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Abstract
The US Supreme Court has ruled that states enforcing parental consent for abortion laws must provide a judicial bypass procedure whereby a pregnant minor might convince a judge that she is mature enough to make the abortion decision on her own or that an abortion is in her best interests. This institution provides an excellent site for exploring the performative constraints imposed on liminal subjects appealing to the law for recognition. Building on the insights of feminist legal theorists, this essay argues that petitioners are structurally compelled to devalue embodied knowledge and grounded relationships, credibly express gender and age-appropriate emotions, and perform their devotion to patriarchy. Ultimately, petitioners can transcend their liminal status only by offering a performance that demonstrates a sincere affective investment in a self-effacing mode of political subjectivity.
He wishes to thank Ted Striphas, William Lewis, and the anonymous reviewers for their feedback and assistance.
He wishes to thank Ted Striphas, William Lewis, and the anonymous reviewers for their feedback and assistance.
Notes
[1] In re Doe, 19 S.W.3d 337 at 342 (2000).
[2] In re Doe, 19 S.W.3d at 344–45.
[3] Bellotti v. Baird, 443. US 622 at 647, 648 (1979).
[4] For more information, see Planned Parenthood, “Parental Consent and Notification Laws,” http://www.plannedparenthood.org/health-topics/abortion/parental-consent-notification-laws-25268.htm. Accessed November 4, 2014
[5] Originally held in Planned Parenthood v. Danforth, 428 US 52 at 74 (1976).
[6] In re Doe, 19 S.W.3d at 340.
[7] Isaac West, Transforming Citizenships: Transgender Articulations of the Law (New York: New York University Press, 2014), 55.
[8] West, Transforming Citizenships, 17–18, 26–29.
[9] Sara L. McKinnon, “Citizenship and the Performance of Credibility: Audiencing Gender-based Asylum Seekers in US Immigration Courts,” Text and Performance Quarterly 29 (2009): 205–21; Sara L. McKinnon, “Excavating Gender in Women's Early Claims to Political Asylum in the United States,” Women's Studies in Communication 33 (2010): 79–95; Sara L. McKinnon, “Positioned in/by the State: Incorporation, Exclusion, and Appropriation of Women's Gender-Based Claims to Political Asylum in the United States,” Quarterly Journal of Speech 97 (2011): 178–200.
[10] While I do not know how petitioners self-identify outside of the bypass hearing, I use “women” as a general referent because that is consistent with their assignment in court records and with the fragments of testimony that are available.
[11] Nikolas Rose, Governing the Soul: The Shaping of the Private Self, 2nd ed. (London: Free Association Books, 1999), 124.
[12] Guttmacher Institute, “Parental Involvement in Minor's Abortions,” Last modified March 1, 2014, http://www.guttmacher.org/statecenter/spibs/spib_PIMA.pdf.
[13] Wallace J. Mlyniec, “A Judge's Ethical Dilemma: Assessing a Child's Capacity to Choose,” Fordham Law Review 64 (1996): 1891–92.
[14] A. Cheree Carlson, The Crimes of Womanhood: Defining Femininity in a Court of Law (Urbana: University of Illinois Press, 2009).
[15] Kimberle Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color,” Stanford Law Review 43 (1991): 1241–99.
[16] Carrie Crenshaw, “The Normality of Man and Female Otherness: (Re)Producing Patriarchal Lines of Argument in the Law,” Argumentation & Advocacy 32 (1996): 170–85; Carrie Crenshaw, “The ‘Protection’ of ‘Woman’: A History of Legal Attitudes toward Women's Workplace Freedom,” Quarterly Journal of Speech 81 (1995): 63–82. See also Todd McDorman, “Uniting Legal Doctrine and Discourse to Rethink Women's Workplace Rights,” Women's Studies in Communication 21 (1998): 27–54. For an example of a case that transcends the similar/different (to men) binary, see Katie L. Gibson, “United States v. Virginia: A Rhetorical Battle between Progress and Preservation,” Women's Studies in Communication 29 (2006): 133–64.
[17] McKinnon, “Positioned in/by the State,” 182. For more on the cult of “true womanhood,” see Carlson, The Crimes of Womanhood, 4–9.
[18] McKinnon, “Citizenship and the Performance of Credibility,” 215.
[19] Caroline Joan (Kay) S. Picart, “Rhetorically Reconfiguring Victimhood and Agency: The Violence against Women's Act Civil Rights Clause,” Rhetoric and Public Affairs 6 (2003): 99.
[20] Rose, Governing the Soul, xxiii, 124–25.
[21] Brian Amsden, “Negotiating Liberalism and Bio-Politics: Stylizing Power in Defense of the Mall Curfew,” Quarterly Journal of Speech 94 (2008): 407–29.
[22] Brian Amsden, “Student Advocacy and the Limits of (Action-) Free Speech: Figurations of Materiality in Tinker, Bethel, and Hazelwood,” Communication and Critical/Cultural Studies 8 (2011): 353–75.
[23] Joseph W. Wenzel, “Three Perspectives on Argument: Rhetoric, Dialectic, Logic,” in Perspectives on Argumentation: Essays in Honor of Wayne Brockriede, ed. Robert Trapp and Janice Schuetz (Prospect Heights, IL: Waveland Press, 1990), 18.
[24] Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development (Cambridge, MA: Harvard University Press, 1993), 73. See also Mary M. Lay, “Midwifery on Trial: Balancing Privacy Rights and Health Concerns after Roe v. Wade,” Quarterly Journal of Speech 89 (2003): 62.
[25] In re Doe, 566 N.E.2d 1181 at 1185 (1990); Brown, dissenting, In re Doe, 566 N.E.2d 1181 at 1188 (1990); In re Anonymous, 650 So.2d 923 at 924 (1994); In re Anonymous, 253 Neb. 485 at 487 (1997); In re Anonymous, 718 So. 2d 64 at 64–65 (1998); In re Mary Moe, 423 N.E.2d 1038 at 1043 (1981).
[26] In re Mary Moe, 423 N.E.2d 1038 at 1043 (1981).
[27] Katrina Maxtone-Graham, Pregnant by Mistake: The Stories of Seventeen Women (New York: Liveright, 1973).
[28] Quoting trial court, in Ex parte Anonymous, 810 So. 2d 786 at 788 (2001).
[29] In re Doe, 141 Ohio App.3d 20 at 23 (2001); Judge Davis, dissenting, In re Doe, 932 So.2d 278 at 289 (2005). For an exception, see Judge McMonagel, dissenting, In re Doe, 141 Ohio App.3d 20 at 32 (2001).
[30] Ex parte Anonymous, 595 So. 2d 497 at 499 (1992); In re Anonymous, 733 So. 2d 429 at 430, 431 (1999); In re Anonymous, 782 So. 2d 791 at 793 (2000); In re Anonymous, 805 So.2d 726 at 727 (2001); In re Anonymous, 70 So. 2d 1107 at 1108 (2000).
[31] Examples: In re Anonymous, 650 So. 2d 919 at 920 (1994); Hecht, dissenting, In re Doe, 19 S.W.3d 249 at 276 (2000); Ex parte Anonymous, 597 So. 2d 711 at 713 (1992); Ex parte Anonymous, 810 So. 2d 786 at 787 (2001); In re Doe, 19 S.W.3d 278 at 282 (2000).
[32] Owen, concurring, In re Doe, 19 S.W.3d 249 at 264, 265 (2000).
[33] Exceptions: Ex parte Anonymous, 803 So.2d 542 at 568 (2001); Ex parte Anonymous, 806 So. 2d 1269 at 1282 (2001).
[34] American Psychological Association Task Force on Mental Health and Abortion, “Executive Summary,” 2008, http://www.apa.org/pi/women/programs/abortion/executive-summary.pdf.
[35] H. B. v. Wilkinson, 639 F. Supp. 952 at 955–56 (1986); Ex parte Anonymous, 803 So.2d 542 at 544 (2001).
[36] In re Doe, 19 S.W.3d 337 at 340 (2000).
[37] In re Doe, 566 N.E.2d 1181 at 1184 (1990). For another case in which physical violence was disregarded, see H. B. v. Wilkinson, 639 F. Supp. 952 at 956 (1986).
[38] Justice Hecht, dissenting, In re Doe, 19 S.W.3d 278 at 298 (2000).
[39] In re Anonymous, 253 Neb. 485 at 486 (1997); In re Doe, 921 So.2d 753 at 755 (2006); In re Doe, 613 N.E.2d 1112 at 1115 (1993).
[40] Gilligan, In a Different Voice, 73.
[41] In re B.S., 205 Ariz. 611 at 614 (2003); In re Doe, 566 N.E.2d 1181 at 1184 (1990); In re Mary Moe, 423 N.E.2d 1038 at 1040 (1981); In re Doe, 921 So. 2d 753 at 756 (2006); H. B. v. Wilkinson, 639 F. Supp. 952 at 957 (1986); Hecht, dissenting, In re Doe, 19 S.W.3d 249 at 274 (2000).
[42] H. B. v. Wilkinson, 639 F. Supp. 952 at 957 (1986).
[43] Ex parte Anonymous, 597 So. 2d 711 at 713 (1992); Ex Parte Anonymous, 806 So. 2d 1269 at 1272 (2001); Ex parte Anonymous, 803 So.2d 542 at 561 (2001) (quoting trial court).
[44] The US Court of Appeals for the Fourth Circuit used this language three times in Planned Parenthood v. Camblos, 155 F.3d 352 at 355, 372, 384 (1988).
[45] Justice Johnstone, dissenting, Ex parte Anonymous, 803 So.2d 542 at 566 (2001).
[46] Ex parte Anonymous, 803 So.2d 542 at 561 (2001) (quoting trial court judge).
[47] Justice Johnstone, dissenting, Ex parte Anonymous, 803 So.2d 542 at 562–64 (2001).
[48] Justice Johnstone, dissenting, Ex parte Anonymous, 803 So.2d 542 at 561 (2001).
[49] McKinnon, “Citizenship and the Performance of Credibility”; Picart, “Rhetorically Reconfiguring Victimhood and Agency.”
[50] H. B. v. Wilkinson, 639 F. Supp. 952 at 957 (1986).
[51] Bellotti v. Baird, 443. US 622 at 643 (1979).
[52] Rose, Governing the Soul, xxiii.
[53] Amsden, “Student Advocacy and the Limits of (Action-) Free Speech.”
[54] In re Doe, 19 S.W.3d 278 at 282 (2000); In re Doe, 566 N.E.2d 1181 at 1188 (1990); In re Doe, 19 S.W.3d 249 at 256, 257 (2000).
[55] Erving Goffman, The Presentation of Self in Everyday Life (New York: Anchor/Doubleday, 1959), 18.
[56] Judge Murdock, concurring, In re Anonymous, 803 So.2d 529 at 538 (2001); Hecht, dissenting, In re Doe, 19 S.W.3d 249 at 276 (2000); In re Anonymous, 803 So.2d 529 at 534 (2001).
[57] Quoted in Hecht, concurring, In re Doe, 19 S.W.3d 337 at 345, 346 (2000).
[58] Michel Foucault, “Technologies of the Self,” in Technologies of the Self: A Seminar with Michel Foucault, ed. Luther H. Martin, Huck Gutman, and Patrick H. Hutton (Amherst, MA: University of Massachusetts Press, 1988), 18.
[59] Elizabeth S. Scott, “Judgment and Reasoning in Adolescent Decisionmaking,” Villanova Law Review 37 (1992): 1640.
[60] Quoted in Johnstone, dissenting, Ex parte Anonymous, 803 So.2d 542 at 561 (2001).
[61] Robert M. Cover, “Violence and the Word,” Yale Law Journal 95 (1986): 1601.
[62] “I helped Teenagers get Secret Abortions,” Salon.com, June 2, 2009, http://open.salon.com/blog/steelrigged/2009/06/02/i_helped_teenagers_get_secret_abortions