Jennifer M Denbow. Signs: Journal of Women in Culture & Society. Volume 41, Issue 3. Spring 2016.
In recent years, legislatures in the United States have considered and passed a number of “prenatal nondiscrimination” bills that would ban abortion based on the sex or race of the fetus. Proponents of these laws claim that such abortions are a form of genocide and sex-based feticide. Scholars have not yet offered a critical examination of these laws and their discourse. This article fills that gap and argues that, even as they disavow eugenics, supporters of race- and sex-selective abortion bans paradoxically draw on and reproduce the notions of national purity and civilization that undergirded eugenic policies. Through an examination of a variety of legal texts, I argue that the bans and their accompanying discourse cast women of color as a threat to the nation, while presenting fetuses of color as citizens desperately in need of protection from pregnant women, abortion providers, and the values of some segments of society. The effect is to deny agency to women of color and to cast them primarily as reproductive vessels whose bodies and decisions threaten the polity. The article also shows how these bans cast abortion as a type of slavery that must be eradicated in order to uphold the national culture and values of racial and gender equality. Women of color, therefore, emerge as a threat to the nation in their capacity to perpetuate anti-American values and, as potential reproducers and carriers of innocent fetal life, as essential to nation building.
Beginning in 2011, a series of billboards that linked abortion and genocide appeared in cities throughout the United States. In New York City an ad ran that claimed: “The most dangerous place for an African American is in the womb.” The text was printed above a picture of a black girl wearing a pink dress. In Oakland an ad proclaimed: “Black children are an endangered species.” The main backers of the billboards were the Radiance Foundation and Life Always (Guenther). The Radiance Foundation has also made a series of videos. One, titled “Number One Killer,” makes the following claim: “The number one killer of black Americans is Planned Parenthood and the abortion mills that target us.” The video urges watchers: “Stop Planned Parenthood. Bring an end to the genocide.” Shortly after the appearance of these billboards, the Latino Partnership for Conservative Principles launched a similar campaign in Los Angeles with billboards proclaiming: “The most dangerous place for a Latino is in the womb” (Solomon).
This argument that abortion is a form of genocide has made its way into law in the United States. In 2011 Arizona passed the Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act, which prohibits race- and sex-selective abortions. The law allows for the punishment of anyone who would “perform … an abortion knowing that the abortion is sought based on the sex or race of the child or the race of a parent of that child.” Laws similar to the Arizona law have been proposed in the US Congress and several states. Over sixty bills that would ban race- or sex-selective abortion have been introduced in the United States since 2009. In 2013 alone, legislatures considered twenty such bills (NAPAWF). Americans United for Life (AUL), which is the self-proclaimed “legal architect of the pro-life movement,” is partially responsible for this surge. It has drafted model federal and state legislation to ban sex-selective abortions. As of March 2015, eight states prohibit sex-selective abortion, while Arizona is the only state to prohibit race-selective abortion. Race- and sex-selective bans are distinctive in that they target the motivation behind seeking an abortion.
Neoeugenic practices that discourage and prevent the procreation of women of color continue in the United States. However, the arguments behind these motivational abortion bans rely on unfounded claims. Supporters of race-selective bans claim that entities like Planned Parenthood target and promote abortion in certain communities of color, especially African American communities. Supporters cast race-selective abortion as a “barbaric” practice that has no place in a civilized polity like the United States. Legislatures have passed the sex-selective bans in response to the alleged practice of what the 2013 US House bill calls “sex-based feticide.” However, supporters of sex-selective bans exaggerate outdated data to justify the bans and to cast Asian women as a threat to civilized, nonsexist American ways. In fact, the claim that sex- and race-selective abortion is widespread in the United States is based on stereotypes and speculation.
However, as I elaborate below, the problem with these bans is deeper than the stereotypes they evoke and perpetuate. The bans link racial identity to sexism and racism. In doing so, they enable the selective and conditional inclusion of women of color into the nation. Moreover, these laws manipulate the history of eugenics to increase management and surveillance of women of color. As I show in this article, supporters of race- and sex-selective abortion bans paradoxically draw on and reproduce the notion of national purity and civilization that undergirded eugenic policies in the twentieth century. Even as the billboard and legal campaigns disavow eugenics and derive their polemic force from its condemned legacy, they rely on a similar set of assumptions. Like eugenics, this campaign portrays women as vessels for carrying on the race and relies on the belief that women’s reproduction should be controlled for the sake of the greater social good.
These bans and their accompanying discourse represent fetuses of color as citizens desperately in need of protection from pregnant women, abortion providers, and the values of certain cultures. As this article explains, this representation draws and builds on the historic racialization of citizenship and the connection among reproduction, race, and nation. Supporters of these bans at times liken abortion to slavery and claim that women of color are thus both victims and perpetrators of a kind of slavery. By emphasizing slavery’s prohibition and condemning slavery as anti-American, supporters of motivational abortion bans further link race, nation, and abortion. This representation is used to cast women of color as a threat to the nation and its pure values. Women of color, therefore, emerge both as a danger to the nation in their capacity to perpetuate “anti-American” values and, as potential reproducers and carriers of innocent fetal life, as essential to nation building.
Furthermore, the laws and proposed bans claim that abortion providers and broad social forces victimize women of color. In doing so, they take up the language of oppression to undermine women’s reproductive autonomy. Lawmakers emphasize the value of fetal life and reproduction in order to increase surveillance of women of color and undermine their decision making. The sources examined in this article reveal that notions of slavery and citizenship are used to justify the surveillance of women of color that these bans would enable. The article also explores how women of color are in some instances denied legal agency outright. This denial of legal agency is a logical outgrowth of the idea that the women these laws target are both victims who need protection and threats to fetal life.
This article examines a number of legal documents to support these analyses. I examine the 2013 congressional race- and sex-selective bill and its findings, the text of the Arizona law, and the legislative record in Arizona and other states that have considered banning abortions performed because of the race or sex of the fetus. I also examine the court decision and documents surrounding the 2013 challenge to the Arizona law brought by the National Association for the Advancement of Colored People (NAACP) and the National Asian Pacific American Women’s Forum (NAPAWF). In 2013, a federal district court dismissed the challenge for lack of standing. That ruling is currently being appealed in the Ninth Circuit. The court documents in that case provide additional depth to this article’s investigation of the legal and social portrayals of the fabricated issues of race- and sex-selective abortions.
This article critically examines what is at stake in race- and sex-selective abortion bans. In doing so, it explores how law takes up and shapes understandings of race, gender, reproduction, and nation. Although there is limited scholarship on the legal details of these bans (Gillette; Lee), scholars have not considered how these laws use understandings of national purity, civilization, citizenship, and slavery in their efforts to forge a national identity premised on the inclusion of fetuses of color and the exclusion of pregnant women of color. Scholars also have not investigated how, in this context, the rhetoric of victimization and protection is used to deny legal agency to women of color. In fact, much of the material this piece examines has not received any critical scholarly attention. This article, then, fills a substantial gap in the literature regarding this important and recent trend in reproductive law and politics.
Constructing the Nation: Banning “Barbaric” and “Uncivilized” Practices
In 2008, Representative Trent Franks of Arizona sponsored the Susan B. Anthony Prenatal Nondiscrimination Act, which would have banned sex- and race-selective abortions, in the US House of Representatives. He reintroduced the bill in 2009 as the Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act, but it failed to make it out of committee. He has sponsored substantially similar bills in 2011 and 2013. In 2013 Senator David Vitter introduced a bill that included only a sex-selective ban in the US Senate. Although these bills have failed to pass, they are worth examining for the way in which they frame the issues of race- and sex-selective abortion. Taken together, the federal bills, the Arizona law and its legislative record, similar proposed bills in other states, and the billboards described above present a distinct framework for understanding and regulating the procreation of women of color. In fact, the Arizona law and the proposed federal race- and sex-selective abortion ban have similar statutory language, although the House bills include extensive findings that reveal more clearly the motivation behind the proposed bans (Gillette, 652).
The House bill is presented as a measure “to prohibit discrimination against the unborn on the basis of sex or race.” Anyone who performs a race- or sex-selective abortion, “uses force or the threat of force” to coerce such an abortion, “solicits or accepts funds for the purpose of financing” such an abortion, or “transports a woman into the United States or across a State line for the purpose of obtaining” such an abortion can be imprisoned for up to five years or fined.
With regard to the prohibition of sex-selective abortion, the House bill finds that “women are a vital part of American society and culture and possess the same fundamental human rights and civil rights as men” and that “sex-selection abortion is barbaric, and described by scholars and civil rights advocates as an act of sex-based or gender-based violence, predicated on sex discrimination.” The congressional findings continue: “The selective abortion of females is female infanticide, the intentional killing of unborn females, due to the preference for male offspring or ‘son preference.’ Son preference is reinforced by the low value associated, by some segments of the world community, with female offspring. … ‘Son preference’ is one of the most evident manifestations of sex or gender discrimination in any society, undermining female equality, and fueling the elimination of females’ right to exist in instances of sex-selection abortion.”
The AUL model legislation and congressional findings mention the high rates of sex-selective abortion in China and India (AUL, 2). The House bill asserts that “the evidence strongly suggests that some Americans are exercising sex-selection abortion practices within the United States consistent with discriminatory practices common to their country of origin, or the country to which they trace their ancestry.” The legislative record reveals a conflation of Asian countries and immigrant communities such that the practice becomes associated with Asia and Asian American communities in general. In contrast to this devaluation of women in “some segments of the world community,” the bill emphasizes that “United States law prohibits the dissimilar treatment of males and females who are similarly situated and prohibits sex discrimination in various contexts, including the provision of employment, education, housing, health insurance coverage, and athletics.”
Franks’s bill defines a race-selective abortion as “an abortion performed for purposes of eliminating an unborn child because the child or a parent of the child is of an undesired race.” The bill says the practice “reinforces racial discrimination.” The bill cites no evidence that race-selective abortion is an actual problem in the United States but declares that, like sex-selective abortion, it is a “barbaric” practice that has “no place in a civilized society.” Unsurprisingly, the United States is characterized as a nation that has left behind its prejudiced past. The bill’s findings reference the Nineteenth and Fourteenth Amendments and claim that “the elimination of discriminatory practices has been and is among the highest priorities and greatest achievements of American history.” As in the sex-selective abortion findings, Congress points to US law that, in this case, “prohibits discrimination on the basis of race.” Furthermore, “minorities are a vital part of American society and culture and possess the same fundamental human rights and civil rights as the majority.” The most recent House bill includes a brief mention of eugenics and claims that “this history likely contributes to the current statistic that a Black baby is five times as likely to be aborted as a White baby.”
Although the bill does not mention abortion among Latinos, in a 2011 congressional hearing, Franks claimed that “a Hispanic child is three times more likely to be aborted than a White child” immediately before citing the statistic about the higher rate of abortions among black women than white women. The same statistics were cited in a committee hearing on the Arizona bill. At the same hearing, Arizona state representative Steve Montenegro nonsensically used the claim that “the Hispanic population is about 32.8 percent here in Arizona [but] account[s] for about 27.8 percent of abortions in the state” to support his allegation that minority communities are targeted for abortion.
One way to understand these bills and bans is as an attempt to racialize and heighten certain ideas about morality. As Lisa Cacho argues, social value is both “assigned and denied on racial terms” as well as “through legally inflected notions of morality” (4). Motivational abortion bans take the morally charged issue of abortion and link it to the at least nominally socially devalued sentiments of racism and sexism. In fact, though, the bans displace the American public’s racism, anti-immigrant nativism, and sexism onto Planned Parenthood, physicians, and the values of “some segments of the world community.” Moreover, the bills and laws obscure and distract from ongoing injustice and inequality in American society generally. As Sarah Song has noted of the politics of multiculturalism, “by focusing on the patriarchal practices of minority cultures, the majority can divert attention from its own gender hierarchies” (7). Supporters position motivational abortion bans as an important social justice measure and in doing so ignore both significant racial and gender injustices in American society as well as the contribution to racial and gender injustice of the bans themselves.
Moreover, these proposed bans frame race- and sex-selective abortion as anathema to American values. In casting these practices as “barbaric” and “uncivilized,” the proposed law creates and draws on the historic racialized distinction between civilized America and uncivilized outsiders. Under the guise of protecting women of color, the proposed federal law relies on racialized tropes of barbarism and civilization. The connection between the disavowal of these practices and American national identity is evident in Montenegro’s comment in the Arizona house debate: “The founding principle of the United States is the transcendent value of all innocent human life. When we criticize other nations for human rights abuses and at the same time look the other way while our own children are being killed simply because they are the wrong sex or the wrong race, we undermine the foundations of our own nation and human dignity itself.” Montenegro infuses the founding of the United States with standard pro-life rhetoric. He also rewrites the founding racialized and gendered exclusion of the United States and fabricates a history of inclusion and human dignity. His claims ignore both the fact that abortion was legal until quickening under English common law and that the founding of the United States was itself premised on and deeply intertwined with slavery and genocide.
In a 2011 congressional hearing on his bill, Franks also referenced America’s founding and commitment to equality. He stated: “Given the subject of this hearing, it seems appropriate to me that we all remind ourselves that the very bedrock foundation principle that gave birth to America in the first place was the conviction that all human beings are children of God and created equal in his sight.” Arizonans Franks and Montenegro both position women’s bodies as central to the “birth” and continuation of the nation and its values. They are sites on which the alleged national commitments to equality, dignity, and life are either carried out or undermined.
In fact, in positioning the bodies of women of color as central to the reproduction of the nation, both the race- and sex-selective bans illustrate what Alys Eve Weinbaum refers to as the race/reproduction bind. Weinbaum uses the term to “express … the inextricability of the connection between race and reproduction” (Weinbaum, 5). She has shown how “notions of genealogical inheritance” were central “to the construction of racial and national identities” as well as “the differential power of mothers and fathers—reproductive vessels and inseminators—in shaping notions of first racial and then national belonging” in key texts of modern intellectual thought (17). Supporters of race- and sex-selective abortion bans implicitly draw on this historic connection between race, nation, and reproduction. The laws would forge a national belonging that allegedly hinges on racial and gender inclusion but simultaneously casts women of color as a threat to national values and identity. That is, national purity is reframed such that it includes a commitment to racial and gender equality. Those individuals and communities who allegedly do not share this commitment—as evidenced by their practice of discriminatory abortion—are threats, and thus the state can subject them to reproductive control. As in the context of the regulation of citizenship and immigration discussed below, in this case the nation is demarcated through women’s bodies.
Supporters of motivational abortion bans thus link a purported commitment to feminism to nationalist ends. This echoes Asha Nadkarni’s argument about eugenic feminism. In examining India and the United States, Nadkarni argues that “feminism becomes eugenic when yoked to national narratives of pure and impure reproduction (or, put another way, narratives of progress and degeneration) as a means of ensuring future development or warding against possible decline” (20). Although supporters of these bans equate practices of sex- and race-selective abortion with genocide and eugenics, their reliance on ideas of progress, civilization, and barbarism aligns their arguments with a eugenic framework that is superficially tied to a supposed feminist concern for gender equality.
The Politics of Life and Nation: Citizenship, Slavery, and Abortion
While motivational abortion laws and bills present pregnant women of color as a threat to the nation and its values—which paradoxically include diversity and inclusivity—they include the fetus and child in the national community. In fact, in the congressional findings, fetuses are described as “unborn Americans.” The abortion-as-genocide argument and prenatal nondiscrimination bans attempt to forge a shared understanding of what America stands for that is based on a concern for the fetus of color. For example, in the context of the abortion-as-genocide argument, the figure of the black or Latino child symbolizes the future, and the bodies of black and Latina women are a potential threat to fetuses and the future social order. As Loretta Ross, former national coordinator of SisterSong Women of Color Reproductive Justice Collective, puts it: “We are now accused of ‘lynching’ our children in our wombs and practicing white supremacy on ourselves”.
The connection between the figure of the child or fetus and national identity that appears in these bans exists elsewhere in American politics. As Lauren Berlant explains, intimate issues such as “pornography, abortion, sexuality, and reproduction; marriage, personal morality, and family values” have become “key to debates about what ‘America’ stands for, and are deemed vital to defining how citizens should act” (1). In this political domain, the survival of the nation is thought to depend on “personal acts and identities performed in the intimate domains of the quotidian” (4) and is especially invested in reproduction. In a similar vein, Lee Edelman has argued that politics is framed through “reproductive futurism” (2-3). The nation’s continued existence, then, is represented as resting on personal, intimate acts, and politics is invested in the future. This future is necessarily tied to reproduction and, according to Edelman, represented by the figure of the Child.
As Weinbaum’s race/reproduction bind describes, in addition to being tied to reproduction, national identity has historically been tied to race. Whiteness was taken for granted as a basis for citizenship in the early Republic. To be a citizen, and therefore white, was to be willing to oppose the “barbarous” and “savage” Native Americans who were necessarily excluded from the polity (Jacobson). Congress made the conflation of whiteness and citizenship explicit in 1790 by making whiteness a basis for naturalization. In fact, as I will discuss—first with reference to slavery and African American citizenship and then with reference to the history of Asian immigration and citizenship—the law has historically played a crucial role in creating and sustaining the interconnections among race, gender, and nationality that the race/reproduction bind describes.
Weinbaum references Plessy v. Ferguson, which “[upheld] the constitutionality of the Jim Crow doctrine of ‘separate but equal'” (41). She argues that in doing so, Plessy “produced black maternity as anathema to national belonging … by producing white racial identity as the signal criterion for full entitlement to citizenship” (41). Plessy was decided after the passage of the Fourteenth Amendment, which granted citizenship to former slaves. In its guarantee of citizenship, the Fourteenth Amendment overturned Dred Scott v. Sandford, which had held that neither enslaved nor free African Americans could be citizens. Nonetheless, as Weinbaum points out, Plessy continued the legacy of restricted citizenship rights for African Americans.
The framework for understanding aspects of American politics as overly invested in reproduction and the child, along with this racial history of citizenship and nationalism, allows us to see how women of color can simultaneously be rendered a threat to the polity and essential to its survival. Lisa Guenther comments on the uses of the figure of the black woman for pro-life politics: “As an emancipated slave and a repentant woman, the black woman offers a unique example for pro-life politics: she is the part that sustains the whole, even while she threatens it; she is both the most perfect object of salvation and the most perfect target for punishment”. Furthermore, as Guenther has noted, pro-life arguments and imagery increasingly present black women as the women most in danger of aborting. This creates the pretense that antiabortion advocates care about racial justice while in fact undermining the rights and interests of women of color. The images of children on the Endangered Species billboards help to forge a shared sense of how citizens should act and effectively ask viewers to invest in the child over and against other interests. This representation not only occludes the interests of African American women who symbolically stand against the fetus and the future; it also renders them threats to the polity and precarious citizens.
The organization Life Always, one of the main backers of the Endangered Species billboards, states on its website: “No mother, black or white, has absolute ownership rights over the child being protected and nurtured in her womb. Abortions reduce the child before birth to an object, a ‘choice,’ a thing of less-than-human status, suspended in a slave-like state between life and death, pending an arbitrary decision by the ‘owner’ to abort or to keep the child.” This quote explicitly references white women as well as black women. However, it relies heavily on slavery rhetoric and in doing so evokes African American women and children. The pregnant woman here becomes the slave owner, who views the fetus as her property and has too much power over fetal life. The “child” is the one who must be protected and to whom we are asked to direct our sympathy and care.
Given the history of the denial of citizenship to slaves and African Americans, abortion emerges as a threat to fetal life and citizenship. In fact, beginning in the 1980s, pro-life advocates linked abortion and citizenship by equating abortion with slavery. Guenther points out that Ronald Reagan created a rhetorical slippage between citizenship and life in a piece he wrote titled “Abortion and the Conscience of the Nation” (Reagan). Reagan equated Dred Scott with Roe v. Wade, which he contended excludes the fetus from citizenship in a way akin to Dred Scott‘s exclusion of African Americans (Guenther).
Slavery rhetoric also appears in the legislative record of prenatal nondiscrimination bans. Significantly, the US House bills assume the equivalency of race- and sex-selective abortion and slavery’s denial of African American citizenship. In fact, the bills cite the Thirteenth and Fourteenth Amendments—the amendments that abolished slavery, granted citizenship to former slaves, and provided for equal protection under the law—as the basis of Congress’s constitutional authority to pass the abortion bans. In this way, the laws reflect the billboards that the Radiance Foundation placed in Atlanta for Juneteenth in 2011. Some billboards claimed: “The 13th Amendment freed us. Abortion enslaves us.” And others read: “The 14th Amendment made us members. Abortion dismembers” (quoted in Guenther). While the myth-laden legislative findings and framings of the bills at least attempt to tie sex- and race-selective abortion bans to equality, nothing in the bills explicitly equates them to slavery. The Thirteenth Amendment is invoked without comment, as though it requires no explanation. Supporters of the bill take for granted that these practices, presumably both race- and sex-selective abortion, are akin to slavery and that the Thirteenth Amendment thus gives Congress the power to prohibit them. This focus on slavery also provides context for the targeting of African Americans in the race-selective portion of the bill.
The link between slavery, citizenship, and the regulation of women’s reproduction has yet another facet that is drawn on and reworked in the discourse of motivational abortion bans. Sex-selective bans and proposals draw on the long history of the exclusion of Asians from the United States and the denial of citizenship to individuals born of Asian women. Like sex-selective abortion bans, the Page Law of 1875—the first federal statute that restricted immigration—targeted women specifically. The Page Law, which Kerry Abrams argues was an attempt to exclude all Chinese women from immigrating, prohibited “the immigration of women who had entered into contracts for ‘lewd and immoral purposes'” (643). The legislative history reveals Congress’s concern about the Chinese practices of prostitution and polygamy that it saw as akin to slavery. Furthermore, though, Americans had “a conviction that the Chinese treated all women … as slaves” (653).
As Abrams describes it, Congress understood the customs of polygamy and prostitution as “reflective of an underlying slave-like mentality that rendered the Chinese unfit for democratic self-governance” (641) and thus for inclusion in the nation. In targeting women, the Page Law prevented an increase in the Chinese population through birth and in the number of citizens of Chinese descent in the United States. Congress thus sought to prevent the reproduction of what it saw as the Chinese culture of slavery, which was at odds with America’s purported commitment to freedom in the postbellum era. Lawmakers, then, appealed to “the abolition of slavery to justify race-based discrimination against a new group—the Chinese” (664). In 1898 the US Supreme Court held that the Fourteenth Amendment granted citizenship to people of Asian descent who were born in the United States. However, the United States continued to constrain the immigration and naturalization of people from Asia well into the twentieth century.
The laws I am examining here superficially seem to protect the birth of Chinese American children, while still assuming the un-Americanness and barbarity of Chinese immigrants and Chinese Americans. To the extent that the backers of the law continue the historic conflation of Asian nations and cultures, they present Asian Americans in general as embodying un-American values. Thus, in discussions of sex-selective motivational abortion bans, lawmakers continue this historic portrayal of Asian cultures as threats to America’s enlightened values. Consider Arizona State Senator Nancy Barto’s comment in favor of the ban: “We are a multicultural society now and cultures are bringing their traditions to America that really defy the values of America, including cultures that value males over females.”
In South Dakota’s debates over a sex-selective abortion ban, which was passed in 2014, Representative Stace Nelson stated: “Many of you know I spent 18 years in Asia. … And sadly, I can tell you that the rest of the world does not value the lives of women as much as I value the lives of my daughters” (quoted in Lee, 74). Along the same lines, South Dakota State Representative Don Haggar expressed the following belief: “Let me tell you, our population in South Dakota is a lot more diverse than it ever was. … There are cultures that look at a sex-selection abortion as being culturally okay. And I will suggest to you that we are embracing individuals from some of those cultures in this country, or in this state. And I think that’s a good thing that we invite them to come, but I think it’s also important that we send a message that this is a state that values life, regardless of its sex” (quoted in Lee, 74).
Evaluating these lawmakers’ comments in light of the history of immigration and citizenship law reveals another facet of this motivational abortion ban discourse. Sex-selective abortion can be seen as an updated “barbarous” practice that is evidence of Chinese treatment of women as slaves and the “slave-like” mentality of the Chinese. Like the practices of polygamy and prostitution that were demonized in an earlier era, abortion of female fetuses is positioned both as endemic to Asian cultures and as anathema to American values. These values include the equality of men and women as well as an antislavery sentiment. As I note above, ban supporters think of abortion as a slave-like practice, which explains the House bill’s references to the Thirteenth and Fourteenth Amendments. When abortion is targeted at female fetuses, it is a practice that reveals the slave-like treatment of women in Asian cultures. This attribution of sex-selective abortion to Asian culture can be explained by the fact that, as Leti Volpp points out in a different context, “behavior that we might find troubling is more often causally attributed to a group-defined culture when the actor is perceived to ‘have’ culture” (89).
As opponents have pointed out, prenatal nondiscrimination bans and comments from legislators like those above perpetuate stereotypes of Asians as “perpetual foreigners” and “cultural threats” to a supposed American way of life. However, this context reveals that the problem with these laws extends beyond their reliance on stereotypes. In fact, the common understanding of stereotypes should be interrogated. Cacho writes that stereotypes “are not degrading because race is devalued” (3). Rather, they “are degrading because they link race to other categories of devaluation, just as race is redeemed when linked to other properties of personhood universalized as socially valuable, such as heteronormativity or U.S. Citizenship” (3). In the case of sex-selective bans and accompanying rhetoric, the race of pregnant Asian women is linked to the devalued categories of foreigner and cultural threat, whereas the race of their fetuses is linked to the socially valued categories of innocent fetus, victim, and citizen. In the case of the race-selective bans, African American and, to some extent, Latina women are cast as dangerous to American values of racial equality, whereas their fetuses are innocent citizen victims. This analysis helps make sense of how entities who are presumably of the same race—pregnant women and their fetuses—can end up with different social valuations. One subgroup (pregnant women) is linked with a genocidal or female feticidal threat to the innocent and to the polity, while the other subgroup (fetuses) is linked to innocent victim, child, and citizen.
As the congressional findings and legislative debates reveal, legislators view race- and sex-selective abortion as anti-American. Motivational abortion bans can be linked both to the history of the nation and citizenship discussed above as well as to contemporary racialized struggles over national identity and boundaries. These struggles illustrate the endurance of the link between nation and race. Given this, it is significant that Arizona—the state with the most restrictive immigration policies, passed during a frenzy of anti-Latino sentiment—is at the center of the movement to ban race- and sex-selective abortion. Arizona’s explicit and harsh anti-immigrant policies provide another example of lawmakers’ investment in the whiteness of the nation. And although race-selective abortion ban proponents tend to focus on African American women, current anti-immigrant sentiment provides a context for understanding the occasional reference to the procreation of Latina women in the discourse of race-selective bans.
As with the historic regulation of immigration and citizenship, motivational abortion bans would undermine the rights of women of color and position their bodies as a threat to the nation. They also bind reproduction to national identity by declaring that American reproduction is not discriminatory. By singling out two discriminatory motivations for procuring an abortion, these bans and their supporters cast abortion as anathema to citizenship and national belonging, through a logic that is ostensibly premised on racial and gender equality. In doing so, they continue to link slavery with citizenship. Furthermore, they position women of color as disputed citizens with fragile rights and no legal agency. In fact, as I discuss below, the race- and sex-selective abortion laws and legal frameworks often deny women of color legal agency outright.
Arizona and the Federal Court: Denying Women of Color Legal Agency
Because pro-life advocates claim that women of color are manipulated and coerced into aborting, most of the state bans and the ban considered by the House exempt the woman on whom a prohibited abortion is performed from liability. The Arizona law goes so far as to allow the husbands of pregnant women and the parents of minor pregnant women—but not pregnant women themselves—to bring a civil action “on behalf of the unborn child” for relief. This relief may include “monetary damages for all injuries, whether psychological, physical or financial, including loss of companionship and support.” The Arizona legislature considered, but failed to pass, an amendment that would have eliminated the civil penalties provision completely. Thus, the law continues to deny women of color legal agency.
As opposed to the earlier versions of the federal bill, the findings in the 2013 House version include an extended discussion of the alleged coercion and harm of sex-selective abortion. The findings repeat common pro-life myths such as that abortion increases the risk of cancer, depression, and suicide, although in this instance these risks are tied to sex-selective abortion specifically. These proposed bans, then, continue the recent trend in pro-life politics to cast women as victims who are in need of protection. That is, rather than portraying fetuses as the only or primary victims of abortion, abortion is also presented as a substantial threat to women’s well-being. This framework, which Reva Siegel has labeled the woman-protective antiabortion argument, has significantly altered how abortion is framed and has undermined women’s agency. It has opened the way for measures that increase surveillance and management of women under the pretense that they protect women.
The outright denial of legal agency in the Arizona law has no material impact on women’s ability to make a claim under the law because they do not engage in the prohibited practices. Nonetheless, this denial undermines the legitimacy of women’s experiences and voices, in addition to suggesting that women lack the capacity to exercise legal agency. This distrust in women’s capacity stems from alleged societal manipulation and coercion on the part of abortion providers. In any case, someone else—here husbands and parents—is given legal authority to speak for and seek remedies for the harm women allegedly experience.
This legal framework, as well as the Endangered Species billboards, effectively reduces the pregnant woman of color to an environment for the threatened fetus. Presenting pregnant women as environments undermines women’s agency and allows an outside figure to stand in as a spokesperson with the authority to act on fetuses’ behalf (see Haraway). In addition, the law in Arizona, like much of the “woman-protective” antiabortion discourse of the last decade or so, represents women as under threat and requiring someone to speak for them. Supporters of motivational abortion bans use claims of oppression to compromise women’s putative sovereignty. Furthermore, the claim that “the most dangerous place for an African American is in the womb” renders the black woman’s body a site of danger, whether it is her fault, Planned Parenthood’s, or both. Women are reduced to environment and stripped of agency.
Arizona lawmakers’ denial of voice and legal agency to women of color is reinforced in the current legal battle over the law. As mentioned above, in 2013 the NAACP and the NAPAWF challenged the Arizona law in federal court as a violation of the Fourteenth Amendment’s Equal Protection Clause. They argued that the ban is “infused with” and advances racial stereotypes that deny plaintiffs equal protection. Legal challengers of the law furthermore argue that “the Ban denies the plaintiffs equal treatment because it subjects the plaintiffs’ decisions to obtain abortions … to increased scrutiny based on their race.”
The federal district court that initially heard the case dismissed the plaintiffs’ complaint in NAACP v. Horne, holding that the plaintiffs did not have standing to sue. The court explains itself: “Plaintiffs do not claim that their members have been denied abortions because of the Act or face prosecution or liability under the Act. … Plaintiffs instead base their standing on the fact that the Act stigmatizes and denigrates their members on the basis of race and gender.” The court continues: “stigmatizing injury alone is not sufficient for standing in equal protection cases. Plaintiffs must also show that their members personally have been denied equal treatment by the Act. … Plaintiffs make no such claim.”
The court therefore denies African American and Asian Pacific American women, who are members of and represented by the plaintiff organizations, even the opportunity to challenge the law. They are denied a legal voice or agency outright. In the court’s reasoning, the plaintiffs cannot challenge the law because they do not in fact engage in the demonized practices that the act prohibits. According to the district court, women of color would have to embody the negative and false stereotypes on which the legislature has based the law in order for their challenge to be granted a hearing. The district court’s decision in Horne, in ignoring the insidious purpose and effect of the act, also legitimates the act’s increased surveillance and stigmatization of the reproduction of women of color.
The Ninth Circuit is currently considering an appeal of the district court’s dismissal of the lawsuit. The Radiance Foundation, one of the organizations behind the Endangered Species billboards—along with Congressman Franks, the Susan B. Anthony List, the National Black Pro-Life Union, and others—filed an amicus brief in support of Arizona. Their brief provides more context for understanding the logic behind this denial of voice and legal agency to women of color. According to their claims, physicians and even broad social forces like patriarchy undermine the agency of women of color. This manipulation justifies protective measures and also renders such women’s perspective suspect. The brief states: “Arizona’s interest in banning discriminatory abortion is powerful, not only because the state wants to protect the populations that may tend to obtain such abortions, but also because the prohibition is a means to challenge and eliminate private discrimination against women and against minorities.” It continues: “The object of the legislation is not the woman, who may be seeking a sex- or race-based abortion because she has been subjected to threats of violence or more subtle cultural and social bigotry. The object of the Act is those who would perform and profit from these tragic and discriminatory abortions.”
In this framework, women are not responsible for their actions because they are unfortunate victims. This argument acknowledges and is based on feminist insights into how social forces like patriarchy play a role in subject formation and can warp women’s understandings of themselves. The brief even claims that “primary care physicians questioned whether women could truly express free choice under family and community pressure, and noted that such practices contributed to sex-based stereotypes.” Feminist concepts are used in this context, where there is little evidence of manipulation to undermine feminist goals of reproductive justice.
As I discuss above, the emphasis on victimization in the motivational bans underpins the law’s denial of voice and agency to the women the bans target. Like the logic of eugenics, the rhetoric of the Endangered Species billboards and the legal framework of the motivational bans place little value on women’s perspectives or personal understandings of pregnancy. Rather, this movement and its accompanying laws grant others authority to speak for women. As Ross says of the “genocide awareness project,” which travels to college campuses to promote the idea that abortion is genocide: “To them, Black women are the poor dupes of the abortion rights movement, lacking agency and decision-making of our own”. This erasure of the voice of women of color is a problem throughout the abortion-as-genocide discourse. One thing that is striking about the Endangered Species public advertising is how infrequently women of color are presented as speaking agents. It is also significant that not a single woman of color has cosponsored any of the prenatal nondiscrimination bills in the US House.
Although some black men and women support the bans and although black pro-life organizations are among the most ardent purveyors of the abortion-as-slavery rhetoric, the legislators who have sponsored the bans are overwhelmingly white. These lawmakers, then, may exhibit a dynamic represented by the concept of the Great Emancipator. This narrative represents white men as the ultimate and primary source of freedom of once-enslaved black men, women, and children. Good white men saved slaves from the racist white male slaveholders. Race-selective bans draw on and update this narrative: they blame the presumably white-run Planned Parenthood for victimizing black communities and using abortion to perpetuate racist values. The mostly white male legislators who propose and support race-selective abortion bans—although often with the support of conservative black organizations with mostly male leadership—position themselves as the emancipators who must step in to stop this abhorrent victimization of black society. In noting that pro-life rhetoric increasingly presents black women as the women most likely to abort, Guenther describes how this rhetoric imagines the black woman as “both a murderous sovereign” and “a vulnerable ex-slave.” Furthermore, “as an illegitimate sovereign, the black woman must be punished and controlled; as an ex-slave, however, she is ‘our black sister,’ a valuable part of the ‘whole family of man.’ As such, she must be saved from her own bad choices and ignorance, lest she inadvertently plunge her race back into a condition worse than slavery”. In any event, she is denied agency, and someone else is given authority to speak for her.
Whereas the race-selective bans blame elements of white society and black women for perpetuating a kind of slavery on black communities, the sex-selective bans implicitly blame patriarchal Chinese and Indian culture for female feticide. Thus, in the case of the rhetoric surrounding the sex-selective bans, lawmakers exhibit a dynamic captured by Gayatri Chakravorty Spivak in the sentence, “White men are saving brown women from brown men” (296). In blaming the culture of “some segments of the world community” for female feticide, mostly white male legislators position themselves as the righteous saviors who will speak for and protect women and their fetuses from this depraved practice that a sexist culture perpetuates. Again, as Spivak writes, “the protection of woman (today the ‘third-world woman’) becomes a signifier for the establishment of a good society” (298). In this context, the law’s alleged protection of the immigrant woman is presented as key to ending the bad practices that immigrants have brought with them and to upholding the inherent goodness of American society.
Although supporters of prenatal nondiscrimination bans at times liken abortion to slavery, they actually place pregnant women of color in a legal and civil state reminiscent of slavery. The denial of legal agency to women described above continues the legacy of the civil death of racialized others. As Joan Dayan posits in her discussion of “the genealogy of slavery and incarceration,” there is “a continuum between being declared dead in law, being made a slave, and being judged a criminal” (6). As she explains, “unnatural or artificial death as punishment for crime entailed a logic of alienation that could extend perpetually along constructed lines of racial kinship” (6). The legal framework examined here withholds a key element of civil agency and thus undermines legal personhood. Although these bans generally exclude pregnant women from punishment, states have recently and increasingly been subjecting pregnant women, especially those on the margins, to punishment and forced interventions in their pregnancies (see Paltrow and Flavin).
Taken together, the motivational abortion bans and punitive measures show that pregnant women of color take on a kind of civil death in which they are simultaneously denied legal agency and subjected to criminal sanction. Furthermore, a belief in the personhood and separate rights of fetuses is often behind these punitive measures. This overall attack on women for the sake of their fetuses thus has important resonances with the 1980s campaign to save “crack babies.” In that era, the figure of the crack mother was used to punish women of color and separate their rights and interests from those of their fetuses. The creation of the crack epidemic allowed states and officials to punish pregnant women and interfere in women’s reproduction under the guise of protecting fetal health and life (see Roberts).
Given the punitive response to the reproduction of women of color, both recent and historic, Montenegro’s assertion of the “transcendent value of all innocent human life” is significant. While the emphasis on innocent life keeps the representative’s comments from implicating the death penalty, the context of these bans illustrates that which lives are considered innocent is highly racialized and contradictory. Pregnant women of color emerge as innocent in relation to their supposed victimizers: Planned Parenthood, doctors, and their own ethnic and racial communities. In relation to their fetuses, however, pregnant women of color are perceived as a threat: they are in danger of harming the innocent fetus, and thus their actions are increasingly criminalized.
Motivational bans on abortion represent a continuation and a departure from other recent abortion regulations. They are distinct in their explicit invocation of race and racism. They acknowledge the continuing importance of race in American society, and while on the surface they seem to be responding to the pervasive idea that the United States is a postracial society, they manipulate that fact in order to undermine the rights and legal agency of women of color. The discourse of these abortion bans, however, has much deeper cultural roots. As I have discussed, they continue the pro-life conflation of slavery and abortion and draw on historic constructions of citizenship and whiteness. In doing so, these proposed and enacted motivational bans and their accompanying discourse further the eugenic framework that casts the reproduction of “others” as a danger to the nation and civilization. In this instance it is the abortion of women of color that threatens the nation. The effect is still to deny agency to such women and to cast them primarily as reproductive vessels whose decisions threaten the polity.
The rhetoric explored here illustrates the deep intersection between racism and sexism, as well as its connection to reproduction. As Weinbaum explains, “racism and sexism cannot be thought separately precisely because reproduction is a racializing force” (37). In this context, reproduction becomes the locus for racial and gender anxieties. The reproductive regulations explored here intensify racial and gender hierarchies under the guise of caring about and protecting women of color. This article’s analysis suggests the need to analyze critically legal claims of victimization and protection. Motivational abortion bans, which rely on such claims, not only justify surveillance and control, they also risk manipulating and reshaping cultural and legal understandings of race, gender, and discrimination in deeply problematic ways.