The Nation, March 21, 2012 by Patricia J. Williams
It’s an interesting time to ponder the meaning of life and death in the eyes of the law. On one hand, Christian conservatives increasingly seek to sacralize embryos from the moment of conception. On the other, the Supreme Court just heard a case that, among other things, considers the extent to which the corporeal death of a parent is really the “end of the line” with regard to “survivor” benefits for children conceived by artificial insemination from the frozen sperm of a deceased father. On one hand, Citizens United granted First Amendment rights to corporations that are identical to—and some would say exceed—those of natural persons; on the other, the Second Circuit recently ruled that individuals, but not corporations, can be sued for human rights abuses.
It’s interesting to consider the larger social anxieties at play when it comes to the “right to life” debates. Rick Santorum recently made a great show for personhood amendments, declaring, “Personhood is defined as an entity that is genetically human and alive.” But unfertilized eggs are “genetically human.” And sperm swim, so technically they’re “alive.” (Or, as an irreverent friend suggested: fellatio must therefore be a form of cannibalism.) If egg and sperm are sacralized even before they meet, it goes a long way to explaining why the evils of contraception are back on the table.
But if we push this figuration only a little, “conceptually,” life begins with DNA. Conceivably, every cell in our body is brimming with generative potential, particularly given new technologies of assisted reproduction. Santorum’s stance thus becomes a peculiar cross between the theological imperative to be fruitful and multiply and the fetishism of microbiological cellular promise.
The oddity of this discourse is best revealed by a recent rash of satiric bills pressed by clever female legislators. Virginia State Senator Janet Howell wrote an amendment to the requirement that women be subjected to vaginal probe before being able to have an abortion: “Prior to prescribing medication for erectile dysfunction, a physician shall perform a digital rectal examination and a cardiac stress test. Informed consent for these procedures shall be given at least 24 hours before the procedures are performed.” (Her amendment was defeated, but by a satisfyingly narrow margin of 21 to 19.) In Oklahoma, Constance Johnson introduced the “anti-spillage” amendment, which holds that “any action in which a man ejaculates or otherwise deposits semen anywhere but in a woman’s vagina shall be interpreted and construed as an action against an unborn child.”
Frankly, I respect the Oklahoma Personhood Amendment’s proposal that life is sacred, “regardless of place of residence, race, gender, age, disability, health, level of function, condition of dependency, or method of reproduction.” But this expansive notion never seems to translate into policies that would provide actual food, shelter, healthcare or material succor for those precious lives, either pre- or post-birth. (In New Hanover, North Carolina, the County Board of Commissioners recently turned down a family healthcare grant, with one commissioner remarking that “if these young women were responsible people and didn’t have the sex to begin with, we wouldn’t be in this situation.”) Those claiming to give “voice to the voiceless” entities within the womb pit the interests of conceptual life against the bodies of living women. In any event, I’m not sure why regard for incipient humanity should make us feel bound to breed like bunnies within marriage or be constrained from copulating outside of it—particularly given that 99 percent of American women use some form of birth control.
At the same time, there are important principles being tested in these debates: the degree to which we feel sex to be a natural bodily function, whether pregnancy is always wholly a woman’s autonomous choice. Framed this way, our discussions of life and death seem oddly incoherent and disconnected. We love the very thought of life, but we disparage “anchor babies,” “welfare children” and teens of color like Trayvon Martin. We spend billions on fertility treatments for the wealthy but speak of pregnancy among the poor in terms of economic surplus, burden, free rider.
These discussions also vivify proxies of personhood in much the same way that corporations are enlivened: our updated Puritanism about reproduction is peppered with overly deterministic images of what DNA “says” and with marketed avatars of human perfectibility. Cytoplasm has been personified and given life and active voice; you’ve got to probe a woman’s body to see if there’s a separate life in there in need of rescue. You have to show her pictures of her blastodermic vesicles in case she doesn’t know.
Some anti-contraception arguments seem to cast birth control as actively harming real, microscopic little people, wee homunculi waiting to materialize, as though menstruation were a sinful waste. Eggs are people too! The maternal sanctity of the inspired neo-egg is posited in constant battle with the hot, sluttish moral disregard of any woman who has sex that is not at the behest of a husband’s procreative mission. Thus it is that Sandra Fluke becomes pluralized into all the women in her testimony; and all those women are reduced to a throbbing red light of a single really dirty body part.
But this is not mere political hyperbole. If we are not yet a theocracy, then it seems appropriate to observe that Santorum’s comprehensive invocation of “life” as a theological concept is, in the law, no more than a literary device—one that is employed when we construct legal fictions of all sorts. It is no different from granting “legal subjectivity” to a municipality or bestowing “personhood” on a corporation. This is not about what God endows. Rather, the law’s concern is what we as a constituted polity choose to animate and what we don’t. How “we the people” come alive in language, not merely in the womb, is the challenge of social justice: our love of life must not be locked away in the perpetually future contingent but fully engaged in the embodied present tense.