Friday, December 3, 2010
The body occupies an ambiguous position within the law. It is, in one sense, the quintessential object of state regulatory and police power, the object that the state acts both upon and for. At the same time, the body is often constructed in legal discourse as the site of personhood - our most intimate, sacred, and inviolate possession. 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.
This brief Article focuses on the rhetoric of the body in abortion law - specifically, on how the Supreme Court’s language constructs the female body in Gonzales v. Carhart, which upheld the federal Partial Birth Abortion Ban Act against a constitutional challenge. A number of commentators have remarked upon the troubling rhetoric employed by Justice Kennedy’s majority opinion in that case, primarily because of its paternalistic and sentimental view of motherhood. 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.
Several themes emerge from this close reading of the Court’s rhetoric: 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. This Article contends that Gonzales represents a uniquely literal and uniquely visual representation of those concepts. Indeed, the notions of disappearance, dismemberment, and displacement of borders are united by their association with this case’s unusually graphic - that is to say visual - approach. The Article then concludes with some brief reflections on the significance of the Court’s language in the context of abortion law in general.