Yesterday the United States Supreme Court, in a 5-4 decision, upheld the national ban on a midterm method of ending pregnancies sometimes referred to as partial birth abortion. The decision clears the way for states to pass new laws designed to discourage women from having abortions.
Of course President Bush could not keep silent on this one. In a statement issued by the White House, Bush welcomed the decision. “The Supreme Court’s decision is an affirmation of the progress we have made over the past six years in protecting human dignity and upholding the sanctity of life,” he said. “Today’s decision affirms that the Constitution does not stand in the way of the people’s representatives enacting laws reflecting the compassion and humanity of America.”
Somehow, Bush relates the notion of life to the sacred. But has Bush analyzed with any precision what sacred really means? We can look to the work of Giorgio Agamben (1998) as he writes about Homo Sacer (Sacred Life) in the following terms. The sacred is found in a double state of exception between the unpunishability of killing and the exclusion from sacrifice. Agamben’s analysis rests on a snippet from Pompeius Festus from the treatise On the Significance of Words in which Festus writes: The sacred man is the one whom the people have judged on account of a crime (this man has been excluded from the community). It is not permitted to sacrifice this man (to offer him up to the gods), yet he who kills him will not be condemned for homicide (he may be executed by the state without subjecting the executioner to the crime of murder). Agamben understands the sacred (sacer) then to take the form of this double exception both from the human and the divine sphere of influence, from the profane and the ‘religious’ spheres. The fact that sacrifice is taboo for homo sacer is another way of saying that what already belongs to the gods cannot be offered up to those very same gods and so is excluded from sacrificial consideration. At the same time, the homo sacer is included within the community as he/she takes the form of being able to be officially killed. “Life that cannot be sacrificed and yet may be killed is sacred life (Agamben. 1998, p. 82). Sovereignty lies at the crossroads of this double exception.
The sovereign sphere is the sphere in which it is permitted to kill without committing homicide and without celebrating a sacrifice, and sacred life–that is, life that may be killed but not sacrificed–is the life that has been captured in this sphere (Agamben, 1998, p. 83).
Bush trivializes the sacred when he speaks about upholding human dignity and the sanctity of life. What is really happening here is that the sovereign makes the choice to create an exception for women, to exclude women that opt for termination of pregnancy, to cause those women to become homo sacer. In the case of abortion, this amounts to a minority of religious zealots dictating policy while the rest of us stand by watching. What is being sacrificed here is precisely the sacred, that very quality Bush is so ready to protect. The Bush/Roberts court, by creating the exception that creates homo sacer effectively perpetrates a violence at the crossroads of the profane and the divine that is subtractive of both the profane and the divine.
Justice Ginsburg called the decision alarming. She argued as follows:
It “cannot be understood as anything other than an effort to chip away
at a right declared again and again by this court,” she said.
She said this dispute was about how, not whether, abortions would be
performed during the second trimester. Despite Kennedy’s talk of
“promoting fetal life,” the ban on the procedure “targets only a method
of abortion,” she said. “The woman may abort the fetus, so long as her
doctor uses another method, one her doctor judges less safe for her.”
She also called the decision demeaning to women. It “pretends” to protect
them “by denying them any choice in the matter,” she said.
Justice Ginsburg, in referencing the court’s desire to “chip away” at Roe v. Wade scolds the majority for ignoring precedent of over 40 years. If we are a nation of laws, then precedent must rule. I seem to recall that the conservatives yell most loudly about activist courts that simply rewrite the law to suit their needs. It seems that the Bush/Roberts court is turning down the road of activism…but, of course, it is activism that the radical right agrees with so no hue and cry from them now.
Justice Ginsburg’s remarks could also be considered in the light of Agamben’s view of homo sacer. By denying women choice the court excludes women from the process, creating an exception that stands at the crossroads and, therefore, falls within the power of the sovereign to dictate. This is a disturbing development in the democratic experiment called the United States.
Agamben, G. (1998). Homo Sacer: Sovereign power and bare life (D. Heller-Roazen, Trans.). Stanford, CA: Stanford University Press.