On Punishing Women, Part 2
From forced vaginal penetration to public shaming, the anti-reproductive-rights movement targets women with gender-based punishments
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*A note on language: In the context of pregnancy and pregnancy outcomes, anti-rights attitudes regarding punishment are deeply gendered, influenced by underlying sexism and intertwined with traditionalist gender role beliefs: all persons who have the potential for pregnancy are viewed as woman, regardless of their gender, and as such are to be punished as woman. Because these gendered ideas about woman are central to the subject of anti-rights attitudes toward punishment in regards to pregnancy and pregnancy outcomes, I use the words women/woman in the discussion below to refer to all pregnant and potentially pregnant people to adequately emphasize the gendered nature of anti-rights punishment.
What is punishment? What does it mean to punish someone? What does that look like?
As explained in Fact Check: Do mainstream anti-choice groups oppose punishing women?, both the so-called “abortion abolitionists” and the majority of mainstream anti-reproductive-rights groups support punishing women. Furthermore, wihin the anti-reproductive-rights framework, punishment is deeply gendered: All who have the potential for pregnancy are viewed as woman, regardless of their gender, and woman is defined both as a ultra-sacrificial servant and by the presupposed communal availability of her body for others’ use.
Since all pregnant people are viewed woman, they must be punished as woman; therefore, punishing woman doesn’t always take the same shape or form as punishing man. Failure to recognize this has led to a propensity in the press for tunnel vision on the subject of punishing women. In the context of pregnancy and pregnancy outcomes, punishment is too often conceptualized so narrowly that all but a single-mindedly conceptualized method and application of punishment are wholly excised from the meaning of the word, and are afforded no public recognition or discussion as punishment and entirely hidden from view.
On Punishing Women is a two-part series that brings these gendered punishments into view.
In Part I of this series, we examined punishment as behavior modification: In Operant Conditioning, punishment is the introduction (additon) or removal (subtraction) of a stimulus or consequence in order to decrease (⬊) the likelihood that an undesired 👎 behavior reocurs. (You punish behaviors that you do not want repeated.) In the context of pregnancy and pregnancy outcomes, anti-reproductive-rights groups frequently employ punishment (of differing forms and degrees) to decrease the recurrence or frequency of behavior they find undesirable. In other words, punishment is used to change a woman's behavior.
For example, under mandatory ultrasound laws (which deliberately bypass patients’ medical consent and refusal rights), an invasive medical procedure in which a long probe is inserted deep into the vaginal canal and is not medically necessary for first-Trimester abortion, called a transvaginal ultrasound, is transformed into a method of gender-based, behavior modifying punishment: The transvaginal ultrasound procedure is employed as a punishment for a woman's wrong initial decision (to end her pregnancy) in the hopes that, following her punishment, she will make the right decision (to continue her pregnancy).— The specific behavior being modified by this invasive method of punishment is the woman's decision-making. (*See also: Probed by the State: 'Just lie back and be a good girl')
In Part II, we move from punishment as defined under operant conditioning to punishment more generally: as subjecting someone to a penalty or a deprivation for an offense, a sin, or a fault,12 and is carried out for the purposes of retribution, deterrence, incapacitation, or rehabilitation.3 This includes both formal and informal punishment, as well as direct and indirect punishment.
Punishable Offences
“The power to punish, to secure obedience to the law or moral order by means of punishment, is one of the most influential social forces for obtaining conformity in human societies.”4 The desire to punish “rests in part on the shared emotional reactions caused by the ‘desecration’ of what is perceived as sacred,”5 and “[i]ndividuals who express a strong commitment to punishment are more likely to oppose abortion and also to favor capital punishment.”6
As explained in Part I of this two-part series, punishable offences within the anti-reproductive-rights framework can be broken down into two broad categories: the desecration of the sacred object, and the failure to conform to rigid, traditionalist gender role expectations.
To briefly review…
Both scholars and religious leaders have observed that anti-abortionism centers around the image of the fetus as a sacred, fetishized object,789 “attention to which resembles the fascination of the primitive sacred for a fetish or holy relic.”10 They therefore “attribute to it” their own “cultural or group interests.”11
As a sacred object, a holy relic, that represents a group's cultural interests, the fetus is more than a human person and thus not bridled by the common law principles protecting the rights and dignity of others. It commands greater respect. Greater protection. Greater privileges. Greater power.
“Being sacred, such objects are treated with great reverence. Violation of the sacredness of these objects is often the occasion for collective violence against the transgressor.”12 “Sacred objects have tremendous power to bind people together in solidarity, but they also bind people together to lynch anyone who violates the sacredness of these sites/objects. The fetus occupies exactly this position in the collective dynamics of anti-abortion discourse.”13
“In the collective dynamics of the anti-abortion movement, this is precisely what we see—a community gathering around a sacred object, upholding it as more worthy—because of its innocence—than the mother who carries it, and weeping over its desecration by the sinful abortionist and the woman who gets the abortion.”14
Because opposition to sexual and reproductive health and human rights (SRHR) is engendered by benevolent sexism, it “demands that women be chaste, regardless of the circumstances” and to “adhere to traditional gender roles (e.g., the sacrificial/communal woman, the revered role of motherhood).”15
A woman is thus conceptualized as subservient, sacralized instruments whose purpose exists in the use of her body by others for others’ ends, rather than being complete human beings who are ends in themselves. She is a means to another's ends. This is her sacred role.
Therefore, women are expected to submit themselves to their sacred gender role as sacralized instruments and to the sacred object itself— the fertilized egg, embryo, or fetus. She must be the embryo's (or the man's) for the taking. When women do not do this, “we find a community gathering around a sacred object to justify persecution”16 in an “attempt to to make a virtue out of women’s subordination.”17 “She is a ready-made sacrificial victim. We can mete out her punishment through denial of the abortion she seeks; she must bear her child 'in travail.’”18
Hence, opponents of reproductive rights believe women should strictly conform to rigid gender roles, that abortion and other behaviors that transgress gendered expectations imposed upon women result in the desecration if that which is sacred, and that transgressions should be punished in some way, shape, or form.
Types of Punishment
Formal vs. Informal Punishment
“There are two main forms of social control discussed in sociological theories of deviance and social control: formal and informal. Formal typically refers to state imposed punishment, whereas informal highlights punishment within and across social groups.”19
Formal punishment is “imposed through formal means by an institution (or representative) upon an individual or group,” such as the court system.20 Fines, speeding tickets, court-ordered rehab, community service, and prison sentences are examples of formal punishments.
“In modern societies, formal institutions such as the judicial and prison systems have a monopoly on imposing penalties for offenses that violate the law. At the same time, individuals and communities regularly face norm-violating behaviors that are not subject to the law.”21 That's when informal punishment comes into play.
Informal punishment involves unofficial penalties for behavior that violates social norms but don't break any formal laws.2223 Informal punishments are carried out “by community members rather than by legal authorities and can vary greatly in form, from social ostracism to verbal ridicule.”24
Direct vs. Indirect Punishment
When it comes to carrying out informal punishments, there are two broad strategy categories: direct and indirect.
Direct punishment involves verbal or physical confrontation.25
Indirect punishment “involves gossip and ostracism.”26
In the context of pregnancy and pregnancy outcomes, exposing others’ secrets is an informal, indirect punishment (though doing so could in some cases bring about a subsequent, formal punishment meted out by the criminal justice system). This is especially common regarding abortion. In one study, for example, “believing the secret behavior (i.e., abortion) to be morally wrong was significantly associated with increased agreement [by study participants] that revealing clinic patients’ abortion secrets as punishment would be appropriate.”27
We know why people keep their own secrets: “to avoid the punishment and reputational damage that would follow from the information being known.”28 Yet, at the same time, people are “motivated to reveal others’ secrets to punish them for immoral acts.”29
“[P]eople are more likely to reveal other people’s secrets to the degree that they, personally, view the secret act as immoral. Emotional reactions to the immoral secrets explain[] this effect, such as moral outrage as well as anger and disgust, which [are] associated correlationally and experimentally with revealing the secret as a form of punishment.”30 Additionally, people are significantly more likely to reveal a secret “if the behavior was done intentionally (vs. unintentionally)” and “if it had gone unpunished (vs. already punished by someone else).”31
Disturbingly, those who expose others’ secrets for such reasons include our close friends and family. Even if these trusted loved ones do not report others’ secrets “through official legal channels” to bring about a subsequent, formal punishment, “they might still be willing to punish them through less official channels, such as by revealing their secret” to others within a social/familial group.32 —That's why researchers have warned: “Before confiding in another person, it would be wise to make sure that your moral codes align.”33
Motivating Justifications for Punishment
Deterrence
Deterrence is “the act or a means of deterring.”34 To deter is “to prevent or discourage (an action or behavior).”35 Punishment is “a key mechanism to deter norm violations.”36
Individual deterrence uses punishment as a means of deterring previous offenders from re-offending.
General deterrence uses punishment as a means of preventing those who may be tempted to commit an offence from doing so.
Denunciation, which subjects someone to shame and criticism for an offense, is another form of deterrence.37 To denounce is “to condemn openly as being wrong or reprehensible,” as well as “to inform against (someone).”38 Denunciation is justified “as a form of community moral education” by buttressing social rejection of an undesired behavior.39 “Broadcasted condemnation can communicate norms of acceptable behavior and coordinate punishment of future instances of unacceptable behavior.”40
An important component of deterrence-motivated punishment is visibility.41 It thrives on and even increases in the presence of an audience.42 “Indeed, abortion opponents have long relied on outing and shaming women seeking abortion care as an effective deterrent, for example, by posting videos online of women entering abortion clinics, holding up signs with the names of patients seeking care at clinics, and contacting a patient’s parents and employers to notify them of the abortion.”43 These are gender-based, deterrence-motivated, informal punishments are meted out upon women for seeking abortions; that is, for transgressing their gender role of pure, sacralized instruments, and for the desecration of the sacred fetal object.
Importantly, unlike retributivism, deterrence-motivated punishment is less sensitive to or reflective of the severity of an offense. “[D]eterrence-focused systems and actors aim to make an example out of even small-time offenses.”44 Therefore, this can involve imposing high punishments and maximizing publicity.45
We see this imbalance between the severity of an offense and the severity of a punishment in the context of pregnancy criminalization, for example, when “abortion abolitionists” advocate for charging women with homicide for ending their pregnancies; that is, for acting in a way that asserts their full personhood in contradiction to the gendered expectations of sacralized instruments, and for the desecration of the sacred fetal object. In the context of abortion, homicide charges and subsequent sentencing are high profile, gender-based, deterrence-motivated, formal punishments offered up as a warning to other women who may be tempted to rebel against their sacred gender role as ultra-sacrificial instrument or fail to submit themselves to the service of the sacred fetal object and by extension the cultural group interests of “abortion abolitionists.”
Retribution
Retribution is “taking vengeance for wrongdoing, sin, or injury.”46 Retributive punishment is motivated by a desire to repay harm with harm, doling out to an offender her “just deserts.”47 “Sometimes viewed as a way of ‘getting even’ with a wrongdoer—the suffering of the wrongdoer is seen as a desired goal in itself, even if it has no restorative benefits for the victim [of the offense].”48 Unlike general deterrence, retribution-motivated punishment doesn't require visibility by audience and, when used as a formal punishment, the severity of the punishment is tailored to the gravity of the offense.49
In the context of pregnancy and pregnancy outcomes, we see retribution-motivated punishment when, for example, women are charged in connection to pregnancy loss.
For millennia, “women incapable of giving birth have been considered defective because of their failure to fulfill the divine function they were created for,”50 that is, according to Augustine of Hippo, an “instrument.”51 In medieval Catholic belief, for example, “fulfilling her ‘natural female role’ by bearing children was considered a ‘woman's best chance to redeem herself from the sin of Eve and restore herself to honour.’ Without the ability to bear children, women were considered to be precluded from attaining grace.”52 Hence, women have long been punished for pregnancy loss.53
A desire still exists today “to punish those who experience ‘imperfect’ pregnancies. This punitive impulse is deeply embedded across social structures and reflects… revulsion for a biological process which is highly stigmatized.”54 Thanks to the Puritans’ obsession with controlling and punishing female sexuality, some states still have laws on the books that were originally “enacted to punish women who had sex outside of marriage and are now being used to control women, mostly women of color and poor women, for not adhering to society’s idealized vision of femininity and motherhood.”55
More and more, laws that criminalize the concealment of a birth (or death) or the abuse of a corpse are being used to exact retributive punishment against women who experience pregnancy loss— a normal and common pregnancy outcome. To this day, many of the laws criminalizing concealment only apply to unmarried women.56
Women who, in the midst of the oft shock and trauma that immediately follows the loss of even an unwanted pregnancy, behave in a way that doesn't demonstrate adequate, performative reverence to the sacred fetal object, the holy relic, are targeted. Here, the “state’s condemnation of women’s actions is based in disapproval of women who do not adhere to society’s ideas of womanhood”57 and the desecration of the sacred object. The normal disposal of miscarried pregnancy tissue becomes an act of sacrilege — a grave offense which must be severely punished.
Making criminals out of women for experiencing imperfect pregnancies is a gender-based, retribution-motivated punishment. Punishing pregnancy loss is an act of vengeance for the violation of what society holds sacred: gender role conformity and holy relics.
*Of note: At least four women have been executed in the United States and American colonies for concealing a birth.5859 Their names are:
Susanna Andrews, executed by hanging, 1696
Ann Tandy, executed by hanging, 1702
Rebecca Chamblett, executed by hanging, September 1733
Hannah Piggen, executed by hanging, 1785
Some anti-reproductive-rights policies establish avenues for interpersonal retribution-motivated punishment, such as civil remedy provisions contained in anti-rights legislation allowing putative fathers to sue abortion providers for the “wrongful death” of an embryo.60 While such legislation is ostensibly aimed at punishing physicians and enshrining fetal personhood ideology into law, the legislation formally establishes an avenue through which abusive, controlling men may harass and punish their current or former wives or girlfriends for terminating their pregnancies.
“Even though pregnant people themselves are not being sued, lawsuits against abortion providers have the potential to expose women’s medical information and personal and intimate details of women’s lives and medical care in open court. For example, statutes that allow fathers to sue abortion providers for violating antiabortion regulations would require, at a minimum, that the woman’s medical files be subpoenaed and entered into evidence as proof that the procedure took place.”61 “Civil remedy laws carry the legitimate threat of having a woman’s abortion procedure scrutinized in public court, raising the serious risk of public shame even though the pregnant woman herself is not a party to a lawsuit.”62 In some communities, “being publicly identified as having had an abortion… may result in severe consequences for women beyond shame and humiliation, including negative impacts on their work, family relationships, and education.”63
The harassment and punishment of women by abusive men through public shaming and exposure and through all of the travails that come about by one's personal medical procedure being at the center of a lawsuit is interpersonal, retribution-motivated punishment.
Rehabilitation
To rehabilitate is “to restore to good health or useful life, as through therapy and education,”64 and “to cause to be regarded again in a positive way; reestablish esteem for.”65 Rehabilitative punishment “applies[] treatment and training to the offender so that [she] is made capable of returning to society and functioning as a law-abiding member of the community.”66 Rehabilitation is “viewed as a humane alternative to retribution and deterrence.”67
Because rehabilitative punishment “includes work to reform and rehabilitate the culprit so that [she] will not commit the offence again,” it is “distinguished from deterrence, in that the goal [of rehabilitation] is to change the offender's attitude to what [she] has[] done, and make [her] come to see that [her] behavior was wrong.”68
Court-ordered therapy and rehabilitative education are examples of rehabilitation-motivated, formal punishment. In a 2023 study, participants selected there preferred methods of punishing women for abortion from a variety of choices. The plurality of the study participants endorsed punishing women for abortion with “Therapy/education.”
*It's worth pausing for a moment to fully consider how pernicious it is to force someone into re-education or therapy for exercising agency over their body and health. Dressed in the language of beneficent rehabilitation, re-education and therapy in the context of abortion are methods of colonization - of colonizing women’s minds.
“An individual woman deciding whether to terminate a pregnancy will evaluate the morality of that act in light of her obligations to herself and others, including the unborn, if she conceptualizes the embryo/fetus as separate from herself.”69 To punish women for abortion specifically with therapy and re-education is to say to women: “You thought your body belonged to you and that you were in the best position to make decisions about your life and your health. You thought wrong— and we must psychologically break you of that belief, of that sickness.” This is a particularly pernicious form of gender-based, rehabilitation-motivated, formal punishment.
Incapacitation
To incapacitate is “to deprive of strength or ability; disable.”70 “Incapacitation refers to the act of making an individual ‘incapable’ of committing a crime—historically by execution or banishment, and in more modern times by execution or lengthy periods of incarceration.”71 “The death penalty does this in a permanent (and irrevocable) way. In some societies, people who stole have been punished by having their hands amputated.”72
In addition to a lifetime prison sentence and the death penalty, forced sterilization, involuntary commitment, and states seizing custody of women’s fetuses are other forms of incapacitation-motivated, formal punishment in the context of pregnancy and pregnancy outcomes.
It was revealed earlier this year that in 2022, in addition to keeping a secret list of pregnant women who authorities thought *might turn out to be bad mothers, the Vermont Department of Children and Families (DCF) had lied to a judge in order to seize custody of a pregnant woman's fetus (Her fetus! Inside her body!) based on spurious allegations made by an adoption center that the pregnant woman *might need mental health care, despite having no jurisdiction to do so and entirely without the woman's knowledge. Not until she gave birth and her daughter was swiftly whisked away did she find out what had happened.
“She was still in the dark until the moment she gave birth and her baby girl was immediately taken away, said Harrison Stark, senior staff attorney at the ACLU. She had no idea that while she was in labor, hospital officials were relaying updates to the state — including details of her cervix dilation — and had won temporary custody of the fetus. At one point, the state sought a court order forcing the woman to undergo a cesarean section... It took her seven months to win full custody of her daughter.”73
Because this young pregnant woman did not meet someone's subjective image of the idealized good mother, the state tried to take away her ability to mother her child altogether. This is gender-based, incapacitation-motivated, formal punishment.
As this series has shown, there are many ways of punishing women. Because all pregnant people are viewed as women within the anti-reproductive-rights framework, they are targeted for gender-specific offenses and are punished in gender-specific ways. These punishments go beyond the narrow framing of punishment in the mainstream press and often go unacknowledged. When we consider the many facets of gender-based punishment, from behavior modification to retribution against women who fail to conform, from forced vaginal penetration to public shaming, the many ways that the anti-reproductive-rights movement punishes women become evident. ■
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