Life, Loss, Listening and Lennart Nilsson

 I want to show what is close to us, what we all know, in new ways.
– Lennart Nilsson.

I happened to be in Stockholm as I began writing this post. Scouting out things to do around the city, I noticed a new exhibit at the Fotografiska museum. To honor the recent passing of Swedish photographer Lennart Nilsson, the museum was showing his iconic photographs of fetuses, which were first published in a 1965 issue of Life Magazine.

Carol Sanger’s fascinating new book, About Abortion: Terminating Pregnancy in Twenty-First Century America, highlights a fact about those photographs that many people probably do not realize: all but one of the fetuses had been aborted or miscarried. They were cleaned, suspended in fluid, and backlit for effect (79-80). Those facts make the title Nilsson chose for his collection, “A Child is Born,” an ironic one – the fetuses he photographed would never be born. As the exhibit’s introductory placard (pictured below) suggests, these “awe-inspiring” and “breathtaking” images “expose our fragility and our mortality, but also our viability.” Yet Sanger reminds us that how we view life—and, relatedly, abortion and pregnancy – is not just the stuff of the cosmos.  She convincingly argues that you cannot understand modern abortion law or practice without understanding the social history of life and death and, in particular, the role technology plays at both the beginning and end of life.

Sanger notes that technological developments, including the techniques used by Nilsson or the ultrasound, likely influence the public attachment to fetal personhood. Sanger persuasively demonstrates that there’s nothing new in that attachment (81). She describes the myriad ways in which, over time and across disciplines, people have channeled their ideas about life’s values into the womb and have grieved by conjuring life after loss. In Chapter 6, Sanger details the 19th century popularity of post-mortem photographs of deceased children, which built on the earlier trendiness of posthumous portraiture (136). The role of these representations was to “serve as artifacts of consolation, intended to comfort the bereaved” (137). The same can be said of “spirit” photographs, in which a photographer superimposed a ghostly image of the departed onto the picture of a loved one. These examples communicate something profound about our yearnings to understand life, death, and loss.

With these examples in mind, a Texas law requiring burial or cremation of fetal remains might make sense to many people (85). To be sure, most state regulations of abortion are, as Sanger argues, forms of coercion (mandatory viewing of ultrasounds, for instance) as well as blatant efforts to make abortion difficult and costly.  But past and present values associated with developing life do not have to be anti-women or anti-abortion. Sanger writes that “loss is different from regret” – “the possibility of loss is neither prediction nor endorsement: it is simply recognition” (132-33). Women may experience loss when they terminate pregnancies – think of women who terminate planned pregnancies because of a fetal medical condition or who elect intact D&E because they want to mourn a fetus that is removed as an entire body (151). Those women, contrary to Justice Kennedy’s infamous assertion in Gonzales v. Carhart, do not necessarily experience regret about their decision (132). As Sanger suggests, they certainly do not benefit from a government that treats their experience as one only of remorse or shame.

I highlight Chapter 6’s examples out of the many Sanger provides because they are indicative of the book’s approach: the story of abortion in the United States is complicated, and it cannot be boiled down to a simple question of whether the law should confer rights on women or on the fetuses they carry. Postmortem photography faded from popularity as death moved from the home to hospital; children’s lives were much easier to capture with the less expensive, less time-intensive photography introduced by Kodak (139). Yet the role of technology is also not straightforward – the picture of fetal life that scientific developments reveal is sometimes troubling or threatening, not “awe inspiring.” Take again the example of prenatal testing.  Ultrasound images may mean “the wantedness of the pregnancy” is “suddenly…put at issue” (146). And arguably, “normalizing abortion” (the title of the concluding chapter) has always occurred in the area of prenatal diagnosis. Prenatal testing depends on termination as an option.  Most writings on testing breakthroughs – how a blood sample taken at ten weeks of pregnancy can reveal numerous fetal conditions and characteristics, for instance – assume an accompanying increase in post-diagnosis terminations. The option of abortion based on fetal characteristic has recently been the subject of legislation in two states (one of those laws has been enjoined) (234), but prohibiting women from terminating certain pregnancies based on test results has been unpopular.

In addition to Sanger’s historical and technological examples, her impressive summation of the state of abortion law warrants mention.  It’s worth noting that Nilsson had subjects for his photography because abortion was then legal in Sweden. The book includes the Supreme Court’s latest case on the subject – Whole Women’s Health v. Hellerstedt, in which the Court offered a “textured account” and “fact-saturated” picture of the availability of abortion services for Texas women after the passage of a TRAP law (35-36). Sanger notes that the landscape for abortion services has begun to look a little pre-Roe, with some states having very few providers. Whole Women’s Health offers hope that courts will find that some of the laws driving providers out of business impose undue burdens under Casey.

Sanger also grapples with the toughest legal issues for abortion advocates. For one, she spotlights how surrogacy contracts with termination provisions might tell us something about how men think about abortion choices. Disputes over the enforceability of surrogacy provisions (agreements to terminate pregnancies in certain situations) implicate the intersecting interests of intended parents, who may no longer want to be parents; of a gestational surrogate, who is caught between concerns about compensation and commodification; and any resulting children who are born. Sanger notes that intended fathers, contracting with surrogates or freezing embryos, weigh similar considerations that pregnant women do – the ability to parent or a desire not to parent with a partner (208).

The tough issue that captures much of Sanger’s attention is the judicial bypass, that is, the hearing in which a court grants a minor’s request for abortion without parental notice or consent.  Margaret Talbot’s recent profile of the book for The New Yorker summarizes Sanger’s argument that bypass hearings are a form of punishment. Requiring a teenager to navigate a court process in which she is compelled to answer any question about her sex life, family, or relationships is, for Sanger, a dignitarian harm and demeans the legal system. (Indeed, some of the questions judges have asked are outlandish, misguided, and cruel – questions a pregnant woman need not answer the minute she turns eighteen.) Sanger compares bypass hearings to collusion under fault divorce law, to the petitions of medieval pardon seekers, and to the proceedings of the House of Un-American Activities Committee (172-74).

Taking Nilsson’s quote of showing “what we all know, in new ways,” I wonder how we might, moving forward, complicate our understandings of teen sexuality and teenage abortion. Sanger refers to teenage pregnancy in several places as a predicament (158, 168, 181, 183). This is a term that had been used to describe all unmarried women’s pregnancies, an earlier era to which Sanger refers (163). Is there a taken-for-granted stereotype in describing bypass petitioners as terrified, “unformed” young women who “talk like teenagers” (170, 171, 172)? Consider the distinction Sanger draws between abortion privacy (your decision not to share information about yourself) and abortion secrecy (hiding information for fear of judgment or stigma). As Sanger notes, the bypass process protects teenagers’ privacy, but the compelled nature of hearing testimony can make the procedure seem like gossip. When the secret becomes public (to family members or members of the teenager’s community), Sanger and others demonstrate that problematic consequences can follow.  Sanger writes of bypass petitioners in the concluding chapter, “the failure of family members to disclose secrets even to one another creates its own set of harms” (221).

There is a subtle tension in the desire to address “the problem of unwanted teenage pregnancy” (158) and Sanger’s call to end abortion secrecy. Do we believe teenagers should add their voices to those who would talk about their abortions? It seems true that many bypass petitioners will feel some humiliation and exhaustion from an unnecessarily cumbersome process. We should minimize those harms for minors. But in the spirit of Sanger’s call for “just a bit more openness and generosity,” (238) we might imagine that the networks of clinicians, lawyers, court officials, and young women who joined together to navigate the bypass process are just the people to share their stories, find solidarities, and agitate for change. This means viewing pregnant teenagers as resilient and acting with agency – plugged in rather than checked out of movements for reproductive justice. Young women may not have “disappeared” from abortion conversations, as the pro-choice trope might have us believe (119).

About Abortion is about both listening and talking. Sanger asks us to question our assumptions and take a risk because speaking up can be risky.  When practitioners come up with strategies that make the bypass work better (by switching venues, for example), states legislate to close down those avenues (requiring residency to petition a court). The resistance of legislators and other powerful groups to “openness” or “generosity” is undoubtedly daunting. But the hope of Sanger’s important contribution is that the voices of the many Americans who have depended on a legal right to abortion can rise above the voices opposed to it.

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