Recovering Women: Intimate Images and Legal Strategy
| Author | Eileen V. Fegan |
| Date | 01 June 2002 |
| Published date | 01 June 2002 |
| DOI | 10.1177/096466390201100201 |
| Subject Matter | Articles |
RECOVERING WOMEN:
INTIMATE IMAGES AND LEGAL
STRATEGY
EILEEN V. FEGAN
Queen’s University, Belfast, Northern Ireland
ABSTRACT
In Canada today, there is no prohibitive regulation of abortion. Indeed, federal law
seems barely cognisant of the social reality of the widespread termination of preg-
nancy. The absence of legal obstacles appears to remove law from the abortion debate,
but, having defined its terms, I argue that law continues to operate at a constitutive
level, notwithstanding its invisibility. In Canadian public consciousness, there is
‘abortion on demand’. However, an examination of women’s actual experiences
reveals a complexity and a mismatch with social and legal discourse that feminists need
to address both theoretically and practically. This article uses 15 specific stories to
explore the factors preventing the realization of feminist ideals of full and equal choice
for all women. An awareness of women’s agency and the different ideological con-
texts and material inequalities under which they negotiate unplanned pregnancy,
abortion and motherhood must inform feminist strategies within and beyond law, if
the promise of reproductive rights is to be fulfilled universally.
INTRODUCTION
This article asks how we might establish a place for women’s experiences in
the development of reflexive legal and political strategy on abortion. I argue
that any moves to empower women in relation to abortion must emanate
discursively from a deeper understanding of women’s agency than has pre-
viously informed pro-choice campaigns, and materially from their self-
identified needs in responding to unplanned pregnancy. Relying on a
theoretical framework that underscores women’s agency in the process, here
I analyse 15 women’s experiences of abortion decision-making in Canada,
to explore discursive strategies to resist those constructions of femininity
that restrict women’s choices in ideological and material ways.
While there is no universal ‘women’s experience’ of abortion decision-
making from which to strategize on a global level, there are individual
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women’s experiences – personal narratives – of how they responded to the
event in their own lives. Their stories are critically important at this junc-
ture both for feminism as a political movement and as a socially engaging
discourse. An understanding of women’s real lives allows us to consider at
a concrete level the conflict which has emerged between using women’s
experiences to direct feminist reform campaigns and more academic efforts
to deconstruct understandings of femininity in discourses such as law,
medicine, psychology and religion. The dangers of endorsing the concerns
of too narrow a constituency of women and of essentializing ‘the female’ by
attempting to encapsulate women’s needs in specific reform strategies led in
the 1990s to a focus on the role of discourse in controlling women through
the shaping of various female identities (Smart, 1989, 1992). However, after
a decade of deconstructing the category ‘Woman’ in law, some legal
feminists have begun to identify universalistic ironies in this approach
(Drakopoulou, 1997) and to question its efficacy in addressing women’s
continued legal and systematic economic disadvantage (Conaghan, 2000).
The shared aim of these different approaches is arguably to empower
women – which I argue must encompass all aspects of women’s lives. For
example, it is not enough to enhance women’s economic opportunities
without addressing the ideological factors that prevent women availing of
them, or to disrupt stereotypes of ‘women’s work’ without preparing them
– often psychologically – for alternatives from which they have historically
been excluded. Among the various levels on which feminists can work to
empower women, the focus on agency is a necessary and constant thread.
Central to the formation (and frequently the reformation) of identity
(Fegan, 1999), I see agency as that realm of human consciousness respons-
ible for deciding which (of many possible) discursive constructions to
identify with, and that which enables individual and diverse responses to the
cultural ideas prevalent in our societies. Quite simply, it is that which enables
the expression of our ‘selves’.
While women’s agency is largely taken for granted in the feminist political
community and inadequately explored in academic writings (certainly at a
concrete or empirical level), a valuable opportunity is therefore lost for
reconnecting the two branches of feminism and overcoming this dilemma.
Women’s stories necessarily link academic feminism with the wider feminist
movement, since women’s experiences of either oppression and disadvantage
or denial and exclusion individually and collectively are what create a feminist
political constituency or a discursive subject-hood in the first place. Theor-
etical arguments work well in deconstructing normative and institutional
practices that disadvantage women, but do little to fill the discursive spaces
they create for women’s voices. Nor do they provide any guidance on the
ways in which women might best participate in reformed institutions and
renewed structural frameworks. Refocusing on the stories of women as indi-
viduated moral and political agents enables them to contribute to feminist
discourse as well as legal, political and wider institutional reform programmes
without claiming some unnecessary representation of all women.
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THE CONTEXT
Notwithstanding the suggestion often put to me that in Canada at least
abortion has been ‘done’,1 there remain many reasons – discussed below – to
consider women’s experiences of abortion decision-making in that jurisdic-
tion. Admittedly, more generally, abortion has received extensive treatment
in feminist academic and political circles. As both a symbolic expression and
a practical endorsement of women’s agency and empowerment, the need to
secure its availability for all women keeps it high on the feminist agenda. That
it may never be needed or used by the majority of women does not detract
from its ideological significance in establishing the expectation that women
as agents must control their own bodies and their lives.
However, apart from the dangers of complacency about this gauge of
women’s social and legal status, feminists have already learned that legal
reform alone is insufficient to improve the quality of women’s lives when we
consider the totality of their experiences. Significant developments have been
made, in the workplace for example, through the recognition that sexual
harassment of women is sex discrimination per se. Yet, this development
neither challenges the underlying causes nor negates the ideological, struc-
tural, financial and procedural factors that make legal action for sexual harass-
ment a risky and inordinately stressful business. Critical legal scholars have
long argued that the ‘law on the books’ tells us little about its application and
effects in practice (critical legal scholars, various, 1984). When we add to this
the feminist recognition of women as much more than legal subjects, it is clear
that we now need a theoretical and strategic approach that speaks to all of
who we are. This is particularly evident in Canada, almost 20 years after the
introduction of the Charter of Rights and Fundamental Freedoms, and 14
years since Section 7 enabled the Supreme Court to decriminalize abortion.
It has even more profound implications for feminists working in jurisdictions
where, even on the books, law remains blind or offensive to women’s agency.
MATERIAL
The legal construction of abortion as a constitutionally protected freedom
was fiercely contested in the Canadian courts in the early 1990s and, when
this avenue failed to secure anti-choice goals directly, they resorted to other
more subtle and subversive means. The pattern of sustained and escalating
harassment of abortion clinics’ staff and women using abortion facilities in
British Columbia necessitated the introduction in 1995 of the first Access to
Abortion Services Act, as part of the provincial government’s ‘comprehen-
sive reproductive health strategy.’2 During the 1990s, Canadian socialist
feminist literature explored why and how the decriminalization of abortion
failed to secure women’s many different needs – and actually left some
women worse off than under old therapeutic provisions of the Criminal
Code 1969 (Gavigan, 1992). While few would deny that Canada’s liberal
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de-regulation of abortion symbolizes feminist political progress in the recog-
nition of women’s bodily autonomy and personal freedom, questions still
remained as to equity of abortion provision and access. Concern for these
material factors, which provided the legal basis for the 1988 Supreme Court
ruling, still influences pro-choice activism nationally and provincially.3 Upon
decriminalization of abortion, there was a tendency to assume that every-
thing law could deliver had been achieved. Yet, post-legalization abortion
politics in North America has shown complacency in this field to be mis-
placed. In the USA, legal abortion has been under constant threat of erosion
by successive Republican governments, with...
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