The Fetal Rights Movement: The Pro-Life Administration*s Conception of American Citizenship

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The Fetal Rights Movement: The Pro-Life Administration*s Conception of American Citizenship

Jessica Payson

Pro-life rhetoric is reshaping history to make room for a new class of citizens. The members of this new identity group are called ※fetuses,§ and their legal protection is crucial to the heritage of and future of America. Lauren Berlant, in her essay, ※America, &Fat,* the Fetus,§ describes the pro-life motivation to present fetuses as a class of citizens, and thereby add ※a new group of &persons* to &the people*§ (Berlant, 98). To do so, pro-lifers exploit the current convergence of public and private spheres. In the ※intimate public sphere,§ citizens are defined not by a common civic duty, but instead, by a shared morality. In this ※crisis of citizenship,§ with no one quite sure of where s/he stands in relation to the norm, and everyone forced into an identity politics, the fetus represents the ideal citizen 每 utterly vulnerable and in need of government protection. Pro-life arguments describing fetuses as the ultimately silenced, victimized minority capitalize on the shifting meanings of citizenship to find a place for the fetus within it.

By mixing the language of minority politics (asserting distinct identities of classes of people who are victimized by society) and Reaganite ideology (affirming the politicization of the private sphere overseen by the government (Berlant, 3)), the pro-lifers constructed the fetus as an image of perfect vulnerability: ※the unprotected person, the citizen without a country or a future, the fetus unjustly imprisoned in its mother*s hostile gulag§ (Berlant, 97). The fetus*s vulnerability and minority status speaks to the plight of the newly distinguished class of normative citizens (usually white, straight, middle-class men). ※The culture of national fetality also newly touches the previously privileged 每 because unmarked 每 unexceptional citizen# His new exposure to mass-mediated identity politics makes him experience himself as suddenly embodied and therefore vulnerable. An entire culture can come to identify with, and as, a fetus§ (Berlant, 86). Feeling suddenly embodied and vulnerable, only recently exposed to identity politics, the formerly unmarked, nondescript citizens can now, too, relate to the minority-identity that the fetus has come to represent.

At the same that the fetus is achieving minority status, the pro-life ideology is also placing its fate into the tale of our nation, making protection of the fetus crucial to the country*s future. ※Since we &are* what we have always &done,* we violate our true selves if we act in ways that are different§ (Condit, 44). Establishing a place for the fetus as citizen in past, present, and future, pro-life language permeates throughout our culture and the highest levels of government. Such recent legislations as the Unborn Victims of Violence Act (2004) and the Partial-Birth Abortion Ban Act (2003) reflect the citizenship of fetality and its supposedly rightful place in American culture.

The fetus*s place in the American heritage, and in American law, dates all the way back to the founding documents, according to pro-life thought. George W. Bush seems to concur, as his statement before signing the Partial-Birth Abortion Act into law illustrates. ※America stands for liberty, for the pursuit of happiness and for the unalienable right of life. And the most basic duty of government is to defend the life of the innocent§ (Bush, Partial-Birth). Supporting the idea that America is historically obligated to protect the rights of a fetus (※life§), Bush also claims that the ban is in accordance with the ※spirit of our country,§ and that by endorsing the legislation we are living ※out our calling as Americans§ (Bush, Partial-Birth). With such an interpretation of the country*s original legal purpose, it is the government*s resulting duty ※to defend the life of the innocent§ (Bush, Partial-Birth), that is, the potential life of the fetus. Since the government was intended to do so and has always done so, it must continue its purpose by banning supposedly un-Constitutional and un-American partial-birth abortions.

Of course, the primary text that Bush is alluding to is the opening of the Declaration of Independence: ※We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.§ Nowhere does the Declaration say, however, that fetuses count as these endowed ※men.§ Neither does the Constitution or Bill of Rights, for that matter. As Roe v. Wade determined, ※The Constitution does not define &person* in so many words. Section 1 of the Fourteenth Amendment contains three references to &person*# But in nearly all these instances, the use of the word is such that it has application only post-natally§ (Roe v. Wade IX A). Bush*s version of the country*s founding documents is based on pro-life ideology and is not historically or technically accurate.

However, if Bush*s assertion of Constitutional rights to fetuses is not correct legal terminology, it is a persuasive story. Celeste Michelle Condit, author of ※Decoding Abortion Rhetoric, identifies such a quasi-historical, pro-life expression as a ※heritage tale.§ This is a ※social myth constructed about a shared past, which gives that past a unified set of meanings, endorses the social formations represented as existing in that past, and thereby constructs a description of what the future should be§ (Condit, 226-227). The heritage tale is a tactic used by pro-lifers to place a strand of anti-abortion sentiment throughout the cultural lineage. It creates a ※social myth§ in that it appeals to most Americans by capturing important social truths and describing them with emotional intensity (Condit, 28). The story about fetal rights in the Declaration of Independence works because it asserts that life, liberty, and the pursuit of happiness are inalienable rights, and that those rights are violated by a graphic and horrifying practice which is ※not only cruel to the child, but harmful to the mother, and a violation of medical ethics§ (Bush, Partial-Birth). In reality, the abortion procedure which involves ※partial birth§ is typically used only to save the life of the woman. Also, the act can apply to a variety of abortion procedures and effectively ban abortion after the first trimester. But by justifying political change with the most extreme example of ※partial birth§ when not medically necessary, the ban is framed in mainstream values meant to appeal to a broad base. The combination of a vague historical account with emotionally potent values makes for a persuasive justification of the ban.

The placement of the fetus in legal and cultural American history also brings up a paradoxical element of the concept of the pro-life fetus. If fetal rights are interchangeable with the right-to-life, and defending of fetuses is the protection of life itself, is the fetus an ahistorical or historical presence? Certainly ※life§ is an essential and unchanging concept that has no point of origin or ties to legal order. Yet on the other hand, the ※life§ that fetuses embody is purported to have a track record in American history. ※[T]he image of the iconic fetus marketed by pro-life activists [is] something paradoxically ahistorical (human nature itself) and profoundly historical (its fate has been said to be the nation*s fate§ (Berlant, 87). This contradiction is embedded in the Partial-Birth Abortion Ban statement itself. ※This right to life cannot be granted or denied by government, because it does not come from government, it comes from the Creator of life§ (Bush, Partial-Birth). Legal systems cannot preside over such an eternal essence as life 每 yet this notion contrasts with the very act that Bush is about to sign as proclaiming his statement. The ban does explicitly aim to ※grant§ life, in accordance with legal precedent and national historic values.

In another technique of reframing American heritage, not only is pro-life ideology revealed to accord with national values, but the absence of pro-life values is also shown to occur in occasional moments of iniquity in our history. Pro-lifers frequently articulate ※Roe v. Wade within a strand of &evil* in history 每 one of a series of trials that Americans had always been able to overcome§ (Condit, 49). In this rendition of American heritage, significant historical events such as slavery and Nazism come to represent the battle of principles in which the winning side has always valued the ※sanctity of life.§ In keeping with this connection, it is not uncommon for pro-life advocates to connect Roe v. Wade with the Dred Scott decision. Both denied citizenship, and all the human rights and legal protection that entails, to a class of people. Both described that class as property 每 either the bought property of the slaveowner or the bodily property of the pregnant woman. Both prevent states from overriding this decision (outlawing slavery or criminalizing abortion outright). And both are simply immoral and need to be overturned, regardless of stare decisis, since the original decision was wrong (Pollitt).

Such significant figures as Ronald Reagan (in Abortion and the Conscience of the Nation) and Justice Scalia (in his dissent in Casey v. Planned Parenthood), and Alan Keyes have all referenced Dred Scott in relation to Roe v. Wade. And more recently, in the second presidential debate, Bush referenced Dred Scott in response to a question about a litmus test for Supreme Court nominees. Falling right in line with pro-life (mis)interpretation of the case, Bush described the decision saying: ※That*s personal opinion. That*s not what the Constitution says. The Constitution of the United States says we*re all 每 you know, it doesn*t say that. It doesn*t speak to the equality of America§ (Bush, Second Debate). The problem is that the Constitution did allow slavery 每 as Bush seemed to realize mid-sentence, the Constitution did not say we were all equal. Dred Scott was not exactly ※personal opinion§ 每 but that is what pro-lifers describe Roe v. Wade as. There are some broad similarities between Dred and Roe. Both involved Supreme Court decisions, and both involved the status of human bodies (if one was about property and the other was about privacy, both decisions in the end affected what black people and women could do with their own bodies). However, this is just enough similarity to make the connection plausible. ※Consequently, the two events [appear] as a single line of &villainy* to be overcome by Americans. As a result of this linkage, abortion [is] not only &written out* of the American heritage, it [elicits] the same kind of passionate hatred stirred by a long-past Civil War§ (Condit, 50).

Bush also used a more recent event to villainize those who support the right to abortion and cast pro-life in a triumphant, American role. Following the terrorist attacks of September 11th, Bush addressed the nation from the World Congress Center in Atlanta, Georgia saying, ※This new enemy seeks to destroy our freedom and impose its views. We value life; the terrorists ruthlessly destroy it§ (Bush, Backgrounder). He kept up the idea that the evil enemy was epitomized by a disrespect for life, saying in the first presidential debate, ※Every life is precious. That*s what distinguishes us from the enemy. Everybody matters. But I think [the war is] worth it§ (Bush, First Debate). Here, Bush both identified ※life§ as a common American value, uniting all citizens in favor of it, and also equated pro-choicers with vileness and terrorism. The war was now about ideology and morality, and those supporting the right to choose were on the outside.

One could offer a justification of Bush*s remark. The terrorists who attacked the World Trade Center were simply mass-murderers who brutally took lives and destroyed their own out of pure hatred. Though Bush is certainly capitalizing on this poignant interpretation, his intent is not so straight-forward. The way Bush refers to the ※life§ he values is complicated when he also uses his belief in life as a reason to wage war and kill. Similarly, Bush also is notorious for having executed the largest number of people of any United States governor while serving in Texas; this ambiguous stance accords with the frequency that pro-life activists are also in favor of the death penalty. There must be some complications to the sort of ※life§ Bush and other pro-lifers of his ilk promote.

It is not so much that Bush and other pro-death-penalty pro-lifers are hypocritical; it*s more that their pro-life rhetoric is elusive. When pro-lifers refer to ※life,§ they do not necessarily mean existing human beings; they more aptly refer to potential life. Condit describes this sort of ideology as ※pro-natalism,§ the ※support of maximal human reproduction§ (Condit, 62) and aim to ensure that every possible human being that can be born will be born. The concept of ※life§ as pro-lifers argue it now is one that has developed over the past several decades of arguing for pro-natalism. In the 1950s, pro-natalists/pro-lifers would link women*s sexuality strictly with reproduction. After the sexual liberation movement of the 1960s, however, women*s sexuality outside of procreation was not as effectively shameful, which necessitated a change to arguing for ※the sanctity of human life.§ As the tone of the nation became less legitimating of religious connotations, pro-natalism arguments switched again to the current ※Right to Life.§ This suggestion of liberalism meshes well with the country*s liberal-individual discourse. ※The pro-Life rhetors consequently modified their favored terms to adapt to the process of public persuasion. &Sanctity of human life,* rooted in a conservative concern for pro-natalism, was translated into the liberal individual discourse of a basic human right 每 the Right to Life§ (Condit, 62). With this logic, pro-lifers can be genuinely sincere and consistent when they advocate valiantly for potential life and equally ruthlessly for the deprivation of allegedly undeserving life.

The ※right to life§ appeal to American liberalism ushered in a new notion of identity politics 每 with the minority represented being the fetus. In order to claim fetuses as a class of citizens deserving protection under the law, pro-life rhetors appropriate the discourse of identity politics. The ※fetal person§ is silenced and has no visibility in the public sphere. Pro-lifers aim to challenge and transform ※stereotypes that define [the fetus*s] identity in the public sphere, emphasizing the claim to the pure protection of the identity form American national membership is supposed to provide§ (Berlant, 100). With a minority status, fetuses become representative citizens. Berlant explains that today, with our public space fraught with images of racial, class, and sexual divisions and conflicts, ※a citizen is defined as a person traumatized by some aspect of life in the United States§ (Berlant, 1). The suffering citizen has become a ※cartoon§ and a ※standard truth.§ Due to the social hierarchy caused by such strife in the public sphere, every citizen has a ※paradox of partial legibility,§ rendering individuals* identities which determine their place in the hierarchy generic, public property. The social hierarchy ※turns them into kinds of people who are both attached to and underdescribed by the identities that organize them§ (Berlant, 1). The fetus is the perfect exemplar of this sort of citizenship: marked, vulnerable, and victimized.

The language of the Unborn Victims of Violence Act and the presidential statement preceding the signing in of the Partial-Birth Abortion Ban Act affirm fetuses as a distinct class of people. The Unborn Victims of Violence Act defines itself as ※An Act# to protect unborn children from assault and murder§ (Unborn, introduction) and later specifies that ※the term &unborn child* means a child in utero, and the term &child in utero* or &child, who is in utero* means a member of the species homo sapiens, at any stage of development, who is carried in the womb§ (Unborn, Sec. 1841.d). The act explicitly sets these ※unborn children§ into a defined, unified class. It grants them an identity which is a distinct sub-set of ※homo sapiens,§ thus turning fetuses into a perfect minority. Bush also marks out fetuses as a class, one that is the target of a seemingly systematic violence. ※For years, a terrible form of violence has been directed against children who are inches from birth, while the law looked the other way#. Each year, thousands of partial birth abortions are committed§ (Bush, Partial-Birth). He recognizes a specific crime (partial birth abortions) against a specific class of people (children inches from birth). The cruel law has seemingly consciously ignored the needs of this silenced minority. Similarly, Bush describes the necessity of the Unborn Victims of Violence Act: ※Until today, the federal criminal code had been silent on the injury or death of a child in cases of violence against a pregnant woman. This omission in the law has led to clear injustices§ (Bush, Unborn). The law has failed to protect a class of its citizens, leading to ※clear injustices.§ This begs the question, injustices to whom? The answer 每 unborn children/fetuses 每 affirms that group as a unified, and victimized, identity.

The minority group of fetal persons is also exceedingly vulnerable, and partial birth abortions apparently exemplify their vulnerable status. The partial-birth abortion ※is a gruesome and inhumane procedure that is never medically necessary and should be prohibited§ (Partial-Birth, Sec. 2.1). Despite the fact that, as Bush asserts, ※thousands§ of partial-birth abortions are performed every year, the practice is described as one this is completely ※unnecessary.§ It is not practiced to save a woman*s health or life, and ※in fact poses serious risks to the long-term health of women and in some circumstances, their lives§ (Partial-Birth, Sec. 2.2). This leaves no possible explanation for doctors to perform such an act, except out of cruelty 每 or bigotry 每 towards unborn children. In a battle between fetuses and apparently evil doctors, the fetus will never win without the government*s help. This is why the legislature must step in, for it is ※the duty of the strong to protect the weak§ (Bush, Partial-Birth). ※Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life§ (Partial Birth, Sec. 2.14.N). Protection of the fetus is absolutely necessary to ensure anyone*s (and everyone*s) vulnerable citizenship.

In the presentation of fetal citizenship, pro-life arguments depend on the connection between ※nature§ and ※nation§ within the idea of ※citizenship.§ Citizenship, to pro-lifers entails more that legal recognition 每 it also includes social obligations and practices. ※One reason the revitalization of this category [citizenship*s social category] is so crucial now is that pro-life rhetoric has seen the relations between nature and nation as central to its sacred logics. Citizenship is the category in which these two formations are supposed to merge§ (Berlant, 99). For pro-lifers, it is a woman*s natural and national duty to bear children. A pregnant woman is only a citizen in so far that she bears future citizens 每 she must agree to sacrifice her individual privacy rights in favor of a more compassionate, life-valuing state. ※At this time in America# the reproducing woman is no longer cast as a potential productive citizen, except insofar as she procreates: her capacity for other kinds of creative agency has become an obstacle to national reproduction§ (Berlant, 100). It is the duty of ※nature§ 每 the propagation of the human race 每 to ensure the future existence of the ※nation,§ and also the obligation of the ※nation§ to ensure that ※nature,§ procreation, is maximized. ※Thus, in pro-life discourse, the aim of national reproduction merges with the claim that fetuses, like all persons, ought to have a politically protected right to natural development§ (Berlant, 100).

The Partial-Birth Abortion Ban Act speaks in terms that emphasize the connection between nature and nation. The bill claims that ※a governmental interest in protecting the life of a child during the delivery process arises by virtue of the fact that during a partial-birth abortion, labor is induced and the birth process has begun§ (Partial-Birth, Sec. 2.14.H). In such cases, the fetus*s status (potential future citizen) trumps the privacy rights of the pregnant woman (citizen status from bearing those future citizens). Furthermore, a ※child that is completely born is a full, legal person entitled to constitutional protections afforded a &person* under the United States Constitution. Partial-birth abortions involve the killing of a child that is in the process, in fact mere inches away from, becoming a &person.* Thus, the government has a heightened interest in protecting the life of the partially-born child§ (Partial-Birth, Sec. 2.14.H). Here, the act palpably promotes pro-natalism 每 the maximization of human reproduction 每 in support of national goals. The fetus represents what is going to be a citizen 每 yet the government hardly goes so far out if its way to protect the rights of persons applying for citizenship status. The government*s ※heightened interest§ represented once labor is induced is in ensuring the propagation of its natural life.

The nation*s concern with reproduction is also reflected in Bush*s statement regarding the Unborn Victims of Violence Act. ※As of today, the law of our nation will acknowledge the plain fact that crimes of violence against a pregnant woman often have two victims# Under this law, those who direct violence toward a pregnant woman will answer for the full extent of the harm they have done, and for all the crimes they have committed§ (Bush, Unborn). Notice that Bush says all the crimes, not both the crimes. There certainly is more than one entity being injured in the murder of a pregnant woman: the innocent fetus, the citizen-bearing mother, and also, the citizen-demanding state. Bush also interchanges the legislation as an obligation of the state and a duty of morality. ※The moral concern of humanity extends to those unborn children§ (Bush, Unborn), yet with the act we also uphold the nation*s mission in that ※we reaffirm that the United States of America is building a culture of life§ (Bush, Unborn). By interchanging the language of morality and national duty, Bush demonstrates just how equatable they are.

Bush*s use of the phrase ※culture of life§ is particularly striking in the contemporary climate of the public sphere. Berlant describes the country as being in a crisis of citizenship, a state wherein we cannot locate the public sphere. ※[T]here is no public sphere in the contemporary United States, no context of communication and debate that makes ordinary citizens feel that they have a common public culture§ (Berlant, 3). National patriotism is measured not in civic acts, but in personal expression and private behavior. Today, ※national patriotism [is recast] as a question not of political identity, but of proper public expression, loyal self-censorship, and personal discipline§ (Berlant and Freeman, 147). Rather than being identified as American through civic duties, ※the struggle is now also over proper public submission to national iconicity, and over the nation*s relation to gender, to sexuality, and to death§ (Berlant and Freeman, 147). Bush*s assertion of our ※culture of life§ fills the void of our questionable public sphere with pro-life sentiment. His phrasing exemplifies America*s culture being based less on civic duty and more on sexuality and morals. With our national identity conflated with our sexual mores, it is conceivable for Bush to promote morals as civil obligations. ※[Partial-birth abortion] involves the partial delivery of a live boy or girl, and a sudden, violent end of that life. Our nation owes its children a different and better welcome§ (Bush, Partial-Birth). The partial-birth abortion ban ※protecting innocent new life from this practice reflects the compassion and humanity of America§ (Bush, Partial-Birth) 每 and also establishes the shared moral opinions that comprise our national identity.

Bush and the anti-choice legislation resulting during his administration both align with model pro-life/pro-natalist ideology through the rhetoric employed. Bush states his views in language that appeals to a wide audience, yet aligns him with a more extreme pro-life segment. His explicit stance on abortion seems moderate: he allows for abortion to save a woman*s life or health or in the cases of rape or incest; he has also frequently stated that abortion would not be a ※litmus test§ for Supreme Court nominees. Throughout his political career he has adopted a degree of moderacy: ※I*ve set the goal that every child born and unborn ought to be protected. But I recognize [that many] people don*t necessarily agree with the goal. People appreciate somebody who sets a tone, a tone that values life, but recognizes that people disagree§ (Skelton). In reality, however, if his pro-natalist agenda were followed through to its end, establishing fetal personhood, the only way to make abortion legal would be to make murder legal. The Supreme Court of Roe v. Wade recognized the pivotal importance of determining the fetus-as-person saying ※If this suggestion of personhood is established, the appellant*s case, of course, collapses, for the fetus* right to life would then be guaranteed specifically by the Amendment§ (Roe v. Wade, IX.A).

Yet Bush*s and the anti-abortion legislation*s utilization of pro-natalist rhetoric hides the actual issues at stake and appeals to a large section of the general public. By arguing for the identity-claim of fetality, making the issue one implicitly of minority rights, pro-life advocates mask the key players in the debate. ※The liberal framing of the issue [moves] the contest away from the explicit competition of interests between the underlying power groups involved 每 wage-laboring women vs. Christian capitalist males§ (Condit, 63). Though the rhetoric conceals the groups concerned and issues affected for the purposes of attracting a large popular base, it also speaks to and mobilizes the most activist pro-lifers who use the language themselves. The pro-life arguments contain just enough evidence of their partisanship ※to select and motivate to activism those who [are] likely to become involved in the pro-Life argument 每 the religious and &traditional* Americans§ (Condit, 56). Bush*s cunning use of pro-life ideology allows him to speak to these pro-life supporters, the same ones who won the election for him last November, while evading the analysis of more liberal voters. For example, it is remarkable that Bush was able to reference the popular Dred-Roe pro-life equation on public television without causing any pro-choice activists to stir. Bush espouses a powerful, if subtle, pro-life language of the fetus*s rightful American citizenship 每 this time around, let*s not underestimate him or the influence of pro-life rhetoric.

Works Cited:
Berlant, Lauren. ※America, &Fat,* the Fetus.§ In The Queen of America Goes to Washington City. Durham: Duke University Press, 1997. p83-144.

Berlant, Lauren. ※Introduction: The Intimate Public Sphere.§ In Queen. p1-24.

Berlant, Lauren, and Elizabeth Freeman. ※Queer Nationality.§ In Queen. p145-174.

Commission on Presidential Debates. ※The First Bush-Kerry Presidential Debate.§ 30, Sep 2004.

Commission on Presidential Debates. ※The Second Bush-Kerry Presidential Debate.§ 8 Oct 2004.

Condit, Celeste Michelle. Decoding Abortion Rhetoric: Communicating Social Change. Chicago: University of Illinois Press, 1990.

Partial-Birth Abortion Ban Act (2003).

Pollitt, Katha. ※Roe = Dred.§ The Nation. 13 Oct 2004.

Roe v. Wade. 410 U.S. 113 (1973).

Skelton, George. ※California and the West; Talking Baseball and Politics with George W. Bush§ Los Angeles Times. 5 June 2000.

Unborn Victims of Violence Act (2004).

The White House: President George W. Bush. ※Backgrounder: The President*s Quotes on Islam.§

The White House: President George W. Bush. ※President Bush Signs Partial-Birth Abortion Ban Act of 2003.§ White House press release. 5 Nov 2003.

The White House: President George W. Bush. ※President Bush Signs Unborn Victims of Violence Act of 2004.§ White House press release. 1 Apr 2004.

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