Anti-abortion legislation- What is the problem represented to be?
A critical policy analysis of the “heartbeat bills” in the United States.
Anna Gustafsson
Gender Studies: Master thesis, 30 hp
Master’s programme in Law, Gender and Society 120 hp Spring term 2020
Supervisor: Sara Edenheim Examiner: Ann Öhman
Abstract
Since the introduction of a new type of anti-abortion legislation in the United States which bans abortions after a fetal heartbeat can be detected, women’s options regarding abortion are being limited. How “problems” are represented or constituted in legislation shows that problems are time, place and context dependant. By using Carol Bacchi’s “What’s the problem represented to be?” approach to policy analysis, problem representations and subjectification effects in the heartbeat bills were identified. The problem representation of abortion as “lack of information”
emerged as the central problem representation and the subject positions that were made available limits women’s choices regarding abortion. Fetal rights emerged as the core of the argumentation in the legislation, excluding women’s rights. How the problem of abortion is represented to be, the subjectification effects and the way rights are used and argued for in anti- abortion legislation shows how they effectively limits women’s abortion choices.
Keywords: anti-abortion legislation, fetal heartbeat, fetal rights, subjectification effects
Table of contents
Introduction……….4
Background………...4
Purpose and research questions………..5
Theory....7
What’s the problem represented to be?...7
Rights...9
Subjectification...10
Method...11
Material...14
Context...14
Previous research...15
Analysis...18
WPR...18
Rights...34
Subjectification effects in the “heartbeat bills...34
Discussion...35
Conclusions...37
References...38
Introduction Background.
It is a crucial time in American history when it comes to women’s rights. When Donald Trump won the presidency, anti-abortion Republicans saw the once in a lifetime opportunity to finally reverse the 1973 landmark Supreme Court case Roe v Wade and make abortions illegal in all fifty states. When Trump appointed two conservative-leaning judges on the Supreme Court, several states saw their chance to introduce legislation to ban abortions as soon as a heartbeat can be detected in the fetus, which is usually around week six, before most women even know they are pregnant. These so called “heartbeat bills” have currently been introduced in about 20 states and passed and signed in five of those states: Georgia, Kentucky, Mississippi, Missouri and Ohio. However, they are temporarily blocked by federal courts waiting to go to the Supreme Court. If the Supreme Court decides to hear one of the cases, a now conservative leaning Supreme Court might slowly make incremental changes to the abortion doctrine or even reverse Roe v Wade altogether. A ban against abortions will not only affect millions of women’s right to choose not to continue with a pregnancy but the potential closing of the federally funded organization, Planned Parenthood, which is the largest abortion provider, and also other public and private clinics will affect women’s access to breast exams, birth control, and prenatal care and could possibly have the largest effect on millions of minority women and women living in poverty in the U.S. Since it would be constitutionally difficult, due to the First Amendment’s guarantee of separation of church and state, for the Republicans to use religious arguments in legislation the arguments that are frequently used in anti-abortion legislation are usually medical, moral, or based on the right of the fetus but the arguments have been highly criticized as being based on pseudo medicine and discrimination against women. The right of the woman is rarely mentioned while the right of the fetus is prioritized which not only raises the question of women’s autonomy and right to her own body but ultimately becomes a question about gender discrimination. Since the arguments that are used in anti-abortion legislation often has religious undertones and goes against what is considered to be accepted science of reproductive healthcare, it is not only relevant to critically analyze how arguments are constructed in legislation that oppose abortion but it becomes crucial because of the effects anti-abortion legislation will have on women’s lives and especially marginalized women.
Purpose and research questions.
To analyze this kind of legislation, it is relevant to turn to critical policy analysis and especially to Australian historian Carol Bacchi, who has provided the methodology my research questions are based on. According to Bacchi, one of the most common assumptions about policies and legislation is that they are a result of or a solution to a “social problem” outside the policy making process, when instead the “problem” is created within. Policies have a cultural dimension to them, and they are also a cultural product, produced in a historical, national or international context. Since the assumption is that the purpose of polices is to solve social problems so how does a problem achieve the status of “social problem”?
Bacchi argues that an issue achieves “social problem” status differently depending on place, time and context, therefore social problems are not “already there” natural phenomena (Bacchi, 1999, p. 148). The issue of abortion has taken on different problematizations throughout history.
During most of the nineteenth century in Britain and the United States abortion was a common method to control fertility and therefore not considered a “problem”. When abortion was criminalized in the later part of the century, due to concerns of a decline in population growth (mainly the threat of Catholics outbreeding Protestants), abortion became a “criminal problem”.
In order to protect their field and stop unregulated practitioners from working in the childbirth field, which lead to the exclusion of midwives, the medical community played a role in producing abortion as a “medical problem”. However, abortions still occurred which led to a liberalization of abortion laws. In the 1973 supreme court case of Roe v Wade, abortion was still problematized as a medical problem and the legislation is not concerned so much with the right of the woman as it is concerned about the “intrusion of the state on physician’s autonomy”
(Kellough, 1996, p. 72, as cited in Bacchi, 1999, p. 155).
Simultaneously, the problem of abortion achieved a separate status as a “moral or religious problem” and later becoming a problem of “the status of the fetus”, which is based on the legal personhood or rights of the fetus. Therefore, the modern anti-abortion movement is mainly basing their arguments on the problem representation of abortion as a problem of the status of the fetus, while feminists are basing their arguments on the problem representations of abortion as a right of women, especially a right to privacy. However, claiming rights are problematic because if women are claiming privacy rights, there are risks attached to it in the way that public funding for abortions will be removed due to a private right cannot ask for public funding (Bacchi, 1999, p. 159). Since the concept of rights is central in my research, I’m using the political theorist Wendy Browns criticism of rights as a complement to Bacchi. Wendy Browns
(2000), criticism of rights is based on the ideas that claiming rights are essentially paradoxical.
When women are claiming universal rights, it opens up for other groups for example, fetuses, husbands and fathers to claim rights that they have not had before or to expand their existing rights. On the other hand, when women are claiming rights based on their gender it tends to trap women inside the norms of femininity and only furthering the subordination.
Finally, how problems are represented in policies and legislation illustrates not only how problems are constituted but also how it leads to the constitution of subjects of particular types.
How aborting women are constituted or what subject positions are made available for abortion- seeking women are also time and context depended and are often made available in relation to the subject position of the fetus (Julich and Tinnerholm, 2019). These so called subjectifiction effects has political consequences in the shape of stigmatizing some and exonerating others (Bacchi, 2009, p.42).
Bacchi illustrates that problem representations are time, place and context dependant and how problems are represented have real effects on people’s lives. It shows the importance of distinguishing problem representations and critically analyze them in anti-abortion legislative proposals in order to effectively respond to and argue against anti-abortion legislation from a feminist perspective. Therefore, I’m asking the following question: Based on Bacchi’s problem representations of abortion, what type of problem representation is represented in the heartbeat bills?
The concept of rights is relevant in policymaking and legislation and especially regarding whose right should be prioritized and why. Therefore, I’m asking the following question: How is the concept of human and civic rights used and argued for in the material?
It is important to distinguish subjectification effects in anti-abortion legislation because of the potential effect they have on women’s choices regarding abortion. Therefore, I’m asking the following questions: How are aborting women subjectified in the heartbeat bills?
By answering these questions, I hope to illustrate the importance of analyzing and discussing problem representations, the concept of rights and subjectification effects in anti-abortion legislation by showing how both the “problem” of abortion is represented, and how the way women are constituted affects women’s choices regarding abortion.
Theory
What’s the problem represented to be?
The thesis will focus on Bacchi’s “What’s the problem represented to be?” (WPR) approach to policy which is a critical policy analysis approach to policies and legislation. In this approach, policies become the subject of interrogation (Bacchi, 2009, p. ix). Bacchi uses the concept of problematisation as the focus of policy analysis but what are problematisations? Paulo Freire introduced the concept of problematisations as a “pedagogical practice that interrupt taken for granted “truths”” (Bacchi, 2012, p. 1) whereas Foucault developed the term in a slightly different direction as more of a “description of thinking as a practice than a diagnosis of ideological manipulation” (Bacchi, 2012, p. 1). Foucault describes problematisation as follows:
“Problematization doesn’t mean the representation of a pre-existing object, nor the creation through discourse of an object that doesn’t exist. It is the set of discursive and non-discursive practices that makes something enter into the play of the true and the false and constitutes it an object for thought (whether under the form of moral reflection, scientific knowledge, political analysis, etc.)” (Foucault, as cited in Bacchi, 2012, p. 2). Rather than looking for the correct response to an issue, Foucault suggested to examine how the issue is questioned, analyzed, classified and regulated at specific times and contexts and therefore ask how specific things (behavior, phenomena, processes) become a problem (Bacchi, 2012, p. 1). The main purpose is therefore to take objects a part and question their taken for granted fixed essence and it is from this poststructural perspective, inspired by Foucault, that WPR approach was developed.
Why should we examine problematisations? According to Foucault, there are political consequences from the way objects are problematised since they affect how we are governed and how we live our lives, through the norms they install. When we question the taken for granted fixed essence of an object it opens up for relations to also be questioned and since relations can be considered to be something that is constantly changing, compared to an object that is fixed, it opens up for the possibility for change (Bacchi, 2012, p. 2). Therefore, the WPR approach involves three key propositions: “We are governed through problematizations. We need to study problematizations (through analyzing the problem representations they contain, rather than “problems”. We need to problematize (interrogate) the problematizations on offer through scrutinizing the premises and effects of the problem representations they contain (Bacchi, 2009, p. 25). However, there are two important points to make. First, representations are not to be considered to be in opposition to “real”, rather they are the way a specific
“problem” is constituted in the real and that problem representations are developed in discourse
(Bacchi, 2009, p. 35). Second, the concept of discourse becomes crucial. In the WPR approach,
“discourses are viewed as socially produced forms of knowledge that set limits upon what it is possible to think, write or speak about a “given social object or practice” (McHoul and Grace as cited in Bacchi, 2009, p. 35). Therefore, discourses in a WPR approach does not solely refer to language usage, not saying that language is not involved in the creation of discourse, but when referring to something as a discourse in a WPR approach implies that it is a socially produced form of knowledge and should be questioned.
What underlies a problem representation? In order to analyze the assumptions that underpin the problem representations it is suggested to conduct an exercise in “Foucauldian archaeology”.
Foucault was interested in what rules determines which statements are accepted as meaningful and true in a particular historical era or “episteme” (Phillips & Jørgensen, 2002, p. 12).
According to Foucault (1970), episteme is an epistemological field that is prominent in a certain time in history where ideas and theories were made possible due to the conditions at the time.
How a problem representation has come about, its “roots”, is also of interest and to investigate this we draw from Foucault’s genealogical theory. For example, something that had the status of “social problem” during one era in history was not even considered to be a problem during another era. Therefore, how problems were understood over time was not because of natural evolution, it was depended on certain key decisions and power relations that guaranteed the success of certain problem representations and that they are traceable (Bacchi, 2009, p. 11).
The WPR approach is unique in the sense that it is a policy analysis that is focused on how we are governed, how rule takes place and the effects it has on particular groups of people. Here governing refers not only to the role the state plays but also to the significance of experts.
Professional groups, for example doctors, social workers and social science researchers shape the knowledge that is used in governing. Foucault introduced the term “governmentality” to illustrate different ways of thinking when it comes to governing. By keeping track of people activities, especially sexual behaviors, governments can through either regulation or discipline, control the numbers and health of the population. Foucault referred to the controlling of bodies with the purpose of creating utility, efficiency and productivity, as “biopower” (Howarth, 2000, p. 75). Exercising power over life is a significant trait of the modern state and is closely related to neoliberalism as a way of governing at a distance (Bacchi, 2009, p. 29). The way that neoliberalism induces self-regulation and self-surveillance through the outsourcing of norm setting to professional groups this type of governing can govern in silence from a far, giving
the impression that there is no interference from the government in people lives, creating a sense of freedom in the individual.
Rights
The concept of rights as a road to emancipation for different groups living under subordination has been widely debated. Wendy Brown discusses the complex ways of how the concept of rights emerged in the late twentieth century in her article “Rights and losses”. She does not argue whether rights are emancipatory or not, she is instead arguing that rights are ever- changing and indecisive and that they are varying across time, culture and social strata, for example, race, gender, class and sexuality. She is also arguing that rights converge with powers of social stratification which leads to the increase or decrease of these powers and that rights that empower some groups can at the same time disempower other groups (Brown, 1995, p. 97- 98).
Rights becomes highly relevant in the abortion issue. Whose rights should be prioritized, the pregnant woman or the fetus? According to anti-abortion activists, women’s right to abort limits the fetus rights to eventually become a person. Pro-choice activists argue that since the fetus is inside the woman’s body it gives the woman the right to choose what happens to the fetus.
Wendy Brown (2000) addresses her concerns about the concept of women’s rights in her text
“Suffering rights as paradoxes”. She is not necessarily against rights, but she is questioning the way rights are formulated and the language that is used and therefore question if rights really are emancipatory or if they instead entrench women’s subordination. Rights works as a mitigation, in that they soften the effects of subordinating powers but they do not eliminate them. Even though women’s rights have increased in the past century, it has not eliminated male dominance. Once you use the argument of universal rights you have to be prepared that it will also open up for rights to be claimed by all groups in society and that the rights that are neutral usually increase the power of the already powerful (Brown, 2000, p. 232). On the other hand, gender specific rights have the potential of increasing the already powerful the same way as a gender-neutral rights. Therefore, in the case of abortion, arguments like women’s right to abortion traps women inside the regulatory norms of femininity, not only furthering the subordination of women but also excluding women that do not fit inside the norm.
Political scientists Nadia Feshari and Caroline Karlsson (2019) emphasize how the humanization of the fetus and giving it a moral value always is an expression of relational power. To give a fetus the status of personhood has been used and is being used as the central
argument in the antiabortion movement in order to limit or question women’s right to abortion.
The idea of fetal personhood is based on when life is considered to begin and when the moral value of the fetus emerges (Feshari, Karlsson, 2019). The conflict that emerges when the rights of a fetus are put against the rights of women makes the issue of abortion problematic for abortion-seeking women. The materialization and embodiment of the fetus which in turn leads to the visualization of the fetus, creates a request of ethical responsibility in relation to the fetus (Feshari, Karlsson, 2019). Through the anti-abortion movement ideas of fetal personhood, the moral value of the fetus is activated and therefore affects the subjectivity of the woman. The activation of the moral value of the fetus also leads to a decrease in the aborting woman’s agency, power and value and the humanization of a certain subject or a certain body often leads to the dehumanizing of another subject or body (Butler, 2002, p. 98 as cited in Feshari, Karlsson, 2019).
Subjectification
Similarly to how the “problem” of abortion has been time and context depended, so are the subject positions that are made available for women and especially abortion seeking women.
The historians of ideas and science Solveig Julich and Helena Tinnerholm Ljungberg (2019) discusses how the role of aborted fetuses and how the view of fetuses and aborting women have changed over time. The authors use the Foucault-inspired term “reproductive guiding”
(reproduktiv styrning) when discussing how states and other actors have helped produced subject positions not only for fetuses but also for aborting women. The authors illustrate how historically different actors, for example legislators, authorities and actors within the healthcare system have all contributed to producing subject positions for aborting women. In turn, they also show how these subject positions have been linked to ideas about what a fetus is, its value and how it should be treated.
Historically abortion seeking women and fetuses have been given different subject positions dependant on the current political context. Before the modern abortion laws were introduced in the 1970s, fetuses were viewed more or less as objects of research or “medical waste” whereas the aborting women was viewed as not having an interest in what happened to the fetus (Jülich, Tinnerholm Ljungberg, 2019). The development of ultrasound and other prenatal diagnosis lead to the fetus being visible for the first time. The visualization together with the legalization of abortion in the United States, but also in other parts of the world, the fetus was, perhaps for the first time, given a subject position and with that also rights. At the same time a new subject
position of the aborting woman was introduced: the consenting woman. From being seen as not having an interest in the abortion, aborting women were now seen has having an interest in what happened to the fetus. Women’s feelings and the different reasons behind the abortion are now of particular concern and women are seen as having a legitim interest in the abortion (Jülich, Tinnerholm Ljungberg, 2019). Paradoxically, as women’s rights were increasing due to the emerging liberal abortion laws, the rights of the fetus were also increasing. The subject position of the abortion seeking woman was placed in relation to the subject position of the fetus and therefore their interests were viewed as being in opposition to each other (Jülich, Tinnerholm Ljungberg, 2019).
In conclusion the authors illustrate how the subject position of the fetus have moved from being
“medical waste” to being seen as a person and how the subject position of aborting women have moved from not being interested in the abortion process to having a legitim interest in the abortion process. Due to the medical progress of today where it is even possible to have an early abortion in your own home, the responsibility of the abortion is now considered to lie with the individual (Jülich, Tinnerholm Ljungberg, 2019).
Method
In order to best answer my research questions, I used Bacchi’s “What’s the problem represented to be approach” (WPR). Inspired by Foucault’s concept of problematizations Bacchi developed a critical policy analysis approach which consists of six interrelated questions and one directive to apply these questions to one’s material. Before looking at the questions more in detail it is important to address the concept of reflexivity since it is a crucial part of the process.
Reflexivity is a sort of self-analysis that is being conducted from start to finish and that we have to be mindful of. Just by text selection, the choice of material becomes part of the analysis, since we will often choose an issue that we are interested in or to further a certain cause or political standpoint (Bacchi, 2009, p. 20). Therefore, it is important to be aware of that we are immersed in the conceptual logics that are shaped through the problem representations we are trying to analyze. The real challenge that the WPR approach proposes is to not accept a problem representation without questioning where it comes from, what its purpose is and what effects the representation can potentially have (Bacchi, 2009, p. 19).
Question 1: “What is the “problem” represented to be in a specific policy”.
To identify problem representations Bacchi suggests “working backwards” in the sense of first looking at what is proposed in the legislation and from there identify what is represented to be the “problem” within that proposal. This a challenging task since policies and legislations are often complex and can contain several different and sometimes contradicting representations.
According to Bacchi, one of the easiest ways to identify a problem representation is to investigate where funding is being directed to. How is money being spent and to where and to whom is the money being allocated to (Bacchi, 2009, p. 4).
Question 2: “What presuppositions or assumptions underlie the representation of the
“problem”?”.
The presuppositions or assumptions, mentioned in the question, refers to the background knowledge that is taken for granted behind a problem representation and through exploring the assumptions it is possible to identify conceptual premises that serve as a foundation to a specific problem representation (Bacchi, 2009, p. 5). To clarify it is not the assumptions that are held by legislators, instead it is the assumptions that lodge within problem representations that we are interested in. To analyze the assumptions that underpin the problem representations it is suggested we should conduct an exercise in “Foucauldian archaeology”. The work is being done on a level of fundamental worldviews, episteme, and beyond that of the individual legislator to identify deep seated cultural premises and values within problem representations (Bacchi, 2009, p. 5-7). Policies are expressed in language, but discourse is more than language and at this stage the focus is to identify which meaning or “knowledge” is created through particular language use and one way to do that is to try and identify binaries, key concepts and categories within the policy.
Question 3: How has this representation of the “problem” come about?
To answer this question the focus is on process and Bacchi draws on Foucault’s genealogical theory where the aim is to trace the history of the problem representation back to its roots and in order to do that there are two interconnected objectives that must be taken into consideration.
The first one is to explore what specific developments and non-discursive practices lead to a specific problem representation. The second is to acknowledge that competing representations can exist simultaneously, and it is due to the current conditions whether a specific representation becomes the dominant one (Bacchi, 2009, p. 10).
Question 4: What is left unproblematic in this problem representation? Where are the silences?
Can the “problem” be thought about differently?
This question helps us to explore the limits of the problem representation while asking “what fails to be problematized?”. It does not mean identifying another way an issue can be thought of, rather identifying perspectives of an issue that are silenced. One way to identify silences is to do cross-cultural comparisons. The way that a problem is thought of in one country compared to another country can reveal institutional and cultural contexts that help in making a certain representation dominant while silencing others (Bacchi, 2009, p. 12-14).
Question 5: What effects are produced by this representation of the problem?
The purpose behind a WPR approach is to identify what the problem is represented to be and then interrogate those problems and see if the representations create difficulties (forms of harm) for some social groups compared to other groups (Bacchi, 2009, p. 15). Examining the effects of certain problem representations will help see who is being harmed and who benefits from them. However, it should be noted that by “effects”, Bacchi does not refer to “outcomes” of certain policies, rather effects are understood in a more subtle way and she separates threes interconnecting and overlapping kinds of effects. First, discursive effects are viewed as the way a discourse is limiting what kind of social analysis can be produced. Second, within policies, social relationships are determined, and discourses make certain subject positions available and in turn these subject positions create a viewpoint from where a person understands the world.
So, the subject positions that are made available in the policy therefore effect how we see ourselves and the others and Bacchi refers to these effects as subjectification effects. Lived effects refers to the real-life material effects that a problem representation can have on people lives (Bacchi, 2009, p. 16).
Question 6: How/Where is this representation of the “problem” produced, disseminated and defended? How could it be questioned, disrupted and replaced?
Answering this question Bacchi (2009) suggests that we take a look at the means through which particular problem representations reach their target audience and achieve legitimacy but also critically interrogate and “develop strategic interventions in humanly-created narrations that try to justify the miseries of the poor” and other outgroups (Dumont, as cited in Bacchi, 2009, p. 45). Here, Bacchi is influenced by Foucault’s ideas of discourses as resources or assets. What individuals or what groups have access to a particular discourse and what does the relationship look like between the discourse, speakers and its destined audience (Foucault as cited in Bacchi, 2009, p. 19).
Material
The material consists of five bills that propose criminalization of abortion as soon a heartbeat is detected in the fetus, which is around six weeks into the pregnancy. Due to the proposals focus on the heartbeat of the fetus, the bills are also referred to as “heartbeat bills”. The first heartbeat bill was passed in 2013 but was ruled unconstitutional by a federal court. There have been several other heartbeat bills that were signed but were either ruled unconstitutional or in other ways overridden during the political process. In this thesis I have limited the material to be analyzed, to the heartbeat bills that have been passed, signed and temporarily blocked by federal courts in order to focus on the bills that are still active in the legal process. Therefore, I am not including the bills that already have been ruled unconstitutional and therefore permanently blocked, according to the 1973 ruling in Roe v Wade. Even though there is a small window of six weeks when a pregnant woman is still allowed to have an abortion, the result of a bill going into effect, essentially leads to the criminalization of abortions since the proposed legislation does not leave enough room for pregnant women to have an abortion. Therefore, the heartbeat bills can be considered to be the most extreme to date in American history.
Context
The thesis positions itself in an American context and therefore within an American abortion context. Abortion has been legal in all fifty states since the 1973 landmark Supreme Court case of Roe v Wade. The ruling made abortion legally available in all states which was not always the case. In 1965 illegal abortions made up one sixth of all pregnancy related deaths and according to one survey conducted in New York in the 1960s, low income women who had an abortion, eight in ten, had attempted a dangerous self-induced abortion. There was also a racial disparity in the mortality data. Childbirth related deaths were twice as high in Puerto Rican women compared to White women and in the early 1970s the mortality rate for illegal abortions was twelve times higher in women of color compared to White women (Benson Gold, 2003, p.
10). Since abortions became legal, they have over time been the target of anti-abortion legislation with the aim of significantly limiting abortion seeking women’s legal options.
According to Centers for Disease Control and Prevention CDC (2019) there were 623 471 reported abortions in the U.S in 2016. About two thirds (65.5 %) of all abortions were performed before or at week 8 of gestation. Further, 91% of all abortions were performed before or at week 13 of gestation. Fewer abortions were performed at 14-20 weeks of gestation (7.7
%) and 1.2% at more than 21 weeks of gestation. Gestational age is the time elapsed since the first day of the woman last menstrual period and not from the date of conception. This means, for example, that a pregnant woman’s fetus which is at six weeks of gestation has a conceptual age of four weeks. At around week six of gestational age, a heartbeat can be detected with ultrasound (ACOG, 2018). A fetal “heartbeat” between the 41th and 43rd day (six weeks) of gestation was first detected in 1984 (Cadkin & McAlpin) and this development of medical equipment encouraged the prolife movement to introduce the discussion about when life starts.
The researchers described the “heartbeat” as a “tiny blinking, flashing, and/or rocking echo with a regular rhythm (Cadkin & McAlpin, 1984, p. 500).
White women and African American women have the largest percentages of all abortions (35%
and 38% respectively) but White women have the lowest abortion rate in the same ethnic/racial group (6.6 abortions per 1,000 women aged 15–44 years) and ratio within the same ethnical/race group (109 abortions per 1.000 live births), while African American women have the highest abortion rate (25.1 abortions per 1.000 women aged 15–44 years) and ratio (401 abortions per 1.000 live births). Since African Americans constitute 12.3 % and Whites constitute 60.2 % of the U.S population (U.S Census Bureau, 2018) these abortion statistics show the disproportionate nature of abortions in the U.S in relation to race. It is worth mentioning that three of the states that have passed heartbeat bills have significantly high populations of African Americans, some of the highest in the country, and two states have an African American population that match the national average and one state have a lower population than national average (KFF, 2018).
Previous research
As previously mentioned, contemporary anti-abortion discourses have mainly pinned fetal rights against women’s rights. The political scientists Glen A. Halva-Neubauer & Sara L.
Zeigler (2010) argues that the anti-abortion movement is transforming their rhetoric. It is still basing its arguments and legislation on fetal personhood but framing it differently, to instead emphasize the unique and intimate bond between the woman and the “child”. The authors are illustrating in their article how the anti-abortion movement through their use of strategical chosen words are trying to come across appealing to people that might be ambivalent in the abortion issue. Their attempts to introduce terms like “unborn child”, “fetal pain” and “fetal homicide” in legislation shows their aim of normalizing fetal personhood in the hope of banning abortions. The authors are therefore illustrating how the anti-abortion movement is strategically
changing their discourse in order to try to persuade those people that might be unsure where they stand in the abortion issue. This research becomes relevant in relation to how “problems”
are represented to be in legislation and what is considered to be a problem is both time and context depended and not seldom influenced by politics.
Another contemporary abortion discourse is the “protection of women” (against doctors and scientists) discourse (Jesudason & Weitz, 2015). In this discourse the aim of the anti-abortion movement and the pro-choice movement are obviously different but they both frame their arguments around “protection of women”. Both sides argue that women need to be protected against healthcare providers and scientists, women are positioned in a way that harm is being done to women and women are not positioned as agentive. However, the anti-abortion movements use of arguments based on that abortion is something that is harming women both emotionally and medically instead of fetal rights or fetal personhood is another example of legislators trying to appeal to the wider audience.
Research done on pre-procedure ultrasound viewing laws shows that women are assumed not to be capable to make a decision about having an abortion without, in some states, being forced to conduct an ultrasound, therefore women’s decision-making is constructed as inadequate until an ultrasound is performed and that just by considering an abortion the women are marked as not knowing what will happen to the fetus if they have an abortion (Kimport &Weitz, 2015).
This research illustrates that women are discursively constructed as passive in anti-abortion legislation; rather than something women do; abortion is something that is done to women.
It illustrates how women are not considered to be capable to make their own decisions but how legislators are “forcing” women to follow through with the pregnancy under the threat of being stigmatized.
How target populations are socially constructed in policymaking impact on how specific groups are perceived as “deserving” or “undeserving” of benefits. To illustrate this phenomenon political scientists Anne L. Schneider, Helen Ingram & policy scientist Peter Deleon (2014) use a ”social construction and power typology model” where the vertical axis is perceived political power and the horizontal axis is the degree of deservedness. Mothers are positively constructed as deserving to “sympathy and pity” but since they are considered to have low political power they are not deserving when it comes to actual investments in the group (Schneider, Ingram &
Deleon, 2014). This research shows how the social construction of mothers as “good people”
leads to the stereotype of mothers and women as passive and how this leads to real consequences when designing policies.
During the first half of the nineteenth century, abortion was not considered to be a social problem in the United States, rather it was a common practice of fertility control.
Especially working-class women used different folk remedies in order to “bring on a period”
and there was no sense of remorse up until the stage of the pregnancy that they described as
“quickening” or when a pregnant woman was able to feel distinct movement of the fetus (Bacchi, 1999, p. 148). In the mid-nineteenth century, the government banned physicians from giving contraceptive advice and since there was no birth control and no access to guidance regarding how to avoid becoming pregnant, abortion was a way for women to have control over the family in regard to how many children they could provide for. The banning of contraceptive guidance was a way for the government to increase a declining birthrate.
When Catholics, for whom abortion was considered a grave sin, were outbreeding Anglo-Saxon Protestants in both United States and Canada, abortion became a national/racial interest and it led to the criminalization of abortion in 1861 and hence abortion became a criminal problem.
As a result, aborting women were turned into criminals (Bacchi, 1999, p. 150). Through the criminalization of abortion, medical professionals saw the opportunity to gain total authority of the field of childbirth and contraception and therefore banned midwives and other practitioners from practicing in the field. By limiting certain fields to only be occupied by a specific group of professionals that have a unique relationship with the state since they are licensed by the state, for example medical professionals, extend the control of the state while giving the impression that the state is not involved in population control.
However, abortions were still performed, both by women themselves and by doctors, which led to growing pressure for legalization of abortion. Through the legalization of abortion in Roe v.
Wade in 1973, it became clear that abortion was now produced as a medical problem. Although the case of women’s rights of privacy is part of the decision, the rights of privacy are put in relation to which trimester the pregnant woman is in and the main reason for legalizing abortion was that the state was not able to legally regulate the pregnancy in the first trimester. This was explained due to that the mortality rate in abortions performed in first trimester was considered to be lower than in a normal childbirth which made abortions in the first trimester a safe medical procedure for women (Bacchi, 1999, p. 153). The state´s interest in the pregnancy increases in the second and third trimester when protecting the fetus outweighs the woman’s right to privacy. However, it was made clear in the ruling that until the time when the state’s interest in the pregnancy increased (second trimester), the decision to have an abortion should be primarily a medical decision made by the pregnant woman’s physician (Bacchi, 1999, p. 154). The same day as the ruling of Roe v Wade, in the companion case of Doe v. Bolton, it was further clarified
where the decision-making responsibilities were laid or set. The concern of the court was not necessarily women’s rights to privacy but to sort out the relationship between the state and medical profession. For example, it was ruled that hospitals were free not to admit a patient for abortion and that a physician had the right to abstain from taking part in an abortion for moral or religious reasons. The concern of the court was focused on the physician’s right to practice and protecting physician’s autonomy. The use of moral language in the case of Doe v Bolton can be considered to be remarkable since in the case of Roe v Wade abortion was produced as a medical problem, the emergence of moral language both in legislation and in the public domain laid the ground for the concurrent production of abortion as a moral problem (Bacchi, 1999, p. 155).
Due to the ruling in Roe v Wade clarifying the states interest of the pregnancy was primarily focused on the later trimesters, the idea of the “viability” of the fetus was introduced. Although at the time, abortion was framed as a medical problem, the questions of when a fetus can survive outside the womb and when life is considered to begin was concerns that emerged at the time.
The growing focus on the fetus and the issue of viability resulted in the production of abortion as a problem of the status of the fetus (Bacchi, 1999, p. 157).
According to Bacchi (1999) these changes of the status of the problem of abortion illustrates first of all that social problems neither are fixed problems, nor are they natural phenomena, rather they are created as social and can achieve social problem status differently in different places, or at different times, or not at all. Therefore, social problems are context-dependant and time-dependant, and in the Western world abortion is an example of that.
Analysis
Question 1: “What is the “problem” represented to be in a specific policy”.
The heartbeat bills can be considered to be a fairly new type of anti-abortion legislation. What is different in these bills compared to previous legislation is the proposal to criminalize abortion as soon as a heartbeat can be detected in the fetus and it can be considered to be the most extreme and invasive so far. In order to gain a better understanding of the extremity of the bills there is a practical example that can be made: if at the time of the detection of a heartbeat the woman is around six weeks pregnant it means that the fetus has a conceptual age of four weeks.
This leads to the conclusion that in order to have a legal abortion within the timeframe of what is the proposed in the bills the woman has to become aware of the pregnancy in the short
window of four weeks from conception or six weeks from her last menstrual period. Since women are built differently and far from all women have regular menstruations this short window significantly limits her options and makes it almost impossible to have access to a legal abortion.
The concept of when life is considered to start is explained in the bill from Ohio, where life is considered to start at conception: “At fertilization, a human being emerges as a whole, genetically distinct, living human organism and needs only proper environment to fully develop into a human” (SB 23, 2019, p. 23) and “A human being at an embryonic age and a human being at an adult age are naturally the same, with the only biologically differences being due to the differences in maturity” (SB 23, 2019, p. 25). However, these bills do not propose an abortion ban from the time of conception instead they propose a ban from the time a heartbeat can be detected in the fetus. The reason of using the detection of a fetal heartbeat as the limit to have an abortion can be find in a medical argument in the bill from Missouri; “In medicine, a special emphasis is placed on the heartbeat. The heartbeat is a discernible sign of life at every stage of human existence. During the fifth week of gestational age, an unborn child’s heart begins to beat, and blood flow begins during sixth week” (HB 126, 2019, p. 7). Another reason for using the term “detection of a fetal heartbeat” and not to specify a particular week as a limit for abortion, is that the ban can take effect as early as week five, in order to prevent as many abortions as possible. Since a total abortion ban might be considered to be too extreme even for people that are not in favor of abortions and therefore could be met with public resistance, leaving a small window of time open for an abortion gives the impression that the woman still has the freedom to make her own choice when in reality her choices are being limited.
The notion of rights and who is entitled to rights and by whom the rights are given is illustrated in the bill from Georgia where human life is given rights by its Creator and therefore sets the foundation for human equality: “In the founding of the United States of America, the State of Georgia, and the several states affirmed that; “We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness-that to secure these Rights, Governments are instituted among men” (HB 481, 2019, p. 2).
The idea that a fetus has the same rights as a child that has been born or has the same right as an adult is not new. Neither is legislation that use the argumentation which is based on protecting groups of persons that has previously not been protected under law. Legislation that promote rights to groups that has historically not enjoyed rights has historically lead to the
inclusion of vulnerable groups, however in the bill from Georgia the legislators are taking it a step further using the 14th amendment and its arguments that were historically used in relation to the freeing of the slaves, essentially equating fetuses to slaves. When referring to the 14th amendment of the United States Constitution where it states that in order to protect rights of all persons and specifically to protect the fundamental rights of particular classes of persons who had not previously been recognized under law the amendment states; “nor shall nay State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws” (HB 481, 2019, p. 2).
An aspect of the “rights of the fetus”, that emerges in the bills, center around the idea that as long as women has access to adequate information about the fetus the pregnant woman would be faced with the “facts” about abortion and decide to follow through with the pregnancy. This is illustrated through an amendment in the Georgia bill to the already existing “Woman’s Right to Know Act”. The Act requires women who seek abortions to be “fully informed” and it is protecting women’s rights to make an “informed decision” and also require an “informed consent” from the pregnant woman (HB 854, 2011, p. 1). Therefore, the woman is required to be informed and also consent to the abortion. In the bill from Georgia (HB 481, 2019, p. 7) it is illustrated what is considered to be relevant information in order to make an informed decision: “The pregnant woman is told the following, by telephone or in person, by the physician who is to perform the abortion, by a qualified agent of the physician who is to perform the abortion, by a qualified agent of a referring physician, or by a referring physician, at least 24 hours before the abortion: The particular medical risks to the individual patient associated with the particular abortion procedure to be employed, when medically accurate; The probable gestational age and presence of a detectable heartbeat, as such term is defined in Code Section 1-2-1, of an unborn child at the time the abortion would be performed; and the medical risks associated with carrying an unborn child to term” (HB, 481, 2019, p. 7).
The concept of “informed consent” is further explained in the bill from Missouri as the voluntary and informed consent, given freely and without coercion, to an abortion. (HB, 126, p, 14). However, it comes with requirements that has to be fulfilled. At least 72 hours prior to the abortion, the physician who is to perform the abortion has to in person provide printed material about; the name of the physician that is to perform the abortion, a description of the abortion method, immediate and long term risks associated with abortion (infection, hemorrhage, cervical tear or urine perforation, harm to subsequent pregnancies or the ability to carry a subsequent child to term and possible adverse psychological effects). The physician has
to provide the woman with color photographs of the developing fetus at two-week gestational increments. Together with the photos, there should also be descriptions of anatomical and physiological characteristics of the fetus at the time the abortion is to be performed and it should include information about heart and brain functions. The printed material shall prominently display the following statement: “The life of each human being begins at conception. Abortion will terminate the life of a separate, unique living human being” (HB 126, 2019, p. 15). No abortion will be conducted unless the woman in writing certifies on a checklist that she has been presented with all the required information about the fetus and risks associated with abortion.
Moreover, the Georgia bill illustrates not only what kind of information is to be provided but in what way they should be provided. The aim is to ensure that the pregnant woman is receiving the required information either via telephone or in person and even providing a translator if needed: “The information required by this paragraph may be provided by telephone without conducting a physical examination or tests of the patient, in which the case the information required to be provided may be based on facts supplied to the physician by the female and whatever other relevant information is reasonably available to the physician. Such information may not be provided by a tape recording but must be provided during a consultation in which the physician or a qualified agent of the physician is able to ask questions of the female and the female is able to ask questions of the physician or the physician qualified agent. If in the medical judgement of the physician any physical examination, tests, or other information previously supplied to the patient, that revised information shall be communicated to the patient prior to the performance of the abortion. Nothing in this Code section may be construed to preclude provision of required information in a language understood by the patient through a translator.
(HB, 481, 2019, p. 7).
In the bill from Ohio the way the information should be provided to the pregnant woman when meeting with her physician, is further illustrated. “At this meeting the physician shall inform the woman verbally or if she is hearing impaired by other means of communication” (SB, 23, 2019, p.1). After a meeting in person between the pregnant woman and physician the woman is also required to receive additional information and the way that information should be provided is illustrated in great detail in the bill: “At least 24 hours prior to the performance or inducement of the abortion the physician who is to perform or induce the abortion or the physician agent does each of the following in person, by telephone, by certified mail, return
receipt requested, or by regular mail evidenced by a certificate of mailing” (SB, 23, 2019, p.
2).
Furthermore, the bill from Ohio illustrates in detail how the information should be formatted to ensure optimal “comprehension”: “The department of health shall publish in English and Spanish, in a typeface large enough to be clearly legible and in an easily comprehensible format, the following materials on the department’s website…” (SB 23, 2019, p. 2). Material about family planning, adoption agencies (phone number and address), materials that inform the woman about anatomical characteristics of the zygote, blastocyte, embryo or fetus at two increments. “The material should use language that is understandable by the average person who is not medically trained…” and “if the materials use a pictorial, photographic, or other depiction to provide information regarding the zygote, blastocyte, embryo or fetus the materials shall include, in a conspicuous manner, a scale or other explanation that is understandable by the average person…” (SB, 2019, p. 3).
Further, the bill illustrates how the information requirement continues even after the detection of a fetal heartbeat. Even though abortion is prohibited after the detection of a fetal heartbeat the women is still required to sign a form acknowledging receiving information.
“(1). The person intending to perform or induce the abortion shall inform the pregnant woman in writing that the unborn human individual the pregnant woman is carrying has a fetal heartbeat. (2) The person intending to perform or induce the abortion shall inform the pregnant woman, to the best of the person knowledge, of the statistical probability of bringing the unborn human individual possessing a detectable fetal heartbeat to term based on the gestational age of the unborn human individual the pregnant woman is carrying or, if the director of health has specified statistical probability information pursuant to rules adopted under division (C) of this section, shall provide to the pregnant woman that information. (3) The pregnant woman shall sign a form acknowledging that the pregnant woman has received information from the person intending to perform or induce the abortion that the unborn human individual the pregnant woman is carrying has a fetal heartbeat and that the pregnant woman is aware of the statistical probability of bringing the unborn human individual the pregnant woman is carrying to term”
(SB 23, 2019, p. 9).
The aim is therefore to control the content of the information (gestational age of fetus, detection of heartbeat, risks related to abortion and alternatives to abortion), the way the content is delivered (in person, telephone, via mail ) and also ensure that the woman has received it (checklist). Therefore, the abundance of material that is required to be provided to the pregnant
woman who is seeking an abortion can be viewed as a problem representation which can be called “lack of information”. As long as the pregnant woman is first provided information whether the fetus has a detectable heartbeat, but also information in regard to the viability of the fetus, postnatal care and options for adoption of the child, the woman can make what is considered to be an informed decision. The bill from Kentucky illustrates how the notion of how an “informed choice” only can be made if the pregnant woman is provided information regarding the fetus chances of surviving to full term: “In order to make an informed choice about whether to continue her pregnancy the pregnant woman has a legitimate interest in knowing the likelihood of the fetus surviving to full-term birth based upon the presence of cardiac activity” (SB 9, 2019, p. 3). The “problem” of abortion will be “fixed” if pregnant women are given access to what the legislators consider to be an adequate amount, of to them, relevant information about the fetus.
First of all, this relates to the notion that women are passive and abortion is not something that women do but rather is done to women. Women and fetuses need to be protected against physicians and other personnel that are permitted to conduct abortions and this is further empathized through the clarification that the woman who had the abortion cannot be punished, as the Kentucky bill clearly states: “No penalty shall be passed against the woman upon whom the partial-birth abortion is performed or attempted to be performed” (SB 9, 2019, p, 16).
Further, the issue of guilt is illustrated in the same bill which open up for monetary compensation to be made to the woman if she for some reason had to go through with an abortion unwillingly. “A woman on whom an abortion was performed or induced in violation of Section 5 of this Act or subsection (1) of Section 6 of this Act may file a civil action for the wrongful death of her unborn child” (SB 9, 2019, p. 8). The woman could claim damages to the amount of ten thousand dollars in these types of cases. This leads to that physicians who perform abortions, as part of their area of expertise, are under a constant threat of the possibility of being sued by a woman that they performed an abortion on. Since the United States can be considered to be a litigious country in comparison to other Western countries, being sued is fairly common and can have detrimental financial consequences. Since the bills are making the act of abortion a criminal act, either a felony or a misdemeanor, physicians who perform abortions are considered to be perpetrators but only in those cases where an abortion was performed when a serious health risk to the child’s mother was not present. The physicians are also subject to suspension or revocation of his or her professional license.
Physicians who perform abortions are also required by the state to have adequate insurance. In the Missouri bill the required insurance consists of a medical malpractice insurance with coverage amounts of at least one million dollars per occurrence and three million dollars in the annual aggregate and also a requirement for a “tail insurance”: “When a drug or chemical or combination thereof, used by a person to induce an abortion carries a warning from its manufacturer or distributor, a peer-reviewed medical journal, article, or a Food and Drug Administration label that its use may cause birth defects, disability, or other injury in a child who survives the abortion, then in addition to the requirements in section 188.043, such person shall also carry tail insurance with coverage amounts of at least one million dollars per occurrence and there million dollars in the annual aggregate for personal injury to or death of a child who survives such abortion” (HB 126, 2019, p. 25). This leads to millions of dollars in yearly costs on medical malpractice insurance for the physician or clinic that is providing abortions. In conclusion, physicians who perform abortions are operating under a threat of legal consequences, threat of suspension of their medical license and having to pay high insurance costs.
Second of all, the idea that women are lacking in the ability to gather and comprehend information about the decision whether to have an abortion or not and therefore need to be provided with information about the fetus gives the impression that the legislators are viewing pregnant women as not intellectually capable to gather and process information. The view that women are not capable to make decisions about their bodies and their lives stems from an infantilization of women.
According to Bacchi (2009), another way to identify problem representations is to see how funds are targeted within a proposal. Although there is no mention in the bills of the costs of the information material that the woman is required to read in relation to her potential abortion one can only assume that there are funds allocated to produce and print a significant amount of information material. There are also consultations, ultrasounds and additional appointments in relation to the potential abortion that the woman in some cases is required to take part of.
The Missouri bill takes it a step further and incorporates the abortion issue into the state’s tax system. “For all tax years beginning on or after January 1, 2021, a taxpayer shall be allowed to claim a tax credit against the taxpayers state tax liability in an amount equal to seventy percent of the amount such taxpayer contributed to a pregnancy resource center” (HB 126, 2019, p. 3) A pregnancy resource center is a facility that encourages and assist women in carrying their pregnancies to term. These resource centers are also called crisis pregnancy
center (CPC) and are usually nonprofit organizations that are funded through tax deductible donations. In their mission statement, “Birthright” a CPC in St. Louis Missouri states,
“Birthright is a non-profit organization providing free, confidential and professional counseling as well as practical assistance to women facing an untimely pregnancy. Birthright offers positive alternatives to abortion. We believe it is the right of every pregnant woman to give birth and the right of every child to be born.” (Birthright, 2019).
In the Georgia bill it is clarified that child support also covers “any unborn child with a detectable human heartbeat” and that the pregnant woman can claim support from the father that relates to direct medical and pregnancy related expenses (HB 481, p. 6).
In conclusion significant amount of funding is allocated to print “information” material about the fetus and alternatives to abortion. There is time and resources spent on consultation, meetings and medical exams encouraging the woman to continue with her pregnancy. There is a tax break if a person donates money to a pregnancy resource center where the pregnant woman is “encouraged” to follow through with the pregnancy. All of the abovementioned examples illustrate that a significant amount of both funding and time are spent on “informing” women about the fetus and alternatives to abortion and also “encouraging” the pregnant woman to carry the pregnancy to term which suggest that the main problem representation of abortion is “lack of information”.
Question 2: “What presuppositions or assumptions underlie the representation of the
“problem”?”.
After identifying that “lack of information” as the problem representation and therefore the policy proposals “solution” is providing “information material” to the pregnant women in order to prevent abortions it is important to understand what serves as the foundation of the identified problem representation. What knowledges are taken for granted and what form of knowledge or conceptual premises are the arguments for a particular policy or legislation relying on.
This is not an exercise in identifying potential biases on the level of the individual legislator, rather trying to identify cultural values on a societal level, a kind of a social unconscious (Bacchi, 2009, p. 5).
First of all, “lack of information” assumes that the pregnant woman needs to be provided information that she does not already have in order to make her decision. Therefore, it is taken for granted that pregnant women have little or no knowledge about abortion and that the knowledge they do have is not considered to be adequate. Since women have to in writing
confirm they have received and read the information material there is an assumption that women who have abortions are somehow being tricked or coerced into having one, and if a woman in fact has an abortion it wasn’t a decision made freely since there is an option to sue the physician who performed the abortion. Either way it is assumed there is something lacking in regard to the pregnant woman’s knowledge and decision-making process for her to make the decision solely based on her own knowledge and beliefs, so she is believed to need external intervention in the form of “information material”. These are examples of cultural values rooted in the notion that women are not autonomous people with the capability to make their own decisions about their own bodies. To deem a person or a group of people not capable of making decisions about their own bodies is a dehumanization of that person of group. What is not questioned is why the focus on lack of information is so prominent in regard to pregnant women having abortions. Are other groups also subjected to the same skepticism and questioning of their decision-making capabilities in regard to their own bodies?
According to Bacchi (2009), there are patterns or different “styles of problematisations” or different ways of how problem representations are thought of. These styles are called
“governmental or political rationales” and refers to what rationale are behind different types of governing. The meaning of “rationale” in this context refers to what kind of thinking is behind a certain style of governing. These rationales are also what Foucault refers to when he coined the term “governmentality”.
The style of governing that is underlying the problem representation of “lack of information”
that is being imposed on pregnant women is encouraging self-governing. Since providing information is a requirement by law it can be considered to be an element of coercion with the aim to persuade the pregnant woman to follow through with the pregnancy. Because there is a short window in the beginning of the first trimester, before a detection of a fetal heartbeat, when the woman still has the option to abort it gives the impression that the woman still has a choice.
The thought behind these governing practices that are reflected in the bills is that physicians, medical professionals are in possession of knowledge that the women do not have and is not able to produce on her own and the decision-making responsibilities regarding abortion lies with the medical profession through their “expertise”. Through legally assigning physicians the task of norm setting through their knowledge and at the same time encouraging women to self- govern, is a way for the government to “govern at a distance” which is what Foucault refers to as one of the main characteristics of neoliberalism (Bacchi , 2009, p. 29).
To further analyze the deep-seated cultural premises behind the problem representation Bacchi, suggests identifying and interrogate the binaries, key concepts and categories that occupy policies.
A binary consists of one side that is considered to be excluded from the other side. On top of that, binaries have a hierarchical dimension to them, one side is determined to be more important or more valued than the other side. Since the problem representation has been identified as “lack of information”, a significant amount of the bills is addressing the information material. What the material should contain, what forms they should take (printed, ultrasounds), how the material should be provided (in person, via telephone or via mail,) having a translator present in cases where the pregnant woman does not speak English or assistance in the case the woman is hearing impaired), Therefore, the binaries can be considered to be knowledgeable/unknowledgeable. Women are generally viewed as lacking in knowledge and physicians are possessing knowledge and information which gives them authority to determine whether a woman is eligible for an abortion.
Policies are usually filled with key concepts which are empty on their own but are filled with meaning depending on competing political visions and are usually controversial (Bacchi, 2009, p. 8). Two key concepts have been identified in the heartbeat bills and the first one is
“information”. Information is a relatively open-ended concept and it can have different meaning to different people. However, in the heartbeat bills information is presented as “knowledge” or
“facts” since the information about the pregnancy, that is provided to the pregnant woman, is given to her by a physician or a medical professional. Due to the hierarchal position of power and influence that physicians have, the pregnant woman finds herself in a position of inferiority.
The second one is “rights”. Rights are also an open-ended concept but, in the bills, rights only refer to rights in relation to fetal rights and there is no mention of women’s rights. The aim of the bills is to protect the rights of the fetal population against what is considered to be the immoral act of abortion. This is also related to the detection of a heartbeat since it is suggested to be a predictor of viable human life.
Categories and specifically people categories are created in polices and it is important to examine them because they play a crucial role in how governing takes place. There are clear people categories created in the bills. On one hand there is the category of “pregnant woman seeking abortion” and on the other hand there is the category of “physician”. In the bills, the physician is presented as professional, knowledgeable and has the ultimate decision whether the woman is eligible for an abortion. The pregnant woman is presented as being in a self-
