{"id":1665,"date":"2014-11-12T00:24:36","date_gmt":"2014-11-12T00:24:36","guid":{"rendered":"http:\/\/openhumanitiespress.org\/feedback\/?p=1665"},"modified":"2014-11-24T16:24:38","modified_gmt":"2014-11-24T16:24:38","slug":"undue-burden","status":"publish","type":"post","link":"https:\/\/openhumanitiespress.org\/feedback\/sexualities\/undue-burden\/","title":{"rendered":"\u201cUndue Burden\u201d and the Discursive Limits of Reproductive Rights"},"content":{"rendered":"
\"Room<\/a>

Room in Jilotzingo, Mexico. Photo by Amy Krauss.<\/p><\/div>\n

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The closing of reproductive health clinics in Texas has gained international attention as singularly representative of contemporary abortion debates in the United States. While much could be written about the broader political culture surrounding the new laws, here I will focus on how the concept of \u201cundue burden,\u201d central to the debates, exposes the discursive limits of the US model of abortion rights since Roe v. Wade<\/em>. I want to suggest that the concept is twofold: while derivative of the liberal logics of individualism and the right to privacy, “undue burden” also gestures towards the insufficiency of such paradigms. The opening generated in this double valence, I argue, provides new insights for how we might think about reproductive justice concerns often obscured by reproductive rights discourse.<\/p>\n

The legal debate around Texas’s new abortion restrictions, formally known as House Bill 2, has focused on the \u201cundue burden\u201d standard adopted by the Supreme Court in Planned Parenthood v. Casey<\/em> (1992). As many commentators have pointed out, the standard was conceived of as a protective measure against state attempts to limit women\u2019s reproductive freedom. It was an early response to what has become one of the most powerful conservative strategies for limiting abortion rights, which in lieu of direct prohibition proliferates (positive) regulations at the state level. Along these lines, a key provision of the Texas law requires abortion providers to have admitting privileges to a hospital within thirty miles of the clinic. Applying the standard set by Casey<\/em>, women\u2019s rights defenders are put to the task of proving that such regulations, which effectively close a large number of clinics, generate major obstacles to access, and thus an “undue burden” for women who decide to terminate a pregnancy.<\/p>\n

In a recent workshop on \u201cLaw and the Local,\u201d coordinated by Jennifer Culbert and hosted by the Program for the Study of Women, Gender, and Sexuality at Johns Hopkins University, Lisa Pruitt delivered an interesting paper engaging this debate titled \u201cUrbanormativity, Spatial Privilege, Judicial Blindspots and Abortion Law.\u201d In the paper, Pruitt challenges the court\u2019s notion of burden \u2013 which consists of quantifiable difficulties such as long distance travel, expenses, time, etc. \u2013 by considering how such \u201cburdens\u201d disproportionately affect women in rural situations. She argues that the court\u2019s judgments about what counts as a burden reflect an unquestioned urban normativity, in which difficulties are imagined for a white, middle-class woman living in an urban area. Pushing open the idea of “undue burden” to include what she calls a \u201cfield of difference,\u201d Pruitt challenges the court\u2019s abstract notion of the individual with an image of the particular woman located<\/em> in a rural context. While complicating the abstractness of the legal subject and calling for better attunement to women\u2019s varied circumstances, Pruitt\u2019s argument shies away from a broader critique of the framework of abortion law in relation to reproductive justice.<\/p>\n

To what extent is feminist argumentation for abortion rights, both in the courts and in other public spaces, constrained by the framing of Roe v. Wade<\/em>? The landmark Supreme Court decision establishes that a woman\u2019s right to abortion must be protected as the limit of the state\u2019s intervention into the private sphere. In the decades following the decision, the language of choice has come to dominate reproductive rights discourse in the United States, obscuring the inequalities of the consumer market that supposedly fills the \u201cvoid\u201d of state regulation. The undue burden standard sits awkwardly within this logic. On the one hand, it points to the existence of \u201cpublic\u201d barriers to \u201cprivate\u201d choice. On the other, by conceptualizing these barriers as the result of too much state regulation, it reiterates the original privacy\/choice framework in which as long as the state does not intervene in a woman\u2019s course of action she will retain her essential rights. The irony of \u201cundue burden\u201d is therefore not only its abstractness or lack of grip on real (i.e. local) women\u2019s struggles, as a critic like Pruitt would have it, but also the way it reinscribes the image of a free individual with a pregiven agency that precedes all legal and social conditions.<\/p>\n

By quantifying the barriers to an act assumed to be otherwise free, legal debates around the undue burden standard avoid (while obscurely indicating) a broader discussion about reproductive justice. Such a discussion would have to acknowledge women\u2019s dependency on institutions and networks of support in the realization of the right to terminate a pregnancy. The language of \u201cdependency\u201d need not displace the unique moral authority that a woman has over the fate of her pregnancy, but does prompt thinking about the conditions necessary for something resembling personal agency, or “choice,” to emerge. Not simply burdens or barriers that a beneficent state might limit so that the right to abortion can be preserved within the right to privacy, varied material assemblages are necessary to generate and sustain women\u2019s reproductive wellbeing and freedom. It is a difficult debate about these institutions, networks, dependencies, and conditions that the language of an “undue burden” seems to place on the tips of our tongues but (for the moment) perpetually defer.<\/p>\n

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Works Consulted<\/strong><\/p>\n

Caitlin Borgemann. \u201cIn Abortion Litigation, It\u2019s the Facts that Matter<\/a>.\u201d Harvard Law Review<\/em> 127 (2014).<\/p>\n

Eva Feder Kittay. \u201cWhen Caring is Just and Justice is Caring<\/a>.\u201d Public Culture<\/em> 13.3 (2001).<\/p>\n

Lisa Pruitt. “Toward a Feminist Theory of the Rural<\/a>.” Utah Law Review<\/em> No. 2 (2007).<\/p>\n

Lisa Pruitt and Marta R. Vanegas. “Urbanormativity, Spatial Privilege, and Judicial Blind Spots in Abortion Law<\/a>.” Berkeley Journal of Gender, Law, and Justice<\/em> 30 (forthcoming, 2015).<\/p>\n

Soran Reader. \u201cAbortion, Killing and Maternal Moral Authority<\/a>.\u201d Hypatia 23.1 <\/em>(2008).<\/p>\n

Zachary Reyna. Response to Lisa Pruitt\u2019s \u201cUrbanormativity, Spatial Privilege, Judicial Blindspots and Abortion Law\u201d (presented at \u201cLaw and the Local\u201d at Johns Hopkins University, October 17, 2014).<\/p>\n

Rickie Solinger. Beggars and Choosers<\/em><\/a>. New York: Hill and Wang, 2001.<\/p>\n

 <\/p>\n

Amy Krauss<\/strong> is a Ph.D. Candidate in the Department of Anthropology at Johns Hopkins University. Her dissertation research concerns law and reproductive politics in Mexico.<\/p>\n","protected":false},"excerpt":{"rendered":"

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