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Constructing Fetal Citizens Monica J Casper Lynn M Morgan May 29, 2004. The Washington Times headline reads, “US District Judge Blocks Pregnant Woman’s Deportation, Says Fetus is US Citizen.” Pointing to the Mexican woman’s belly, the judge asks, “Isn’t that child an American citizen? If this child is an American citizen, we can’t send his mother back until he is born.” The “child” in question is a five-month fetus. Despite the fact that the 14th amendment defines “citizen” as a person born or naturalized in the US, the judge suggests that the pregnant woman’s travel should be subjugated to the citizenship status the fetus will achieve when it is born. The incident could be dismissed as a bizarre example of misguided judicial activism, except that it reflects a broader social and political trend. New
Bureaucratic Technologies Unborn citizens are the latest iteration of abortion opponents’ longstanding attempts to attribute subjectivity and personhood to embryos and fetuses. The strategy has evolved over the last two decades, moving from biomedical and moral to juridical domains. In 1981, sponsors of the Human Life Amendment held US Senate hearings confident that scientists would resolve in their favor the question of when human life begins. The effort failed in part because scientists rejected the assumption that biological facts could resolve or adjudicate moral dilemmas. After twenty years, the weight of scientific, medical, theological and ethical advice did not result in a Human Life Amendment, nor was it sufficient to convince legislators or judges to overturn Roe v Wade. Then came the 2000 elections. The Bush administration, emboldened by control over the Congress, has been using its power to elevate fetuses to the status of citizens. From the beginning, the success of the effort to personify the fetus has depended on the invisibility of the effort itself. Rather than see the ontological status of the fetus as a function of social contestation, we are conditioned to believe that new developments in science, biomedicine or technology “reveal” its true nature. The project of creating the fetal citizen has proceeded in much the same way. The campaign called for persistent pressure on simultaneous fronts—a motion to appoint a fetal guardian here, a proposition to outlaw a medical procedure there, a move to rally sympathy for “fetal victims of homicide” elsewhere. By not drawing attention to the scaffolding that linked these seemingly uncoordinated events, the hidden architects worked to convince people that fetal citizenship was rapidly erecting itself—naturally, as an inevitable social consequence of fetal biological life. Yet certainly the strategy had an architect, or rather a team of architects with clear ties to the ultra-conservative vanguard. Attorney General and abortion foe John Ashcroft was an original sponsor of the Human Life Amendment. In 1998 he introduced a proposed federal statue dubbed the “Human Life Act,” which—had it passed—would have defined a fetus as a human being from the moment of fertilization and banned all abortions even in cases of rape or incest. Ashcroft embodied the ideals of an administration dedicated to what is termed the “culture of life,” which espouses a commitment to protecting all human life from conception to natural death. It is an ideology that practically mandates the creation of fetal citizens (while predictably ignoring discrepancies between a “culture of life” and a “war on terror”).
Fetal
Persons to Citizens Fetal citizens are thus positioned as tangible, codified subjects, things in themselves, worthy of state protection (even—or especially—if they reside in the “alien” landscape of illegal immigrant bodies). They are the crystallization of a contemporary, partisan state-sponsored ideology—the “culture of life”—paired with the willingness of state functionaries to use their subject-making authority. Witness these examples. Fetuses have become victims of homicide: the Unborn Victims of Violence Act (signed April 2004) makes the death of a pregnant woman and her zygote, embryo or fetus in the execution of a federal crime punishable as two separate criminal violations. Fetuses are defined as “inches away” from becoming constitutional persons: the so-called Partial Birth Abortion ban (signed November 2003) criminalized a specific abortion procedure for the first time since 1973 while disallowing any provision for protecting the health or life of the pregnant woman. Fetuses (not pregnant women) were made newly eligible for state-sponsored health insurance: a regulation issued in 2002 permits states to define fetuses as “unborn children” under State Child Health Insurance Programs. Issued without congressional debate and with minimal public input, the regulation means that some pregnant women have access to care only via their eligible fetuses and only in relation to their pregnancies. The state awarded additional protections to embryos: since 2001, federally-funded stem cell research has been limited to existing stem cell lines in an ostensible effort to save embryos from destruction. In 2002 human embryos were added to the list of “human subjects” whose welfare should be considered by the Health and Human Services Secretary’s Advisory Committee on Human Research Protections. It is important to note that fetal citizens are brought into actual embodied existence as well as into social existence through the Bush administration’s policies. In May 2004, the Food and Drug Admin-istration (FDA) rejected a proposal to allow the Plan B emergency contraceptive to be sold over the counter, despite the overwhelming recommendation of two scientific advisory committees. The politics of birth control, in which the Bush administration has also limited or rescinded funding for international family planning efforts and backed an ineffective “abstinence only” policy, are part of a two-pronged effort to reify the fetal citizen. Not only are existing fetuses granted citizenship status through bureaucratic technologies, but new (and not necessarily chosen or wanted) fetuses are created by concerted efforts to prohibit or limit access to contraceptive and abortion technologies. A proliferation of fetal citizens is afoot, with consequences for women’s bodies and lives, for families, and for communities, as well as for the state’s responsibility (or lack thereof) for these new lives. Women’s
Rights Retrenchment The technologies of subject-making are reproductive technologies. Legislative and judicial efforts to create an army of fetal citizens should thus be seen in the context of broader efforts to shape the social body. Intimate fetal concerns are politics by other means. Monica J Casper is associate professor of sociology at Vanderbilt University. Lynn M Morgan is professor of anthropology at Mount Holyoke College. |
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