San Diego Law Review

Mandatory Ultrasounds and the Precession of Simularca

Author(s)

Jessica Knouse

Editor(s)

Faculty editor: Larry Alexander

Details

Publication Law Review
Volume 54
Issue 1
Start Page 117
Month March
Year 2017
Type Article
Subject Area

Abstract

The term “precession of simulacra”[1]—coined by French philosopher Jean Baudrillard to describe the postmodern phenomenon wherein “images precede reality”—accurately describes what is wrong with the pre-abortion ultrasound mandates that have recently been enacted in a number of states.[2] The term captures the idea that the traditional reality–image hierarchy has been inverted and repeatedly re-inverted to the point where the boundary between the two has become blurred. Laws that require doctors to display and describe sonograms prior to performing abortions exploit this blurring by encouraging women seeking abortions to experience fetal images more vividly than they experience the realities that lead them to their abortion decisions. Such laws are, when considered in context with other abortion regulations, quite transparent attempts to characterize fetusesas persons” and women seeking abortions as their “mothers,” at a time when the women have already considered and rejected those labels as inconsistent with their own lived experience. While it is questionable whether such laws actually prevent many abortions, it is clear that the intent behind the laws—and in some cases their effect—is to impose guilt and shame on a highly vulnerable population. This Article explains how an ultrasound alters the experience of pregnancy, how ultrasound mandates operate as pro-life initiatives, and how women and their doctors can challenge these mandates. It argues that, although the most successful challenges to date have rested on free speech grounds, courts ought to invalidate ultrasound mandates on the basis that they deprive women of “equal dignity” under the Fourteenth Amendment. After sketching this legal framework, the Article draws on postmodern theory to make both descriptive and normative claims: Descriptively, it claims that ultrasound mandates represent a “precession of simulacra” in that they attempt to render fetal images prior to women’s own realities. Normatively, it claims that ultrasound mandates ought to be abolished because our laws should not propel us into the state Baudrillard called “hyperreality,” in which the distinction between the simulated and the real is irreparably lost.[3]

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