States Obsessed With Controlling Women's Wombs Use Doublespeak to Pass Their Creepy Laws

The following is an excerpt from the new book Governed Through Choice: Autonomy, Technology, and the Politics of Reproduction (NYU Press, 2015) by Jennifer M. Denbow:


At the very moment when long-standing norms regarding gender, sexuality, and reproduction seem to be breaking down, women in the United States are facing increasingly severe restrictions on and scrutiny of their reproductive decisions. In state after state, legislatures are passing ever more restrictive requirements on abortion and more generally curbing access to reproductive health services. In 2011, states enacted an unprecedented 92 provisions restricting abortions, which overwhelmingly surpassed the previous record of 34 in 2005. From 2011 through 2013, states adopted a total of 205 restrictions. In the previous decade (2001–2010), states passed a total of only 189 restrictions. One recent trend is to require women to undergo ultrasounds and listen to the fetal heartbeat before an abortion. Women also experience heavy surveillance of their decisions in the context of sterilization access. Physicians often turn away childfree women who seek sterilization and question such women’s ability to make reasonable decisions about their futures. At the same time, states have subjected many women in prisons to sterilization procedures without full information or consent.

State actors often appeal to women’s autonomy and rights to justify these restrictive laws and practices, even though the desire to control women’s reproduction seems to motivate them. The ultrasound mandates, for example, purport to provide women with relevant information about abortion and thereby enable informed consent and personal autonomy. However, these mandates also increase surveillance of women and require the use of their bodies to garner the information that will supposedly encourage a more autonomous decision.

One way of understanding recent restrictions is to claim that they disingenuously employ concepts like autonomy and rights in a relatively straightforward effort to control women’s decisions and bodies. I commonly receive this reaction when I discuss recent laws with people, and explain their rhetoric. When I mention, for example, the names of laws like Texas’s Woman’s Right to Know Act, which includes a pre-abortion ultrasound mandate, people are usually dismissive of the legislative language and skeptical of its significance. They see such names simply as part of a trend to give laws titles that express the opposite of their intended effect. Dismissing the significance of language implies that the way these laws are framed and the logic behind them are not all that important to consider. They are simply and clearly attempts to restrict women’s rights and intervene in their decision making. Yet if we assume that language is merely being manipulated, the underlying logic and arguments go unexamined, resulting in impoverished assessments of and reactions to reproductive rights discourse.

Another way of thinking about the framing of recent reproductive restrictions is to see them as employing an understanding of autonomy that has a long and rich tradition. Understanding this helps us understand both the appeal and implications of recent interventions in women’s reproduction. Examining how ideas like autonomy are employed in recent proposals and laws reveals that these restrictions resonate with the tradition of understanding autonomy as proper self-governance. In other words, the capacity for autonomy has often been understood in terms of the ability to reflect on one’s situation and make rational decisions.2 For Immanuel Kant, for example, autonomy involved analytically separating oneself from one’s desires and impulses in order to legislate rationally for oneself. Such a rational being is free of external determinants of his or her actions and engages in selfreflection to ascertain the rational law. Autonomy involves submitting oneself to this law. While Kant was primarily concerned with moral autonomy, this view has been translated politically to mean that only those who are rational and have the capacity for autonomy are to be granted the right to autonomy. When this idea is used to evaluate individuals, what constitutes rationality tends to depend on prevailing norms and power relations. That is, the rational decision is that which conforms to prevailing norms and consolidates power relations. As Claire Rasmussen demonstrates in her careful study of how autonomy operates in various contemporary contexts, “the way that our perception of autonomy, who or what constitutes autonomy, is profoundly shaped by contextspecific power relationships”.

Employed in contemporary notions of reproductive rights, autonomy as proper or rational self-governance serves a crucial function: it allows for the appearance of respect for women’s rights and self-determination, while justifying increased surveillance and management of women’s bodies and reproductive decisions. Crucially, race, class, and ability all affect how an individual’s conduct is managed. Thus, while the use of ideas like autonomy, choice, and empowerment in recent reproductive regulations seemingly calls on a feminist tradition, those concepts are stripped of their transformative and critical potential. Instead, since autonomy is understood as proper self-governance, existing norms are reinforced.

This phenomenon is part of the rise of, in Rosalind Gill’s words, a postfeminist sensibility “in which notions of autonomy, choice and selfimprovement sit side-by-side with surveillance, discipline and the vilification of those who make the ‘wrong’ ‘choices’”. As I argue, a particular understanding of autonomy has been crucial to how this sensibility has operated in reproductive law and politics. I argue that the logic behind many current reproductive policies rests on the idea that making certain choices demonstrates that one is not deciding rationally. Choosing to have an abortion, choosing to have children if you are on welfare, or choosing to get sterilized if you are young, middleclass, and female are all decisions that others, especially experts, often deem irrational and view as indicative of a failure to self-manage properly. Ultrasound mandates, for example, rest on the notion that women who choose to abort cannot be acting autonomously because abortion is never a proper choice. As such, intervention in a woman’s decision making can actually promote autonomy.

I've trace the simultaneous rise of the discourse of autonomy and surveillance in recent reproductive regulation. This rise has resulted in increased paternalism. Understanding the way autonomy as proper self-governance operates in reproductive law and politics enables us to understand more fully the kind of paternalism at work. The paternalism invoked here is presented as a way to promote autonomy by encouraging or mandating a certain decision. The idea that women have choice and control over their reproductive capacity enables others, such as the state and experts, to judge whether women are making proper or improper reproductive decisions. As Michel Foucault argued in his writing and lectures on governmentality, we can be governed through choice. The possibility of acting in a variety of ways creates the conditions for power, and power presupposes the subject who is free. Governmentality operates in contemporary reproductive law and politics in conjunction with autonomy and surveillance.

...

With regard to recent legal treatments of reproduction—including the jurisprudence of abortion, ultrasound mandates, and the regulation of sterilization—women are often thought of as improperly self-governing. This judgment then justifies the intervention of medical experts and the state. The way autonomy is used in reproductive discourse in many ways reflects the limitations of understanding autonomy as proper self-governance, which can be traced to Rousseau’s idea that freedom inheres in “obedience to a law one prescribes to oneself ”.

Developments in reproductive technology have altered how reproductive autonomy is conceived and thus how reproduction is regulated. For example, as the ultrasound mandates show, states are using sonograms to surveil women in new ways and to impose the state’s understanding of pregnancy on them. Furthermore, changes in reproductive technology have increased individuals’ ability to control and manage their reproduction, and thus would seem to promote self-governance. However, these changes have also led to increased scrutiny of decisions regarding procreation. Because such decisions are now framed and presumed to be “choices,” it is possible to criticize individuals for not making “better” or “more rational” choices. In this way, and as Foucault explained with the concept of governmentality, we can be governed through choice and not simply emancipated by it.

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