Jessie Hill has posted on SSRN a short and fascinating analysis of the graphic language used in Gonzales v. Carhart (2007), the “partial-birth abortion” case. Here is part of the abstract:
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.
You can download the article here.
I especially appreciated the article’s analysis of how the Supreme Court’s description of the abortion procedure erased the woman on whom it is performed, and of how the opinion constructed the vagina/birth canal as a public space by equating “outside the cervix” with “outside the body.” I would add that the erasure of the woman is especially ironic when one compares the graphic description of the abortion from the perspective of the fetus with the cursory dismissal of concerns about the woman’s safety; I’ve discussed the latter here.
The article also points out that “the Gonzales court is not alone in erasing the woman from the scene”; a similar erasure occurred in Stenberg v. Carhart (2000), in which a different majority struck down Nebraska’s partial-birth abortion act. As I’ve discussed here, on the question of “who decides” about abortion procedures, the liberals sided with the doctor, the conservatives sided with a “shocked” society, and no one sided with the pregnant woman. Not until Justice Ginsburg’s dissent in Gonzales did anyone suggest that she might be the appropriate decision-maker.