52 Pages Posted: 22 Jan 2010 Last revised: 26 Mar 2016
What is the legal import of emotional pain following a traumatic event? The idea of women traumatized by abortion has recently acquired a constitutional foothold. The present Article is about this new frontier of trauma. I argue that the legal discourse of abortion trauma grows out of ideas about psychological trauma that have become pervasively familiar in the law through the rise of feminism. The Supreme Court’s statement in Gonzales v. Carhart, that some women who have abortions feel “regret” resulting in “severe depression and loss of esteem,” has provoked searing criticism because talk of protecting women from psychological harm caused by their own decisions seems to recapitulate paternalistic stereotypes inconsistent with modern egalitarian ideals. I argue that a significant context for the newly prominent discourse of abortion regret is the legal reception of psychological trauma that has continually gained momentum through feminist legal thought and reform since the 1970s. Rather than representing a stark and unmotivated departure, the notion of abortion trauma continues a legal discourse that grew up in precisely that period: a feminist discourse of trauma around women’s bodies and sexuality. This intellectual context gives meaning to the present discourse of women’s psychological pain in our legal system. The ideas informing abortion regret are utterly familiar once contextualized in modern legal understandings of women that have developed in the period since Roe.
Keywords: abortion, trauma, pregnancy, Roe, Casey, Carhart, psychology, Freud, women, feminism, domestic violence, rape, BWS, RTS, reproductive rights, child abuse, sex, sexuality, Lorena Bobbitt, women's movement, hysteria, equality, subordination, regret, consent, coercion
Suggested Citation: Suggested Citation
Gersen, Jeannie Suk, The Trajectory of Trauma: Bodies and Minds of Abortion Discourse. Columbia Law Review, Vol. 110, No. 5, June 2010; Harvard Public Law Working Paper No. 10-22. Available at SSRN: https://ssrn.com/abstract=1539256