can they account for all the conditions that might benefit or harm a gestation, including environment, paternal health and age, and access (or lack of access) to medical services.”48 The implications of Hartman's argument are particularly legible in some of the most Kafkaesque double binds of Policing the Womb. These include the use of incarceration as grounds for the permanent loss of child custody rights. Here, culpabilization is intensified at the interface of prison sentencing and the 1997 Adoption and Safe Families Act, requiring custody rights to be terminated where periods of foster care exceed fifteen months. The act makes no allowance for incarceration, but the responsibility for that omission is displaced onto the imprisoned person. Their inability to assure parenting then appears as disqualifying personal conduct,49 rather than an effect of incarceration or of the act's lack of foresight.
Similarly, Policing the Womb details the broad use of race and poverty to reassign parental blameworthiness to individual agents rather than to social, economic, and legal conditions such as low minimum wages, prohibitive health insurance costs, and the absence of state-funded childcare. Those who are forced to continue pregnancies due to lack of access to contraception, sex education, and abortion treatment find themselves blamed for those pregnancies50 and then held responsible for the social circumstances (mediocre social support, childcare, education, health, housing, and employment options) perceived as individual “child neglect.” These being double binds, the sluggish provision of social assistance to mothers and parents is consistent with the empowerment of social services to “take their children”51 as an alternative. We should not see dissonance here but an efficient hinge in the antiabortion policy that only seems self-contradictory. These conditions are relentlessly forcing the advent of lives in which they display great interest and to which they are concurrently indifferent. Because, as shown by the combined analyses of Hartman and Goodwin, this is a production and distribution of incapacity and irresponsibilization, the “reproductive” insistence that (some) sexual agents should “take their children” operates with an equivalent keenness to deem them unable to do so.
Goodwin demonstrates that all women and pregnant persons are moralized and made vulnerable52 to culpabilizing individualization and to punitive techniques that are formulated as care. But this is a precondition for the alternations between this hyperresponsibilization and the allocation of exceptions. It is clear that the one point combines with the other, but how? How, for example, might this speak to the extraordinarily lenient treatment of a white nurse in an IVF clinic who repeatedly substituted saline for the anesthetic medication to which she had become addicted? Having performed compassionate care for patients suffering seemingly inexplicable pain, she came before a judge sympathetically attentive to the woman's personal circumstances and concerned that incarceration would harmfully separate this mother from her children.53
The effectiveness of maternal “irresponsibilization” seems to rely on its being contrasted with competent parenting, projected as a fulfilled ideal.54 But Policing the Womb calls this supposition into question in the course of its analysis of patterns of scrutiny, surveillance, judgment, and sentencing in the United States. The opposite of depreciated reproductive irresponsibility is not a valorized presence of qualities. Instead, it is exemption from an equivalent, culpabilizing scrutiny. For this reason, the double standards are really (to use the alternative term to which she also refers) double binds. One of her examples is the tendency by medical practitioners and those responsible for law enforcement and for sentencing to perceive middle- and upper-class or white mothers by anticipating good intent, or else a “moral neutrality.”55 In consequence, Policing the Womb details the extreme race- and wealth-related disparities in scrutiny, arrest, and sentencing for fetal or child “endangerment” in the United States. A critical chapter addresses differential prosecution for drug use by pregnant persons. Goodwin compares sentencing practices for the use of crack cocaine by mothers and pregnant persons,56 with the greater leniency applied when the drugs in question are associated with white middle- or upper-middle class drug use: cocaine, opioids, and prescribed medication. Because of their capacity to punish the use of marijuana, tobacco, alcohol, lifestyle, diet, working, and living conditions,57 fetal endangerment laws are capable of capturing all pregnancies in their net while distributing their tendencies of capture according to race, class, youth, and poverty. That is seen in the inclinations to make allowance for white and other forms of privilege; to be more lenient in sentencing; more or differently pastoral in attention; to take into consideration specificity of circumstances;58 to scrutinize less, or with less skepticism; and to exempt a wide range of behavior that can otherwise count as fetal endangerment. The broader conditions of this scrutiny are supported by the fact that up to a third of pregnancies spontaneously miscarry and by the wide range of everyday conduct that can potentially count as a failure to optimize fetal life. The conditions of a possible criminalization are put in place with a very broad application, and just as broadly waived as exemptions (whether from scrutiny or punishment) that are differentially distributed, particularly according to race.
6. Policing Pregnancy
The blameworthiness overshadowing Olsen's references to pregnancy converts sex into the onus of a phantom parental agency whose inadequacy is anticipated. His sexual agents are projected parents who have already failed in advance to “take” their projected hypothetical “children” but who have further failed to take adequate care of them. That is both a general supposition and one organized by exemptions. Their alternation bears racial and class connotations that don't need to be overtly specified because they are already in circulation. Moreover, it is clear in this culpabilization that no one properly “takes the children,” in the sense meant by Olsen. First, because the “children” in question are an effect of strategies whose telos is not concerned with outcomes for children. This is a technology aiming at the reproductive version of burdened individuality. It organizes disdain for those it deems the potential sexual agents who already will have had hypothetical children they will never have taken (adequate care of). Its simultaneous function is to exempt others from such targeting: those of whom it is already assumed that their children would not be “taken” (from them).
Similarly, it is tacitly understood that privileged pregnant persons will be able to access elsewhere and otherwise the reproductive options now illegal in Olsen's state. Abortion's multifaceted transborder governmentality was evoked in this period by Elizabeth Warren's ambiguous reminder: “Make no mistake. Well-to do women, they're going to do fine. They get on an airplane, they can fly to another state [or] . . . out of the country [to] where it's legal.”59
Republican politicians and the religious right could, in other words, appeal to an antiabortion political constituency secure in the common knowledge that the force of the law never impacts all equally. Some are situated outside the law, some before it, some adjacent to it, some below, and some above it. As burdening laws and policy combine with the disciplinary techniques of irresponsibilization, they generate the distributions of privilege's exemption. The intermittent revelation that antiabortion politicians are funding or urging abortion in their sexual lives60 is consistent, not dissonant, with these conditions.
7. Qualifying Disqualification
A “qualifying disqualification” exempts some from the skeptical evaluation of the conduct of freedom that is imposed on the implicitly less fully enfranchised.61 One qualifies, in other words, by not having to do so. Yet “qualifying disqualification” retains a privileged association with capacity. That association hinges together with the skeptical anticipation of lesser capacity that characterizes this tacit form of lesser citizenship. Certainly the less fully enfranchised are burdened with an expectation to qualify—for example, in their conduct of maternity. It may even seem they have been given opportunities to do so. But such opportunities are deceptive. They would have to satisfy an unfulfillable standard since the form of qualification they appear to have failed does not ever take place. In other words, these alternations do not really concern a possible fulfillment of expectations for responsible conduct. Rather, they articulate an unfulfillable exigency conducted through self-exemption.62 The outcome is not qualification, competency, or capacity but disdain for the lesser enfranchisement expressed in the skeptical demand to “qualify.”
A privileged self-exemption from qualification can also verge on the Ubuesque.63 Most recently it has been seen in political leadership's Trumpism and in identificatory political alignment of citizens with that jubilatory self-exempting form of authority. It has also been annexed at the judicial level. Consider Samuel Alito's indifference to the decision's impact, the tone taken in his public comments, his indiscretions, and his performance of an “Am I right?” type of humor.64 All expressed more than a cantankerous character. Alito's aggrieved65 affect indexed his self-exemption from norms of conduct, all the while that the decision insinuated that contemporary women had, by contrast, no grounds for complaint. Dobbs and other recent decisions from this court have been characterized as flagrant self-exemptions from established legal principles (precedent, stare decisis, reliance interest, standing, certiorari), at a time when the court has also disregarded norms for ethical judicial conduct.66 Returning abortion rights to the states’ democratic process was combined with a further type of exemption from responsibility. The decision's consequences for women and pregnant persons were proclaimed “beyond the court's authority,” matters on which it was “unable” to judge.67
8. Citizens’ Interests
But the claims to neutrality, self-restriction of federal authority, and even “inability” (to know, to predict consequence, or to adjudicate on behalf of states) connected the caricature of Roe's “overreach” to a claim about women's political power:
Our decision returns the issue of abortion to those [state] legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so. In the last election in November 2020, women, who make up around 51.5 percent of the population of Mississippi, constituted 55.5 percent of the voters who cast ballots.68
Here, three ways in which politicized reproduction is attached to political constituencies and political agency play off each other. The decision refers to North American “women” as voters who have now secured their access to democratic process. Where they are unable to access abortion in their states legally, they can express dissent at the ballot box.69 The availability of this route seems almost to be offered as justification of the Dobbs decision.70 At the same time, a decision-making power over life is being returned to states, as if Roe had encroached on their collective autonomy. This is not, of course, a reference to the autonomy of those who can become pregnant but to the autonomy of “states” (either as freedom from federal “interference” or as claimants of authority over “domain”). Strict Scrutiny's attention to antiabortion strategies of trolling heightens attention to the reasons why Roe has been characterized as depriving individual states of their own decision-making authority over life. That language was reiterated by some politicians—as when Lindsay Graham defended abortion bans in the name of trusting states to make their own decisions and their right to choose.71
A further reason Dobbs deemed Roe to be revocable was that “women” (here in the sense of those whose political capacity is expressible at the ballot box) were now said to fully count in the body of citizens. Here “count” becomes a literal reference in the decision to women voters in numerical proportions: 51.1 percent and 55.5 percent. But “women's” political status has been a matter neither of simple exclusion versus inclusion,72 nor of percentages in which they make up the electoral body, are represented, vote, serve in office, express political opinion, or represent others. Instead, as the identification of women with the capacity for political dissent becomes the justification for a weakening of the rights otherwise attributed to them, and the decision's imagery doubly situates them (also as the bodies about which the seemingly sex- and race-neutral “citizens” or “people” of individual states now may conduct their own decision-making), it can further seem that they are nonetheless retained in the political space even by a loss of rights because of their presence in other capacities: for example, as the biopolitical interest in which they are supposed to share.
Political and legal references to these state-based collective bodies as abstractions (“citizens,” the “people”) create a further effect of revocability. The decision's own reference to percentages of women within state populations installs sex difference as “what will have been denied” within the sex-neutralized group also referred to, abstractly, as “the people” and “the citizens.”73 A double dissolution is also accomplished by the fact that these abstract entities and the decision's references to percentages of “women” within political bodies are racially undifferentiated. How does this coordinate with the reference also made by this decision to the (supposedly negative) collective racial impact of abortion on Black futures? The assertion of state interest in life and of racial interest in collective racial futures installs two types of reproductive political agents: racially neutralized individual rights claimants deemed not to need Roe's rights because they have the political means of (re)claiming them, and racially and sexually neutralized “citizens and people”—abstractions whose historical exclusions are veiled by their seeming inclusivity.
9. Abortion as Exception
At the time of being overturned, Roe's rights had already been hollowed out for decades.74 As a singular but not a sudden event, Dobbs also belongs to a moment marked by broader categories of precarious rights-bearing. The decision broached the prospect of further rights reversals. It was also a further step in a chronic relationship between politicized reproduction and the structure of exception. One example of the latter is the twentieth-century pattern in multiple countries of legalizing abortion through exceptions to its continuing illegality.75 But it is also true that in the many regions and countries that largely obstruct access to abortion, exception is used as a device of unobtainability. As a hinge of power, it is a technique of obstruction that combines with a gaslighting dimension.76 A different, but related, hinge is seen in political attempts to avoid alienating political constituencies or international treaties by combining abortion bans with professions of compassionate allowance for rape and endangerment to the pregnant person's health and life. The exception is, however, revoked in advance, when, in the words of Jessica Valenti, “no one is getting an abortion under an incest and rape exception. . . . No one is able to use these exceptions.”77 In short, exceptions might attempt to appeal at once to opposed constituencies; might placate, obfuscate, or gaslight; and combine with other techniques of creating environments of rights insecurity.
All these combinations have heightened the need to decipher, beyond what is legal, what is “likely.” Securitization operates through environmental deterrence or the management of behavior's likelihood. In antirisk environments, providers avoid possible ambiguity by overimposing the law: the eight-week cutoff might be informally implemented as a seven-week cutoff. Medical practitioners might interpret conservatively the degree of life endangerment that would legalize their intervention unambiguously.78 A patient who seeks a rape-based exception to an abortion ban might be deterred by the risk of a three-year penalty of imprisonment should their testimony be questioned.79 A hospital's legal advisers might assess the possibility of a malpractice suit before determining that denying care to a patient is preferable to the risk of prosecution for illegal abortion provision.80
Reproductive rights are also revoked in advance by the difference between law and likelihood. That difference requires a new capacitation not equally available to all.81 States with abortion bans might necessitate an individual's competence in contemporary surveillance (seen in the proliferation of advice for how to avoid digital and personal device tracking), and further necessitate the ability to assess the real probability of scrutiny and prosecution in one's individual case, or in general. That need also arises from the variability among state laws and among degrees of assiduity (whether from politicians, district attorneys, local law enforcement, medical professionals doubling as policing auxiliaries, or potential SB 8 and similar civil suit profiteers).82
The lack of medical understanding evident in much antiabortion state legislation has been widely derided as a self-exemption from competency. Legislators may not have intended to produce a large category of political constituents denied treatment for complications in pregnancy and subjected to agony and near-death experiences.83 But this has been a further byproduct of the Dobbs decision. It has achieved visibility within national, local, and new media. Unsurprisingly, politicians and representatives for antiabortion groups have responded with further displacement. Stories about treatment denied for pregnancy complications were first characterized as fake news,84 following which the culpability was displaced onto doctors (now deemed responsible for correctly interpreting the law, and prosecutable should they intervene outside its parameters).85 But in a telling further displacement, patients denied medical treatment also triggered doubt in some quarters about their own competency to self-manage a pregnancy under these new conditions.86
In their dissent to the Dobbs decision, Justices Breyer, Sotomayor, and Kagan characterized the new meaning of fertilization as having “no rights to speak of.”87 While their dissent also foregrounded the decision's differential impact on the poor, the less mobile, and persons of color, Policing the Womb has further analyzed the role of pregnancy as a device of criminalization in this context.88 There can be no pregnancy without anticipating the possibility of abortion—most literally and minimally because of miscarriage's frequency. Abortion is sometimes considered a further right that is or is not established depending on one's state or country of residence. But Policing the Womb shows why decision-making over pregnancy is not a supplementary right. Rather, pregnancy has emerged as a new kind of problematic that reconfigures its own long and intimate association with exception. In the United States, Goodwin points out, pregnancy has become the grounds for a broad range of exceptions to the rights the pregnant person would otherwise be assumed to bear.89
Policing meticulously details the imposition of pregnancy-based exceptions to patients’ rights to life-saving and emergency treatment (including treatment for cancer), and to other medications and interventions beneficial to their own health. Prior to Dobbs, pregnancy had already emerged as the pretext for exceptions to Miranda rights,90 as well as exceptions to the rights to medical privacy, to confidentiality, to the fiduciary relationship with practitioners,91 to decline medical treatment, to informed consent to medical care,92 to the legal conditions of bodily searches,93 to legal representation, to the presumption of innocence, to end-of-life decision-making,94 to freedom of movement, and to legal representation in the case of involuntary detention.95
Against this background, Dobbs further broadened the potentially criminal status of pregnancy. The result has been an expansion of practices of pregnancy surveillance and of its individualizing anticipation, in addition to widespread denial of treatment for miscarriage and pregnancy complications, and a return to climates of suspicion about pregnancy complications. It is true that in this environment, all pregnancy is potentially suspect. But that broadening can be understood in a number of ways. Is it a general and accelerating possibility whose point of application ultimately expands to include the privileged who might otherwise have counted, tacitly or otherwise, on exemption?96 To express that possibility, Goodwin has turned to the cautionary imagery of the miner's canary, further citing Loretta Ross's use of the term “roadkill.”97 Both Goodwin and Ross speculate that the racialized irresponsibilization of reproductive conduct is the forerunner of a still broader application. At the same time, the expansion to which they refer proliferates, rather than dissolving, the principles of division they describe, albeit in new ways.
This is encapsulated by a comment attributed to Amanda Zurawski: “They try to paint people who need abortions as young women of color, single, uneducated. . . . I look like the demographic that they want to believe would never need or want an abortion.”98 What does this comment mean for the self-exemption that, in lieu of the exemplary, is privilege's most characteristic form of citizenship?
Does it illustrate the slyness of Justice Alito's reference to the 55.5 percent, given his insinuation that those who (historically speaking) were eventually politically capacitated can have no grounds for complaint? The displacement among multiple politicizations of reproduction gives rise to a supplementary question. In the implication that these women are (because enfranchised) capable of representing themselves politically as needed, is there also an expansion of disdain's field of application to include them? Does it further expand to assign political contemptibility to those who “ought” to have proved capable not just of representing themselves but of exempting themselves?
If so (it would be insinuated), they, too, could have no valid ground for grievance, first, because they can turn to the ballot box and, second, because they have the resources to go “elsewhere.”99 In this, they are distinguished from those whose precarious lives are assumed to impede exemption's self-displacement, those exposed to the fullest impact of Dobbs, and disdained accordingly. By contrast, when Zurawski publicly indicated that she was classed with a different group of constituents, that group's capacity to further subdivide was also demonstrated. It included those who, one year after Dobbs, could find themselves invited to the State of the Union, saw their stories publicized on social, local, and new media, and brought their cases before courts.100
In some quarters, their tenacious public voices were commended as brave; in others, their conduct came into question. This has shown how Dobbs's field of impact can widen (as suggested by Goodwin) to include those associated with privilege, while also rearticulating rather than blurring its persistent force of differentiation. That is seen in the question: why hadn't these women simply gone interstate? The question also meant: why hadn't these women simply gone to other states? For all that it could be practically—and medically—answered,101 the query revealed further distributions of contempt. The insinuation that their hemorrhages and septic shocks might have been unnecessary—if not misplaced—relayed the following question. Didn't they, too, have no grounds for complaint, having failed to identify and act upon the form of capacitating citizenship tacitly assigned to them: the self-exemption that might also code them as politically “qualifying”?
10. Revocability across the Border
The year 2022 also saw the culmination of a differently exceptional Supreme Court decision. The Mexican Supreme Court had revoked abortion's criminalization on the grounds that it had violated the human rights of women and people with the “ability to gestate.”102 Moreover, its wording helped to reclassify, as a form of violence, abortion's illegality and its use to expand criminalization's reach. The decision impacted some of abortion activism's longer-standing border relationships. Mexican abortion activist groups became a significant source of abortion medication, expertise, solidarity, and techniques of accompaniment to women and pregnant persons in the United States. They were, for example, invited by the director of Profem's clinics in Tijuana and Mexico City to “relocate their reproductive and sexual rights” in the wake of a decision she saw as having revoked North America's standing for freedom and open-mindedness.103 Mexico-based abortion politics further stood for multiple meanings of revocability. Some had long questioned the self-evidence of the language of rights, further demonstrating the importantly contestable terms in which abortion's illegality continues to be challenged: in terms of human, women's, or pregnant persons’ rights; as choice, autonomy, dignity, freedom, freedom of speech, freedom of movement, reproductive justice, empowerment, citizen-making, reproductive labor, autonomy, health, care, access, need, affective labor, inevitability, violence, femicidio, or feminicidio.104 Some negotiating the new modes of legality showed how the most predictable distributions of exception are also revocable. Lawful Sins, Elyse Ona Singer's 2022 study of abortion rights and reproductive governance in Mexico, is framed by the comments of a woman accessing newly legal paths to abortion in Mexico City. Her ambivalence conjoins (at least) two techniques of power. Abortion had been legalized, and in her view rightly. Yet she sought to preserve it from becoming ordinary. It should not, for example, be considered a form of contraception. It should, she thought, belong to the space of exception she was claiming for her own abortion. She commented, “I think it should be legal, but not for people who are so irresponsible.”105
We could take this as Singer's reminder that some of the most successful legal, political, and activist outcomes are not exempt from the drive to self-exemption. That impetus also belongs to the project of deciphering who qualifies, how one qualifies, and who and what gets revoked in the complex exceptions of abortion politics.
Acknowledgments
Warmest thanks for their comments on this article to Astrid Deuber-Mankowsky, Banu Karaca, Anna Kellermann, Amy Krauss, Geoff Mann, Marina Martínez Mateo, Ramsey McGlazer, Candice Merritt, Francesca Raimondi, Michael Schwarz, Joan Scott, and Elizabeth Wilson. Warmest thanks also to Isabelle Alfandary, Chiara Bottici, Sandra Laugier, Danielle Rodriguez-Navas, Francesca Raimondi, and Linda Zerilli, for facilitating the discussion of this article at events at the New School for Social Research (“Gender Matters Symposium”), the Political Theory Colloquium at the University of Chicago, and the departments of philosophy at the Freie Universität Berlin, New School for Social Research, and the University of Paris I (Panthéon-Sorbonne) and III (Sorbonne-Nouvelle). Many thanks for extremely helpful discussion to the audiences at those events, and at the IAS, Princeton, and to graduate students at Northwestern University participating in the event “Pluralities of Power: Biopolitics, Pregnancy and Abortion in the Americas.” Warm thanks also for their extremely helpful comments to two anonymous reviewers for Critical Times.
Notes
“Trollito” belongs to a number of ingenious terminological innovations suggested by Strict Scrutiny, a public-facing podcast on Supreme Court decisions and culture cohosted by three constitutional law professors, Leah Litman, Melissa Murray, and Kate Shaw (Litman, Murray, and Shaw, “What the Scotus Leak Could Mean”). For the use of the term “A-leak-o,” see Litman, Murray, and Shaw, “Justice Samuel A-leak-o?”
“This decision is about more than abortion, it's about who has power over you, who has authority to make decisions for you, and who is going to control how your future turns out” (Keys quoted in Variety, “Alicia Keys”).
These remarks were made by the political commentator as a guest on Lovett or Leave It. Lovett, “Wanda Maximoff v. Sam Alito.”
For commentary, see the adroit close reading of the leaked opinion, Litman, Murray, and Shaw, “What the Scotus Leak Could Mean.” For references to legal “fan fiction,” see Litman, Murray, and Shaw, “Turning Fan Fiction into Reality.”
Zahid Chaudhary includes, in his discussion of impunity, those who triumph by flouting standards. The essay directs attention to the diverse methodologies (“libidinal, economic, political, and ecological”) required for an analysis of impunity as an “excess” to the law that adheres to it. See Chaudhary, “Impunity.”
See, for example, Bargu, Starve and Immolate, and Puar, Right to Maim, for their accounts of the multiple formations of power analyzed by Foucault, whose effects might best be understood through their interrelation. For example, overlaps of sovereign power and biopolitics are, in Starve and Immolate, analyzed as biosovereignty and, in Puar's work, as a sovereign “right to maim” giving rise to the governmentality of “debility.” See also Saidiya Hartman's account of postbellum racial domination in its combinations of violence, liberal natural rights discourse, and disciplinary, normalizing, and punitive individuation, discussed below; and Santiago Castro-Gómez's account in Zero Point Hubris of colonial power as drawing on sovereign, biopolitical, and disciplinary forms and techniques. For a discussion of the intersection of disciplinary power with race-based anticipatory surveillance and new technologies, see the discussions of the banopticon and synopticon in Browne, Dark Matters. See also Mbembe's essay “Necropolitics” in Necropolitics for his account of the biopolitical in terms of multiple forms of sovereign power and Valencia's Gore Capitalism for its revision of necropolitics in terms of the interrelationality between a nation's multiple statehoods: official and criminal.
Burgess received a two-year sentence in Nebraska for her role in her teenage daughter ‘s medication abortion, in part because of private Facebook messages supplied to police by Meta.
Dobbs v. Jackson Women's Health Organization, 597 U.S. at 3, see also 36, 44, 53.
Dobbs, 597 U.S. at 78: “These legitimate interests include . . . the protection of maternal health and safety.” See also Roberts, concurring in judgment, citing the Mississippi law's reference to techniques of abortion judged to be “dangerous for the maternal patient,” at 4.
Dobbs, 597 U.S. at 32.
Dobbs, 597 U.S. at 34, no. 46:
See, e.g., CDC, Adoption Experiences of Women and Men and Demand for Children To Adopt by Women 18–44 Years of Age in the United States 16 (Aug. 2008) (“[N]early 1 million women were seeking to adopt children in 2002 (i.e., they were in demand for a child), whereas the domestic supply of infants relinquished at birth or within the first month of life and available to be adopted had become virtually nonexistent”); CDC, National Center for Health Statistics, Adoption and Nonbiological Parenting, https://www.cdc.gov/nchs/nsfg/key_statistics/a-keystat.htm#adoption (showing that approximately 3.1 million women between the ages of 18–49 had ever “[t]aken steps to adopt a child” based on data collected from 2015–2019).
Dobbs, 597 U.S. at 30:
Other amicus briefs present arguments about the motives of proponents of liberal access to abortion. They note that some such supporters have been motivated by a desire to suppress the size of the African-American population. See brief for African-American Organization et al. as Amici Curiae 14–21; see also Box v. Planned Parenthood of Ind. and Ky., Inc., 587 U. S. ___, ___–___ (2019) (THOMAS, J., concurring) (slip op., at 1–4). And it is beyond dispute that Roe has had that demographic effect. A highly disproportionate percentage of aborted fetuses are Black. See, e.g., Dept. of Health and Human Servs., Centers for Disease Control and Prevention (CDC), K. Kortsmit et al., Abortion Surveillance—United States, 2019, 70 Morbidity and Mortality Report, Surveillance Summaries, p. 20 (Nov. 26, 2021) (Table 6).
Dobbs, 597 U.S. at 6: “The decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.” In the words of Kavanaugh, concurring, “The national division has not ended” (at 9).
Dobbs, 597 U.S. at 3: “The decision . . . sparked a national controversy that has embittered our political culture for a half century.”
Dobbs, 597 U.S. at 78. A reference to interest in averting “fetal pain” is also to be found in Roberts's concurrence in Dobbs, 597 U.S. at 4:
Consider, for example, statutes passed in a number of jurisdictions that forbid abortions after twenty weeks of pregnancy, premised on the theory that a fetus can feel pain at that stage of development. See, e.g., Ala. Code §26–23B–2 (2018). Assuming that prevention of fetal pain is a legitimate state interest after Gonzales, there seems to be no reason why viability would be relevant to the permissibility of such laws. The same is true of laws designed to “protect[] the integrity and ethics of the medical profession” and restrict procedures likely to “coarsen society” to the “dignity of human life.” Gonzales, 550 U.S., at 157.
See also Roberts in Dobbs, 597 U.S. at 7 on Mississippi's reference to some abortion techniques as “demeaning to the medical profession.”
See Dobbs, 597 U.S. at 33 discussing the countering viewpoint that without access to abortion, “people will be inhibited from exercising their freedom to choose the types of relationships they desire, and women will be unable to compete with men in the workplace and in other endeavors.”
Roberts concurring in Dobbs, 597 U.S. at 2: “Mississippi's law allows a woman at three months to obtain an abortion, well beyond the point at which it is considered ‘late’ to discover a pregnancy. See A. Ayoola, Late Recognition of Unintended Pregnancies, 32 Pub. Health Nursing 462 (2015) (pregnancy is discoverable and ordinarily discovered by six weeks of gestation). I see no sound basis for questioning the adequacy of that opportunity.”
Dobbs, 597 U.S. at 34, no. 44:
The Affordable Care Act (ACA) requires non-grandfathered health plans in the individual and small group markets to cover certain essential health benefits, which include maternity and newborn care. See 124 Stat. 163, 42 U.S. C. §18022(b)(1)(D). The ACA also prohibits annual limits, see §300gg–11, and limits annual cost-sharing obligations on such benefits, §18022(c). State Medicaid plans must provide coverage for pregnancy-related services—including, but not limited to, prenatal care, delivery, and postpartum care—as well as services for other conditions that might complicate the pregnancy. 42 CFR §§440.210(a)(2)(i)–(ii) (2020). State Medicaid plans are also prohibited from imposing deductions, cost-sharing, or similar charges for pregnancy-related services for pregnant women. 42 U.S. C. §§1396o(a)(2)(B), (b)(2)(B).
Dobbs, 597 U.S. at 34. (This could also be considered a bone-chilling alternative to adequate social support for crisis situations.)
Dobbs, 597 U.S. at 33.
Dobbs, 597 U.S. at 34. Since the decision considers politicized reproduction in so many guises, it, arguably, embeds an ambiguity concerning how these interrelate.
That is also true of the pretention to originalist legal interpretation through whose lens the decision constructed a misleading lineage of abortion's illegality, tracing it back to an early period of jurisprudence in which slavery was legal and full legal personhood was largely restricted to white men.
Dobbs, 597 U.S. at 78.
See the decision's reference to women's unimpeded capacity to assert themselves at the ballot box, Dobbs, 597 U.S. at 65.
As of September 2022, those seeking abortions in Hungary are obliged to listen to a fetal heartbeat as a precondition; doctors must deny treatment unless they can attest that patients have been shown a clear indication of “fetal vital signs.” See Parker, “Hungary Decree Says Abortion-Seekers Must Listen.”
“Dora Duro, a legislator with the far-right opposition party Our Homeland, claimed on Facebook that the changes adopted by the government had originated with a proposal from her party. The decree broke a ‘decades old taboo’ against ‘pro-life moves.’” See Dyer, “Hungary Requires Doctors.”
This is further discussed in Deutscher, “Paradoxes of Reproduction.”
This is a near-total ban, formulating penalties for abortion providers of up to ten years in prison and a fine of up to one hundred thousand dollars.
One month later, the New York Times would publish a study correlating antiabortion states with the highest rates of maternal death from complications in pregnancy and the highest rates of miscarriages, of infant mortality, and of poor maternal and neonatal health. See Badger, Sanger-Katz, and Miller, “States with Abortion Bans.”
On Olsen's account, “You've got the baby, who's certainly innocent.” Olsen and White, “Supreme Court's Potential Decision.”
Olsen's bill passed (seventy to fourteen) in Oklahoma, not allowing exceptions for rape or incest. When, some weeks later, Republican politicians were forced to address the widely reported case of a raped and pregnant ten-year-old unable to obtain an abortion in her own state, they pivoted to displaced blame onto immigration policies said to account for the presence of the accused. See Wong, “Republicans Are Shocked.”
For a lengthy discussion of this term in the context of reproductive governance, see Singer, Lawful Sins. For her account of the onerous responsibilization of Black pregnant teenagers, see Merritt, “Babies Havin’ Babies.”
Goodwin, for example, draws on the term (see Goodwin, Policing the Womb, 68, 108, 151, 155, 200) but augments it with reference to the double bind (6, 114, 215). See, by contrast, Hartman's intensive use of the term “double bind” in addition to some references, also, to double standards. Hartman, Scenes of Subjection.
Goodwin, Policing the Womb, 116; and see Hartman's account of expectations applied to the use of freedom by postbellum America's precarious rights-holders (insofar as they touched on domestic life), including maintenance of an orderly house, a healthy family, judicious household and financial management, assiduous child protection, risk deterrence, and optimized child development, all ongoing exigencies that “cannot be evaluated in isolation from race and class” (Hartman, Scenes of Subjection, 160–61). For a study of the corresponding impact on child removal practices by state services, see Roberts, Torn Apart.
Goodwin describes the rise in the United States of fetal protection laws (FPLs), fetal drug laws criminalizing illicit drug intake while pregnant (FDLs), and maternal conduct laws, criminalizing otherwise legal behavior (MCLs), in Goodwin, Policing the Womb, x, 15, 28–40. These laws’ characteristics are race-, class-, and wealth-based disparities in scrutiny, policing, and sentencing; unrealistic expectations often placing scrutinized parents and pregnant persons in double binds; and a climate of suspicion, policing, and prosecution for anything less than an unrealizable standard of conduct, in addition to a general association of stillbirth with potentially criminal conduct, in lieu of its being recognized as a common outcome occurring in about a third of all pregnancies (42; see also 4).
Goodwin reviews the expanding use of FPLs as a basis for arrest, prosecution, or sentencing in cases of attempted suicide (32); drug use while pregnant; declined treatment (including caesarians) (38, 43); falling down stairs (15); and stillbirths attributed to drug dependency (34).
See Goodwin's account of the range of techniques for the production of shame, Policing the Womb, 204.
For contiguous accounts of the production of perversely indebted colonial subjectivity, see Zambrana, Colonial Debts; Verges, Monsters and Revolutionaries.
Hartman, Scenes of Subjection, 121. Hartman refers to state forms of sovereign power (185, 188), the state's underwriting of continued compulsion and terror, and the deeming of racial violence as beyond the law's reach. She also refers to the myth of the sovereign individual that, postslavery, binds the liberty seemingly delivered by emancipation with the many mechanisms through which forms of bondage continued in more veiled forms. Hartman, Scenes of Subjection, 121.
For their accounts of the historical role of forced sterilization in these combinations, see, in addition to Goodwin, Roberts, Killing the Black Body; McWhorter, Racism and Sexual Oppression in Anglo-America.
For her account of the disproportionate impact, in this sense, of the child welfare system on Black families, see Roberts, Torn Apart.
See Goodwin's discussion of their supposition that the default is faultlessness, Policing the Womb, 42, 4.
She also points out the numerous studies contesting the association of this particular form of drug use with a physiological harm to fetuses, as comparable with forms of legal and illegal drug use that are more associated with possible harm and yet (frequently) less policed and prosecuted. Goodwin, Policing the Womb, 89.
Goodwin also points out a number of reasons that participation in IVF programs could be considered fetal endangerment but (to suggest this term) generally receives a tacit “exemption” (Policing the Womb, 123). For her complex analysis of IVF in related terms, see Weinbaum, Afterlife of Reproductive Slavery.
Comments made by Senator Elizabeth Warren appearing on The View. Warren, “Elizabeth Warren on Senate Voting.”
For the case of Herschel Walker, see King, Lerer, and Bromwich, “Herschel Walker Urged Woman.”
In Deutscher, “Qualifying Disqualification and Its Inversions.” I discuss this as a variation of Foucauldian discipline, in its interpenetration with sovereign power.
On this term in the context of Foucault's work, see Foucault, Abnormal, 12–13; Sforzini, “Pouvoir risible,” 51. Arianna Sforzini argues that the grotesque forms of sovereign authority that self-exempt from competency and responsibility are also deindividualized in a version of disciplinary power that takes shape as a crushing, immense, and incomprehensible bureaucratic machine; see also Deutscher, “Qualifying Disqualification,” 9.
For commentary on Alito's mode of grievance and snide pugnaciousness, see Talbot, “Justice Alito's Crusade.”
Rivkin and Taranto, “Samuel Alito.”
Either those affirming the decision appeared indifferent to the consequences, or they pretended to “neutrality”: “The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process. This Court also must be scrupulously neutral” (Dobbs, 597 U.S. at 3, Kavanaugh, concurring). The argument that abortion had become a “reliance interest” (an expectation around which contemporary lives were now organized) and, furthermore, important to equal participation in economic and social life, was rejected as “an empirical question that is hard for anyone—and in particular, for a court—to assess” (Dobbs, 597 U.S. at 65).
Dobbs, 597 U.S. at 65–66.
The decision did not address the undermining of that ability by gerrymandering and other forms of organized obstruction of voting.
Litman, Murray, and Shaw, “What's Next in a Post-Roe World.”
“States should decide the issue of abortion. I have respect for South Carolina. South Carolina voters . . . I trust to define marriage and to deal with the issue of abortion,” said Lindsay Graham, appearing on CNN's State of the Union, August 27, 2022 (Allred et al., interview). Similarly, Mehmet Oz, in his debate with John Fetterman, claimed to be pro-life and to oppose its federal regulation to ensure a situation in which “states can decide for themselves”; see Glueck and Gabriel, “Pennsylvania Senate Debate.”
This is not to naturalize a sex difference that would be obscured by the abstraction but to point out the decision's own construction of sex difference as a point of reference then available for disregard through its reference to a sex-neutral body. The political status of those historically depoliticized as “women” is thereby multiply divided and redoubled. Furthermore, and particularly given Dobbs's detailed appendix material, the judgment created continuity with a historical period in which Black women were not considered part of the political body and in which white women belonged to that body tenuously, by virtue of the legal doctrine of coverture under which they lacked independent political status and had little independent legal status.
Dobbs, 597 U.S. at 79: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We overrule those decisions and return that authority to the people and their elected representatives.” And at 6: “It is time to heed the Constitution and return the issue of abortion to the people's elected representatives. ‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting,’ Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part).”
In the United States, Roe was revoked only after years of sustained erosion through bureaucratic mechanisms including TRAP (“targeted restrictions on abortion providers”) laws; medically unnecessary, deliberately obstructive bureaucratic requirements imposed on provider locations and facilities and medical privileges; (parent or guardian) consent requirements; imposed waiting periods; “counseling requirements” (in some states obliging providers to deliver false information); and preclusions on state and federal funding for abortion. All these had produced a climate of unease and rendered formal rights inaccessible to many.
Australia, Canada, Colombia, Mexico, France, Germany, and Great Britain are among the numerous examples. For further discussion of this phenomenon, see Deutscher, “Inversion of Exceptionality”; Krauss, “Luisa's Ghosts”; Berer, “Abortion Law and Policy.”
Sweden, Finland, and Iceland are examples of countries that disallow medical refusal on the grounds of conscientious objection. The extent to which this provision is part of an overall technique of systematic obstruction varies. But this is, for example, a fair characterization of Italy and Poland, which allow doctors and pharmacists to claim conscientious grounds exempting them from the obligation to provide abortion services. Beyond individual conscientious objection, in the Roe era employers, insurance programs, and religious institutions in the United States claimed and were progressively accorded exceptions from offering medical coverage for abortion treatment.
The New York Times has investigated the multiple reasons that technically qualifying patients, including those with significant medical complications, have been unable to access legal exceptions. See Walker, “Most Abortion Bans Include Exceptions.” These reasons include vaguely worded laws, the unavailability of facilities or of willing medical staff, time limits, doctors’ fears of prosecution, and the complex conditions (evidential, procedural) that must be satisfied.
An early version of a qualitative study of the factors deterring doctors from providing exception-based care post-Dobbs is Grossman et al., Care Post-Roe. But, as discussed below, this has also led to a further ruse through which politicians responsible for these laws shift the blame to the doctors forced to satisfy their conditions.
Tennessee reporting requirements threaten the patient with three-year minimum prison sentences should police later determine the accusation was unfounded. Valenti points out the many legitimate reasons a complainant might recant (including risk avoidance). But under these provisions, to do so might also expose them to prosecution and incarceration. Valenti, “Abortion, Every Day”; Cheung, “Tennessee Bill Would Imprison People.”
Upping the ante on antirisk, Modern General, a rural Idaho hospital that had previously been available to support some two hundred pregnancies in the region, opted to shut down all its obstetric services. A contributing factor was that physicians preferred to relocate out of state due to obstructive antiabortion laws.
That fluency and the likelihood of its positive outcome relies on resources, wealth, education, access to information, mobility, and language skills.
As a combination of sovereign power and the creation of antirisk environments, the novel Texas SB 8 model makes it possible for anyone to engage in civil suit against those providing assistance to others obtaining abortion. It has given rise to legal cases, but its most immediate effect was a particularly effective general deterrence. Copycat citizen-enforceable, or vigilante, bans have been passed in Oklahoma and Idaho.
Pam Belluck discusses this view as an unintended consequence in Belluck, “How Abortion Bans Are Restricting Miscarriage Care.”
See Texas Attorney General Ken Paxton's discussion of a case of denied treatment on the right-wing media outlet Blaze TV. Gonzales, “Texas Woman.”
See, for example, Simmons-Duffin, “Her Miscarriage Left Her Bleeding Profusely.” And see Pam Belluck's similar reporting on her conversations with lawmakers and the president of the Texas “Right to Life” organization (Belluck, “How Abortion Bans Are Restricting Miscarriage Care”). The vague wording has made practitioners and institutions all the more risk averse while allowing the law's defenders to claim that compassionate exceptions are fully available and that treatment would have been legal. Thus a supplementary form of fault is generated and further imposed, in this case, on doctors and medical facilities.
Testimony from the widely reported case of Amanda Zurawski. Zurawski, “Testimony of Amanda Zurawski.”
Justices Breyer, Sotomayor, and Kagan, dissenting, Dobbs, 597 U.S. at 2.
See Goodwin's discussion of Ferguson v. City of Charleston (Goodwin, Policing the Womb, 109–12), and, for further discussion of this difference as applied to poor patients, see also 103, 116, 147, x–xi.
For her analysis of pregnancy in these terms, see Miller, Limits of Bodily Integrity.
“There is no medical Miranda warning, although there should be, especially to avoid law enforcement circumventing legal process by using medical providers as proxies” (Goodwin, Policing the Womb, 110).
See Goodwin, Policing the Womb, 92, 100, on so-called pregnancy exclusion laws and on the denial of treatment.
In this regard, Goodwin discusses the case of Samantha Burton, who in 2010 was involuntarily confined for bed rest in Tallahassee for the remainder of her pregnancy due to a court order initiated by the hospital she visited for a prenatal visit when six months pregnant. Goodwin, Policing the Womb, 82–85. The court further authorized the hospital to administer medication, to impose caesarean delivery, and to take other decisions against Burton's will where these were judged to be in the interests of fetal life and health.
In conversation with Goodwin, Loretta Ross describes women of color as “the roadkill on the pathway to policing white women's pregnancies.” Ross has used this image in an interview with Zakiya Luna; see Ross, interview. For Goodwin's parallel image of the miner's canary, see Goodwin, Policing the Womb, xi, 15, 100.
Usaini, “‘I Nearly Died.’”
This adds further resonance to Justice Kavanaugh's assenting opinion that the Dobbs decision would not threaten the legality of traveling out of state to access abortions (at 10).
Invited by Jill Biden to the 2023 State of the Union address, she was joined, in Zurawski v. State of Texas, by a group of plaintiffs with similar claims concerning denial of medical treatment. Her case was given visibility by politicians and also by the detail provided by the White House website:
Amanda was 18 weeks pregnant when her water broke. She and her husband Josh were devastated, as they had been trying for a baby for over a year. Her doctors were unable to intervene to help her because they were concerned that providing the treatment she needed would violate the Texas abortion ban, which prohibits abortion care unless a woman's life is in danger. She was sent home with instructions to come back if she developed signs of a life-threatening infection, which she did, three days later. Zurawski developed sepsis and nearly died because of the delay in receiving treatment. She continues to suffer from medical complications due to the delay. (White House, “White House Announces Guest List”)
Supreme Court of Justice of the Nation, Acción de Inconstitucionalidad. See also Amparo en Revisión 267/2023 (September 6, 2023).
Kanno-Youngs and Espriella, “New Border Crossing.”
For her subtle discussion of some of these options, and on reservations about abortion rights and delivery governance in the wake of its legalization in Mexico City, see Krauss, “Luisa's Ghosts”; “ Ephemeral Politics of Feminist Accompaniment Networks.”
