When pregnancy is an injury: Rape, law, and culture

Stanford Law Review

Volumn 65, Issue 3, 2013, Pages 457-516

  Bridges, Khiara M ^a  

^a BOSTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CULTURAL ANTHROPOLOGY; FEMALE; HEALTH SERVICE; HUMAN; INDUCED ABORTION; INJURY; LEGAL ASPECT; POLITICS; PREGNANCY; PSYCHOLOGICAL ASPECT; RAPE; REPRODUCTIVE RIGHTS; UNWANTED PREGNANCY; VICTIM; WOMEN'S RIGHTS; WRONGFUL LIFE;

ABORTION, INDUCED; CRIME VICTIMS; CULTURE; FEMALE; HUMANS; POLITICS; PREGNANCY; PREGNANCY, UNWANTED; RAPE; REPRODUCTIVE RIGHTS; WOMEN'S HEALTH SERVICES; WOMEN'S RIGHTS; WOUNDS AND INJURIES; WRONGFUL LIFE;

EID: 84875597474     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (324)

1. 'Culture' is an intensely underdefined concept.
2. Sally Engle Merry, Law, Culture, and Cultural Appropriation, 10 YALE J.L. & HUMAN. 575, 579 (1998)
3. 'Constructing a definition for anthropology's core concept has always been difficult, but at no time more so than the present. Culture is everywhere a topic of concern and analysis from cultural studies to literature to all the social sciences[,]... suggesting both its significance and its elusiveness as a category of analysis.'). Nevertheless, this Article uses 'culture' to refer to an unbounded system in which meanings are created and disputed.
4. Naomi Mezey, Law as Culture, 13 YALE J.L. & HUMAN. 35, 42 (2001).
5. Defining culture as a 'set of shared, signifying practices-practices by which meaning is produced, performed, contested, or transformed'.
6. Of course, there is no single answer to this question. Pregnancy is experienced and understood in multiple and contradictory ways. The purpose of this Article is to interrogate how pregnancy may be experienced by women whose pregnancies are unwanted, how that experience may come to be reflected in the law, and the significance thereof.
7. This conceptualization of the dialectic between law and culture differs from scholarship that theorizes the two phenomena as having a unidirectional relationship. The 'mirror theory' offers law as no more than a reflection of the norms that originate in culture; as such, culture produces law.
8. Berta Esperanza Hernández-Truyol, Glocalizing Law and Culture: Towards a Cross-Constitutive Paradigm, 67 ALB. L. REV. 617, 619 (2003).
9. Noting the 'mirror thesis,' which theorizes law as derivative of culture, with the law being 'a mirror of society that operates to maintain social order'.
10. Menachem Mautner, Essay, Three Approaches to Law and Culture, 96 CORNELL L. REV. 839, 841 (2011).
11. Noting an approach to the study of law that holds that 'statutes are not meant to create law; rather, their function is to reflect existing social practices'.
12. Robert Post, Law and Cultural Conflict, 78 CHI.-KENT L. REV. 485, 486 (2003)
13. Noting the highly influential and still pervasive thought of jurist Patrick Devlin, who considered the law as 'the arm of a coherent antecedent culture that is the ultimate source of society's identity and authority'. The 'constitutive theory,' in comparison, offers a more agentive representation of the law, with the law standing apart from culture and functioning to create the culture upon which it acts; as such, law produces culture. See Mautner, supra, at 841 (noting the 'constitutive' approach to the study of law, which 'views law as participating in the constitution of culture and thereby in the constitution of people's minds, practices, and social relations').
14. Post, supra, at 488-89 (noting that 'law is sometimes used to revise and reshape culture' and '[o]n this account, the law does not merely reflect the norms of a pre-existing culture, but is instead itself a medium that both instantiates and establishes culture'). A theory of the dialectical relationship between law and culture recognizes the aptness-and the simultaneity-of both the mirror theory and the constitutive theory. Accordingly, while culture invariably produces law, law invariably produces culture.
15. Paul Butler, Much Respect: Toward a Hip-Hop Theory of Punishment, 56 STAN. L. REV. 983, 987 (2004).
16. 'There is a symbiotic relationship between culture and law. Culture shapes the law, and law is a product of culture.'.
17. Mautner, supra, at 856 ('[A] comprehensive understanding of the relations between law and society would have to be circular-viewing society as creative of law, which in turn acts upon society,... and so forth.').
18. Paul Schiff Berman, The Cultural Life of Capital Punishment: Surveying the Benefits of a Cultural Analysis of Law, 102 COLUM. L. REV. 1129, 1129 (2002).
19. Book review (noting the 'important relationship between law and culture: how legal institutions construct social reality, how 'law talk' gets dispersed throughout society,... and how law symbolically reflects and reinforces deep cultural attitudes, fears, or beliefs'); see also Mezey, supra note 1, at 47 ('[L]aw's power is discursive and productive as well as coercive. Law participates in the production of meanings within the shared semiotic system of a culture, but it is also a product of that culture and the practices that reproduce it.'). Sociologist Pierre Bourdieu perhaps stated it most eloquently when he observed, 'It would not be excessive to say that [law] creates the social world, but only if we remember that it is this world which first creates the law.'.
20. Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, 38 HASTINGS L.J. 805, 839 (Richard Terdiman trans., 1987).
21. 550 U.S. 124, 159 (2007) (citation omitted).
22. In this Article, 'phenomenology' is used to refer to an individual's subjective, conscious, usually bodily experience.
23. Herbert Spiegelberg, DOING PHENOMENOLOGY: ESSAYS ON AND IN PHENOMENOLOGY 3 (1975).
24. Defining phenomenology as 'a philosophical movement whose primary objective is the direct investigation and description of phenomena as consciously experienced'.
25. Judith S. Musick, YOUNG, POOR, AND PREGNANT: THE PSYCHOLOGY OF TEENAGE MOTHERHOOD 107 (1993).
26. Omission in original.
27. Erica Jong, The Protection We Bear, in ORDINARY MIRACLES 16, 16 (1983)
28. Copyright © 1983, 1991, Erica Mann Jong. Used by permission of the poet. See also MUSICK, supra note 6, at 109-10 (quoting pregnant teenagers' descriptions of being pregnant, including the statements 'I like it when people notice I'm having a baby [because i]t gives me a good feeling inside and makes me feel important' and 'Being pregnant is great. I feel sorry for men because they can never feel what a woman does when she's pregnant').
29. 208 U.S. 412, 416, 421 (1908).
30. Kristin Luker, ABORTION AND THE POLITICS OF MOTHERHOOD (1984).
31. Eileen L. McDonagh, My Body, My Consent: Securing the Constitutional Right to Abortion Funding, 62 ALB. L. REV. 1057, 1099 (1999).
32. Noting the commonly held view that the fetus is 'innocent'.
33. Barbara Duden, DISEMBODYING WOMEN: PERSPECTIVES ON PREGNANCY AND THE UNBORN 2 (Lee Hoinacki trans., 1993).
34. '[T]he term life (and a life) has become an idol, and controversy has attached a halo to this idol that precludes its dispassionate use in ordinary discourse.'. Indeed, Duden endeavors to write a history of the 'conditions under which, in the course of one generation, technology along with a new discourse has transformed... the unborn into a life, and life into a supreme value.'.
35. Analogously, when pregnancy is an injury to the body politic, the injury is not simply the costs that the baby imposes on public coffers. The pregnancy has costs independent of the baby that it produces-when the public qua government subsidizes prenatal healthcare as well as when the public's interest in protecting and promoting fetal life is not vindicated when a woman chooses to terminate a pregnancy. See, e.g., Michael M. v. Superior Court, 450 U.S. 464, 471 (1981) (interpreting the fact that many teenage pregnancies end in abortion as a social problem); OFFICE OF MEDICAID MGMT., N.Y. STATE DEP'T OF HEALTH, PRENATAL CARE ASSISTANCE PROGRAM (PCAP): MEDICAID POLICY GUIDELINES MANUAL 3 (2006), available at https://www.emedny.org/providermanuals/prenatal/pdfs/prenatal-policy_section2006-1.pdf (describing New York State's Prenatal Care Assistance Program, which is a Medicaid program that provides comprehensive prenatal healthcare to otherwise uninsured or underinsured women).
36. Paul Anka, (You're) Having My Baby, on ANKA (Capitol Records 1974).
37. 'The need inside you/ I see it showin'/ Oh/ The seed inside you/ Baby/ Do you feel it growin'/... / I'm a woman in love and I love/ What it's doin' to me./... / I'm a woman in love and I love/ What's goin' though me.'); CREED, With Arms Wide Open, on HUMAN CLAY (Wind-Up Records 1999) ('Well I don't know if I'm ready/ To be the man I have to be/ I'll take a breath, I'll take her by my side/ We stand in awe, we've created life....').
38. Diana Ross & The Supremes, Love Child, on LOVE CHILD (Motown Records 2004) (1968).
39. 'Love child, never meant to be,/ Love child, born in poverty,/... / This love we're contemplating, is worth the pain of waiting./ We'll only end up hating the child we may be creating./ Love child, never meant to be,/ Love child, scorned by society....'.
40. The most obvious and most recent example may be Juno, which was nominated for an Oscar for Best Picture. JUNO (Fox Searchlight Pictures 2007). In the film, a quirky, lovable teenager's unplanned pregnancy ends well for all parties involved after she foregoes her initial decision to have an abortion, instead carrying the baby to term and arranging for the baby to be adopted.
41. Examples include the widely popular MTV shows Teen Mom and 16 and Pregnant, which chronicle the lives of teenagers who become pregnant. All the teenagers featured on the shows decide against abortion; most avow at some point that, while becoming pregnant at a young age was difficult and changed the courses of their lives, they do not regret the choices that they have made. Cf. Melissa Henson, Op-Ed., MTV's 'Teen Mom' Glamorizes Getting Pregnant, CNN (May 4, 2011), http://articles.cnn.com/2011-05-04/opinion/henson.teen.mom.show_1_amber-portwood-teen-mom-mtv.
42. The reverse is also true; that is, a political stance against abortion rights may not be based on a subscription to a positive construction of pregnancy. It may be based on the belief that the fetus is a person in the constitutional sense, and abortion is a deprivation of the fetus's constitutional rights. Former Pennsylvania Senator Rick Santorum expressed this position simply: 'It became very clear to me that life begins at conception and persons are covered by the constitution, and because human life is the same as a person, to me it was a pretty simple deduction to make that that's what the constitution clearly intended to protect.'.
43. Peter Walker, Rick Santorum, 'Would Urge Daughter Not to Have Abortion Even After Rape,' GUARDIAN (Jan. 24, 2012), http://www.guardian.co.uk/world/2012/jan/24/ricksantorum-daughter-abortion-rape.
44. Final Presidential Debate (CBS television broadcast Oct. 15, 2008) (transcript available at http://www.cbsnews.com/stories/2008/10/16/politics/2008debates/main4525254.shtml). Nevertheless, while it is true that those who support abortion rights may subscribe to and invoke positive constructions of pregnancy, it may also be true that those against abortion rights are more likely to subscribe to and invoke positive constructions of pregnancy: during his bid for the Republican presidential nomination in 2012, former Pennsylvania Senator Rick Santorum invoked a positive construction of pregnancy par excellence when describing the depth of his conviction that abortion is wrong.
45. When asked whether his opposition to abortion encompassed the circumstance of a woman becoming pregnant after a rape, he answered: I believe and I think the right approach is to accept this horribly created-in the sense of rape-but nevertheless a gift in a very broken way, the gift of human life, and accept what God has given to you. As you know, we have to, in lots of different aspects of our life. We have horrible things happen. I can't think of anything more horrible. But, nevertheless, we have to make the best out of a bad situation. Piers Morgan Tonight: Interview with Rick Santorum (CNN television broadcast Jan. 20, 2012) (transcript available at http://transcripts.cnn.com/TRANSCRIPTS/1201/20/pmt.01.html).
46. Genesis 3:16 (New English Bible).
47. Gordon J. Wenham, WORD BIBLICAL COMMENTARY 81 (David A. Hubbard et al. eds., 1987).
48. ''To be a joyful mother of children,' preferably a large family, was a sure sign of God's blessing. Yet the pain of childbirth, unrelieved by modern medicine, was the most bitter known then.' (citations omitted).
49. Athalya Brenner, THE INTERCOURSE OF KNOWLEDGE: ON GENDERING DESIRE AND 'SEXUALITY' IN THE HEBREW BIBLE 52 (R. Alan Culpepper et al. eds., 1997).
50. 'Procreation is introduced in the Bible's first chapter as a blessing.... '[B]e fruitful and multiply' is the divine gift and blessing meted out to creatures of the higher orders-animals and humankind-upon their creation....' (citations omitted). Moreover, there is the notion that, within some religious or ethical traditions, pregnancy is a punishment for female sexuality; that is, women's punishment for having sex is pregnancy.
51. Deborah D. Rogers, Rockabye Lady: Pregnancy as Punishment in Popular Culture, 26 J. AM. STUD. 81, 81 (1992).
52. Noting the idea that female sexuality is punished by pregnancy, which may be fatal-or, at the very least, excruciating. However, pregnancy within these traditions is the natural consequence of sex, not a punishment for it. When a woman intends to engage in nonprocreative sex, yet pregnancy results nevertheless, she is not being punished; she is simply experiencing the expected, ordinary result of sexual activity.
53. Anthony Esolen, Editorial, Notre Madame et le President: There Was No Moral Common Ground, TOUCHSTONE, July/Aug. 2009, at 3, 3.
54. 'There are plenty of women who do not want to be pregnant, and plenty of men who do not want them to be pregnant, but in all those cases the pregnancies are the results of intentional actions that have pregnancy as their perfectly natural and perfectly predictable consequence.'.
55. 75 C.J.S. Rape § 1 (West 2012). Several jurisdictions have eliminated the requirement that the perpetrator use physical force. This elimination has occurred either via statute or via judicial interpretation of the term 'force.' See 18 PA. CONS. STAT. § 3101 (2012) (defining 'forcible compulsion' as '[c]ompulsion by use of physical, intellectual, moral, emotional or psychological force, either express or implied'); In re M.T.S., 609 A.2d 1266, 1277 (N.J. 1992) (holding that the 'physical force' element of the sexual assault statute was satisfied by the physical force required to accomplish sexual penetration in the absence of victim consent); cf. MODEL PENAL CODE § 213.1(2)(a) (1962) (defining the crime of 'gross sexual imposition' as occurring when a man 'compels [a woman] to submit [to sexual intercourse] by any threat that would prevent resistance by a woman of ordinary resolution').
56. When a sexual assault statute provides that a serious 'personal' injury, as opposed to a serious 'bodily' injury, is an aggravating factor, it usually means that the statute endeavors to include serious nonphysical harms (like posttraumatic stress disorder, mental anguish, or depression) as cognizable injuries, which may not be readily understood as 'bodily' injuries in the alternative formulation. For a discussion of the significance of this, see infra note 48 and accompanying text.
57. Other aggravating factors include the commission of another felony during the rape and the use of a deadly weapon.
58. Richard G. Singer & John Q. La Fond, CRIMINAL LAW: EXAMPLES AND EXPLANATIONS 235 (4th ed. 2007).
59. For instance, Washington divides rape into three degrees, with first-degree rape involving sexual intercourse 'by forcible compulsion' and where the defendant '[i]nflicts serious physical injury.' WASH. REV. CODE § 9A.44.040(1), (1)(c) (2012). First-degree rape requires a minimum of three years confinement and does not allow for a suspended sentence. Id. § 9A.44.045. Second-degree rape, though, which lacks a requirement that the perpetrator inflict a 'serious physical injury,' does not carry a minimum sentence and does not remove the possibility of a suspended sentence. See id. § 9A.44.050. Some states do not differentiate rape in this way. See, e.g., ARK. CODE ANN. § 5-14-103(a) (2012) (establishing one class of rape that, among other possibilities, can require only 'forcible compulsion' or some type of incapacity by the victim).
60. MODEL PENAL CODE § 210.0(3); see, e.g., COLO. REV. STAT. § 18-1-901(3)(p) (2012) (''Serious bodily injury' means bodily injury which, either at the time of the actual injury or at a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.'); WYO. STAT. ANN. § 6-1-104(x) (2012) (''Serious bodily injury' means bodily injury which creates a substantial risk of death or which causes miscarriage, severe disfigurement or protracted loss or impairment of the function of any bodily member or organ....').
61. WIS. STAT. § 940.225(1)(a) (2012) (defining first-degree sexual assault as 'sexual contact or sexual intercourse with another person without consent of that person' that 'causes pregnancy or great bodily harm to that person').
62. United States v. Shannon, 110 F.3d 382, 386, 388 (7th Cir. 1997) (en banc) (arguing that rape cases in which the victim becomes pregnant 'must be considered one by one to see whether the conduct punished by the particular law under which the defendant was convicted involves a serious risk of physical injury' and concluding that when a defendant has sex with a thirteen-year-old minor, a resulting pregnancy 'could well be considered... a physical injury even if the pregnancy is normal'), abrogated in part on other grounds by Begay v. United States, 553 U.S. 137 (2008).
63. People v. Cross, 190 P.3d 706, 717 (Cal. 2008) (Corrigan, J., concurring) ('Factors such as the age of the victim, as well as the outcome, duration, or problems associated with a pregnancy may make its impact even more substantial.').
64. 340 F.3d 655, 656, 658 (8th Cir. 2003).
65. Bolstering the court's conclusion that the victim's pregnancy was a 'substantial bodily injury' was evidence that the victim experienced mental impairment because of the trauma of the rape and pregnancy. Id. (referring to a doctor's testimony that the victim suffered from depression and posttraumatic stress disorder, with symptoms including 'insomnia, hyper vigilance, slow psychomotor retardation, crying, dysphoric mood, and lack of verbal and physical communication'). The implication of United States v. Guy is that pregnancy may not be a substantial bodily injury for those women whose bodies are better able to cope with childbirth (or who undergo an abortion or suffer a miscarriage and, therefore, avoid the necessity of childbirth altogether), or who are more capable of coping with the mental and emotional fallout from a rape that results in pregnancy. This implication-that a judge or jury may evaluate the difficulty of a woman's labor and the extent of a woman's sadness and/or anger after being raped-may be a bit disquieting, and some scholars have expressed their displeasure with it.
66. Lauren Hoyson, Note, Rape is Tough Enough Without Having Someone Kick You from the Inside: The Case for Including Pregnancy as Substantial Bodily Injury, 44 VAL. U. L. REV. 565, 591 (2010).
67. 'Pregnancy has a substantial effect on all women, whether it involves complications or not. Furthermore, the effect of pregnancy on adult women is no less severe than on minors. Therefore, pregnancy provides grounds for increasing an assailant's sentence in all cases....' (footnotes omitted).
68. United States v. Yankton, 986 F.2d 1225, 1230 (8th Cir. 1993) (rejecting the lower court's finding that pregnancies resulting from rape could never constitute serious bodily injuries because of the belief that pregnancy is 'a pretty common, commonly understood but unfortunate result' of rape (internal quotation marks omitted)). The court in Yankton, while holding that pregnancy was not a de facto 'serious bodily injury' that would warrant an increased punishment in every instance, held that on the facts of the case before it, the victim's pregnancy could be a 'serious bodily injury' and remanded for a determination by the lower court whether the perpetrator ought to be punished more severely because of it. Id. In so holding, the court rejected the lower court's finding that pregnancy could never constitute a 'serious bodily injury' because it was always incidental to rape.
69. Hoyson, supra note 34, at 586-91 (surveying jurisdictions' rape laws and showing that while a minority of jurisdictions never treat pregnancy as an aggravating factor when grading rape, a sizeable number of jurisdictions take the alternative approach).
70. MICH. COMP. LAWS § 750.520a(n) (2012).
71. NEB. REV. STAT. § 28-318(4) (2012).
72. For one, enhancements for sexual assaults resulting in pregnancy raise issues concerning the fairness of strict liability in grading.
73. Kenneth W. Simons, Is Strict Criminal Liability in the Grading of Offences Consistent with Retributive Desert?, 32 OXFORD J. LEGAL STUD. 445 (2012).
74. Articulating the possibility that strict criminal liability in grading may result in excessively and unjustly punishing perpetrators of crimes. The sexual assault statutes under discussion exemplify this concern, as they do not require proof that a defendant had the specific intent to cause pregnancy in order to convict him of an aggravated sexual assault. See, e.g., Hagenkord v. State, 302 N.W.2d 421, 437 n.9 (Wis. 1981) (noting that the sexual assault statute 'creat[es] a type of 'strict liability'' as to 'specific intent to have intercourse'). Further, these statutes may be challenged on the grounds that moral luck should play no role in the punishment of convicted rapists: the argument is that, to the extent that two individuals both intend to rape their victims, they share the same culpability.
75. However, if one of those individuals has the 'bad luck' to cause his victim to become pregnant, he will be punished more harshly then his 'lucky' counterpart whose victim does not become pregnant. The concept of 'moral luck,' raised by Kant and made a topic of intense academic discussion by the writings of philosophers Thomas Nagel and Bernard Williams, refers to the idea of judging the moral quality of individuals by the consequences of the individual's actions, although those consequences may be beyond his or her control.
76. Thomas Nagel, Moral Luck, in MORTAL QUESTIONS 24, 26 (1979).
77. 'Where a significant aspect of what someone does depends on factors beyond his control, yet we continue to treat him in that respect as an object of moral judgment, it can be called moral luck.'. It remains an open philosophical question whether consequences over which we have no control should speak to our moral character; nevertheless, it is patent that the criminal law frequently considers 'moral luck' to be highly relevant. See id. at 29 ('[T]he penalty for attempted murder is less than that for successful murder-however similar the intentions and motives of the assailant may be in the two cases.').
78. Steven Sverdlik, Crime and Moral Luck, in MORAL LUCK 181, 182 (Daniel Statman ed., 1993)
79. '[T]he law typically punishes success more severely, and... it punishes the unlucky negligent person more severely, as well.'.
80. Nationally, an estimated five percent of rapes involving victims between the ages of twelve and forty-five lead to pregnancy.
81. Melisa M. Holmes et al., Rape-Related Pregnancy: Estimates and Descriptive Characteristics from a National Sample of Women, 175 AM. J. OBSTETRICS & GYNECOLOGY 320, 320-322 & tbl.2 (1996).
82. This amounts to approximately 32,000 pregnancies per annum in women over eighteen. Id. at 322. The sexual assault statutes at issue result in tens of thousands of perpetrators potentially being punished more severely for the crimes that they have committed each year.
83. WIS. STAT. § 940.225(1)(a) (2012).
84. NEB. REV. STAT. § 28-318(4) (2012) (emphasis added).
85. MICH. COMP. LAWS § 750.520a(n) (2012) (emphasis added).
86. People v. Cross, 190 P.3d 706, 712 (Cal. 2008) (holding that a pregnancy could be considered a 'great bodily injury' for the purposes of a statute providing for longer sentences for defendants convicted of certain felonies that result in 'great bodily injury').
87. It is worth noting that it is more typical for lawyers to speak of mental or emotional harms, as opposed to mental or emotional injuries. See, e.g., RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 45 (2010). Nevertheless, it is also true that the language of mental or emotional injury is not unheard of within the law. See, e.g., Minneci v. Pollard, 132 S. Ct. 617, 625 (2012) (noting that '[p]risoners bringing federal lawsuits... ordinarily may not seek damages for mental or emotional injury unconnected with physical injury' (emphasis added)).
88. Although the more common parlance among lawyers may be that of mental or emotional 'harms,' this Article insists upon using the language of mental or emotional 'injuries.' This is primarily because the sexual assault statutes under analysis generally use the language of 'injury'; accordingly, if what they recognize are the devastating mental and emotional effects of unwanted pregnancy, then they construct pregnancy as a mental or emotional 'injury,' not a mental or emotional 'harm.' Moreover, lawyers sometimes distinguish between harms and injuries by using the former to refer to a hurt or loss of some sort while using the latter to refer to an event that is cognizable and remediable by law.
89. BLACK'S LAW DICTIONARY 393 (6th ed. 1990) (defining 'damnum absque injuria' as '[l]oss, hurt, or harm without injury in the legal sense; that is, without such breach of duty as is redressible by a legal action'). Nevertheless, when criminal statutes speak of 'substantial bodily injury' or the like, they are not referring to 'injury' in this narrow, technical sense-as a legal injury; rather, they are speaking of 'injury' as a layperson speaks of injury-as a literal injury. Thus, if the relevant sexual assault statutes will have an effect on cultural understandings of pregnancy, it will not be because they have constructed pregnancy as a legal injury. (However, it is possible that they could have cultural effects even if they constructed pregnancy as a legal injury, insofar as legal understandings influence culture in unexpected ways.) Rather, it will be because they have constructed pregnancy as a literal injury. See discussion supra text accompanying notes 42-43.
90. Because of the physical and nonphysical effects that pregnancy has on women, the Supreme Court in Doe v. Bolton, the companion case to Roe v. Wade, interpreted the term 'health' in a Georgia statute that prohibited abortions except those endangering a woman's life or 'health' as implicating both physical and mental health. Doe v. Bolton, 410 U.S. 179, 192 (1973) (holding that, when deciding whether a pregnancy endangers a woman's health, a physician's 'medical judgment may be exercised in the light of all factors-physical, emotional, psychological, familial, and the woman's age-relevant to the well-being of the patient,' as '[a]ll these factors may relate to health').
91. In other contexts, commentators have criticized laws and arguments that focus on the physical aspects of pregnancy to the exclusion of its nonphysical effects.
92. Deborah L. Brake, The Invisible Pregnant Athlete and the Promise of Title IX, 31 HARV. J.L. & GENDER 323, 345-347 (2008).
93. Observing that '[p]regnancy implicates women's identities, life courses, and relationships to others in ways that knee injuries and ankle sprains do not,' and arguing that when pregnancy is analogized to other disabilities in judicial or legislative efforts to determine what precisely 'equal,' nondiscriminatory treatment is, the analogy obfuscates the 'social and relational aspects of pregnancy'.
94. Jennifer S. Hendricks, Body and Soul: Equality, Pregnancy, and the Unitary Right to Abortion, 45 HARV. C.R.-C.L. L. REV. 329, 364 (2010).
95. 'Pregnancy itself, when unwanted, involves both a bodily invasion and a forced social relationship of caretaking.'.
96. It is likely that the legislators and judges who are open to treating pregnancy as a substantial bodily injury that can aggravate a rape conceptualize pregnancy as a species of mental or emotional injury-as a harm to a woman's identity or dignity. See discussion infra Part II.B. However, this conceptualization of pregnancy is likely accepted precisely because it does not trouble positive constructions of pregnancy as profoundly as an alternative construction in which pregnancy is understood as a physical injury. The aim of this Article is to destabilize, as deeply as possible, positive constructions of pregnancy. Accordingly, it foregrounds pregnancy as a physical injury and explores the implications thereof.
97. Discussion infra Part II.B.
98. Martha Chamallas & Jennifer B. Wriggins, THE MEASURE OF INJURY: RACE, GENDER, AND TORT LAW (2010).
99. Analyzing the historical privileging of physical injuries in tort law. Chamallas and Wriggins observe that courts were reluctant to recognize emotional injuries that were independent of a physical injury (or the narrow escape of a physical injury), due to the purported difficulty in verifying the genuineness of emotional injuries, as well as the belief that emotional injuries were not as serious as physical injuries. Id. at 90. The refusal to recognize emotional injuries had the effect of ignoring harms of the types often suffered by women. See id. passim. While the Third Restatement of Torts, the most recent revision, recognizes purely emotional injuries, it is notable that the drafters, after debate, decided to maintain the distinction between emotional and physical injuries. See RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM (2010).
100. As Jennifer Hendricks notes, most unwanted pregnancies are unwanted primarily because of their nonphysical implications rather than physical burden. See Hendricks, supra note 47, at 351-52 ('[T]he physical burden of normal pregnancy, while substantial, is not what prompts most abortions.... Women's reasons for having abortions have much more to do with the life-altering arrival of a(nother) baby than with morning sickness or the risk of eclampsia.' (footnote omitted)).
101. Analogues of this argument were made in the debates surrounding how pregnancy should be treated within antidiscrimination law.
102. Lucinda M. Finley, Transcending Equality Theory: A Way Out of the Maternity and the Workplace Debate, 86 COLUM. L. REV. 1118, 1147 (1986).
103. Presenting the view of many special treatment proponents that 'pregnancy is indeed distinct from any other human condition, and that it is neither necessary, desirable, nor possible to eliminate this biologically rooted sex difference'.
104. Wendy W. Williams, Equality's Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate, 13 N.Y.U. REV. L. & SOC. CHANGE 325, 326-327 (1984-1985).
105. Noting that critics of the argument that pregnancy should not be afforded special, or preferential, treatment, but should be afforded the same treatment as other disabilities, believe that such a paradigm 'precludes recognition of pregnancy's uniqueness, and thus creates for women a Procrustean bed-pregnancy will be treated as if it were comparable to male conditions when it is not, thus forcing pregnant women into a workplace structure designed for men').
106. Relatedly, Hendricks writes that 'feminists should avoid bifurcating pregnancy into physical and social components. Any... analysis should include both aspects, or, if focused on only one aspect, should acknowledge its incompleteness.' Hendricks, supra note 47, at 373. This should serve as this Article's acknowledgment.
107. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 306, 313-14 (2000) (holding that a Texas school district's policy that allowed the delivery of an 'invocation and/or message' at football games violated the First Amendment's Establishment Clause, and arguing that the Court is not only concerned 'with the serious constitutional injury that occurs when a student is forced to participate in an act of religious worship,' but is also concerned with 'other different, yet equally important, constitutional injuries' (emphases added) (internal quotation mark omitted)).
108. Armstrong v. United States, 364 U.S. 40, 48 (1960) (establishing the oft-quoted principle that 'not every destruction or injury to property by governmental action' is a ''taking' in the constitutional sense' (emphasis added)).
109. Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 328 (1996).
110. Noting the concept of 'injury to the market' in the context of copyright infringement and the harm that a copyright holder suffers.
111. Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987) (making the oftquoted observation that '[e]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration' (emphasis added)).
112. Supra note 45 and accompanying text.
113. It bears noting that the criminal law recognizes a species of mental injury insofar as it provides that the perpetrator of an assault need only have intended to cause fear of causing serious bodily harm. See, e.g., MODEL PENAL CODE § 211.1(1)(c) (1962) (defining simple assault as 'attempts by physical menace to put another in fear of imminent serious bodily injury').
114. Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 DUKE L.J. 431, 457-476.
115. Arguing that racist speech should be recognized as a legal injury, undeserving of protection under the First Amendment.
116. Catharine A. MacKinnon, Commentary, Not a Moral Issue, 2 YALE L. & POL'Y REV. 321, 325 (1984).
117. Arguing that pornography should be recognized as a legal injury to women inasmuch as it is a 'form of forced sex, a practice of sexual politics, an institution of gender inequality'.
118. It appears to be quite counterintuitive to conceptualize pregnancy as a literal injury: at the beginning of a yoga class that the author attended recently, the instructor asked if anyone preparing to take the class had any injuries about which she should know. One man offered that he was suffering from a pulled hamstring muscle. One woman offered that she was recovering from knee surgery. Then, a woman raised her hand and said, 'I'm pregnant.... Well, I guess that's not an injury.' The room erupted in laughter. After the laughter died down, the instructor clarified her initial question by asking, 'Is anyone else injured... or pregnant?'.
119. David M. Engel, Lumping as Default in Tort Cases: The Cultural Interpretation of Injury and Causation, 44 LOY. L.A. L. REV. 33, 53 (2010).
120. '[T]he very concept of an 'injury' is a cultural construct....'.
121. As David Engel writes, [I]njuries are not clearly defined social facts about which everyone would agree. An outside observer might conclude that a person had suffered an injury, but the individual in question might not share that perception. The reverse might also be true-an outsider might not perceive an injury when the individual in question is certain that he or she has suffered harm.
122. Sabrina Bonanno, Comment, Pregnancy as a Result of Unlawful but Non-Forcible Sexual Conduct Is Not a Form of Great Bodily Injury, 44 NEW ENG. L. REV. 193, 204 (2009).
123. While this commentator rests her disapproval of such laws on the grounds that the term 'injury' is not typically understood as indexing a healthy pregnancy, her insistence upon referring to pregnancy as 'one of life's greatest gifts' demonstrates that the crux of her hostility toward the laws lies in an unwillingness to accept the laws' betrayal of the positive construction of pregnancy. Cf. id. at 204-05 ('Pregnancy does not fall within the plain and ordinary meaning of the term 'bodily injury.'... Pregnancy cannot be considered harmful or damaging to the body since it is 'one of life's greatest gifts.'' (footnotes omitted)).
124. Caitlin E. Borgmann, The Meaning of "Life": Belief and Reason in the Abortion Debate, 18 COLUM. J. GENDER & L. 551, 581 (2009).
125. Noting that many advocates of abortion restrictions favor exceptions for pregnancies caused by rape.
126. st Sess. (S.D. 2006) (repealed 2006) (banning abortions in South Dakota and providing no exception for abortions sought subsequent to rape); cf. Hendricks, supra note 47, at 336 (arguing that abortion bans that make exceptions for pregnancies that are the result of rape cannot be justified on the moral status of the fetus, as the 'fetus produced by a rape is no less alive than any other, suggesting that the real concern may be the woman's culpability for voluntary sex').
127. This is not an assertion that all pregnancies should be understood as injuries, as some radical feminists once championed.
128. Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 29 (1988).
129. Describing radical feminists' argument that '[p]regnancy itself, independent of male contempt, is invasive, dangerous and oppressive; it is an assault on the physical integrity and privacy of the body'). This Article asserts, quite differently, that only unwanted pregnancy should be understood as an injury.
130. Quite evocatively, Eileen McDonagh describes the feeling of bearing an unwanted pregnancy as 'excruciating.'
131. Eileen L. Mcdonagh, BREAKING THE ABORTION DEADLOCK: FROM CHOICE TO CONSENT 193 (1996).
132. Brief of Seventy-Seven Organizations Committed to Women's Equality as Amici Curiae in Support of Appellees, Webster v. Reprod. Health Servs., 492 U.S. 490 (1989) (No. 88-605), 1989 WL 1127689, at 10 n.22 ('[A] woman desiring to carry her pregnancy to term perceives the growing fetus as a welcome presence within her body rather than an invasion of her privacy.').
133. 476 U.S. 747 (1986).
134. The power of NARAL's brief underscores the need for more phenomenological accounts of unwanted pregnancy. See West, supra note 67, at 66 ('[W]e need to explain... the harms and dangers of invasive pregnancy. We need to explain that this harm has nothing to do with invading the privacy of the doctor-patient relationship, or the privacy of the family, or the privacy of the marriage; but that rather, it has to do with invading the physical boundaries of the body and the psychic boundaries of a life.').
135. Robin L. West, The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 15 WIS. WOMEN'S L.J. 149 (2000).
136. Articulating the need for a phenomenology of women's lives. Indeed, it suggests that an ethnography of unwanted pregnancy is necessary.
137. Brief for the National Abortion Rights Action League et al. as Amici Curiae in Support of Appellees, Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (Nos. 84-495, 84-1379), 1985 WL 669630.
138. West, supra note 67, at 35.
139. Deborah Brake argues that when pregnancy is defined as or analogized to a disability in the context of antidiscrimination law, it 'focuses on the disabling rather than the enabling physical features of pregnancy. The wonderment of the pregnant body, the heightened awareness of the body that many pregnant women experience, and the anticipation that accompanies the bodily transformation are lost in the comparison.' See Brake, supra note 47, at 345 (footnote omitted). Brake correctly describes women's experiences of wanted pregnancies. However, the 'heightened awareness of the body' is not experienced as a 'wonderment' when the pregnancy is unwanted.
140. Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 YALE L.J. 1694, 1706-1735 (2008).
141. Hereinafter Siegel, Dignity, (tracing the origins and spread of woman-protective antiabortion argumentation).
142. Reva B. Siegel, Lecture, The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument, 57 DUKE L.J. 1641 (2008).
143. Documenting the shift from antiabortion advocacy that focused on the harm to the fetus to advocacy that focused on the harm to the woman.
144. Reva B. Siegel, The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions, 2007 U. ILL. L. REV. 991, 993.
145. Analyzing 'the state's claimed interest in protecting women from abortion'.
146. Siegel, Dignity, supra note 79, at 1713 ('Without a doubt, the dominant argument of the antiabortion movement over the last several decades has been that abortion wrongfully ends the life of the unborn. Argument over the morality of abortion focused on the ontological status of the embryo/fetus....').
147. Gonzales v. Carhart (Carhart II), 550 U.S. 124, 159 (2007).
148. Siegel, Dignity, supra note 79, at 1727 n.95; see also Carhart II, 550 U.S. at 159 (citing Brief of Sandra Cano, the Former 'Mary Doe' of Doe v. Bolton, and 180 Women Injured by Abortion as Amici Curiae in Support of Petitioner, Carhart II, 550 U.S. 124 (No. 05-380)). For a description of Doe v. Bolton, 410 U.S. 179, 192 (1973), see supra note 46.
149. Siegel, Dignity, supra note 79 at 1733-34 (noting the joy with which antiabortion advocates greeted Carhart II's reflection of WPAA and their plans to expand their efforts).
150. Maya Manian, The Irrational Woman: Informed Consent and Abortion Decision-Making, 16 DUKE J. GENDER L. & POL'Y 223, 261-262 (2009).
151. Connecting the wave of regulations of the informed consent process to abortion with WPAA.
152. Siegel, Dignity, supra note 79, at 1734 (observing that some antiabortion activists hope that Carhart II signals Justice Kennedy's willingness to uphold a ban on abortion altogether).
153. Borgmann, supra note 65, at 558-60 (noting that those who are opposed to abortion tend to construct the fetus as a rights-holding 'person').
154. Discussion supra notes 65-66 and accompanying text.
155. Abortion and Birth Control, POLLING REPORT, http://www.pollingreport.com/abortion2.htm (last visited Feb. 24, 2013) (reporting that a majority of those polled in a survey conducted from October 23 to 24, 2007 indicated that an abortion should be legal when needed to protect a woman's mental health). As 'mental health' is a capacious (and controversial) category, it is likely that even more of those polled would agree that abortion should be legal when needed to protect a woman's physical health.
156. Jim Kuhnhenn, Obama on Late Abortion: Mental Distress Doesn't Justify It, ASSOCIATED PRESS (July 3, 2008), http://www.huffingtonpost.com/huff-wires/20080703/obama-abortion.
157. Noting that health exceptions are 'considered a legal loophole by abortion opponents'); Final Presidential Debate, supra note 20 (quoting Senator McCain's response to Obama's statement during the 2008 presidential debate that he supports abortion access when the 'health' of the pregnant woman is jeopardized: 'Just again, the example of the eloquence of Senator Obama. He's health for the mother [sic]. You know, that's been stretched by the pro-abortion movement in America to mean almost anything. That's the extreme pro-abortion position, quote, 'health'').
158. Some radical feminists have argued that, given the sexism and unequal power relations between the genders that structure our society, it is impossible for women to consent to sex.
159. Marie T. Reilly, A Paradigm for Sexual Harassment: Toward the Optimal Level of Loss, 47 VAND. L. REV. 427, 475 (1994).
160. Noting the radical feminist view that sexual intercourse 'is so inherently coercive, so fraught with domination and submission, that consent to it by a woman is impossible'. If what these radical feminists describe is true, then it collapses the conceptual apparatus in which pregnancies subsequent to rape/nonconsensual sex are injuries while pregnancies subsequent to consensual sex are not injuries. Because pregnancies that result from consensual sex would exist in theory alone, all pregnancies would be actual injuries.
161. MODEL PENAL CODE § 2.11(1) (1962) ('The consent of the victim to conduct charged to constitute an offense... is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.').
162. 720 ILL. COMP. STAT. 5/21-1.3(a) (2012) ('A person commits criminal defacement of property when the person knowingly damages the property of another by... the use of paint or any other similar substance.... It is an affirmative defense to a violation of this Section that the owner of the property damaged consented to such damage.').
163. MODEL PENAL CODE § 221.2 ('A person commits [criminal trespass] if, knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any building or occupied structure....').
164. Supra Part I.B.
165. Should a woman consent to the pregnancy, however, it may be fair to conclude that she cannot claim that the pregnancy is a literal injury. This is consistent with our experience of injuries in other areas of our lives. If a person does not consent to having her nose broken, she may legitimately recognize her broken nose as an injury. However, if this same person consents to having her nose broken, during a rhinoplasty, for example, it may preclude her and others from recognizing the broken nose as an injury. The broken nose may be a postsurgery condition, but it is not an injury. Thanks to Susan Appleton for this example.
166. MCDONAGH, supra note 68, at 66 ('Sexual intercourse merely causes the risk that pregnancy will occur, and consent to engage in sexual intercourse with a man, for any and all fertile women, implies consent to expose oneself to that risk.').
167. In response to the question of whether a woman who consents to sex also consents to pregnancy, Judith Jarvis Thomson famously answered in the negative by giving the example of a person who voluntarily opens a window, thereby exposing herself to the risk of being the victim of a burglary: If the room is stuffy, and I therefore open a window to air it, and a burglar climbs in, it would be absurd to say, 'Ah, now he can stay, she's given him a right to the use of her house-for she is partially responsibly for his presence there, having voluntarily done what enabled him to get in, in full knowledge that there are such things as burglars, and that burglars burgle.'.
168. Judith Jarvis Thomson, A Defense of Abortion, 1 PHIL. & PUB. AFF. 47, 58-59 (1971).
169. MCDONAGH, supra note 68, at 176 ('A woman who puts herself at risk by walking down a deserted street alone at night or by behaving or dressing in ways that could be interpreted as sexually provocative, still retains the right to say no to sexual intercourse.').
170. Brief of Seventy-Seven Organizations Committed to Women's Equality as Amici Curiae in Support of Appellees, supra note 69, at 16 n.5 (arguing that when women's contraception fails, they 'no more 'consent' to pregnancy than pedestrians 'consent' to being struck by drunk drivers').
171. Kenneth W. Simons, The Puzzling Doctrine of Contributory Negligence, 16 CARDOZO L. REV. 1693, 1694 (1995).
172. Exploring the doctrines of contributory and comparative negligence in the civil context.
173. In 2006, the maternal mortality rate in the United States was 13.3 deaths per 100,000 live births. See AMNESTY INT'L, DEADLY DELIVERY: THE MATERNAL HEALTH CARE CRISIS IN THE USA 1 (2010), available at http://www.amnestyusa.org/sites/default/files/pdfs/deadlydelivery.pdf. In the United States, the possibility of death is less remote for black women than for white women.
174. Khiara M. Bridges, REPRODUCING RACE: AN ETHNOGRAPHY OF PREGNANCY AS A SITE OF RACIALIZATION 107-111 (2011).
175. Discussing racial disparities in maternal mortality rates.
176. People v. Sargent, 150 Cal. Rptr. 113, 116 (Ct. App. 1978) ('Pregnancy can have one of three results-childbirth, abortion or miscarriage. Childbirth is an agonizing experience.'); see also Carolyn B. Ramsey, Restructuring the Debate over Fetal Homicide Laws, 67 OHIO ST. L.J. 721, 763 (2006) ('Labor pain is severe enough for local anesthesia, which comes with attendant risks, and if the doctor delivers the baby through Caesarean section, the mother must undergo the danger and discomfort of a major operation.').
177. Nevertheless, one can imagine a jurisdiction that would not consider it perverse at all to punish more severely those rapists whose victims terminate their pregnancies while punishing less severely those rapists whose victims carry their pregnancies to term. Indeed, a state that considers itself a protector of fetal life might find the result just: the rape is aggravated because it led to the destruction of a fetus. Moreover, the destruction of the fetus may be thought to lead necessarily to the (aggravated) harm to the woman. See Gonzales v. Carhart (Carhart II), 550 U.S. 124, 159 (2007) (contending that abortion harms women by claiming that women may 'come to regret their choice to abort the infant life,' which may result in '[s]evere depression and loss of esteem').
178. Indeed, the trimester framework articulated in Roe v. Wade was justified, in part, on the majority's recognition that abortions performed during the first twelve weeks of pregnancy pose fewer health risks than does childbirth. 410 U.S. 113, 163 (1973) (providing that the state's interest in the health of the pregnant woman becomes compelling at the end of the first trimester because 'of the now-established medical fact... that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth' and, accordingly, the state may at that point 'regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health').
179. Carhart II, 550 U.S. at 183 (Ginsburg, J., dissenting) (criticizing the majority's invocation of an 'antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from '[s]evere depression and loss of esteem'' (alteration in original)).
180. Ramsey, supra note 107, at 763 (itemizing physical effects of pregnancy); Hoyson, supra note 34, at 583-84 (same). For a remarkable catalogue of the physical effects of a normal pregnancy.
181. Donald H. Regan, Rewriting Roe v. Wade, 77 MICH. L. REV. 1569, 1579-1582 (1979).
182. Noting common bodily changes that occur during pregnancy, ranging from nausea and insomnia to carpal tunnel syndrome and shortness of breath.
183. In In re Union Pacific Railroad Employment Practices Litigation, the Nebraska District Court supported its argument that pregnancy is a disease that ought to be covered in the defendant's health insurance plan by describing its physical effects on the body and suggesting that if any other condition caused such dramatic changes, it would be readily recognized as a disease. 378 F. Supp. 2d 1139, 1147-48 (D. Neb. 2005). The court acknowledged the contentiousness of referring to pregnancy as a 'disease,' observing that it could be taken to 'disparage the miracle of birth.' Id. at 1147 n.20. However, the court insisted upon using the terminology because '[p]regnancy, but for its priceless procreative product, however, is a disease.'.
184. MCDONAGH, supra note 68, at 70-72 (describing the physiological changes that occur during a normal pregnancy and underscoring that it is the fetus that causes those changes).
185. McDonagh's argument begins with the recognition that it is the fetus that causes the massive changes in a woman's body during pregnancy. Id. at 6 (observing that a woman desiring an abortion 'seeks to expel the coercive imposition of the one and only agent capable of making her pregnant: the fetus'). Should any private actor cause these changes to a woman, she would be justified in using deadly force to stop the actor.
186. Moreover, McDonagh argues that not only is the woman justified in acting in self-defense against a fetus that occupies her body without her consent, but she may call upon the state to protect her against the intrusive acts of the fetus-insofar as the state protects citizens from the liberty-restricting, violent acts of other private actors. Id. at 19 ('[T]he primary purpose of the state as envisioned by founders of the American nation is to stop intruders on behalf of those they threaten.'). It is upon this ground that McDonagh bases indigent women's rights to government assistance in obtaining an abortion.
187. McDonagh, supra note 13, at 1099 (describing the popular view of the fetus as 'innocent' with 'no intention of affecting a woman's body and no ability to control its effects upon her').
188. That the fetus is an aggressor runs counter to the construction of the fetus as a 'life'-a moral, theological, spiritual notion that exceeds mere biological life. For an exploration of this notion of 'life' and its ability to unsettle abortion jurisprudence.
189. Khiara M. Bridges, Capturing the Judiciary: Carhart and the Undue Burden Standard, 67 WASH. & LEE L. REV. 915 (2010).
190. 75 C.J.S. Rape § 15 (West 2012) ('Other than penetration of the female sex organ by the male sex organ, infliction of physical injury is not an element of the offense of rape.').
191. NAT'L RESEARCH COUNCIL, UNDERSTANDING VIOLENCE AGAINST WOMEN 75 (Nancy A. Crowell & Ann W. Burgess eds., 1996).
192. Samuel H. Pillsbury, Crimes Against the Heart: Recognizing the Wrongs of Forced Sex, 35 LOY. L.A. L. REV. 845, 851 (2002).
193. Describing rape as a 'crime against the spiritual self', see also id. at 893 (quoting descriptions of rape as an injury to the heart and soul.
194. Lynn Hecht Schafran, Maiming the Soul: Judges, Sentencing and the Myth of the Nonviolent Rapist, 20 FORDHAM URB. L.J. 439, 446 (1993).
195. Arguing that 'the site of the inner self, the interior body space, is violated' by rape and quoting a description of rape as an 'injury to the 'envelope' of the self'. An impassioned description of the injury of rape is also contained in Chief Justice Burger's dissent in Coker v. Georgia, in which the Court held that punishing rape with the death penalty was cruel and unusual and, consequently, unconstitutional: A rapist not only violates a victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process.
196. The long-range effect upon the victim's life and health is likely to be irreparable; it is impossible to measure the harm which results. Volumes have been written by victims, physicians, and psychiatric specialists on the lasting injury suffered by rape victims. Rape is not a mere physical attack-it is destructive of the human personality.... Victims may recover from the physical damage of knife or bullet wounds, or a beating with fists or a club, but recovery from such a gross assault on the human personality is not healed by medicine or surgery.
197. 433 U.S. 584, 611-12 (1977) (Burger, C.J., dissenting).
198. Pillsbury, supra note 120, at 892 (observing that when rape victims describe the injury occasioned by rape, they often speak in terms of a 'fundamental loss of identity').
199. Supra notes 62-63 and accompanying text.
200. West, supra note 67, at 31 (noting that the danger and fear of unwanted pregnancy is 'gender-specific' and stating that '[i]t is a fear which grips women, distinctively, and it is a fear about which men, apparently, know practically nothing').
201. 550 U.S. 124 (2007).
202. Many of the abortions proscribed by the federal Partial-Birth Abortion Ban Act would be sought because of fetal anomalies that are detected during later stages of pregnancy or medical conditions that come to threaten the health of the woman as the pregnancy progresses. See Hendricks, supra note 47, at 369 ('In [some] pre-viability cases [where the procedure was used], and in all post-viability cases, the need for abortion is triggered by fetal deformities or by a threat to the pregnant woman's life or health.'). This is interesting because, but for these medical concerns, many of these pregnancies would be wanted pregnancies. See id. ('[M]any of the abortions to which the federal ban applies involve wanted pregnancies.'). Thus, Carhart II functions to make it more difficult for women to terminate pregnancies that are experienced positively, but are nonetheless physical injuries to the woman.
203. 505 U.S. 833 (1992).
204. The most dramatic demonstration of Carhart II's ambivalence toward the continuation of Casey as good law is the majority's refusal to explicitly say as much, and its decision to instead 'assume' the principles that Casey stated for the purpose of deciding the case before it. See Carhart II, 550 U.S. at 146 (stating that the Court 'assume[s] the following principles for the purposes of this opinion' and then outlining the holdings of Casey).
205. Casey, 505 U.S. at 876 (plurality opinion) (rejecting the trimester framework and stating that the undue burden standard should be used to adjudicate the constitutionality of abortion regulations).
206. It is worth noting that the limitation of the abortion right that Casey effected was precisely to allow states to compel women who were experiencing their pregnancies subversively to hear positive descriptions of their pregnancies. See id. at 872 (plurality opinion) ('Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage [women] to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term....').
207. Moreover, Casey articulates a concern-taken to the extreme in Carhart II-that women who experience their pregnancies as injuries would actually be injured by the abortion if they were to terminate a pregnancy without having heard information that would reveal their pregnancies to be, in actuality, positive. Id. at 882 (plurality opinion) ('In attempting to ensure that a woman apprehend the full consequences of her decision, the State [by mandating that women receive specific information during the informed consent process] furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.').
208. Gonzales v. Carhart (Carhart II), 550 U.S. 124, 159-60 (2007) ('The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fastdeveloping brain of her unborn child, a child assuming the human form.').
209. Casey, 505 U.S. at 872-73 (plurality opinion) (overturning Roe's trimester framework, thereby enabling states to pass laws that would require women to hear moral perspectives on the fetus, as well as to establish 'procedures and institutions to allow adoption of unwanted children' and state assistance programs for women who choose to retain custody).
210. Paula Abrams, The Tradition of Reproduction, 37 ARIZ. L. REV. 453, 487 (1995).
211. Erin Daly, Reconsidering Abortion Law: Liberty, Equality, and the New Rhetoric of Planned Parenthood v. Casey, 45 AM. U. L. REV. 77, 85-86 (1995).
212. Scott A. Moss & Douglas M. Raines, The Intriguing Federalist Future of Reproductive Rights, 88 B.U. L. REV. 175, 178 (2008).
213. The Court clearly regarded abortion as a treatment that is prescribed to a woman in Doe v. Bolton, 410 U.S. 179 (1973), a companion case to Roe v. Wade. There, the Court emphasized that it is the physician who must decide whether to recommend an abortion and, when doing so, must consider 'all factors-physical, emotional, psychological, familial, and the woman's age-relevant to the well-being of the patient' as '[a]ll these factors may relate to health.'.
214. Casey, 505 U.S. at 846 (confirming 'the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health').
215. Gonzales v. Carhart (Carhart II), 550 U.S. 124, 165 (2007) (concluding that the federal Partial-Birth Abortion Ban Act 'does not require a health exception').
216. Kimberly D. Wilcoxon, Casenote, Statutory Remedies for Judicial Torts: The Need for Wrongful Birth Legislation, 69 U. CIN. L. REV. 1023, 1025 (2001).
217. Observing that birth-related torts 'are used to allege that, but for the negligence of a physician, a baby would not have been born'. In all cases, the physician is not the direct cause of any injuries suffered by the fetus.
218. Shari S. Weinman, Note, Birth Related Torts: Can They Fit the Malpractice Mold?, 56 MO. L. REV. 175, 176 (1991).
219. Wilcoxon, supra note 149, at 1028-30 (noting inconsistencies in the way that states schematize birth-related torts).
220. Catherine Palo, Cause of Action for Wrongful Birth or Wrongful Life, in 23 CAUSES OF ACTION (SECOND) 55, § 4 (West 2012).
221. Wilcoxon, supra note 149, at 1026-27 (explaining that the injury in wrongful life claims is that 'the child was harmed by being born with birth defects, rather than being aborted').
222. Palo, supra note 151, §§ 4, 11 (detailing the large number of jurisdictions that have recognized the wrongful birth cause of action and the large number of jurisdictions that have refused to recognize the wrongful life cause of action); Wilcoxon, supra note 149, at 1032 (making the same observation).
223. Wilcoxon, supra note 149, at 1032 (noting the difficulty that courts have in calculating damages in wrongful life claims).
224. Katherine Say, Note, Wrongful Birth: Preserving Justice for Women and Their Families, 28 OKLA. CITY U. L. REV. 251, 265 (2003).
225. Noting that the injury in wrongful birth litigation is '[i]nterference with the patient's right to autonomy in the fundamental area of reproduction', Weinman, supra note 149, at 177 (observing that the injury in wrongful birth claims is that 'the provider's negligence deprived the parents of the choice between carrying the pregnancy to term or obtaining an abortion'); Wilcoxon, supra note 149, at 1041 (noting that the claimant's injury in wrongful birth suits is the inability to make a choice about whether to become a parent or not).
226. Julie Gantz, Note, State Statutory Preclusion of Wrongful Birth Relief: A Troubling Re-Writing of a Woman's Right to Choose and the Doctor-Patient Relationship, 4 VA. J. SOC. POL'Y & L. 795, 815 (1997).
227. Noting that, in a wrongful birth suit, the injury may also be conceptualized as 'the birth of an impaired child'.
228. Jacob A. Stein, 2 STEIN ON PERSONAL INJURY DAMAGES § 12:7 (3d. ed., West 2012).
229. 'The majority of states recognize the cause of action [for wrongful birth] but limit the economic damages to the additional medical, hospital, and supportive expense occasioned by the child's impairment as contrasted to the expenses incurred with respect to a normal, healthy child.'). As expected, states differ in their approaches to awarding damages for wrongful birth claims. See, e.g., Berman v. Allan, 404 A.2d 8, 14 (N.J. 1979) (awarding damages to compensate the plaintiffs for their 'mental and emotional anguish upon their realization that they had given birth to a child afflicted with Down's Syndrome'); Wilcoxon, supra note 149, at 1027 n.50 (noting that states may award damages for the costs associated with the pregnancy and birth; pain, suffering, and emotional distress; and costs of caring for the child even when he has reached adulthood).
230. Wilcoxon, supra note 149, at 1032.
231. Weinman, supra note 149, at 179 (noting this rationale for refusal of recognition by some courts).
232. Wilcoxon, supra note 149, at 1027 (explaining that for wrongful life claims, damages 'are the differences in cost between living with birth defects, and not existing at all'). While most jurisdictions refuse to recognize wrongful life claims, those few jurisdictions that do generally decline to make this calculation. For the most part, they award damages for the extraordinary costs of raising a severely disabled child. See id. at 1027 n.46 ('Traditional tort principles would suggest that the child recover for all the expenses of living, but courts are hesitant to award these damages. The few courts that have allowed wrongful life [claims] only allow for the extraordinary expenses arising from the birth defects.' (citation omitted)).
233. Becker v. Schwartz, 386 N.E.2d 807, 812 (N.Y. 1978) ('Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson's choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make.').
234. Palo, supra note 151, § 11 (noting that rejections of the claim rest on 'doctrinal unwillingness to accept that life, even in an impaired state, is worse than nonexistence, or on the metaphysical or the practical inability to measure the value of an impaired life as opposed to utter non-existence').
235. Wilcoxon, supra note 149, at 1027-28 (explaining that for wrongful conception claims, 'there is usually no claim that the baby has birth defects, but merely that the baby was born').
236. Typical cases of wrongful conception involve a physician's failure to successfully sterilize a man or a woman, or a pharmacist's failure to competently dispense contraceptives.
237. Wilcoxon, supra note 149, at 1027-1028 & n.51.
238. A.J. Stone, III, Comment, Consti-tortion: Tort Law as an End-Run Around Abortion Rights After Planned Parenthood v. Casey, 8 AM. U. J. GENDER SOC. POL'Y & L. 471, 479 (2000).
239. Noting that courts generally disallow the recovery of damages for the costs of raising a healthy child, Weinman, supra note 149, at 179 (noting that most courts 'allow recovery for medical expenses, pain and suffering during the pregnancy, and loss of consortium' and observing that some courts offset the damages awarded by the benefits of being a parent). Maine has passed legislation making explicit that damages can only be rewarded for medical costs associated with pregnancy and birth and not for the costs of raising the healthy child: [I]t is contrary to public policy to award damages for the birth or rearing of a healthy child.... No person may maintain a claim for relief or receive an award for damages based on the claim that the birth and rearing of a healthy child resulted in damages to him. A person may maintain a claim for relief based on a failed sterilization procedure resulting in the birth of a healthy child and receive an award of damages for the hospital and medical expenses incurred for the sterilization procedures and pregnancy, the pain and suffering connected with the pregnancy and the loss of earnings by the mother during pregnancy. ME. REV. STAT. tit. 24, § 2931 (2012).
240. Wilcoxon, supra note 149, at 1033 (noting that the reason why many states' legislation prohibiting the recognition of birth-related torts resemble one another is because 'national pro-life interest groups lobbied for the legislation'). The claim is generally that recognizing life, even disabled life, as an injury-and, relatedly, recognizing as an injury the deprivation of the right to undergo an abortion to prevent the birth of that life-is an affront to the sanctity of life. As one court asserted, Make no mistake. These cases are not about birth, or wrongfulness, or negligence, or common law. They are about abortion.... For those who cannot accept the premise [that abortion is a legal choice for a woman], no one should ever be compensated for injury just because the choice of abortion has been thwarted. Schloss v. Miriam Hosp., No. C.A. 98-2076, 1999 WL 41875, at 4 (R.I. Super. Ct. Jan. 11, 1999).
241. A.J. Stone observes that many courts that have eliminated the wrongful birth tort have made ideological arguments, 'present[ing] the birth of a child in terms of wholesome-and ultimately overriding-family values.' Stone, supra note 165, at 491. Stone contends that these arguments 'emanate[] from a judicial contemplation of a society where the birth of a child is always a net benefit' and are grounded in the belief that barring the tort evidences a 'respect for life and the benefits proceeding from it.' Id. (alteration and internal quotation marks omitted).
242. 404 A.2d 8, 10 (N.J. 1979). The plaintiffs had also sued as guardians ad litem on behalf of their daughter under a theory of wrongful life. However, like many other courts, the court held that the daughter failed to state an actionable claim for relief because of its refusal to recognize that life, even in an impaired state, could be an injury: 'To rule otherwise would require us to disavow the basic assumption upon which our society is based.'.
243. 450 U.S. 464 (1981).
244. The law criminalized 'an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years.' Id. at 466 (plurality opinion) (internal quotation marks omitted).
245. Frances Olsen has provocatively argued that teenage pregnancies might be prevented by changing the conditions under which sex is had-conditions marked by the socially-produced inability of women to protect themselves from pregnancy through the use of contraceptives.
246. Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 TEX. L. REV. 387, 425 n.181 (1984).
247. 'Young women believe-perhaps correctly-that using birth control will damage their reputations.... The 'conduct leading to pregnancy' is not just sexual intercourse, but sexual intercourse conducted under conditions of pervasive inequality of power and status.' (citation omitted).
248. Many commentators have disputed the claim that statutory rape laws are designed to reduce the rate of teenage pregnancy, insisting that they are really about protecting females from males as sexual aggressors.
249. Ann E. Freedman, Sex Equality, Sex Differences, and the Supreme Court, 92 YALE L.J. 913, 932-33 (1983).
250. Nadine Taub & Elizabeth M. Schneider, Perspectives on Women's Subordination and the Role of Law, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 117, 132-133 (David Kairys ed., 1982).
251. Wendy W. Williams, The Equality Crisis: Some Reflections on Culture, Courts, and Feminism, 7 WOMEN'S RTS. L. REP. 175, 185 (1982).
252. Michael M., 450 U.S. at 473 (plurality opinion) ('Because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences.... [T]he risk of pregnancy itself constitutes a substantial deterrence to young females.').
253. Olsen has helpfully pointed out that the minor females who bear pregnancies feel the social consequences of teenage pregnancy more acutely not because of biological differences, but rather because of social arrangements. See Olsen, supra note 172, at 419 n.152 ('It is empirically true that in our present society these burdens generally fall upon the female rather than upon the male, but it is important to realize that this is a social rather than biological fact.... Social arrangements rather than biological necessities cause the consequences of unplanned conception to fall mainly on the female.').
254. Michael M., 450 U.S. at 473.
255. It is important to note that the harm or injury of abortion is embedded within the Court's construction of pregnancy. The Court noted (quoting the California Supreme Court) the 'tragic human costs of illegitimate teenage pregnancy' and later observed that 'approximately half of all teenage pregnancies end in abortion.' Id. at 467, 471 (internal quotation marks omitted). Thus, while the Court understood pregnancy as 'bad' because of the detrimental effects that it tends to have on the minor, it is also 'bad,' at least in part, because it frequently leads to 'bad' abortions.
256. 'She alone endures the medical risks of pregnancy or abortion. She suffers disproportionately the social, educational, and emotional consequences of pregnancy.' (emphases added) (footnote omitted); id. at 482 (Blackmun, J., concurring in the judgment) (describing pregnancy as a 'problem' that women must 'confront[]').
257. The Court undeniably appreciates the noneconomic impacts associated with abortion as impacting the state. Id. at 471 ('Of particular concern to the State is that approximately half of all teenage pregnancies end in abortion.'); cf. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878 (1992) (plurality opinion) (noting the state's 'profound interest in potential life').
258. Michael M., 450 U.S. at 470-71 (plurality opinion) (emphasis added).
259. Teens May Have Made Pact to Get Pregnant, NPR (June 20, 2008), http://www.npr.org/templates/story/story.php?storyId=91748721.
260. Noting the opinion of the principal of the school that the pregnancies resulted from the fact that 'the girls were lonely, and they didn't have strong families behind them,' and the opinion of a reporter that 'the girls didn't have restrictions in their lives [and] they live in a town that has been hit hard by the loss of its fishing industry'. Moreover, the reporter is quoted as saying, 'So these are girls who didn't have a strong life plan, and they decided, essentially, to make their own life plan and take control of the situation.... They decided if they needed an identity, being a mother would be their identity.' Id. (internal quotation marks omitted).
261. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 102, 110 Stat. 2105, 2110-12 (codified at 42 U.S.C. § 601 note (2011)).
262. AFDC, which Goldberg v. Kelly, 397 U.S. 254, 256, 262 (1970), established as a statutory entitlement, was superseded by TANF, a fixed block grant program. Moreover, the legislation enacting TANF expressly provided that the program was not to be considered an individual entitlement. See 42 U.S.C. § 601(b) (noting that TANF 'shall not be interpreted to entitle any individual or family to assistance under any State program funded under this part').
263. Indeed, one would not be mistaken in arguing that all of the laws surrounding state assistance for indigent families represent the pregnancies of the poor as injuries to the body politic.
264. Khiara M. Bridges, Wily Patients, Welfare Queens, and the Reiteration of Race in the U.S., 17 TEX. J. WOMEN & L. 1, 33-43 (2007).
265. Arguing that TANF implicitly condemns the fertility of poor women because the women will need to turn to the state for assistance in supporting their families.
266. In his 1992 campaign, former President Clinton vowed to end 'welfare as we know it.'
267. Sylvia A. Law, Ending Welfare as We Know It, 49 STAN. L. REV. 471, 494 (1997).
268. Book review. The replacement of Aid for Families of Dependent Children with TANF is widely recognized as a fulfillment of that campaign promise.
269. Angela Onwuachi-Willig, The Return of the Ring: Welfare Reform's Marriage Cure as the Revival of Post-Bellum Control, 93 CALIF. L. REV. 1647, 1673 (2005).
270. 42 U.S.C. § 601 note (Congressional Findings).
271. Maher v. Roe, 432 U.S. 464, 470, 474 (1977) (holding that a state prohibition on the use of Medicaid funds for abortion does not violate the Equal Protection Clause nor 'impinge upon the fundamental right recognized in Roe').
272. Harris v. McRae, 448 U.S. 297, 317 (1980) (concluding that the proscription of the use of federal Medicaid funds for even medically necessary abortions does not impinge 'on the constitutionally protected freedom of choice recognized in [Roe v.] Wade').
273. There is a strong argument that the Court did not contemplate that the indigent women affected by its decision will actually be unable to obtain abortions. The Court asserted, 'An indigent woman who desires an abortion suffers no disadvantage as a consequence of [the proscription on the use of Medicaid funds for abortion]; she continues as before to be dependent on private sources for the services she desires.' Id. at 314 (emphasis added) (quoting Maher, 432 U.S. at 474). So, to the question of whether the Court thinks that, in the face of the proscription, poor women are going to access the abortion anyway, the answer must be in the affirmative.
274. Examples of the begrudging approach that TANF has taken are many. First, there is the requirement that women receiving funds from the program must 'work' at least thirty hours per week; however, TANF refuses to define the labor involved in raising a child as 'work.' See 42 U.S.C. § 607(c)(1)(A), (c)(1)(B)(i), (d). Secondly, TANF prohibits families from receiving funds for more than five years (subject to limited exceptions), even if the family has not managed to lift itself out of poverty during that time. See id. § 608(a)(7). Finally, TANF implicitly authorizes states to implement 'family caps,' which 'cap' the amount of money a family may receive, even though the size of the family may increase upon the birth of an additional child.
275. Rebekah J. Smith, Family Caps in Welfare Reform: Their Coercive Effects and Damaging Consequences, 29 HARV. J.L. & GENDER 151, 153-154 (2006).
276. 'The final version of TANF, signed into law by President Clinton in August 1996, did not require states to implement caps, but instead, by remaining silent, allowed states to continue utilizing existing family cap policies [that they were using under AFDC] or enact new caps without federal oversight.'.
277. 417 U.S. 484 (1974).
278. Accordingly, should a pregnant woman be hospitalized and unable to return to her job subsequent to a normal delivery during which there were no medical complications, she would not be eligible to receive disability benefits from the plan to which she was obliged to contribute. See id. at 491 (explaining that, as construed by a California court, the plan excluded ''maternity benefits'-i.e., hospitalization and disability benefits for normal delivery and recuperation'); see also id. at 487 (describing participation in the disability program as 'mandatory' absent comparable coverage under a private plan).
279. Katharine T. Bartlett, Comment, Pregnancy and the Constitution: The Uniqueness Trap, 62 CALIF. L. REV. 1532, 1563 (1974).
280. 'The notion that pregnancy is different from other disabilities with respect to a state disability insurance program suggests the familiar set of stereotypes-... that pregnancy, though it keeps women from working, is not a 'disability' but a blessing which fulfills every woman's deepest wish....'.
281. Diane L. Zimmerman, Comment, Geduldig v. Aiello: Pregnancy Classifications and the Definition of Sex Discrimination, 75 COLUM. L. REV. 441, 444 (1975).
282. '[The state] insisted that pregnancy and birth were not disabilities at all but 'a normal physiological function'-despite the fact that most births in the United States occur in hospitals, require minor surgery (an episiotomy), can lead to death, and, at the very least, leave most women physically unable to work for a period of several weeks.' (footnote omitted).
283. Bartlett, supra note 200, at 1561.
284. Colette G. Matzzie, Note, Substantive Equality and Antidiscrimination: Accommodating Pregnancy Under the Americans with Disabilities Act, 82 GEO. L.J. 193, 195 (1993).
285. 'Feminists' refusal to describe pregnancy as 'disability' is understandable in light of the negative connotations of permanence and misfortune.'.
286. Indeed, this was the precise argument that the plaintiffs made during the litigation.
287. Julie C. Suk, Are Gender Stereotypes Bad for Women? Rethinking Antidiscrimination Law and Work-Family Conflict, 110 COLUM. L. REV. 1, 9 (2010).
288. 'According to the plaintiffs [in Geduldig], normal pregnancy was 'functionally indistinguishable' from other disabilities because it required medical care, hospitalization, anesthesia, surgical procedures, and genuine risk to life.'.
289. Matzzie, supra note 202, at 194 ('[P]regnancy is presumed to be natural and good, whereas disabilities are presumed to be unnatural and bad. Pregnancy is described as a matter of individual choice, whereas disabilities are described as immutable and unfortunate, an accident of birth or circumstance that one would never choose.').
290. 429 U.S. 125 (1976).
291. 'It shall be an unlawful employment practice for an employer... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.' Civil Rights Act of 1964, tit. VII, § 703(a), 42 U.S.C. § 2000e-2(a) (2011).
292. Gilbert, 429 U.S. at 136; see also Finley, supra note 52, at 1136 (noting that '[b]y emphasizing the normalcy of pregnancy,' the Court in Gilbert was able to contrast coverage for pregnancy and related conditions 'to the very idea of a disability plan').
293. Using reasoning similar to that of Geduldig and Gilbert, most courts have interpreted the Americans with Disabilities Act (ADA) to exclude pregnancy within the term 'disability.'.
294. Noah D. Zatz, Managing the Macaw: Third-Party Harassers, Accommodation, and the Disaggregation of Discriminatory Intent, 109 COLUM. L. REV. 1357, 1371 n.38 (2009).
295. Citing a case collecting authorities for the proposition that '[p]regnancy generally is not considered a 'disability' for ADA purposes', see also EEOC Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, 29 C.F.R. pt. 1630 app. (2012) (interpretive guidance to 29 C.F.R. § 1630.2(h)) ('Other conditions, such as pregnancy, that are not the result of a physiological disorder are not impairments.').
296. However, regulations promulgated under the ADA include as 'disabilities' those that result from or are exacerbated by pregnancy. Id. § 1604.10(b) ('Disabilities caused by or contributed to by pregnancy, childbirth, or related medical conditions, for all job-related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions....'). Some have argued that pregnancy, in and of itself, should be understood as a 'disability' within the ADA. See, e.g., Matzzie, supra note 202, at 218-24.
297. Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978) (codified at 42 U.S.C. § 2000e(k)) (providing that '[t]he terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions' and requiring that pregnant women 'be treated the same for all employment-related purposes... as other persons not so affected but similar in their ability or inability to work').
298. 42 U.S.C. § 2000e-2(e) ('[I]t shall not be an unlawful employment practice... [to discriminate] on the basis of... religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise....').
299. 462 U.S. 669, 683-84 (1983) (striking down the disability plan at issue because 'the husbands of female employees receive a specified level of hospitalization coverage for all conditions [while] the wives of male employees receive such coverage except for pregnancy-related conditions').
300. Joanna L. Grossman & Gillian L. Thomas, Making Pregnancy Work: Overcoming the Pregnancy Discrimination Act's Capacity-Based Model, 21 YALE J.L. & FEMINISM 15, 24 (2009).
301. Internal quotation mark omitted.
302. The Due Process Clause has been interpreted to provide an equivalent right against such assumptions. See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 644 (1974) (striking down a school board's policy of prohibiting women from working once they had reached a specific stage in their pregnancies).
303. Christine Littleton observes that the PDA denies the uniqueness of pregnancy by simply analogizing it to an injury, which is an experience that employers and men can understand: '[P]regnancy renders a woman unable to work for a few days to a few months, just like illness and injury do for men.'.
304. Christine A. Littleton, Reconstructing Sexual Equality, 75 CALIF. L. REV. 1279, 1306 (1987).
305. However, she goes on to note that the analogy is inappropriate. Pregnant women and women recovering from pregnancy are only 'injured' to the extent that they cannot labor at their jobs. However, they are not 'injured' such that they cannot labor at all; indeed, during the period of time in which they cannot work at their place of employment, they are working at the production of another human being. As Littleton explains, 'Normal pregnancy may make a woman unable to 'work' for days, weeks or months, but it also makes her able to reproduce. From whose viewpoint is the work that she cannot do 'work,' and the work that she is doing not work? Certainly not from hers.'.
306. One of the criticisms of the PDA is that, while the statute requires that employers treat pregnant employees as well as other disabled employees, it also allows employers to treat pregnant employees as badly as other disabled employees. Thus, if an employer does not provide disability benefits generally, it does not violate Title VII by refusing to provide disability benefits to pregnant employees.
307. Williams, supra note 52, at 375 ('If pregnant workers and others are treated equally badly by the employer, and if the employer's rule does not disproportionately harm women, then a non-discrimination law like Title VII is not violated.'). However, Title VII is not violated if an employer provides disability benefits to pregnant employees while denying disability benefits generally. See Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 285 (1987) ('Congress intended the PDA to be a floor beneath which pregnancy disability benefits may not drop-not a ceiling above which they may not rise.' (internal quotation marks omitted)).
308. Jessica Carvey Manners, Note, The Search for Mr. Troupe: The Need to Eliminate Comparison Groups in Pregnancy Discrimination Act Cases, 66 OHIO ST. L.J. 209, 213-214 (2005).
309. Noting that when plaintiffs allege pregnancy discrimination, courts have to determine whether others who were similarly situated received different treatment, thus requiring courts to compare pregnant employees with employees who are disabled or injured.
310. Julie Novkov notes the irony that the PDA forces intensely wanted pregnancies to be constructed as disabilities when she writes that '[t]he law equates it with disease or injury and does not respect its status as a chosen and desired state of being'.
311. Julie Novkov, Note, A Deconstruction of (M)otherhood and a Reconstruction of Parenthood, 19 N.Y.U. REV. L. & SOC. CHANGE 155, 181 (1991-1992).
312. Footnote omitted; see also Finley, supra note 52, at 1136 (noting the belief that pregnancy should not be covered within employer disability plans because it 'is normal and natural for women, and is a voluntary choice that they make.... [I]t would be a shame to treat something so natural, that women freely choose, as if it were something unfortunate like a workplace injury'); Manners, supra note 218, at 224 ('Should an employer place the same value on pregnancy as it does on an injury...? Presumably, accidents and injuries should be discouraged to the extent that they are a result of carelessness and bad judgment. Should the same value also apply to pregnancy?'). Of course, the thrust of this Article is to argue that there is no irony in constructing intensely unwanted pregnancies as injuries (or diseases or disabilities).
313. Michael M. v. Superior Court, 450 U.S. 464 (1981). For a detailed discussion of Michael M., see supra notes 170-182 and accompanying text.
314. Supra notes 185-189 and accompanying text.
315. Again, Novkov insightfully notes the irony of society valuing (the idea of) pregnancy, but being injured by actual, material pregnancies: '[T]he idea that childbearing is valuable to society, a concept so pervasive in the construction of women as mothers with respect to our role in the family, is utterly invisible in civil society. After all, how can a 'disability' possibly be construed as a benefit to society?' Novkov, supra note 219, at 181.
316. Manners observes the cost-sharing function of covering pregnancy within disability insurance programs and providing paid disability leaves. Manners, supra note 218, at 229-30 (observing that European countries that provide robust legal protection of pregnant employees 'accept[] the necessary costs of pregnant workers and distribute[] the cost among society,' as compared to the 'the current American standard [which] tends to place the social cost of pregnancy on those female workers who bear children' (alteration and internal quotation marks omitted)).
317. Family and Medical Leave Act of 1993, § 102, Pub. L. No. 103-3, 107 Stat. 6, 9- 10 (codified as amended at 29 U.S.C. § 2612 (2011)).
318. 29 U.S.C. § 2612.
319. Julie Suk has done convincing work to argue that part of the success that France and Sweden have achieved in reconciling parenting with labor market participation is due to those countries having decoupled family leave from medical leave. See Suk, supra note 204, at 24 (arguing that disaggregating family leave and medical leave 'would enable family leave to be debated on its own merits, without the cloud of potential abuse and heightened costs associated with medical leave').
320. Suk acknowledges the historical contingency of the construction of pregnancy as a disability, noting that it was beneficial to litigants in the 1970s to construct pregnancy in this manner in order to bootstrap maternity benefits onto an already-existing structure of disability benefits. Id. at 41 (making this observation in the context of Title VII litigation). The FMLA is an extension of the logic that began in the Title VII setting. Id. at 47 ('[T]he PDA and the antidiscrimination framing of the FMLA tend to reinforce the analogy between pregnancy and sickness that was forged in the 1970s.').
321. Family and Medical Leave Act of 1993, § 104, 29 U.S.C. § 2614 (providing that an employer must restore an employee who has taken leave 'to the position of employment held by the employee when the leave commenced; or... to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment').
322. Suk, supra note 204, at 8-9 (citing a Labor Department study showing that 300,000 parents eligible for unpaid leave under the FMLA were unable to take advantage of the benefit and coming to 'the commonsense conclusion that very few families are both able and willing to live for the first six months of a newborn's life without a salary').
323. In the European countries that Suk analyzes in her critique of the approach taken to family leave in the United States, workers are guaranteed a paid parental leave; however, it is the government that bears the costs of providing the paid leave. Id. at 27, 36 (noting that in France and Sweden, it is not the employer who is obligated to pay for maternity leave, but rather the government). Accordingly, one may be tempted to argue that society-quataxpayers are injured by the woman's pregnancy. However, the thrust of Suk's analysis is to demonstrate the advantages that these countries have achieved by decoupling family leave from medical leave.
324. Because of this decoupling, family leave is not constructed as a species of medical leave; thus, pregnancy is not constructed as a species of injury. Id. at 47 (arguing that '[c]ountries that successfully reconcile work-family conflict' do not construct pregnancy as an injury); cf. Manners, supra note 218, at 227 (citing a pregnancy discrimination case heard by the European Court of Justice in which the court held that 'pregnancy is not in any way comparable with a pathological condition' (emphasis omitted)). As a result, it may be inapposite to understand those societies as being injured by a woman's pregnancy, as pregnancy is not constructed as an injury-at all-by these statutory schemes.