The Invisible Woman by Sherry F. Colb

Is acknowledging the biological divide key to achieving equality between the sexes?
 
When I went to college in the 1980s, I hadn’t yet figured out where I stood on the issue of abortion. I’d led a sheltered life as a high school student and didn’t know of any friends who had terminated a pregnancy. The issue was very abstract for me.
 
Then, as a freshman, I attended a pro-life film featuring young women who spoke about boyfriends or older family members who had pressured them to have their abortions. Later, these women found themselves filled with sadness and remorse, emotions that led them to join the pro-life movement. After watching the testimony of these girls, I returned to my dormitory and asked the boy I was dating what he would do if I became pregnant and chose not to abort. Without any hesitation, he said that he would leave me.
 
Though I have long since broken up with the young man in question, our conversation has come back to me many times over the years. It played a crucial role in shaping the way I think about the legal and cultural status of abortion in the United States.
 
In studying reproductive rights issues as a law professor, I have come to view pregnancy as a defining reality in women’s lives. I do not mean that every woman has, will, or even wants to become pregnant. I mean that because procreation entails a woman’s containing another living creature inside her own body, the very possibility of reproduction—including its promise and its threat—affects women’s lives in special ways.
 
Men are essential to reproduction, and their contribution to nurturing children can be as fundamental to children’s wellbeing as that of women. But men are, in a literal sense, disconnected from the process by which a zygote undergoes the astonishing transformation from a single cell to a newborn baby. I suspect that this disconnection leads some men to pressure women to terminate a pregnancy, oblivious to the fact that termination might represent a significant loss for a woman. This disconnection might also lead some to treat prohibitions against abortion as no different from prohibitions against murder.
 
Women’s unique role in the metamorphosis of a fertilized egg into a human being also means that sexuality is itself distinct for women. A man who has intercourse with a woman risks becoming a father, but the act does not threaten the integrity of his body. He will remain one person, whatever happens. For a woman, however, an act of passion with a man can alter her body in profound ways that turn it, quite literally, into a physiological host, one’s whose guest is extremely demanding and can make her quite ill. As the late Chief Justice Rehnquist said, “[w]e need not be medical doctors to discern that young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse. Only women may become pregnant, and they suffer disproportionately the profound physical, emotional, and psychological consequences of sexual activity.”
 
Though one need not be a medical doctor to appreciate this reality, our culture and law tend to obscure the fundamental distinction between the respective male and female contributions to reproduction. Such a tendency results in the creation of “the invisible woman”, a woman who is in all respects just like a man and whose connection to a growing baby during pregnancy can be understood as truly no different from the relationship between two separate beings.
 
My new book, When Sex Counts: Making Babies and Making Law, analyzes a range of issues affecting women, both pregnant and non-pregnant, through a lens that highlights rather than obscures the role of pregnancy in reproduction. I show how pregnant women’s uniquely intimate connection to their developing babies makes them both vulnerable and powerful in ways that fall outside the male experience and frame of reference.
 
We see examples of the invisible woman in the news. In 2004 the State of Utah prosecuted a mother for refusing to have a Caesarian section that her doctor said was crucial to saving the lives of her unborn twins. One of the twins was later born dead after a vaginal delivery, and the mother was subsequently charged with homicide. The same year in Texas, the state government prosecuted a woman after she had given birth, this time because she had ingested cocaine and thereby “delivered drugs to a minor” through her umbilical cord.
 
In each of these cases, a pregnant woman made what was arguably a terrible decision about how to treat her body while carrying a child. Nonetheless, it stretches reality for the law to equate a pregnant woman who uses drugs with a person who feeds drugs to a child. Unlike individuals who reach out and harm one another, pregnant women do not have the option of ingesting substances without exposing their unborn children to those substances as well. For nine months they cannot, in other words, act alone. The same is true when the law treats a pregnant woman who refuses a C-section like a parent who smothers her child to death. The refusal to undergo surgery or to give up an addiction is quite different from what a criminal would do in killing or delivering drugs to a baby. Though neither of these cases is about abortion, the strange ways in which they were prosecuted demonstrate the very disconnection from reality that so often characterizes attempts to force unwilling women either to remain pregnant or to terminate their pregnancies.
 
Sex Counts
 
After visiting with some dramatic examples of how the law has constructed the experiences of men and women, it is difficult to escape the conclusion that despite efforts to the contrary, a person’s sex continues to play an important role in life that far exceeds anything dictated by simple biology. Paradoxically, however, the achievement of real equality may lie in highlighting the significant biological divide between how men and women, respectively, contribute to reproduction. Through such an acknowledgment we can work more effectively to achieve a world in which women and men are equally able to enjoy the safety, the bodily integrity, and the control over their lives that all people deserve.
 
Sherry F. Colb, professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark, is a regular columnist for FindLaw.com. She was a law clerk to Justice Harry A. Blackmun and received her J.D. from Harvard and her A.B. from Columbia. Valedictorian of the second Columbia College class to graduate women, Colb will be a visiting professor at Columbia Law School this coming year. She is the author of When Sex Counts: Making Babies and Making Law.
 
Copyright © 2004 National Sexuality Resource Center/San Francisco State University. Reprinted with permission.

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