Picturing Moral Arguments in a Fraught Legal Arena: Fetuses, Photographic Phantoms and Ultrasounds

40 Pages Posted: 18 Oct 2015 Last revised: 17 Jun 2016

Jessica M. Silbey

Northeastern University School of Law

Date Written: October 15, 2015

Abstract

This article investigates the movement in the U.S. that seeks to regulate the abortion decision by mandating ultrasounds prior to the procedure. The article argues that this reform effort is misguided not only because it is ineffective, but also because ultrasounds provide misleading information and are part of shaming practices that degrade the dignity of women. Both of these problems violate the main tenets of Planned Parenthood of Southern Pennsylvania v. Casey (1992). Central to the article’s argument and novelty is that the pro-ultrasound movement’s mistake is both legal and cultural. It misunderstands the nature of visual technology by failing to comprehend the complex and contradictory messages that images communicate. It also misjudges the legal relevance of photographic images. By exploring cases on reproductive freedom and constitutional rights alongside aesthetic theory concerning photography and film, this article explains the legal and philosophical flaws of the mandatory ultrasound legislation proliferating throughout the nation.

Keywords: constitutional law, abortion, reproductive rights, film, film theory, cultural studies, feminism, privacy, medical technology, compelled speech, video, medical regulation

JEL Classification: I11, I31, I38, J13, J16, J18, K40, K00, K23

Suggested Citation

Silbey, Jessica M., Picturing Moral Arguments in a Fraught Legal Arena: Fetuses, Photographic Phantoms and Ultrasounds (October 15, 2015). Georgetown Journal of Gender and the Law, Vol. 16, No. 3, 2016; Northeastern University School of Law Research Paper No. 246-2015. Available at SSRN: https://ssrn.com/abstract=2674647

Jessica M. Silbey (Contact Author)

Northeastern University School of Law ( email )

400 Huntington Ave.
Boston, MA 02115
United States

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