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Why the Modern Democratic State Needs Abortable Children

THE FETUS AS HOMO SACER — PART II

By Jason M. Morgan | March 2021
Jason M. Morgan, a Contributing Editor of the NOR, teaches history, language, and philosophy at Reitaku University in Kashiwa, Japan. He is the author, most recently, of Law and Society in Imperial Japan: Suehiro Izutarō and the Search for Equity (Cambria Press, 2020). He would like to thank Anne Conlon for her invaluable assistance with this article series.

Ed. Note: The first installment of this two-part series appeared in our January-February issue.

According to Italian philosopher Giorgio Agamben’s reading of ancient history, the homo sacer is a person outside the bounds of the law, someone who is, in fact, himself the boundary between the law and lawlessness. Without this person who may be killed without legal penalty, Agamben reasons, any given sociopolitical order would fall apart. Agamben, French philosopher Michel Foucault, and others who study biopolitics have identified the homo sacer in modern history as, for example, prison-camp inmates, who linger in a limbo between life and death, whom the state has forcibly set apart from society and may kill at any time. The Holocaust of the Jews was certainly an instance of the modern-day mass murder of a regime’s chosen homo sacer. But the linchpin of today’s liberal world order, its true homo sacer, is the fetus. Biopolitical discourse largely elides the topic of abortion, but this only confirms the centrality of the child in utero to the scheme of rights that frame modern law. The terrible reality is that without the fetus as homo sacer, liberal moderns would not enjoy the rights they cherish above even the life of their unborn children.

In Thomas Lemke’s Biopolitics: An Advanced Introduction (2011) we find one passage about abortion that is highly revealing. Lemke argues that there has been a shift over the past 30 years in “biopolitical processes” away from governmental “forms of discipline and population regulation” to individual “forms of self-care,” though with a critical distinction. Lemke writes:

Citizens themselves are granted the right to make life and let die…. From the deployment of reproductive technologies — for example, in-vitro fertilization — to the decriminalization of abortion (“let live or prevent from living”) to assisted death in palliative care (“letting oneself die”) or consciously induced death through assisted suicide (“making oneself die”) — all these features…have to do with decisions that are increasingly the responsibility of individuals…. “Self-determination” is a central feature of contemporary biopolitics…. This does not, however, signify a simple growth in individual autonomy. Rather, a new type of social control is established whereby only those decisions about the body that conform to social expectations and norms are considered rational, prudent, or responsible.

In this passage, we can glimpse the truth that the unborn child, the fetus, has become modern democracy’s homo sacer. Further, we see that abortion is not tangential to biopolitics; it is representative of it. Because abortion is almost completely missing from biopolitics debates, it is, paradoxically, central to them. That is, after all, how the homo sacer himself functions: as the exception which is also the rule. The unmentioned, unacknowledged, apparently unnoticed fetus, killed by the hundreds of millions in the modern world, is “bare life,” as Agamben put it, acceptable for the sovereign to kill.

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