When pregnancy is an injury: Rape, law, and culture
Boston University, USA.Stanford Law Review (Impact Factor: 4.32). 03/2013; 65(3):457-516.
This Article examines criminal statutes that grade more severely sexual assaults that result in pregnancy. These laws, which define pregnancy as a “substantial bodily injury,” run directly counter to positive constructions of pregnancy within culture. The fact that the criminal law, in this instance, reflects this negative, subversive understanding of pregnancy creates the possibility that this idea may be received within culture as a construction of pregnancy that is as legitimate as positive understandings. In this way, these laws create possibilities for the reimagining of pregnancy within law and society. Moreover, these laws recall the argumentation that proponents of abortion rights once made – argumentation that one no longer hears and sees in the debates surrounding abortion. However, recent developments in antiabortion argumentation – namely the notion accepted in Carhart II that it is abortion that injures women – counsel the retrieval of the argument that unwanted pregnancies are injuries to women. Thus, the sexual assault laws are means to legitimatize a claim that may serve as an effective counterdiscourse to prevailing antiabortion argumentation. The exploration proceeds in three Parts. Part I provides an overview of sexual assault statutes that punish more severely perpetrators who cause their victims to become pregnant and suggests that these laws are worthy of cultural analysis because they define pregnancy as an injury and, as such, are wholly at odds with positive constructions of pregnancy. Part II moves the discussion outside of the context of rape. It contends that the definition of pregnancy as an injury does not solely describe women’s experience of pregnancies that result from rape, but generally describes women’s experience of unwanted pregnancy. Indeed, it is the profound unwantedness of the pregnancy that results from rape that makes it an injury. Thus, the criminal law gives legitimacy to a subversive phenomenology of unwanted pregnancy, which may have repercussions for how pregnancy – and abortion – is understood within society. Part III looks at representations of pregnancy in other areas of the law, revealing that the law frequently embodies positive constructions of pregnancy even when negative constructions might be expected. The rare times that the law appears to represent pregnancy subversively are when laws index the social effects of pregnancies. Accordingly, while the law in these instances represents pregnancy as an injury, the injury is to the body politic. Thus, the subversive nature of the representation is mitigated, as it does not endeavor to describe a bodily experience of pregnancy. A brief conclusion follows.
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ABSTRACT: Professor Ann Scales began her distinguished career by taking feminism and reproductive justice seriously. She became a leading feminist voice and influence on a number of topics. In later years, she returned to concerns about reproductive justice by presciently emphasizing the need to preserve women's access to abortions. This Essay discusses Professor Scales's concerns and feminist method and then turns to reproductive justice. The Essay notes that, with Scales, a right to abortion is foundational for reproductive justice. The Essay then examines the increasing narrowing of access to abortion through law. The Essay next examines a current crisis over access to contraception, including arguments that some contraceptives are abortifacients and therefore should not be available and the debate over insurance coverage for contraception under the Affordable Care Act. The Essay concludes with an examination of what reproductive justice advocates can do to stop what appears to be a steady undermining of rights to abortion and contraception, drawing in part on Professor Scales's concern with always examining women's voices and using political as well as litigation strategies.
Article: The dangerous law of biological race[Show abstract] [Hide abstract]
ABSTRACT: The idea of biological race-a conception of race that postulates that racial groups are distinct, genetically homogenous units-has experienced a dramatic resurgence in popularity in recent years. It is commonly understood, however, that the U.S. Supreme Court has rejected the idea that races are genetically uniform groupings of individuals. Almost a century ago, the Court famously appeared to recognize the socially constructed nature of race. Moreover, the jurisprudence since then appears to reaffirm this disbelief: within law, race is understood to be a social construction, having no biological truth to it at all. Yet upon closer examination, the Court's apparent disbelief of racial biology is revealed to be as mythical as racial biology itself. This Article argues that the Court treats "race" as a legal term of art, using the term in a "technical," legal way to reference populations of people who are not presumed to be biologically or genetically homogenous. In treating race as a legal term of art, however, the Court essentially hedges its bets by leaving open the possibility that race, in its "scientific" usage, describes persons who are united by biology or genotype. In other words, while the Court has rejected racial biology in law, it has never rejected the possibility that, outside of law, race is actually a biological entity. By not shutting the door completely to biological race, the Court, and the law more generally, is complicit in the resuscitation of one of the most dangerous inventions of the modern era.
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