Governed through Choice

Autonomy, Technology, and the Politics of Reproduction

Jennifer M. Denbow

• Publisher: NYU Press
• Year: 2015
• ISBN:
  9781479867066
• Topic: Social Sciences
• Subtopic: Gender Studies
• Index: Social Sciences

At the center of the “war on women” lies the fact that women in the contemporary United States are facing more widespread and increased surveillance of their reproductive health and decisions. In recent years states have passed a record number of laws restricting abortion. Physicians continue to sterilize some women against their will, especially those in prison, while other women who choose to forego reproduction cannot find physicians to sterilize them.Whilethese actions seem to undermine women’s decision-making authority, experts and state actors often defend them in terms of promoting women’s autonomy. In Governed through Choice, Jennifer M. Denbow exposes the way that the notion of autonomy allows for this apparent contradiction and explores how it plays out in recent reproductive law, including newly enacted informed consent to abortion laws like ultrasound mandates and the regulation of sterilization. Denbow also shows how developments in reproductive technology, which would seem to increase women’s options and autonomy, provide even more opportunities for state management of women’s bodies. The book argues that notions of autonomy and choice, as well as transformations in reproductive technology, converge to enable the state’s surveillance of women and undermine their decision-making authority. Yet, Denbow asserts that there is a way forward and offers an alternative understanding of autonomy that focuses on critique and social transformation. Moreover, while reproductive technologies may heighten surveillance, they can also help disrupt oppressive norms about reproduction and gender, and create space for transformation. A critically important analysis, Governed through Choice is a trailblazing look at how the law regulates women’s bodies as reproductive sites and what can be done about it.

1

Autonomy

The Self and Society

At its most basic, autonomy means self-governance. The term comes from the Greek words for self (autos) and law (nomos) and originally referred to a group’s governance of itself, but has since been used to refer to the individual’s self-governance. In the context of state authority and individual entitlement, the notion of autonomy often plays a somewhat contradictory role in Western thought. Political theorists and state actors sometimes view rights as appropriately afforded to those who have the requisite capacity for autonomy. That is, proper political subjects who are fully endowed with rights are those who already display adequate capacities for self-governance. At the same time, thinkers often view rights as a means toward autonomy. They often appeal to autonomy as individual self-rule as a justification for limited state rule because individuals need to be protected from unjust interference to ensure their continued self-governance. Rights therefore enable us to be autonomous.

Historically, the politically enfranchised tended to view women, slaves, and people of color as lacking the ability to govern themselves and thus not rights-bearing political subjects. This historical constitution of the marginalized relied on and reinforced the aporia between the body and the mind. The socially disenfranchised were strongly associated with their bodies and bodily functions and therefore deemed irrational. The assumption was that they could not put aside their immediate bodily desires and, in the case of women, their reproductive capacity, in order to reflect dispassionately and rationally on circumstances in the way that was necessary for autonomy. The view that autonomy means proper or rational self-governance was thus used to deny the ascription of autonomy to those on the margins and also reflected and reinforced the idea that rationality inhered in the ability to transcend one’s body or step outside oneself.

As a consequence, autonomy has tended to function as an exclusionary idea. At times thinkers and state actors appeal to autonomy in order to separate rational self-governing agents from irrational individuals who need guidance and intervention. Unsurprisingly, these determinations tend to reflect existing power relations in society. There is thus a tension between autonomy as a liberating idea and autonomy as an exclusionary idea in much Western political thought. On the one hand, the state should protect autonomous subjects from interference so they may direct their own lives. On the other hand, the state should afford that protection only to those who can properly exercise their reason and govern themselves appropriately. Those who are deemed incapable of proper self-governance are, as a result, often subject to interference or “guidance” in their decision making. In other words, this understanding of autonomy justifies paternalism. Many views of autonomy are thus characterized by the tension between wanting to uphold self-governance as a value and not trusting individuals’ ability to govern themselves.

Another tension that arises in much Western thinking on autonomy concerns the related puzzle of how one can be self-governing if society shapes or deeply forms the self. The concern is that socialization—sometimes oppressive socialization—shapes or warps people’s values and desires such that they cannot be understood as properly self-governing. Many autonomy theorists understand that society shapes the self and that we cannot uphold autonomy as a central political or moral value without accounting for this. Moreover, when individuals are understood as socially formed, it becomes possible to try to mold individuals into the kinds of people who can properly govern themselves. Rousseau, for example, puts forth a political system that would shape people into appropriate political subjects.

Despite this awareness of socialization in studies of autonomy, scholars have not given serious attention to the implications for autonomy of the Foucaultian notion that, more than being merely socialized, the subject is constructed or produced by force relations and regulatory apparatuses. Poststructuralists who take up this idea tend to dismiss the notion of autonomy as relying on a pre-social self, while autonomy theorists often dismiss poststructuralism and its implications. Nonetheless, Foucaultian thought contains a tradition of autonomy as critique and transformation. On this view, the social production of the self enables, rather than undermines, autonomy. In this tradition, autonomy involves calling into question norms and opening up the possibility for the transformation of cultural formations. Counter-conduct or eccentric action that challenges the customary or natural can help bring about transformative possibilities. Autonomy in this tradition is generally understood more as a practice than an attribute of individuals. Not engaging in the practice would not provide grounds for paternalism or political exclusion.

In this chapter I trace these various tensions—of autonomy operating as both an exclusionary and a liberatory concept, as well as the seeming tension between autonomy and the social formation of the self—within a number of treatments of autonomy. I begin by examining the thinking of Rousseau and Kant, whose understandings of autonomy as proper self-governance have been foundational to Western political thinking. Each grapples with the effects of outside forces on autonomy and posits an understanding of autonomy as adherence to self-given law. Each thinker is in some way concerned with distinguishing those who are properly self-governing from those who are not, and so they illustrate the exclusionary function of autonomy. I then briefly consider some contemporary accounts of autonomy. I argue that those accounts resonate with the proper self-governance tradition and its exclusionary function that would justify paternalism toward those who would make improper decisions.

This survey of different conceptions of autonomy provides a deeper look into the varied ways theorists have understood the concept, whether thinking of it primarily in terms of its personal, moral, or political value. I argue that thinkers in the proper self-governance tradition, while they might view personal autonomy as the grounds or justification for government, do not view protection of autonomy as important for its critical or transformative role. In contrast, in the thinking of Foucault, Butler, and Mill, autonomous conduct always has a political dimension tied to its critical and transformative potential. Furthermore, the discussion of Rousseau and Kant in particular provides some historical context for the later discussion of autonomy in contemporary reproductive politics. I illustrate that each thinker understands autonomy in terms of proper self-governance and views the socially marginalized as nonautonomous. In later chapters I show that the way autonomy manifests in current reproductive law and politics has important resonances with these exclusionary understandings of autonomy.

After a consideration of accounts of autonomy as proper self-governance, the chapter turns to the poststructuralist thinking of Foucault and Butler. Poststructuralism is often thought to have heralded the “death of the subject” because of its sustained critique of the idea that subjectivity is a pre-social, prediscursive phenomenon (Benhabib 1995; Friedman 2003). Far from proclaiming the death of the subject, however, poststructuralism reorients the subject. If there is any death, it is of the understanding of the subject as a pre-social, self-constituting entity who wields power but is not deeply constituted by power. In fact, these thinkers argue that the construction of the subject, rather than undermining any possibility for agency, actually serves as the condition of possibility for it. As Butler puts it, construction “is the necessary scene of agency, the very terms in which agency is articulated and becomes culturally intelligible” (1990, 147). The chapter shows how Foucault thinks about the autonomy of constructed selves in some of his later work in which he articulates an understanding of autonomy as critique and transformation. In addition, I discuss the ways this view of autonomy resonates with the thinking of John Stuart Mill on the concept of liberty. The chapter also examines the approach to knowledge that undergirds the various views of autonomy examined in the chapter.

These two views of autonomy—as proper self-governance and as critique and transformation—orient the coming discussion of reproductive practices and regulation. This chapter thus provides an in-depth theoretical account of these views. In doing so, I show the importance of examining the presuppositions and tensions of thought on autonomy and call on political theorists to examine the alternative tradition of autonomy. Furthermore, the chapter provides theoretical grounding and nuance for subsequent discussions. The first tradition of autonomy is evident in the state’s historic and ongoing attempts to interfere with or shape individual decisions so that they comport with social norms and expectations. Applied to reproduction, the second tradition illustrates the importance of engaging in disruptive, nonnormative reproductive practices for the sake of reproductive autonomy. That is only an important consideration if reproductive autonomy should be valued, and so the chapter concludes with a discussion of the importance of reproductive autonomy.

Obedience to the Self-Prescribed Law: Rousseau and Kant

Jean-Jacques Rousseau’s thought perhaps illustrates the difficulty and complexity of being autonomous within society better than any other thinker. In the Second Discourse, Rousseau observes that it is difficult, if not impossible, to know what is original or natural about man and what is artificial (1964, 92–93). In employing the device of the state of nature, he imagines what man would be like before society and before the state. In doing so, Rousseau highlights the extent of man’s plasticity and acknowledges that society has profoundly altered man. In the Second Discourse, the vision of freedom that Rousseau offers is opposed to living in society and involves the unfettered ability to do what one pleases. He provides a vision of freedom in which living in society leads to dependence on others and thus an increased susceptibility to others’ commands. Therefore, in the Second Discourse, Rousseau puts forth an asocial understanding of freedom.

The opposition between freedom and society provides the grounds for Rousseau’s discussion of freedom in The Social Contract. In that work, he thinks through how one may be free in society, and in doing so attempts to resolve the tension between freedom and society. He sees in his ideal civil society the possibility for a new kind of freedom, which he characterizes as “obedience to a law one prescribes to oneself” (1968, 65). The only way for this form of freedom to be achieved is through the general will, which is the expression of the collective autonomy of the individuals who contract to institute civil society. It is an embodiment of the common or collective will and its content is determined by what is good not for the individual, but for the collective. Rousseau writes that the “general will alone can direct the forces of the state in accordance with that end which the state has been established to achieve—the common good” (1968, 69). The social contract stipulates that everyone must agree to the contract, that legislative rule must be participatory, and that economic inequalities among citizens must be limited. These conditions are meant to ensure that the governing will is general. Since each person plays a role in the legislation of the general will, obedience to it cannot be said to be contrary to autonomy. Acting in accord with the general will ensures obedience to self-legislated law. On the account in The Social Contract, then, autonomy involves submitting to self-imposed limitation.

Rousseau’s recognition of human plasticity is fundamental to his account of freedom in The Social Contract since it suggests the possibility that people could be molded into beings who could be free. Rousseau’s civil society depends for its success on the proper constitution of men, because only such men will submit to their own self-legislation. His civil society is set up to produce the sort of men who will ensure its continued existence, although it is unclear how, upon its founding, men will be oriented toward the institutions that sustain society. Rousseau introduces the lawgiver and civil religion to resolve this problem. Through civil religion, the lawgiver, whose office is extragovernmental, takes advantage of the contingent nature of humanity to shape and perhaps manipulate individuals into the sorts of beings who can transcend their individual wills and become “part of a much greater whole” (1968, 84).

In Emile, his treatise on education, Rousseau considers the same issue of molding men into the kinds of beings who will be autonomous by submitting to the law they prescribe to themselves. The figure of the tutor who educates Emile is in many respects similar to that of the lawgiver in that his job is to make his pupil’s will accord with the general will. According to Rousseau, “good social institutions are those that best know how to denature man, to take his absolute existence from him in order to give him a relative one and transport the I into the common unity” (1979, 40). Once people enter civil society, the task for education is to instill virtue, to mold men into understanding that their individual interests are not at odds with the collectivity’s. In making such a man of Emile, the tutor must relentlessly manipulate Emile’s environment so that when he fails to act virtuously, he sees the “evils” that result “as coming from the very order of things and not from the vengeance of his governor” (1979, 102).

In Emile’s education lies the possibility for the freedom that results from one’s needs matching one’s strength:

[T]he truly free man wants only what he can do and does what he pleases. . . . [S]ociety has made man weaker not only in taking from him the right he had over his own strength but, above all, in making his strength insufficient for him. That is why his desires are multiplied along with his weakness, and that is what constitutes the weakness of childhood compared to manhood. (1979, 84)

He goes on to say that, by multiplying needs and thus creating dependency, “laws and society have plunged us once more into childhood” (1979, 85). It is this sort of dependence on men that renders humanity unfree. The goal, then, of Emile’s education is to free him from this sort of dependence and unfreedom. The only way to do this is to “substitute law for man and to arm the general will with a real strength superior to the action of every particular will,” and this can be accomplished only through the shaping of virtuous citizens such as Emile is to become (1979, 85).

Significantly, Emile’s future wife, Sophie, does not need to receive the same education as Emile because of her procreative capacity. As Brian Duff explains, “Sophie’s destiny is guided by her potential to give birth one day” (2011, 39). Since women’s “proper purpose is to produce [children],” Sophie’s education need not prepare her for political life (Rousseau 1979, 362). Unlike Emile, she feels constraints so that she may become submissive and docile. This renders her ultimately dependent on Emile and incapable of the self-governance required of political subjects. Autonomy is afforded to and functions as a political ideal only for men.

Rousseau’s account of the possibility for self-governance in both The Social Contract and Emile—in which he ultimately relies on the external, manipulative figures of, respectively, the legislator and tutor—illustrates the perceived need to protect men from themselves, even as they are granted authority over women. As he writes, “[T]here is no subjection so perfect as that which keeps the appearance of freedom. Thus the will itself is made captive” (1979, 120). Autonomy inheres in submitting to what appears to be one’s own self-prescribed law. In the context of political society, this involves self-limitation. Moreover, for Rousseau self-governance is not an isolating ideal. It requires grappling with our attachment to others and to our existence as part of a collectivity. It is therefore not merely a matter of individual, unattached self-rule.

Like Rousseau, Kant understands autonomy in terms of obedience to a self-given law. However, Kant, whose philosophy was deeply influenced by Rousseau, is less concerned with preserving freedom given our social formation. He is more concerned with preserving freedom in the face of the determinist view of the physical world precipitated in part by Newtonian science. For Kant, we can only have a moral duty to act in ways we can actually act. If our actions are predetermined, then we could have a duty to do nothing but what we in fact do (Guyer 2000, 228). Kant is also more concerned with the significance of autonomy for morality than Rousseau, who thought about how autonomy can ground political society. Nonetheless, Kant does write about autonomy and politics as well and, as I argue, his understanding of moral autonomy can be connected to some of his more political thought.

The distinction between the noumenal and the phenomenal realms allows Kant to account for determinism but nonetheless preserve freedom and morality. The noumenal realm consists in the world of things in themselves, whereas the phenomenal realm consists in the world of appearances. The phenomenal realm is ruled by the law of causality and thus determinism. Although humans exist in both realms, when we interact with the world of sense objects, we are determined in that objects cause us to behave in certain ways and desire certain things. The noumenal realm, however, consists in “what reaches consciousness immediately and not through affection of the senses” (Kant 1998, 451). The noumenal realm holds out the possibility for nondeterminism and thus for freedom.1

Drawing on Rousseau’s idea that freedom inheres in self-prescribed law, Kant argues that only self-given laws that originate in the exercise of reason can bind rational agents. We have access to moral principles through the faculty of reason. Moreover, the categorical imperative is the moral law. To act in accord with the categorical imperative, by acting on rational principles that can be valued for all rational agents rather than the contingent inclinations of the individual, is to act autonomously. Kant explains the categorical imperative in the following way: “Act upon a maxim that can also hold as a universal law” (1991a, 225). When a moral matter is at stake, one can act on the basis of either reason or inclination. To act autonomously, you must act on the basis of reason. Your inclinations may coincide with what reason demands, but they cannot be the basis of your action. Thus, in acting in accord with the rational will, and thereby autonomously, one is not swayed by the pushes and pulls of desire that mark the phenomenal world. Autonomy requires putting these externally determined things aside as the basis for action and instead acting on the basis of the rationally arrived at self-given law. In acting on the basis of desire or mere custom or habit, one acts heteronomously (Kant 1998).

Rasmussen has called the tradition of which Kant is a part “autonomy as law.” She describes Kant’s version of the autonomous individual as one who is free of external determination of one’s actions and who also expresses “a willingness to engage in self-limitation based on reflection or the ability to make oneself the object of analysis. Autonomy is not anything goes, but rather it is constituted by the act of making the law” (2011, 7). To be clear, Kant would not have viewed his moral principles as requiring self-limitation. Fo...