our bodies,our choices: reproductive justice and social embodiment

Abstract

Feminist scholars of reproductive justice argue for a broader model of politics organised around embodied experience. But to fully express the intersectional politics of reproductive justice, more attention must be given to the social function of embodiment—the ways that bodily markers create associative communities among strangers. This shared form of embodiment establishes connections that exceed the intimate relationship of a specific pregnancy. In particular, foetal embodiment manifests via communities with vested interest in the social meaning of life. These communities are affected, albeit indirectly, by reproductive choices and are therefore valid subjects of concern for reproductive justice. I develop the argument by focusing on disability, a specific form of embodiment where control over reproductive life is exercised not merely via state regulation of choice but also through social reproduction of normality. Engaging with foetal embodiment poses genuine risks—given popular arguments that link coercive regulations to the idea of ‘foetal personhood’. But these risks must be faced if reproductive justice is to be a truly intersectional project.

Keywords

embodiment reproductive justice abortion disability intersectionality personhood

Human bodies are material things—we occupy space, we breathe and feel, we bear the weight of our experiences. But bodies are also part of a social world that grants them meaning and imposes consequences upon them. This article explores that social aspect of embodiment in the context of abortion. The body obviously looms large in abortion debates but is often treated in overly simplistic terms. Two popular slogans illustrate this point. First is the argument that ‘abortion stops a beating heart’ (Harmon, 2019). Second is the argument from abortion rights advocates: ‘my body, my choice’ (Ludlow, 2008, p. 36; Knight, 2017, p. 67).¹ These mantras illustrate the power of bodily symbology, each utilising embodiment as a lever to advance a preferred legal outcome. Where a body begins, legal protections ensue. But missing from these approaches is the social nature of embodiment—the ways that bodies take on meaning according to context and social relationships. For example, a desired pregnancy may already be named, loved and fully possessed of an imagined future, while an undesired pregnancy may be imbued with none of these sentiments (Lyerly et al., 2008). And social embodiment can also be expressed more broadly, through the myriad ways that bodily markers create associative communities linked by the experience of shared characteristics—e.g., race, sex, disability, etc.

An ‘embodied’ foetus in this context must be distinguished from the related concepts of foetal subjectivity or foetal personhood, which centre the foetus qua foetus. To treat the foetus as subject is to grant it particularity, generally for the purpose of securing the associated rights that attach to its subject status. Foetal embodiment, by contrast, is relational; it describes the interactions between embodied characteristics and their social meaning, which do not rely on a separate and independent subjectivity.

Of course, these concepts often intermix, with anti-abortion advocates using ‘foetal bodies’ as the frame for foetal personhood claims. They also make more indirect connections, such as referencing embodied characteristics (e.g., sex, race or impairment diagnosis) in order to challenge abortion rights and the logic of individual ‘choice’.² Meanwhile, abortion rights organisations generally resist discussing foetal embodiment, fearing that these claims will help promote restrictions (see Ludlow, 2008; Manninen, 2013; Hann and Ludlow, 2020). This has created an unbalanced conversation.

Fortunately, an explosion of work on reproductive embodiment (Smith, 2005; Borovoy, 2011; Mills, 2011; Weingarten, 2012; Kafer, 2013; Piepmeier, 2013) has escaped the dichotomy of woman vs. foetus (Little, 1999). In particular, scholars have developed a ‘reproductive justice’ (hereafter RJ) framework to express a richer and more socially engaged context for reproductive experiences (Smith, 2005; Price, 2010; Kafer, 2013; Piepmeier, 2013; Jarman, 2015; Roberts, 2015; Ross, 2017). In RJ, freedom includes positive as well as negative components, such as the freedom to ‘have children, not have children, and parent the children we have in safe and sustainable communities’.³ Moreover, RJ emphasises a wide range of experiences which intersect and influence reproductive life, such racial or ethnic identity, disability, immigration status, sexual orientation, sex identity and indigenous status (Luna and Luker, 2013, p. 330). As Loretta Ross and Rickie Solinger (2017, p. 12) put it: ‘reproductive justice activists and theorists focus on the lived, embodied reproductive and whole-life experiences within their communities of people who can become pregnant and give birth’.

This scholarship on RJ has radically improved the conversation on reproductive issues, offering intersectional frameworks that account for a much wider range of lived experiences. But with this complexity comes new risks. RJ generates affirmative obligations on a wide range of subjects, which may operate in different registers and take on distinct—sometimes even incompatible—valences. Consider selective abortion based on foetal impairment diagnosis. Does this imply the inferiority of life lived by those with similar impairments? And if so, what should be done? Banning the practice entirely would clearly violate the principles of RJ, but does that mean there is no room for expressing concern? These sorts of nuances are difficult to express within approaches that primarily see bodies as self-contained packages of legal rights. But RJ is not similarly constrained.

Indeed, committing to RJ should involve actively seeking out those intersections where decision-makers are most in need of resources to help them make sense of mutually valid interests. To this end, I argue for treating foetal bodies as valid subjects in the broader social meaning of RJ. Given the recent overrule of Roe v Wade by the US Supreme Court,⁴ there may be an understandable ‘temptation to stay the course’ and ‘avoid conceptualizing the fetus’ (Donley and Lens, 2022, p. 1691). But it is precisely because these issues are so fraught that foetal embodiment must be addressed. If the trade-offs and risks associated with social and bodily entanglements are only engaged where they are comfortable, then they are not truly engaged.

The first section lays out the case for emphasising embodiment and RJ. The second section complicates embodiment by fixating on the external social aspect—the way ascriptive treatments of bodily characteristics create indirect constituencies of concern. I argue that this form of social embodiment is underexplored in current RJ debates. The third section then explores a specific case where bodily signification transcends the strictly individualistic frame: disability. This investigation reveals complicated linkages between individuality and sociality—where physical markers blend with collective identification, often generating experiences that defy easy categorisation. I conclude by arguing that RJ should include, and sometimes even emphasise, the potential social meanings of foetal bodies as part of a broader commitment to intersectional justice.

However, it is important to distinguish this argument from so-called ‘pro-life feminism’ (see Strait, 2020), which seeks to restrict abortion in the name of protecting women from the perils of ‘choice’. To engage with foetal embodiment certainly does not mean endorsing a societal veto—and RJ advocates should be wary of lending aid to those who would misconstrue their claims in order to roll back legal protections. But RJ cannot be purely defensive. If it is to genuinely challenge the dynamics of depoliticised liberal subjectification, this must be undertaken in the hard places as well as the easy.

A note on context

This article is structured primarily in relation to debates in the USA, the author’s home, where the recent decision in Dobbs v Jackson to revoke a constitutionally protected right to abortion has unleashed a new wave of restrictive laws that ‘thrust fetal personhood into the spotlight’ (Donley and Lens, 2022, p. 1691).⁵ Less than a year after Dobbs, a federal district court judge issued an unprecedented nationwide injunction against federal approval of the abortion pill mifepristone, describing the drug in loaded terms as ‘a synthetic steroid that blocks the hormone progesterone, halts nutrition, and ultimately starves the unborn human until death’.⁶

This explicit politicisation of the foetal body is uniquely prevalent in the USA. But embodiment is a global issue. Around the world, ‘the legalization of abortion is increasingly challenged on the basis of the social meanings ascribed to the biologized materiality of embryos and fetuses’ (Morgan, 2011, p. 321). At the same time, increasing technologisation of pregnancy is changing ‘the cultural significance of the fetus’ (Hann and Ludlow, 2020, p. 120) in many locales, by building linkages between prenatal bodies and post-birth children. For example, anti-abortion advocates have had success pushing ‘fetal heartbeat’ narratives, which are medically inaccurate but emotionally resonant to many observers who can clearly see these pulsations on an ultrasound as early as six weeks into a pregnancy (ibid.). Moreover, even if the global trend is towards liberalisation of abortion laws, this is often sharply constrained to serve the interests of social elites while doing little for anyone else (see de Londras, 2020).

RJ is a valuable framework precisely because it offers flexibility, articulating a range of principles that will not always play out the same in every circumstance. This flexibility also brings with it a need for vigilance—a willingness to challenge intuitions that might incline us towards the assumption of easy translation across frames. The remainder of this article will offer guidance towards that goal.

Reproductive justice and social embodiment

A reductive portrait of embodiment and abortion might pit two competing subjectivity claims against one another: the pregnant person asserting a legal right to privacy and self-determination vs a foetal person whose right to life must hold sway. But this sort of clean division maps poorly onto reality. A recent Pew poll found that most Americans believe abortion restrictions should vary with stages of pregnancy (Pew Research Center, 2022). Over 60 per cent of abortion opponents still believe that exceptions should be made for rape or incest, while a third of all respondents agreed ‘both that human life begins at conception and that the decision to have an abortion belongs solely to the woman’ (ibid.). Among those who chose to terminate a pregnancy, providers report that most prefer to use the language of ‘baby’ rather than more medical terms, and that many express feelings of intimate connection (Donley and Lens, 2022, pp. 1670–1678). Moreover, abortion providers themselves also operate in far more ambiguity than commonly assumed, processing ‘complex and sometimes conflicting ideas about the fetus while remaining resolved and committed to abortion care’ (Becker and Hann, 2021, p. 2).

Over the years, scholars and activists have developed theoretical tools to express these complexities in more productive ways. In particular, they have emphasised the need to incorporate the social aspects of identity (Connell, 2012). This sense of social embodiment does not overwhelm the base material fact of tangible bodies, but it does shift their meaning in two critical ways. First, it encourages us to focus on ‘the experience of the enmeshment of biological and social norms’ (Mills, 2011, p. 77), whereby the physical body takes on meaning only through the relations of power within which it is embedded. For example, many disability scholars point to the difference between impairment (physical) and disability (social), with disability being produced by a society’s responses to impairment (see Barnes, 2019). Second, social embodiment is not an individual characteristic, but is an emergent phenomenon that circulates between and among physical bodies and the rights-bearing subjects who occupy them. Individual bodies are nodes where meaning is expressed and where valuations accumulate, but they are never discrete agents. ‘My body’ is never my own. Instead, our bodies obtain meaning and value through the practices in which we collectively engage.

These social effects are particularly important in the reproductive context. If the world is reduced to a conflict between ‘woman’ and ‘foetus’, the possibility of either gaining subjectivity depends on erasing the agency of the other. This produces a kind of ‘desubjectification’ whereby women are ‘cast as maternal producers of citizens rather than citizens in their own right’, and therefore are treated as a ‘container’ for the true citizen that is to come (Cisneros, 2013, pp. 292–293).⁷ This sort of desubjectification is even more pronounced when the foetal life is portrayed as socially undesirable; for example, when nativists frame ‘Asian and Latina immigrant women, who have higher-than-average birth rates’ (Huang, 2008, p. 404) as shock troops in an impending battle over the demographic future, or in the discourse around so-called ‘anchor babies’, whose literal embodiment through birth is imagined to violate sacred principles of (white) national citizenship (Wang, 2017). Such concerns have been joined to the spectre of ‘welfare mothers’ and the idea of a tide of minority children who will overburden and disrupt the imagined stability of the American body politic (Feder, 2007; Kaufman and Nelson, 2012). These notions blend with the idealised vision of the foetus as an ‘unencumbered’ citizen to posit women as polluting agents, who inject their corporeality (specifically, their non-white identity) into their gestating child (Cisneros, 2013, p. 297).

In cases like these, where ‘the conditions of individuation are social and symbolic’ (Cornell, 1995, p. 33), the work of RJ scholars has provided a critical intervention. The goal of RJ is not merely to secure legal protection for a specific temporal choice, but rather to supply decision-makers with a full spectrum of opportunity to determine the course and meaning of their reproductive lives (Ross and Solinger, 2017, p. 169). This approach is grounded in ‘the insistence on analyzing a range of policy and practice as part of an interconnected system. In practice, this system regulates people’s reproductive futures through assessments of worthiness originating in assumptions about race, class, and disability (among other dimensions)’ (Luna and Luker, 2013, p. 329). Moreover, these elements blend together in unique ways. A middle-class Black woman with fibromyalgia and an Asian woman considering whether to undergo amniocentesis both may find their pregnancy coded in terms of race or disability, but will experience it in very different ways. Similarly, some trans men may experience ‘the negation of their gender as they became socially read as women’ while others may find the pregnancy rendered ‘invisible as they [are] socially coded as men’ (White et al., forthcoming, p. 17).

By seeking to account for all of these elements, RJ centres bodies, not merely in their materiality but also as vessels into which social meaning is invested. Engaging the shared practices of community, which far exceed the isolated experience of the abstract individual, makes the richer and more textured experiences of real embodied subjects more accessible.

Whose bodies: the social meaning of foetal embodiment

I have used the term ‘social embodiment’ to characterise a circulatory system of meaning-making that attaches to embodied experience. But socialisation of bodies is not just something that happens to subjects; our choices also influence the social meaning of other bodies.

This point is important but can be difficult to actualise. Even critical approaches tend to default to individual subjectivity as the measure of justice. For example, consider this description from Ross (2006, p. 14): ‘Reproductive Justice says that the ability of any woman to determine her own reproductive destiny is linked directly to the conditions in her community—and these conditions are not just a matter of individual choice and access’. Similarly, Pamela Rutherford and Jill Wood (2022, p. 291) describe RJ as contextualising ‘an individual’s ability to control their reproductive destiny as related to the conditions of their lives’. These accounts clearly communicate the communal nature of subjectivity, but that relational effect remains centred on the individual whose ‘destiny’ is to be secured. More obscure in these accounts are the outward-facing linkages—the social status of other bodies and their relationship to the pregnant individual.

In particular, I am interested in the social embodiment of the foetus—its potential to obtain a sort of social existence via the imaginative acts of its progenitors. For example, as pregnancy progresses, social and familial bonds are engaged and identities are constructed: of foetus as ‘child’ and of progenitor as ‘parent’ (Shrage, 1994). Even in unwanted pregnancies, ‘intimacy without consent’ (Little, 1999, p. 300) can emerge through powerful linkages between the gestational process and emotional response. Cross-cultural studies further develop this point. Lynn Morgan’s (1997) anthropological fieldwork in Ecuador reveals subjects who regard the unborn as possessing a liminal status, somewhere between life and non-life, and also as partially formed souls.

Unfortunately, many feminists have ‘studiously avoided anything that might imply’ foetal subjectivity, fearing that it ‘would thereby automatically accede the inherent personhood of embryos and fetuses’ (Layne, 2014, p. 240; also see Ludlow, 2008, pp. 29–30). Lena Hann and Jeannie Ludlow (2020, p. 123) detail the experience of many abortion providers, who ‘remain silent about everyday aspects of their lived experiences’, out of concern that they will conflict with pro-choice narratives. Even in RJ circles, the foetal body rarely appears. For example, Jill Wieber Lens (2021, p. 1078) notes a surprising lack of discussion about pregnancy loss in the RJ literature.

This is an unfortunate lacuna, given how much foetal embodiment matters in setting public policy. American states have criminalised selective abortion based on disability in the name of protecting the disabled community (Giric, 2016), while anti-abortion activists have also sought to characterise high abortion rates in the Black community as a form of ‘Black genocide’—hearkening back to eugenic policies of the past (Lockhart, 2018). More broadly, some have sought to frame legal abortion as an assault on the entire ‘culture of life’ (John Paul II, 1995; McHugh, 2001). Governments have also deployed a host of coercive regulations against pregnant people in the name of ‘foetal protection’. These include forced caesarean section, forced medical treatment or even arrest and imprisonment (Lupton, 2013, pp. 105–107). And more aggressive policies are coming. The Dobbs majority references ‘a new appreciation of fetal life’ and describes ‘respect for and preservation of prenatal life at all stages of development’ as a legitimate interest of public policy.⁸

In this context, it is ‘necessary to challenge the claim made by anti-abortion activism on this body, because the fetus is also significant in the lives of people who have abortions’ (Hurst, 2020, p. 11). Indeed, the foetal body generates meaning not just for pregnant people but also for subjects across the entire range of society. Where pro-choice narratives have treated foetal embodiment with scepticism, RJ narratives should embrace the complexity and ambiguity of foetal embodiment (Ludlow, 2020, pp. 57–58).

One interesting recent effort is Greer Donley and Lens’ (2022, p. 1655) tort-based model for reckoning with the ‘subjective and relational’ value of a pregnancy. In their account, tort claims filed in cases of pregnancy loss permit damages to be assessed based on subjective experience of harm: ‘No inherent or objective value is ascribed to miscarriage or the stillborn baby in tort law; it is individualized to the pregnant person’ (ibid., p. 1656). Because this approach measures the value of the foetus in relational and social terms, it offers a mechanism to assigning value to a lost pregnancy which does not require affirming ‘personhood-at-conception’ (ibid., p. 1694).

This tort analogy is useful but also somewhat limited since it preserves the trappings of legal individualism, where value is set in relation to the pregnant person. By contrast, the theory of social embodiment acknowledges relational subjectivities and meanings that are both more diffuse and more expansive than the individual valuation of the pregnant person. Others may become invested (if not directly involved) in the ‘symbolic and ethical significance’ of a potential life (Cornell, 1995, p. 34). For example, selective abortion based on a specific characteristic (impairment, sex, etc.) implies a strong negative valuation of that feature. To characterise this phenomenon, Adrienne Asch and David Wasserman (2005, p. 173) describe the decision to terminate as a ‘synecdoche’—a representational act about which ‘certain individuals not directly affected by the decisions it shapes may reasonably take offense—those who share the stigmatized characteristic’. However, it is not necessarily helpful to frame this as a question of ‘offence’. It may be more productive to simply remember that individual decisions take place within a ‘normative matrix that shapes perceptions and valuations of possible bodily lives’ (Mills, 2011, p. 27), and that individual decision-makers are both responding to and influencing the valuation of embodied characteristics. It would be a heavy burden to ask an individual to bear the entire weight of that choice, but some attunement to these effects is necessary and important.

Tran Minh Hang’s study (2018) of sex-selective abortion in Vietnam offers an interesting example of these complexities. Hang (ibid., p. 87) notes one woman’s sense of obligation to others: ‘we want to have a son and attain our inner wishes and to satisfy my parents. Otherwise, we feel guilty towards our parents and ancestors’. Here the potential sex of the foetus is a matter of concern far beyond the individual family unit. More broadly, a high prevalence of sex-selective abortion in society clearly affects those who live in that society: by establishing a social valuation of sex identity that disfavours women but also by unbalancing gender demographics in ways that can generate advantages for those who remain, such as the ability to ‘marry up’ (Hesketh, Lu and Xing, 2011). Similarly, those living with disabilities might reasonably care about selective abortion since they are, in Marsha Saxton’s (1997, p. 110) evocative phrase: ‘the constituency of the potentially aborted’. And the spectre of eugenics always hangs over the possibility that genetic technology may be able to guide foetal embodiment down certain paths and away from others (Thomas and Rothman, 2016).

From a RJ perspective, these conflicting feelings all deserve attention. But this does not imply a right of a communal veto over reproductive decisions. As Drucilla Cornell (1995) argues, bodies contain generative capacities which must themselves be respected, and which prove that reproductive freedom is essential to promoting ‘life’ in any meaningful sense. For Cornell (ibid., p. 37), ‘we cannot legally recognize the sanctity of life by denying women the right to abortion or treating them as if they were not capable of understanding and giving meaning to their decisions to abort’. Indeed, the person best situated to assess the multiplicity of issues is generally the pregnant person at the centre (Kittay and Kittay, 2000, p. 190). Furthermore, Brittany R. Leach (2021, p. 144) argues that ‘the ontological ambiguity of fetuses does not undermine the case for abortion rights but actually strengthens it, because ontological plurality is antithetical to the pro-life movement’s foundationalist view of fetal life’. By contrast, efforts to secure the boundaries of subjectivity by excluding foetal bodies ‘may inadvertently reinforce fantasies of the secure self that pro-life discourse mobilizes to promote reproductive control’, and feminists should ‘instead challenge the idea that any body or self is unambiguously bounded or independent of social relations’ (ibid., p. 147). Just as decisions taken by individuals are structured and sustained by the social conditions in which those choices are made, so are the social conditions themselves influenced by individual decisions. The objective of RJ cannot therefore be reduced to control of ‘our own bodies’, since this obscures the reality that all bodies depend on projection, respect and recognition and thus are ‘never really our own’ (Cornell, 1995, p. 40).

The final section of the article develops this argument by focusing on disability, which illustrates the complicated relationships that result from a social perspective on embodiment. Exploring the intersections of disability and reproduction will clarify the need for a multivariate approach which supports subjects across the whole range of reproductive life, allowing collective contributions to RJ rather than offloading all responsibility onto the individual decision-maker at the end of the line.

Disability and social embodiment

The intersections between reproduction and disability provide a useful vantage point, in part because the shape of the argument has already been drawn by decades of work on the ‘social model’ of disability (see Oliver, 1983; Abberley, 1987; Oliver, 1990; Shakespeare, 2006; Barnes, 2019). Broadly, these scholars argue that disability is a social construction, which transforms the material fact of impairment into the social effect of disability. For example, lacking the use of one’s legs is an impairment; the inability to enter a building because it was built without ramps is to be disabled. In an effort to refine this approach, some scholars offer what Alexandre Baril (2015, p. 60) calls a ‘composite model of disability’, which treats embodiment as a blend of physical experience and social relations—where even impairment is socialised, and even disability is embodied (Morris, 1991; Crow 1996; Wendell, 1996; Hughes and Paterson, 1997; Anastasiou and Kauffman, 2013). These approaches overlap significantly with the work of RJ scholars in both form and content. Indeed, each has been informed by the other, with regular cross-references on both sides (see Roberts and Jesudason, 2013; Bagenstos, 2020; Jarman, 2020; Jain and Sengupta, 2021).

These tools have been used to consider the full spectrum of disabled reproductive experience. In many cases, this means attending to barriers faced by disabled people who wish to bear and raise children. Restrictions on the right to pregnancy have ranged from informal (social discouragement) to formal (legal restrictions) and even violent (outright sterilisation; Knight, 2017, p. 69). Unfriendly legal systems also disproportionately deny custody for disabled parents, and limited public support for those with disabilities can make the job of parenting seem daunting, or even impossible (Bagenstos, 2020, pp. 290–292). Here, the RJ framework’s attentiveness to intersectionality helps to reveal how disability converges with other factors like class and social status to expand or contract one’s range of viable reproductive futures.

Furthermore, disability also invites significant questions about foetal embodiment. The increasing strength and ubiquity of screening technology multiplies the thorny issues raised by foetal impairment diagnoses. Should prospective parents avail themselves of these options? What information is provided to them in the case of a diagnosis to help them make these judgements? These questions do not just concern the potential parent’s own life; they raise the spectre of a future person who might wish to look back and judge the decision.

Unfortunately, the abortion rights movement has broadly shied away from these topics. As Michelle Jarman (2015, p. 47) notes, the most common response has been deflection, accusing anti-abortion advocates of ‘exploiting disability as a pro-life issue’. Some even try to weaponise disability themselves, using fear of abnormality to secure legal protections for abortion rights (Sheible, 2014; Whelan and Goodwin, 2022). There is a logic to this tactic, since surveys show that fear of ‘birth defects’ convinces a meaningful proportion of abortion sceptics to support its legality (Kallianes and Rubenfeld, 1997, p. 213; Kirzinger et al., 2020). However, pitting one subject of exclusion against another in this manner is clearly at odds with RJ.

And yet, how should RJ advocates think about disability and foetal embodiment? Allison Whelan and Michele Goodwin offer one perspective:

the voices of girls, women, and pregnancy-capable persons with disabilities too often remain unheard, muted, or fragmented in the discourse. More troublingly, abortion opponents may appropriate their voices and use them in selective, misleading, and divisive ways that fail to appreciate the complicated and nuanced history of reproductive regulation. (Whelan and Goodwin, 2022, p. 1001).

The effort to lift up these unheard voices clearly aligns with the mission of RJ. But if the misuse of a concept is dangerous, that does not prove that no use is appropriate. Indeed, I have argued that taking ‘the complicated and nuanced history of reproduction regulation’ (ibid.) seriously requires a genuine engagement with social embodiment, including the potential embodied characteristics of foetal subjects.

Fortunately, the existing literature offers a useful entry point on this subject. The ‘expressivist’ critique argues that selective abortion conveys negative attitudes towards those with disability and thereby enhances social stigma. In one formulation: ‘prenatal tests to select against disabling traits express a hurtful attitude about and send a hurtful message to people who live with those same traits’ (Parens and Asch, 1999, p. S2). According to this critique, the choice to terminate a pregnancy for reasons of foetal impairment is never simply personal. Rather, it contributes to a regime of ‘compulsory able-bodiedness’ (Kafer, 2003, p. 79), which operates through coercive (and violent) stamping out of those identities that threaten its dominance. This ‘ideology of cure’ establishes a standard of bodily normalcy and deputises medical and scientific practices to coercively enforce the barrier (Clare, 2017). The feedback loop of judgement and isolation is similar to that in the practice of sex-selective abortions. In both cases, a series of ‘rational’ judgements by individual decision-makers serves in aggregate to radically reshape the social world within which other bodies must live (Williams, 2012). With every potential disabled body that is pre-filtered, the embodiment of disability is at least marginally warped (DePoy and Gilson, 1997, p. 191). Some go so far as to argue that the ‘missing’ children may constitute evidence of an ‘underlying eugenic impulse’ to control ‘who should and should not be allowed to exist’ (Jarman, 2015, p. 49).

Of course, not all disabilities are the same, nor do all those living with disability share similar attitudes or experiences (see Boardman, 2014). They may therefore take very different implications from the practice of selective abortion. It also should be noted that selective abortion is not particularly common. Most impairments are either undetectable through screening or are acquired throughout the course of one’s life. And even in the case of diagnosis, termination is far from inevitable. For example, live births of children with Down Syndrome in the USA have been reduced by 30 per cent due to selective abortion (de Graaf, Buckley and Skotko, 2015)—a significant reduction but far from the near-total erasure of such births in countries like Denmark (Heinsen, 2022, p. 3). However, even if selective abortion currently affects a limited set of cases, future technological improvements may permit more aggressive screenings, evoking the possibility of ‘designer’ children wiped clean of many of the so-called ‘imperfections’ of human existence (Zhang, 2020).

Some critics have described the expressivist argument as overbroad and unfair to those who ultimately choose termination. They claim that this decision is generally not undertaken blithely, but rather is approached with thoughtfulness, care and often a fair amount of anguish. For example, Elizabeth Schiltz (2014, p. 129) posits that ‘the situation faced by parents who have received a prenatal diagnosis of a disability is fraught with ambiguity; that the actors in such a scenario most likely view the disabled fetus as both valued and as devalued; and that these conflicting views should all be taken into account’. By this argument, the expressivist critique unfairly socialises what are ultimately private decisions, ascribing bad intention to people who are simply trying to do their best in a difficult circumstance (Nelson, 1998).

However, the objective is not to determine guilt or assign blame. Instead, we should treat the expressivist argument as an invitation to consider the ‘conditions of truth production that have underpinned and given social legitimacy to those individual beliefs’ (Mills, 2011, p. 75). The social construction of foetal subjectivity may be influenced by many factors, such as ‘the pregnancy’s intentionality, its length, ultrasound visualizations, disclosure to others, or the myriad rituals to prepare for the new arrival’, all of which are ‘not only subjective, [but] also relational’ (Donley and Lens, 2022, p. 1692). In this context, the revelation of impairment might disrupt the imagined clarity of a social future—transforming it back from ‘desired child’ into something less (Saxton, 1997, p. 110; Schiltz, 2014, pp. 130–131). Moreover, many pregnant people retain a strong sense of embodied connection but simply feel unable to provide the care that an impaired child would need. This could even manifest as a decision explicitly grounded in love, stemming from the belief that it would be wrong to inflict that form of life on another person (see Piepmeier, 2015, pp. 9–11).

But whatever the motivations, the ultimate decision is rarely experienced seamlessly. As Alison Piepmeier (2013) demonstrates, those faced with impairment diagnoses generally approach the topic with grave seriousness. If they ultimately decide that the diagnosis has altered their feelings of parental connection, they rarely find that it erases those feelings entirely. Instead, they struggle to articulate a notion of ‘personhood’ which ‘exceed[s] standard cultural frameworks’ (ibid., p. 169). This phenomenon is reflected more broadly by Ludlow (2008, pp. 44–45), who finds women writing letters of apology to their aborted children—striving for some sort of closure on a difficult choice. In all of these variations, we find life being treated as a flexible and somewhat speculative concept—one defined largely by its relationship to broader social worlds (Wertz, 1994).

Adding to the complexity is the obvious reality that impairments are myriad in nature and severity, and that the socially embodied relationship between impairment and disability can take many forms. Some potential parents may desire to follow through on any pregnancy no matter the consequences; some may shy away from any risk. Alternatively, some actively desire for their child to share their impairment (Jarman, 2020, p. 139). One’s place in life may also play a significant role. Someone in difficult circumstances may feel incapable of doing what is necessary to care for a disabled child (Bagenstos, 2020, pp. 282–283). To illustrate the ambiguities and conflicting forces, one interviewee who spoke to Sarah Zhang (2020, p. 50) about her choice to abort after a Down Syndrome diagnosis said: ‘It felt right for me, and I have no regrets at all’ but also said it felt like being told ‘you’re doing something wrong’. Ludlow (2008, p. 44) reports a range of responses from patients, ‘from the woman who is happily relieved not to be pregnant anymore to the woman who grieves deeply the child she will not birth’.

Perspectives like these reveal a sort of permanent unsettlement associated with foetal embodiment, with all choices carrying the weight of personal, familial and societal expectation. The tensions and incompatibilities provoked by selective abortion—both in concept and in its material application—do not admit simple solutions. Nor can they be easily grasped by focusing on the individuated decisions of potential parents, even when framed in inclusive terms.

Of course, as a matter of legal strategy it may be wisest to emphasise individual subjectivity over social relations. There is also always a risk that expansion of social claims may limit the agency of pregnant people (see McKinney, 2016). Indeed, as Karen Weingarten (2019) argues, these claims may overburden pregnant people with an expectation to prioritise social needs over their own bodies and thereby replicate the biopolitical management they are meant to challenge. But we must be careful here. To assume conflict between a particular body and the social world is to already accept the frame of individual embodiment. If one is concerned, as Weingarten (ibid., p. 168) is, about depictions of ‘the fetus as already child, already embodied human’, it would be a grave error to embrace the logic of isolated embodiment. Far better to incorporate foetal sociality as a relational phenomenon which can generate justice claims in multiple directions at the same time. Factoring disability into RJ means accounting for the full range of these possibilities.

Conclusion: bodies as they are lived

Concepts such agency, identity, choice and selfhood do not inhere in abortion across time and space. Instead, they grow out of the places where bodies are experienced. This means that any effort to think about abortion requires challenging the notion of any unified concept of selfhood or subjectivity. Many abortion debates focus on whether or not foetuses are independent ‘persons’ or whether their selfhood is determined primarily through instruments of sociality. Despite their great differences, advocates on both sides ‘seem to believe that if we could just demonstrate that the fetus … is actually a person (or not), then we will know whether or not it is morally legitimate to terminate that being’s life’ (Sherwin, 2010, p. 148). Unfortunately, the contours of bodily signification exceed this division. Whatever the ontological status of an aborted foetus, its presence (or absence) is often felt by many who fall outside the terms of such debate.

When seeking to engage this expanded sense of embodiment, the RJ approach offers great potential, but it is not a simple patch. As Zakiya Luna and Kristin Luker (2013, pp. 342–343) note, adopting the label does not guarantee a successful praxis. In some cases, work that superficially presents as RJ is simply a repackaged form of choice-based politics. And this is not surprising. By its very nature, RJ cannot offer a clear set of dogma. It reflects the work of a living community which is constantly engaging new questions and addressing topics with ambiguous or conflicting obligations. Each reproductive case will generate a dizzying array of ‘relationship-based responsibilities’ that establish relational stakes in the pregnancy and its eventual outcome (Little, 1999, p. 310). This is a strength but also a weakness: the obligation for interpretation and reinterpretation is also an invitation to co-optation. To prevent such co-optation, it is vitally important to resist the inclination to assume a natural convergence of interests. In some instances—perhaps in most instances—what is best for the individual reproductive subject will align with what is best for others socially invested in the case, but this will not always be true.

For that reason, I have argued for taking social embodiment seriously as a subject of reproductive justice. But that certainly does not mean treating it as a trump card. After all, feminist scholars have thoroughly documented that communal obligations tend to replicate the exclusionary bases on which those communities are formed (Hekman, 1992, pp. 1108–1112). In particular, holding ‘women’s reproductive bodies responsible for improving the future population and ending discriminatory attitudes … is an enormous burden to bear’ (Weingarten, 2019, p. 164). But one core lesson of RJ is that we are all responsible for ending discriminatory attitudes, if only in tentative and abbreviated ways. Certainly, no individual should be forced to bear the weight of an entire society’s practices of social embodiment, but it would be equally wrong to categorically treat autonomy as a shield against critical challenge. This is admittedly a difficult line to straddle. And yet it must be done.

Moreover, the social status of foetal bodies should not be understood purely as a limitation on agency for those who can become pregnant. We all live enmeshed in lives full of moral and social claims. Some of these claims are experienced entirely as burdens—the demands of an employer, government bureaucracy or a difficult neighbour. But other claims can enrich and enliven. The relational subjectivity of a shared world with family and friends entails obligations, but it also creates pathways for care, attention and emergent subjectivity. To treat this kind of sociality as inherently restrictive is to embrace an atomistic notion of the self—one that hardly comports with the expansive notion of community care which should be at the heart of any reproductive political practice.

In all this, we must remember that ‘reproductive justice is a process, not an event’ (de Londras, 2020, p. 144), one which cannot offer programmatic statements of value. I have focused on the case of foetal embodiment in order to illustrate one area where RJ advocates may occasionally find themselves genuinely conflicted. It is understandable why many prefer to maintain the firewall around ‘my body, my choice’ and protect themselves from outside interference in these most intimate parts of life. But accepting the reality of social—including foetal—embodiment will allow for a richer and more complete set of resources to support the full spectrum of reproductive life.

Footnotes

1

How to label the opposite sides on this debate is itself a political choice. One common division between ‘pro-life’ and ‘pro-choice’ is both inexact and loaded. For the sake of clarity, I will generally refer to ‘anti-abortion’ and ‘abortion rights’ advocates, except in the rare case where the label of ‘life’ or ‘choice’ is itself relevant to the point.

2

Guttmacher Institute, ‘Abortion bans in cases of sex or race selection or genetic anomaly’, [last accessed 27 October 2022].

3

SisterSong, ‘Reproductive justice’, [last accessed 14 January 2019].

4

Roe v Wade (1973) 410 US 113 (USA).

5

Dobbs, State Health Officer of the Mississippi Department of Health, et al. v Jackson Women’s Health Organization, et al. (2022) 19-1392, 597 US 215 (USA).

6

Alliance for Hippocratic Medicine, et al. v U.S. Food and Drug Administration, et al. (2023) No. 22-cv-223 (USA), p. 2.

7

Recent scholarship has increasingly moved away from references to ‘women’ in favour of the more inclusive ‘pregnant people’, to acknowledge trans men and non-binary people. I will generally follow this model. But the theory of social embodiment suggests that external expectations—e.g., that ‘women’ are either the exclusive subjects of reproductive choice or objects of reproductive regulation—imprint themselves on reproductive debates. Therefore, where it seems helpful to emphasise the social enforcement of concepts like ‘motherhood’ or ‘femininity’ in the context of pregnancy, I will refer to ‘women’—not to endorse the gendering effect, but to clarify precisely how these notions are enacted upon pregnant people of all types (see Glosswitch, 2015; Gandy, 2020; Love, 2022).

8

Supra note 5, pp. 34, 78.

Author biography

Charles Olney is currently a Visiting Assistant Professor of Political Science at Emory University and was previously an Associate Professor of Political Science at the University of Texas Rio Grande Valley. His research focuses on theories of justice, race and gender politics and political theologies. He can be reached at olneyce@gmail.com.

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