Posted in: Reproductive Law

I went for a walk with my partner recently, and one of us used the word “impregnable.” Upon hearing the word, we both realized how much it says about our perception of pregnancy as reflected in our language. The word itself means unable to be broken into, defeated, or destroyed. A fortress is impregnable when it is unassailable and thus fully guarantees protection against an enemy invader. Those vulnerable to invasion, by contrast, are not impregnable. They are, to coin a term, quite “pregnable.”

Before drawing larger lessons, consider the verbs and nouns we use in connection with actual pregnancy. We say that the “father” of the fertilized egg “impregnates” the woman whose body does the actual work of turning a one-celled organism into a real baby (as opposed to the fake baby that many religious people see in the one cell, comparable to the main character’s imaginary girlfriend that’s actually an anatomically correct doll, in “Lars and the Real Girl.” The man thus plays an active role signified by the verb “to impregnate.” The woman, by contrast, is a completely passive entity. She “is impregnated” by the man, after which she “is pregnant,” two inactive formulations. The words we use therefore grant agency to the sperm source alone while recognizing no agency in the one who actively uses her body to convert undifferentiated tissue into an infant. Why would our language treat ejaculation as the main event?

Whatever the answer to that question, Justice Alito’s majority opinion similarly elevates what men do—ejaculating sperm that fertilize an egg—while completely ignoring the far more substantial and complicated work involved in changing some DNA, little more than a recipe really, into a baby human. The woman is invisible in the majority’s analysis and so is the extremely hard and risky work of building a baby. All we get to see is the sacred ejaculate.

What about “impregnable”? If we correctly understand the roots of the word in reproductive terms, we see that cis men are impregnable as a matter of law. That does not just mean that they cannot get pregnant, however. It means as well that no one can penetrate their defenses or conquer their bodily integrity. It is, of course, physically possible for a man to become a rape victim, so the idea of impregnable men reflects a kind of denial. But it is also true that the Constitution protects men from being penetrated and conquered.

In Farmer v. Brennan, the Supreme Court held that guards violate the Eighth Amendment ban on cruel and unusual punishments when they place a prisoner in a setting in which the prisoner gets raped, if the guards exhibited deliberate indifference to the danger to which they exposed him and which came to pass. Men may also take advantage of the right to refuse medical treatment, and they still can avoid biological fatherhood with their right to contraception. If, however, they wish instead to create a zygote with a particular woman, they can do so. They can, in fact, rape the woman of their dreams, and if they succeed in “impregnating” her, she no longer enjoys any constitutional right to remove the unwanted matter invading and colonizing her body. That is, when the invasion itself ceases to implicate the victim’s recognized constitutional rights, and the government may force the victim to engage in reproductive servitude as well, the Court renders the harm that she experiences completely invisible to the law, much as the words “impregnate” and “pregnant” render her particularized experiences invisible to our system of justice.

If the law can coerce a rape victim to turn ejaculate and egg into a baby inside her body, as the law apparently can do, under Dobbs v. Jackson Women’s Health Organization, then the crime of rape and the thorough assault and battery of forcible pregnancy and birth may cease to strike Americans as the atrocities that they are.

The goal of those of us who do in fact regard forced pregnancy and birth as the atrocities that they are and as a violation of the Thirteenth Amendment (which declared the end of slavery and involuntary servitude, which would include reproductive servitude in any just system) must therefore prepare to help women become as impregnable as men are now. One place to start would be for young women to treat proof of a vasectomy in the way that many of us (at least those who believed in COVID-19) treated a negative COVID test at the height of the pandemic. Dating apps could insist on a vasectomy as a condition for each of their male users, and women could in general treat men without proof of a vasectomy as dirty and undesirable vectors for the virulent infection that an unwanted pregnancy can be.

Men would accordingly have to “opt in” if they wanted to reproduce, and they would also have to find a woman interested in reproducing now (with them). Responsibility for birth control would no longer rest with members of the party that the Supreme Court has effectively designated a group of second-class citizens. Justice Alito’s infertile couples having a hard time finding a baby supply might need to identify an alternative solution rather than serving as accomplices in the forcible pregnancies that produced the babies up for adoption. But then, only an inveterate misogynist like Samuel Alito would have the gall to consider meeting the demand for unwanted babies a positive benefit attached to the Handmaid’s Tale regime that he has ushered into our midst with a majority of extremist jurists.

Posted in: Reproductive Law

Tags: Gender, pregnancy

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