On the Reproductive Beat with Columbia Law Professor Carol Sanger

BU Law’s Annual Distinguished Lecture examines the narratives created around fetal life.

Boston University School of Law recently welcomed Carol Sanger, Barbara Aronstein Black Professor of Law at Columbia Law School for the school’s 2018 Annual Distinguished Lecture. In her new book, Narratives of Fetal Life and Death, Sanger discussed the concept of “fetal biography”—in particular, how the concept of fetal personality has been manipulated to justify anti-abortion regulatory and cultural schemes that seek to secure the status of “legal fetal personhood.”

Professor Sanger drew on both legal and non-legal examples in her work—everything from paintings by Edward Munch to stories of Puritan burial practices and modern novels narrated by fetuses. As she explained, “One cannot fully understand what the law seeks to accomplish without situating the statutes, regulations, and judicial decisions in their political and cultural context.”

Sanger opened the lecture by reminding the audience that this issue is not new. In Roe v. Wade, the Supreme Court rejected the idea that the fetus was a legally protected person, and Congress subsequently failed to pass a Human Life Amendment to the Constitution. Thus, in order to make the law intractable on fetal personhood, anti-abortion campaigns have sought instead to make fetal person a matter of social fact. The topic is now more pressing than ever, with the recent boost in efforts by the Trump administration to keep issues of fetal personality in the public attention by imposing legislative limitations on abortion access (the “Fetal Pain Act”), funding restrictions, and changes to official vocabulary about abortion.

One mechanism being employed is the creation of a narrative surrounding the fetus. Activists create a story of characters and connected events where the narrator does not just state what is happening but imposes meaning and possibilities on reality. In recent years, Professor Sanger noted, this narrative has been “thickened” to extend from fetal personality to fetal personhood, making the latter seem like the inevitable result of a natural progression. This extension of the fetal narrative means that the concept of the fetus as a person is now being pitched to a broader audience than just pregnant women seeking an abortion, and second, legislation and public policy are moving beyond arguments of fetal appearance—well-represented in mandatory ultrasound statutes—to a broader set of sensibilities about fetal life that are meant to convey how similar fetal life is to ordinary life.

As Professor Sanger explained, “The fetus has always been put to political use, and that is what we see today.” Not only are these arguments about life and the concept of personhood, but arguments about the fetus are almost always implicitly arguments about women—their nature, their character, and their place in society. Thus, Professor Sanger’s lecture and book focused on the importance of developing a counter narrative to debate the fetal personhood thrust, more particularly, the need for reliable narrators.

In a particularly memorable anecdote, Sanger recounted, “As you might remember, President Trump told the nation in the second presidential debate that doctors were ripping babies out of women’s uteruses the day before the birth. As one of my OB friends said to me, ‘Yes, we actually do that. It’s called a cesarean section.”

The audience might have been more startled by the number of honest, raw jokes such as this had Professor Khiara M. Bridges not set the tone for the lecture when introducing her former professor and lifelong mentor: “When I was a 3L at Columbia, I had the good sense to register for her Abortion Law course… In that course, I learned a lot about the law around abortion, but I also learned what the best of law teaching looks like. I learned that you can combine gravitas and levity in a classroom and there is no contradiction there, because life is both serious and light.”

While this levity permeated her lecture, Professor Sanger’s message was both poignant and concise. “We feel cheated to find out that a story line is being manipulated.” Sanger said. “In an age where people will say anything and others will choose to believe it, vigilance is required all the time. And since this is true on every front, we have to have a division of labor on what people are paying attention to.”

With a smile bordering on a wink, Professor Sanger quipped to the crowd, “And, I’m on the reproductive beat.”

Reported by Kimberly Crowley (’20)

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