In recent years, anti-abortion advocates have argued that abortion harms not only a developing fetus, it also harms the woman who chooses to terminate her pregnancy. These arguments, which Reva Siegel has termed “woman-protective anti-abortion argumentation,” have made their way into abortion jurisprudence.1 In the 2007 case Carhart v. Gonzales, a majority of the Supreme Court characterized abortion as “a difficult and painful moral decision” that may cause women profound psychological, physical, and emotional harm.2
In response to these arguments and the judicial decisions that entrench them as truths, pro-choice advocates have sought to recast abortion in a more positive light. Katha Pollit’s recent book, Pro: Reclaiming Abortion Rights, seeks to strip abortion of its stigma by reframing it as a common part of a woman’s reproductive life—one that may have positive implications for the woman, her family, and society. Similar themes have surfaced in popular culture. In the 2014 movie Obvious Child, Donna, a struggling twenty-something, becomes pregnant after a one-night stand and decides to have an abortion. Donna’s decision is utterly devoid of the usual angst and drama that attends television and film depictions of similar scenarios. Indeed, she is matter-of-fact about the decision, never contemplating the possibility of raising the child herself or giving it up for adoption. More radically, Donna is no worse for the wear after her abortion. Indeed, she is pleased with her decision, confident that it was the right choice for her.
Amidst these popular efforts to recast abortion in a more positive light comes Khiara Bridges’s excellent article, When Pregnancy is an Injury: Rape, Law, and Culture. In the piece, Bridges considers criminal sexual assault statutes that characterize a pregnancy that results from rape as an injury—beyond the rape itself—to the victim. As Bridges observes, these criminal statutes are notable not simply because they identify those circumstances in which the crime of rape is aggravated and subject to heightened penalties; but because they construct pregnancy as an injury to women. As Bridges explains, the construction of pregnancy as an injury “runs counter to positive constructions of pregnancy within culture.” But it is not just that these criminal statutes disrupt the conventional narrative of pregnancy as a beautiful and blessed experience; by reframing pregnancy as an injury, the criminal sexual assault statutes also provide us with an opportunity to reconceive abortion as “a healing modality, serving to heal a woman of her injury.”
There is much to admire about this article. Unlike much of reproductive rights scholarship, which often focuses on doctrinal developments in the law, the article takes an anthropological approach, documenting the interaction between law and culture in constructing the ways in which we understand pregnancy and abortion. In so doing, the article yields trenchant insights about the role that law may play in shaping our cultural understandings of abortion and pregnancy and vice versa. For example, in discussing the range of sexual assault statutes that provide for heightened penalties when a rape results in pregnancy, Bridges makes clear that the statutes are “somewhat exceptional because . . . [they] reflect subversive understandings of pregnancy” that are at odds with prevailing cultural and legal views, which celebrate pregnancy as a good thing for women, even in circumstances where pregnancy is unwanted and unplanned.
To underscore this point, Bridges canvasses a range of legal contexts where pregnancy, despite its risks and challenges, is almost always figured as a good thing. Consider cases of wrongful pregnancy or wrongful conception, where parents sue after a provider’s negligence results in an unwanted pregnancy. In these cases, courts do not “recognize that a woman who bears a pregnancy only because of the negligent provision of contraceptives or a negligently performed abortion or sterilization—that is, a woman who bears an unwanted pregnancy—experiences that pregnancy as an injury.” Instead, the injury that courts do recognize is the denial of one’s reproductive rights and the economic costs associated with pregnancy. Through this selective recognition, Bridges argues, law subtly asserts that “pregnancy itself is a good thing.” That is, even as it shifts the “monetary costs associated with pregnancy,” law stubbornly insists on framing pregnancy as a benefit to women. Certainly, it is a benefit that “may result in some burdens . . . . [b]ut it is not an injury.”
To be sure, there are contexts where pregnancy is framed more ambivalently or even negatively—the pregnancies of women on public assistance and the pregnancies of women employees, come to mind. But even in these contexts, the negative framing does not render a more accurate account of women’s experiences of pregnancy. In these contexts, Bridges explains, the injury of pregnancy is not an injury to the woman, but rather an injury to the body politic—the public or public resources. In this way, even these negative treatments of pregnancy underscore the larger cultural message that pregnancy is a positive experience for women.
And because pregnancy is framed as a positive experience, abortion is necessarily framed as a negative experience. It is the quintessential injury—one that not only harms the fetus, but also injures the woman herself. In this way, Bridges argues, law helps to shape a cultural narrative in which a woman’s interest in abortion is stigmatized and delegitimized.
On this account, the sexual assault statutes’s view of pregnancy as an injury is not just subversive in the way it reframes pregnancy; it also undermines the prevailing view of abortion. In stark contrast to Gonzales v. Carhart, where abortion is presented as a danger from which women must be protected, the reframing of pregnancy as an injury allows abortion to be recast as a means of healing the injury of pregnancy. In this regard, pregnancy as an injury has the radical potential to shift the nature of abortion discourse. If abortion is recast as a healing modality, then the procedure itself—and the woman’s desire for it—is not a much-regretted choice that causes profound anxiety and despair, but rather, is a legitimate choice that may be positively experienced. In this way, refocusing our discourse to accurately reflect the bitter and the sweet of pregnancy allows law to better understand and reflect women’s interest in, and experiences of, abortion.
But what is perhaps most interesting about this article is that it makes clear that the reframing of pregnancy and abortion that it champions is not necessarily new. As Bridges explains, early pro-choice advocacy explicitly characterized unwanted pregnancy as an injury and abortion as a means of healing that injury. However, as anti-abortion advocacy shifted from emphasizing abortion’s harm to the fetus toward emphasizing the perceived harms of abortion for women, this earlier understanding of pregnancy and abortion fell out of favor—and out of our collective memory. By unearthing this lost view of pregnancy in (of all places) sexual assault statutes, Bridges makes clear that these arguments were once a vibrant part of pro-choice advocacy—and that they could be once again.
- Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 Yale L.J. 1694 (2008). [↩]
- 550 U.S. 124, 128 (2007). [↩]