Legal vagueness, the authoritarian state, and the control and discipline of laboring bodies: A note on anti-abortion laws

Comment published on New York Times online blog, in response to opinion essay by Jen Gunter, “Medical school doesn’t teach the ‘Woman’s life is in danger’ curriculum,” May 20, 2019, https://www.nytimes.com/2019/05/20/opinion/abortion-laws.html#commentsContainer&permid=100578510:100578510:

Laws whose general terms have vague reference are functional for our system of permanent and floating states of emergency, and facilitating the rule of authorities and experts rather than that of laws and rules that provide clear guidance.   

Take for example "mental illness," a general concept in a way that the names of particular illnesses are not.  In one sense, it can apply to almost everyone; in another, it designates a need for extreme measures and anxious exclusions based on the fiction of an effectively criminal disposition in a world beyond reason and justice.  This can only be decided by experts, not bound by any determination of what counts as an instance of the name.  "Of course you are mentally ill, but that doesn't mean much because most of us are; but in fact you are mentally ill, and that means you are a dangerous person who must be locked up."  The law gives you nothing; experts decide.  

With the concept of "person," the anti-abortion position depends on a sliding from one meaning to another, legitimating thinking about a primitive organism destined to become such as you and me, as if the biological potentiality in the one were equated with the cognitive and social actualities of the other. The argument rests on the sensational claim: killing a foetus at any stage is like killing you or me.      

Vague use of important concepts feeds untrammeled power.  The foetal potentiality, even when not sentient, is like an investment requiring disciplinary control of bodies as labor power.

—

Further, the term ‘person’ comes from Latin ‘persona’, a legal and dramaturgical concept tied to appearance and representation; it meant both character as mask and the legal subject who can give an account of himself. The unborn child is then one destined to manifest itself but in full latency of not-yet appearing in the present. This model may govern certain notions of liberation (including Ibsen’s in “A Doll’s House” and the gay mythology of emerging from a closet), but is obviously an ideological schema that is assigned to certain natural processes in a way that is moralizing. Odd as it sounds, the same paradigm may underly both radically liberal notions of a duty to shed inhibitions, come out into the open, and be who you really are, and rightist notions of a duty to safeguard members of our tribe (humanity as a species, defined biologically rather than ethically, as the ultimate tribe) in their sacred potentiality and latency, and of course to do this by employing women’s bodies for the purpose, in contractual relationships whose voluntary character is (like the physical role of men in sexual reproduction) limited to an initiating act at an earlier time.