Theory Teacher's Blog

Utah’s Miscarriage Bill: Discipline or Exception

Just a little bit ago, on March 9th, the governor of Utah signed into a law a bill that would criminalize women who intentionally induced a miscarriage to end a pregnancy. See [here] for the whole story. The bill was first written after a teenage girl hired someone to beat her up in order to induce a miscarriage. The original version of the bill included legally problematic language that “any reckless act of the woman” could be prosecuted. Many groups and organizations, such as the ACLU, pointed out [here] [here] and [here] that the phrase “reckless act” could include anything from drinking alcohol to not wearing a seatbelt to taking certain kinds of medication. Given that one in three pregnancies end in a miscarriage, many women complained that the bill seemed to be blaming women for a tragedy that they themselves would most often be mourning. In other words, the bill would criminalize a woman (possibly life in prison) for what in the vast majority of cases would be the result of an accident, the randomness of biology, an abusive relationship, or extreme poverty. The problematic language of “reckless act” was taken out before the governor signed the bill, but nevertheless many groups [here] [here] and [here] still see the new law not only as a sneaky way to undermine Roe v. Wade, but much worse — a way to control women’s bodies.

Although proponents of the bill admit their long term goal is a Pro-Life agenda of revoking Roe v. Wade, they claim that the aim of this particular law is merely to prosecute women who do extremely terrible things such as the case of the 17-year-old girl hiring someone to beat her up, mentioned above. Their response insists that the feminist criticism is a fear-mongering misrepresentation of the bill, and they have a point that in practice the police will not waste their time unless something looks like a real case. Feminist bloggers have responded by pointing out that in the case mentioned above, the real travesty is that young women who resort to such acts are more often than not in abusive relationships or other such extremely difficult circumstances. They ask why the Utah legislature’s solution to such circumstances is not to address the condition of abuse or poverty but rather to put the woman in jail. In a way, this bill illustrates Judith Butler’s point in her book Precarious Life: the Power of Mourning and Violence (2004) that analyzes different modes of grief in the midst of tragedy. For one kind of expression of grief, some people’s lives are considered worthy of mourning (i.e., the miscarried child or victims of 9/11) and others are condemned (i.e., the mother or millions of Palestinians.) Butler obviously advocates for a different mode of expressing grief that encourages dialogue and solidarity among victims worldwide instead of misplaced retribution that often lashes out at other victims instead of discovering productive commonalities with them. Some novels and movies such as the recent movie Precious have the power to enable the public to be more likely to understand such circumstances and foster solidarity among human beings, but other novels and movies likewise have the power stir the public into frensied hateful acts of misguided violence against the poor.

There is a lot to say about this issue, and the links I cite above have a lot more information, so I won’t spend time in this blog repeating it. The two theoretical question that I’d like to raise that I haven’t seen raised are these. First, why would anyone who knowingly caused the miscarriage report themselves to the police? Clearly it’s a bizarre notion to make a woman who has just suffered something as painful as a miscarriage to then tell the police she didn’t do it on purpose. In other words, the law produces a strange, paradoxical situation. Nobody who’d done it on purpose would report themselves, and if you’re innocent, it wouldn’t occur to you to report yourself, especially in the midst of your own grief. In effect, it seems to me, the responsibility of reporting such an event will lie with health care professionals and neighbors. As a result, we all become accomplices to criminal homocide if we don’t report the miscarriage to the authorities. The paradox here is that this law that might seem to aim to control women’s bodies would also make them more likely to avoid the already existing institutions of healthcare that control women’s bodies. Indeed, the real effect of this law will be to make women more afraid. Instead of open dialogue and real solutions to problems, women facing difficulty will be more likely to hide. Ironically, what is most likely the root of the problem is precisely the lack of access to organizations and institutions (e.g., Planned Parenthood, sexual education in schools, etc.) that could help a woman such as the 17-year girl mentioned above. I’ve blogged about questions of access previously [here], focusing on the issue of single parenthood.

And this leads to my second theoretical question about a critique made of Michel Foucault by Giorgio Agamben. In Foucault’s work written in the 1960s and 70s such as The Birth of the Clinic, Dicipline and Punish, and A History of Sexuality, he argues that our society has become increasingly disciplinary — noting that we voluntarily subject ourselves to regimes of disipline (e.g., going to the gym) and truth (e.g., discourse about health and fitness). He points out the historical, political, and economic connections between institutions of discipline such as prisons and schools and discourses of knowledge such as psychology. The goal of all such institutions is to make us more docile and productive workers, and we voluntarily subject ourselves to such regimes of power/knowledge not because they oppress us and we like to be oppressed but rather because they are productive for us personally at the same time that they make us more disciplined and productive for a capitalist economy.

Though Agamben is writing in the same tradition as Foucault, so one should not understand them as antagonists, his book Homo Sacer (1998) notes that Foucault fails to account for how power operates also through states of exception. The law itself originates in an extra-legal state of exception. For example, the Revolutionary War was the exceptional illegal moment that created a new legal state, the United States.  The institutions of law could also position certain people outside the state of law. The most obvious example of this is the prisoners at Guantanamo who have never been charged with a crime but are simply there. The point is that while for Foucault the prison is the institution that metonymically symbolizes how government exerts power in the modern world, for Agamben it is the concentration camp (e.g., the Jewish Holocaust, but also Guantanomo and the hundreds of refugee camps that last year’s movie District 9 so brilliantly critiqued. In my view, if you want to understand Agamben, first watch District 9.)

What does this oh-so-slight theoretical difference between Foucault and Agamben have to do with Utah’s new miscarriage law? Well, a Foucaultian might understand the law to enact more control over women’s bodies by further subjecting women to criminal investigation, surveillance, psychological profiling, etc. Moreover, the law might inspire women to be ever more self-disciplined about their prenatal care, insisting on maternal perfection in the face of the vicissitudes of life. But an Agambenian might understand this law to enact a state of exception by subjecting them to a paradoxical demand, by figuring them as monstrous others, and by effectively isolating them from health care and other organizations that help women care for themselves. Hence, the powerful are exerting control over the rest of us by simply making us afraid not only of the government but of each other. Instead of fostering care for children as it pretends to do, the new Utah law really will foster fear of those we need to trust.  In other words, Utah’s miscarriage law won’t work because it’s effective; it will work precisely because it’s ineffective. And for me, in agreement with Agamben here, this is what makes the law so scary. Ironically, I wonder if it might even cause some women to hide from the very institution that the legislators claim they want to promote — the church.


March 21, 2010 - Posted by | feminism


  1. Hi, Thomas, I am Lisa’s friend on facebook.

    I think women will hide from social life in general, which is bad enough, but will also hide, if this is possible at all, from their own bodies. Like most anti-choice laws, this law is about shaming women who have sex outside of god’s prescribed boundaries: within marriage, for reproductive purposes and exclusively to please the man.

    The chances of pregnancy using contraception as prescribed are low, but they exist. If a woman knows that once she becomes pregnant her body becomes the state’s, that she will be made to blame for natural biological processes over which she has no control, and that, as you mention, she will have no one to turn to for help, chances are she will think it twice before she even has sex at all.

    I have not read Aganbem, but from what you say it seems to me that Naomi Klein’s The Shock Doctrine shares some of her ideas on the political situations of states of exception. Am I off here?

    Comment by Ruth | March 21, 2010 | Reply

    • Thanks Ruth. I agree with you about the shaming effect, and in addition to the “sex in marriage” ideal, if you look at tha author of the bill, Representative Carl Wimmer’s website, you’ll see he also promotes more disciplined prenatal care (nothing wrong with promoting better prenatal care per se, except for the negative manner in which he promotes it — more of the shaming thing.)

      As for Naomi Klein, I think you’re right-on that her book parallels Agamben (especially his later post-Bush-war book, “State of Exception”), his book being the philosophy, hers being the journalism/history. I don’t think she ever cites him, but I’d have to doublecheck; she might since she seems to be buddies with Michael Hardt, who’s hooked in with the Italian left. Coincidentally, I just taught the first two sections of Shock Doctrine a few days ago in my postcolonial lit class, so thanks for the timely mentioning of it!!!

      Comment by steventhomas | March 21, 2010 | Reply

  2. Hi Steve,

    I finally was able to read your blog. After 8 hours of writing a paper for gender and politics I would think it would have been the last blog I wanted to read, but no. I wasn’t annoyed by the theory at all. As much as I struggle with theory you always seem to show me how much of an important role it plays in our understandings of EVERYTHING and even if politics and English theory aren’t supposed to be linked, they are as you just showed.

    Comment by ashley | March 22, 2010 | Reply

  3. I want to add a few things in part to respond to some comments I got in a private e-mail and in part to just to clarify the position of my argument in the context of the pro-life/pro-choice debate. Since I’m against this particular bill, one might gather that I’m firmly pro-choice since the bill was sponsored by people who claim to be pro-life. However, I deliberately avoided taking a position in this debate for two reasons. First, I don’t think either of those ideological positions have done a good job addressing real problems, and second, I know a lot of pro-life people would agree with my analysis of Utah’s new law and ultimately be against it. What my blog post aimed to do was demonstrate how this bill will not effectively achieve what its proponents claim they want it to achieve. In fact, it might even have the opposite effect. Studies show that one of the best ways to reduce abortions and miscarriages is by providing more access to health care and other services, and this bill will not do that. Instead this law will create a rift between health care providers and pregnant women by criminalizing mothers. It might galvanize the true believers, but it would only further alienate and marginalize women whose lives might not be going in the direction that they themselves want it to go. So for me (and for some other people I’ve talked to who are pro-life and more religious), it doesn’t matter whether you’re a liberal athiest or a conservative Catholic — this law is not a good one.

    However, since I used the theory of Butler, Foucault, and Agamben to pose an argument against this bill, I should acknowledge that same theorists could be used to argue a strong pro-life position as well as strong pro-choice position. Consider Judith Butler’s observation that certain lives are valued more than others. The rhetoric of the pro-life position tends to value the unborn baby’s life over the mother’s life, and the rhetoric of the pro-choice position tends to value the mother’s life over the baby’s. And using Butler here, this is why I don’t actually like either position. I think ethically one needs to value both and recognize the complexity of each individual case.

    Similarly, someone pointed out to me that Agamben’s theory about the state of exception and “homo sacer” could also be used to support this bill — that according to Roe v. Wade, the “homo sacer” excempt from legal protection is the unborn child. Hence, the reasoning goes, if it is criminal to kill a 5 month year old baby, why isn’t it also criminal to kill an unborn baby? Why are they an exception to the rule? And against the feminist argument that we should attend to the circumstances of the mother instead of criminalizing her, one might point out that we still put a thief in jail even if that thief stole because he/she was poor and hungry? What exceptions are we making here?

    Instead of arguing that the cases of the thief and the miscarrying mother are different (though they are, and the rule of law was never meant to be consistently applied across merely analogous situations), I actually want to point out in the case of thievery that many of the people in jail in the United States are there precisely because they were arrested when they were young and got “in the system.” And most of these people are racially black. No country in the world has as many of its citizens in jail as the United States, and yet we have a higher crime rate, higher poverty rate, etc. compared to most other industrialize countries. As I think the HBO series _The Wire_ (one of the best shows ever on television) attempted to shed light on, when the cops try to solve the drug problem by arresting all the teenagers involved in selling it on the streets, the situation only gets worse. Instead, when the police and government instead made an effort to actively form positive relationships with the community and build the community up, then the situation got better. A lot of cops today actually refuse to even bother with petty crimes now since they know it’s a waste of their time and serve only to criminalize the poor. I suspect the same will be true with this miscarriage bill (though like the case with the drug trade, it’s likely that this new miscarriage law will be applied unevenly across lines of race and economic class.) So, in sum, because of the ineffectiveness of the law and of state institutions, we see that little states of exception are in effect everywhere all the time.

    To return to my concluding point, Foucault argued that disciplinary institutions gain power by being effective in organizing life. Simplifying his argument considerably, one might go so far as to say that the more productive the effects, the stronger and more stable the institutions of government. But my sense is that Utah’s law will not be effective at all, at least not in the way the proponents intend it to be. It will be ineffective and unevenly applied. One implication of Agamben’s critique of Foucault seems to me to be that in some ways ineffective law is also a way of consolidating power. This law will serve to consolidate power, but not in a way that will make that power stronger, more stable, or better at governing (i.e, more effective.) So for me, no matter what side of the pro-life or pro-choice debate you are on, this law ought to be worrisome.

    Similarly, I would also critique the pro-choice position for organizing their campaign around “rights.” Their argument tends to be that the mother has a “right to choose.” This works well for well-educated, middle-class women who can afford to pay for whatever choice they want. But for many, this right is not an option. In Utah, for example, there seem to be only three clinics in the whole state. So, while liberals shout loudly about choices, they seem to be missing the point. It’s not really about choice. It’s about access to things like education, health care, etc. As the wonderful documentary “All of Us” shows, it’s really about the demystification of ideology and the empowerment of people. Such things as education, health care, and other social services empower each and every woman so that they aren’t put in a position where they have to make a choice they don’t even want to make. Today, many pro-life and pro-choice activists have recognized the poverty of the rights-centered discourse that has so politically divided Americans. Though they are a minority with the pro-life and pro-choice camps, such activists have even formed alliances across ideological positions to address real concerns of poverty, access to health care, etc. This seems worthwhile to me.

    Comment by steventhomas | March 26, 2010 | Reply

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