Words that Deny, Devalue, and Punish: Judicial Responses to Fetus-Envy?

Abstract

Words that Deny, Devalue, and Punish: Judicial Responses to Fetus-Envy hypothesizes the phenomenon of “fetus-envy” as a source of threat for some men. Colb defines fetus-envy as envy of women’s unique reproductive capacity – the ability to convert a single cell into an infant inside their bodies. By contrast to men, whose biological contribution to procreation begins and ends with a genetic donation, women contribute equally in the gene department and then add their capacity to grow people inside their bodies. As a result of this biological difference between women and men, women have greater control over the process of procreation and, as a result, greater certainty than men do about when and whether they have reproduced.

For men experiencing the threat of female reproductive control, Colb proposes three mechanisms through which they react to that threat: denial, devaluation, and punishment. Denial seeks to render women’s superior reproductive contribution invisible by pretending that women and men in fact contribute equally to procreation. Devaluation diminishes women’s status in virtue of their reproductive distinctiveness. And punishment provides a punitive response to women’s unique contribution to reproduction.

Colb contends that we can see evidence of these three reactive strategies in judicial rhetoric in cases that deal with issues of fertility and reproduction. The Article focuses primarily on three such cases and identifies denial, devaluation, and punishment in the rhetoric that appears in each of them.

In the first case, Michael H. v. Gerald D., the Supreme Court upheld a conclusive presumption that a man whose wife has had a baby is the father of that baby. The language of Justice Scalia’s opinion in Michael H. betrays a pretense that in the natural course of events, married women’s children simply are the offspring of the women’s husbands, thereby banishing the paternal uncertainty that in reality goes along with women’s control over much of the reproductive process.

The second case, Davis v. Davis, involves a battle over a frozen embryo conceived by a couple that subsequently divorced. The woman sought to implant the embryo, and the man tried to prevent implantation. The rhetoric found in opinions at the various levels (reaching opposite conclusions) reveals various strategies, including denial of reproductive differences. Such strategies include the pretense that “life begins at conception” – that an embryo is already a child (prior to gestation) with best interests and that the child’s mother should have the gender-neutral-sounding “temporary custody” to best serve the child’s interests. The rhetoric in these opinions also manifests devaluation of what women uniquely endure in pregnancy, by suggesting, for example, that permitting the woman to implant without the man’s consent would be just as offensive as permitting the man to force the woman to implant without her consent.

The third case, International Union, UAW v. Johnson Controls, involves female employees who challenged an employment policy holding that all women who could not affirmatively demonstrate their sterility would be excluded from any position that could expose them to lead levels deemed harmful to fetuses. Various opinions, in the Seventh Circuit Court of Appeals and in the United States Supreme Court, treated women’s special reproductive contribution as a foundation for punishment – for exclusion from the workplace on the grounds that their very capacity for pregnancy represented a disqualifying condition.

In its discussion of each of the cases, the Article emphasizes that the rhetoric of denial, devaluation, and punishment operates independently of the outcome of a case and that, accordingly, one may find such rhetoric in cases with “good” and “bad” results, from a feminist perspective. Colb concludes that such rhetoric is destructive and cloaks a hostility to women in seemingly objective descriptions of facts that are, in truth, value-laden and harmful.