Religious Exemptions, Sexual Freedom, and the Biopolitics of US Healthcare

Khiara M. Bridges | Boston University School of Law

In 1973, the United States Supreme Court announced what was to be one of its most controversial, beloved, reviled, celebrated, and denounced decisions—Roe v. Wade.¹ Justice Blackmun wrote the majority opinion, which held that the Due Process Clause of the Fourteenth Amendment properly was interpreted to provide women with a fundamental right to terminate a pregnancy. The abortion right was to be protected by the trimester framework: during the first trimester, abortion regulations of any kind were prohibited. During the second trimester, states could regulate abortion only if the purpose of the regulation was to protect women’s health. During the third trimester—after the fetus reached viability—states could prohibit abortion entirely, as long as they provided exceptions for abortions that would save a woman’s life or health.

Roe v. Wade and the trimester framework was the law of the land until 1992, when the Supreme Court decided Planned Parenthood v. Casey.² In Casey, Justice O’Connor, writing for the Court, upheld the abortion right, but overturned the trimester framework. She articulated a new test to determine the constitutionality of abortion regulations—the undue burden standard. The undue burden standard requires reviewing courts to determine whether a regulation places a “substantial obstacle” in a woman’s path to an abortion prior to the viability of her fetus; post-viability abortions remain subject to complete proscription provided that exceptions are made for abortions necessary to save the life or health of the woman. The new standard represented the Court’s dissatisfaction with states’ inability under the trimester framework to protect the fetal life sustained by the woman. The standard was designed to enable states to demonstrate respect for fetal life—and to encourage women to demonstrate this respect by carrying the fetus to term—at all stages of a woman’s pregnancy. Thus, while Roe’s trimester framework had prevented all governmental regulation of abortion during the first trimester and had prevented most governmental regulation of abortion during the second trimester, Casey’s undue burden standard allows for the government to regulate abortion during all stages of pregnancy in order to promote fetal life. It is due to the undue burden standard that it is presently constitutional for states to make moral arguments against abortion to women during the informed consent process in an attempt to convince them to forego their decisions to terminate their pregnancies.

In 2003, the Court head Gonzales v. Carhart (Carhart II).³ Carhart II is fascinating. In it, the Court upheld the constitutionality of the federal Partial Birth Abortion Ban Act, which criminalized one method of performing second- and third-trimester abortions. The Court argued that banning a particularly gruesome method of performing abortion was not an undue burden on the abortion right because the ban promoted fetal life. Yet, it is the way that the Court argued that the ban promoted fetal life that makes the opinion fascinating and deserving of interrogation.

Now, the undue burden standard, as first articulated in Casey, is a balancing test.⁴ Like other balancing tests in constitutional law, it requires the reviewing court to balance the individual right against the government’s interest. In the case of abortion, the undue burden standard, as a balancing test, requires the reviewing court to balance the woman’s right or interest in terminating her pregnancy against the governmental interest in promoting fetal life. My argument about Carhart II is that the Court changed the undue burden standard. Instead of the undue burden standard requiring reviewing courts to balance the individual right to abortion against the state’s interest in promoting fetal life, the Court in Carhart II articulated the undue burden standard as requiring reviewing courts to balance the individual right to abortion against the state’s interest in protecting fetal “life.” And those quotation marks that I am using to refer to “life” as invoked in Carhart II make all the difference.

Carhart II was talking about “life” in a way that Casey was not. This is the same “life” that is being referenced when people say: “Abortion is wrong because the fetus is ‘a life.’” This “life” is not equivalent to biological life—that relatively morally neutral capacity that all living organisms possess. It is something much more than that.

I describe “life” as a marriage of contradictions: it possesses a religiosity while simultaneously being a secular concept. It is thought to be a product of a god while also understood to be the product of human, biological action. It is thought to be divine, but also understood to be human, mortal. It is thought to be best cared for by medical science, but simultaneously understood to exceed human knowledge. It is ideal, but also material.

“Life” is that to which esteemed philosopher and legal academic Ronald Dworkin (1993) refers when he writes:

[H]uman life has an intrinsic, innate value, that human life is sacred just in itself; and that the sacred nature of a human life begins when its biological life begins, even before the creature whose life it is has movement or sensation or interests or rights of its own. (11)⁵

“Life” is that to which people refer when they describe life as a “supreme value”; it is that invoked when people note the “sanctity of life,” the “dignity of life,” the “inherent value” of life, the “intrinsic goodness” of life, “the intrinsic worth” of life, the “infinite value” of life, and the “inviolability of life” (Drutchas 1998, 3).⁶

Yet, “life” acquires its power because it has no precise definition. It is an abstraction without content; it means everything that those who evoke it desire because it denotes nothing with precision. As explained by historian Barbara Duden (1993),

Life itself is not an amoeba word, since it does not have any application as a technical term in scientific discourse. Unlike zygote and fetus , it does not stem from the language of a disciplinary thought collective…. [T]he semantic trap into which the use of “a life” leads is not due primarily to its ambiguity but to its vapidity. (75)⁷

Why do I think Carhart II was talking about fetal “life” and not fetal life? Well, the language and the tone that Carhart II uses when talking about the fetus make it obvious that the Court was invoking “life.” The majority opinion contains a significant moment in which Justice Kennedy waxes philosophically about the fetus:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The [Partial Birth Abortion Ban] Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.

That the fetus is more—much more—than a biological entity sustained by the woman through biological processes is suggested by the “womb”⁸ in which it resides prenatally, the “profound respect”⁹ that states may show it, and the “profound” “anguish,” “sorrow,” “grief,” and “regret” ¹⁰ that some women are thought to feel post-abortion.

My contention is that the Court in Carhart II has shifted the enterprise. While Roe and Casey provide that the state has a legitimate interest in protecting fetal life (without the quotation marks), Carhart II provides that the state has a legitimate interest in protecting fetal “life.” At present, the state’s interest in fetal “life” must be balanced against the individual right to abortion. Moreover, whatever “life” is balanced against—even if it is a fundamental right—will be outweighed. “Life” is going to win. This would explain why regulations intended to promote fetal “life” continually pass constitutional muster.

There is one point that deserves underscoring: “life” is not equivalent to “person.” In other words, I am not arguing that, insofar as Carhart II conceptualizes the fetus as a “life,” it conceptualizes the fetus as a “person” in the constitutional sense. “Life” demands more respect than persons. Essentially, all sorts of horrible things can happen to persons. Persons can be deprived of “life, liberty, and property,” as long as the proper process is observed. The Court has held that the death penalty is constitutional; so, the state may kill persons. But, while all sorts of horrible things can permissibly happen to persons, all sorts of horrible things may not permissibly happen to “life.” “Life” is only impermissibly harmed, killed, destroyed, etc.

There are two elements that touch on race that I would like to mention. First, as noted above, the Court has upheld the constitutionality of the death penalty. Perhaps this is why one cannot find “life” in the language, vocabulary, and moral tone of death penalty jurisprudence. There is generally no mention of “profound” “sorrow,” “anguish,” “grief,” “bonds of love,” or “respect for human life” in the majority opinions finding that the death penalty comports with the Constitution. But, what happens when we put this observation into conversation with the fact that, in the United States, racial minorities—specifically Black persons—are executed via the death penalty at rates that far exceed their representation in society? The likelihood that a person facing the death penalty will be a racial minority relates, perhaps, to the Court’s refusal to conceptualize executed prisoners as “life.” Which is to say: it may be harder to see “life” in the racial minority. Perhaps this is why the fetus can easily be recognized as embodying “life”: because, being abstracted and idealized, it is deracialized.

Second, I want to think about what happens to “life” when fetuses are born. Is the fetus the apotheosis of “life”? If so, how and why does the birth diminish “life”? Does the materiality, the sheer physicality of the infant, destroy the ability to locate the ideality of “life” in it? Does the inability to locate “life” in the infant relate to the fact that infants inevitably inhabit racialized bodies?

Khiara M. Bridges has written many articles concerning, race, class, reproductive rights, and the intersection of the three. Her scholarship has appeared or will appear in the Stanford Law Review, the Columbia Law Review, the California Law Review, the Boston University Law Review, the Emory Law Journal, and the Harvard Journal of Law and Gender, among others. She is also the author of Reproducing Race: An Ethnography of Pregnancy as a Site of Racialization (University of California Press 2011) and The Poverty of Privacy Rights, which is forthcoming from Stanford University Press. She also sits on the Academic Advisory Council for Law Students for Reproductive Justice, and she is a co-editor of a reproductive justice book series that is published under the imprint of the University of California Press.

She graduated as valedictorian from Spelman College, receiving her degree in three years. She received her JD from Columbia Law School and her PhD, with distinction, from Columbia University’s Department of Anthropology. While in law school, she was a teaching assistant for the former dean, David Leebron (Torts), as well as for the late E. Allan Farnsworth (Contracts). She was a member of the Columbia Law Review and a Kent Scholar. She speaks fluent Spanish and basic Arabic, and she is a classically trained ballet dancer who continues to perform professionally in New York City

Notes

¹ 410 U.S. 113 (1973).

² 505 U.S. 833 (1992).

³ 550 U.S. 124 (2007).

⁴ This claim is actually fairly controversial, as some scholars argue that the undue burden standard is an effects test—that is, a test by which the constitutionality of a law is measured by gauging the effects that a law has on a protected interest. I defend the claim that the undue burden standard is a balancing test in an article, Khiara M. Bridges, “‘Life’ in the Balance: Judicial Regulations of Abortion,” 46 U.C. Davis Law Review 1285 (2013).

⁵ Ronald Dworkin, Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom 11 (1993)

⁶ Geoffrey G. Drutchas, Is Life Sacred? 3 (1998).

⁷ Barbara Duden, Disembodying Women: Perspectives on Pregnancy and the Unborn 75 (1993).

⁸ Carhart II, 550 U.S. at 147 (stating that “a fetus is a living organism while within the womb, whether or not it is viable outside the womb”).

⁹ Id. at 157 (arguing that “[t]he government may use its voice and its regulatory authority to show its profound respect for the life within the woman”).

¹⁰ Id. at 159 – 60 (“It is self-evident that a mother who comes to regret her choice to abort must struggle with grief