IMMUNITY, BARE LIFE, AND THE THANATOPOLITICS OF REPRODUCTION
The womb, rather than Agamben’s camp, is the most effective example of Foucault’s biopolitical space.
—Ruth A. Miller, The Limits of Bodily Integrity
FOUCAULT AND BIOS: THANATOPOLITICS AND “FORESTALLED LIFE”
Arguing that there are unstable oscillations in Foucault’s account of the relationship between sovereignty and biopower, the Italian philosopher Roberto Esposito has argued that they arise from a missing component or an “interval of meaning” in Foucault’s work—and in a number of modern philosophers from Hobbes onward.1 He has coined a term for this missing link between Foucault’s account of the biopolitical and its tendency toward the thanatopolitical, naming this the “interpretive key” of immunization (Bios 44). It is described as eluding Foucault, yet also as emerging in all its analytic necessity within Foucault’s own work. Making the argument, Esposito returns us to the point on which we have been concentrating: Foucault acknowledges that formidable powers of death (including execution, genocide, massacre, war) are biopower’s underside (l’envers; HS I 137),2 for they have been exercised in the “exigencies of a life-administering power” (les exigences d’un pouvoir qui gère la vie; HS I 136).
BOUCLER LE CERCLE
As we have seen, such powers of death are considered by Foucault as the end point or culmination (l’aboutissement; HS I 137) of biopower’s process. If biopower has this power of death as its counterpart (le complémentaire; 137),3 and if biopolitics distinctively administers life on the level of the population, then it does complete that circle (boucler le cercle; HS I 137) if its power of death could similarly impact whole populations, effecting an all-out destruction. The capacity to expose a whole population to death arises with the technologies and governmentalities oriented to comprehensively optimizing its biological life, and in this sense does not bear an accidental relation to the latter.
We saw that in The History of Sexuality, volume 1, and also in Society Must Be Defended, nuclear power is not only considered by Foucault as an extreme variant of the sovereign power to kill. Nuclear power has been comprehended in strategies of management of security and of collective well-being. Perhaps its threat of annihilation will present as serving an overall common interest such as stability. It may be said to defend peoples and nations against the possibility of attack or to maintain global military equilibriums. The biopolitical “underside” (the correlate capacity of all-out destruction of a population) would therefore be distinguishable from the destructive might—or right—of sovereign power.
However, in Society Must Be Defended Foucault presents a different version of this argument. Its final lecture discusses a deployment by state powers of biopolitical governmentalities through which the distinction between biopower and sovereign power can blur. Thus Foucault argues that there is also the possibility of a biopower that may come (as seen in state racism) to function through “the old sovereign power of right of death” (SMBD 258).4 The latter may be said to modify (modifier) to “penetrate,” or to “permeate (traverser)” the former (SMBD 241). As Esposito considers the emerging ambiguity: “If we consider the Nazi state, we can say indifferently, as Foucault himself does, that it was the old sovereign power that adopts biological racism for itself.… Or, on the contrary, that it is the new biopolitical power that made use of the sovereign right of death in order to give life to state racism. If we have recourse to the first interpretive model, biopolitics becomes an internal articulation of sovereignty; if we privilege the second, sovereignty is reduced to a formal schema of biopolitics” (Bios 41).
While these variants may not be easy to distinguish, they remain analytically distinguishable for Foucault. Yet, as Esposito points out, “Foucault never opts decisively for one or the other” (Bios 41). Foucault’s account of sovereign power remains stable in his work: it is primarily privative, it is a power over territory, bodies, life, it is a right of seizure or domination, it is associated with legal mechanisms of enforcement. He claims that this mode of power is supplanted in importance by the biopolitical, yet it may coexist with, be imprinted by, or inflect the biopolitical. Even so, he does not relinquish the view that they retain different characteristics.
Not all the resulting coincidences are understood by Foucault as paradoxical. For example, it is not, finally, “a limit, a scandal, and a contradiction,” for capital punishment to persist and be reconfigured as part of a biopolitical context if execution is pursued as part of a strategy of optimizing overall well-being (HS I 138). It is similarly not, for Foucault, a paradox that such biopolitical powers of life as the administration of subsidized medication or of health insurance may include a differential withholding from certain groups, where this is claimed to be necessary to ensuring the stability of health care. No more is it a paradox, for Foucault, that the biopolitical powers of death he distinguishes from the sovereign powers of life may come, as he argues in Society, to “function through” the latter. Even the fact that the entire biological existence of a population might come to be threatened by its own optimizing biopolitical strategies still is not deemed by Foucault a contradiction, but rather as continuous with the underside (powers of death) comprised in the very means of pursuing powers of life.
Yet Foucault does progress to several seeming or possible paradoxes, as follows. First, what if the powers of death of sovereign power and of biopower, though differentiable as modes and aims, coincide in the same phenomenon? Now Foucault offers a different consideration of biopoliticized nuclear power, this time suggesting that its use might be implicated in parallel but conflicting strategies. For example, one could imagine its deployment taking place both as an exercise of sovereign authority and as the putative assurance of a population’s biopolitical interest, and he also proposes the possibility of the latter acting “through” the former, or vice versa. But what if such double strategies, playing out in the very same event (the threatened use of nuclear power), also challenge each other’s interests or substance of operation? For example, what if the biopolitical exercise annihilates the life over which sovereign power would claim authority? Or what if the sovereign power annihilates the life that the biopolitical variant aims to optimize? Foucault most clearly refers to a paradoxical variant (using that term) to describe a possible outcome of the capacity to create and deploy viruses generated by biopolitical management of life at the level of population. Here the question might be: what if that virus mutates or becomes uncontrollable? What if it exceeds the possibilities of its biopolitical administration, taking on a destructive life of its own, so to speak? The fact that generating a virus could annihilate rather than contribute to the optimal administration of life would no longer be the “counterpart” or “underside” of the latter. Instead, it constitutes a limit to the corresponding administrative capacity, a disastrous excess to life’s governability. In this it is like the variant of nuclear power that is “not simply the power to kill, in accordance with the rights that are granted to any sovereign,” but “the power to kill life itself … power … exercised in such a way that is capable of suppressing itself” (SMBD 253). Therefore, says Foucault in a passage widely discussed by post-Foucauldian theorists who have foregrounded thanatopolitics, we can
identify the paradoxes that appear at the points where the exercise of this biopower reaches its limits. The paradoxes become apparent if we look, on the one hand, at atomic power, which is not simply the power to kill.… The workings of contemporary political power are such that atomic power represents a paradox that is difficult, if not impossible, to get around. The power to manufacture and use the atomic bomb represents the deployment5 of a sovereign power that kills, but it is also the power to kill life itself … And, therefore, to suppress itself insofar as it is the power that guarantees life. Either it is sovereign and uses the atom bomb, and therefore cannot be power, biopower, or the power to guarantee life.… Or , at the opposite extreme, you no longer have a sovereign right that is in excess of biopower, but a biopower that is in excess of sovereign right. This excess of biopower appears when it becomes technologically and politically possible for man not only to manage life but to make it proliferate, to create living matter, to build the monster, and, ultimately, to build viruses that cannot be controlled and that are universally destructive. This formidable extension of biopower, unlike what I was just saying about atomic power, will put it beyond all human sovereignty.
(SMBD 253–54)
So, to reiterate, neither the seemingly conflicting aims of biopower and sovereign power, nor the fact that their aims and techniques can coincide in certain contexts, nor the fact that as modes they may temporally coincide, even be “co-present” despite Foucault’s claim that the one is “on the retreat” (SMBD 254), supplanted in importance by the other (“on the advance,” SMBD 254), nor the fact the biopolitical may sometimes function through, or “deploy,” sovereign modes (or the reverse), earn, in Foucault’s work, the term paradox. That term is used when biopolitical modes (whether pursued through powers of death or understood as supplanting, coinciding, working through, or conflicting with what he names sovereign modes) produce unmanageable powers of life and death which resist or exceed the governmental aims of biopower, threatening the latter’s aims of equilibrium, stability, security, anticipatory management—if not threatening life itself (SMBD 249). For biopolitical strategies, even when they concern the management of death (or amount to direct or indirect powers of death) aim, in their optimization of life, for a form of administration so comprehensive as to be able to factor, adjust, and correct even for the random and unpredictable.
But where Foucault sees the biopolitical paradoxically reaching its own limit, Esposito will identify differently the limit in Foucault’s parsing of biopolitics. Foucault draws no broader or systemic conclusions from the capacity of the biopolitical to terminate its own substance. For his part, Esposito loses from Foucault’s discussion the coefficient of ungovernability that establishes the difference between biopolitical powers of death “completing their own circle” versus (where they result in an incapacity of governability) becoming paradoxical.
For Esposito, such phenomena can be understood otherwise. His question, “why does a politics of life always risk being reversed into a work of death?,” (Bios 8) converts to an argument that the more defensive the political project, the more the latter delivers a destructiveness culminating in self-destructiveness. Esposito generalizes and attributes this tendency to the biopolitically life-optimizing aims of modernity. Foucault would have brilliantly identified the latter’s tendency toward destructiveness, and autodestruction, and yet also failed to account for it6—opening the analytic gap Esposito undertakes to fill.
A number of times Foucault refers to the taking shape of new powers, and their new objects, when other powers may have become inadequate or inefficient or unviable under new conditions. Describing biopolitical governmental aims, he speculates: “it is as though power, which used to have sovereignty as its modality or organizing schema, found itself unable to govern the economic and political body of a society that was undergoing both a demographic explosion and industrialization … too many things were escaping the old mechanism of the power of sovereignty, both at the top and at the bottom, both at the level of detail and at the mass level” (SMBD 249). Not just new capacities for governance but also new objects of governance emerge to replace incapacities of governance. Foucault can describe this emergence, but without attributing to it an inevitability. At most: “it is as though.”
Focusing on Foucault’s account of a biopolitics producing the life that it administers, producing new subjects, new forms of death (Bios 32), and new forms and objects of governance, Esposito argues that an additional conceptual or theoretical level is required. This “missing” level would provide an alternative to an unwanted but persistent Foucauldian separation between the political and the life it takes “charge” of (HS I 89), which is “penetrated” or “transformed” (HS I 143) by power or comes under state control (SMBD 239–40). Esposito concludes that it is “as if biopolitics is missing something,” a “more complex paradigm,” whose necessity would impose itself within the problematically distinguished terms of Foucault’s own work. There can be no biopolitics, no biopower, and no independently understood “power” prior to its “seizure” or “penetration” of life. So there is an analytic inadequacy in the Foucauldian formulations, for “it is as if the two terms from which biopolitics is formed (life and politics) cannot be articulated except through a modality that simultaneously juxtaposes them” (Bios 32). Yet Foucault avoids designating life as preexisting the biopolitics that seemingly seizes hold of it, considering that they emerge only together.7 Esposito therefore proposes that Foucault’s work contains a number of oscillations between references to a “life” and a “biopower” that could not precede each other and references to seizures or penetrations of the one by the other. These include life understood as somehow captured by politics and life understood as a problem whose management is somehow holding politics back.
This is where Esposito also eases the term thanatopolitics into the discussion. If Foucauldian powers of life can be pursued through powers of death, Foucault can indeed describe projects of national insurance as coinciding, without paradox, with projects of war. But why, asks Esposito, does the biopolitical proliferate a life “nourished by the deaths of others?” Doesn’t this remain unexplained by Foucault? Adding this dilemma to the paradigm whose absence he has just articulated (the life and power of biopolitics should not have a prior separability), Esposito will then claim to have traced a missing interpretative key that eluded Foucault.
This is the immune paradigm. It fills the interval Esposito locates in Foucauldian biopolitics and then is widened out (Bios 43, 45). Power and life form an inseparable immune paradigm that accelerates into the thanatopolitical.
REPRODUCTIVE IMMUNITIES
Esposito discusses the “paroxysmal point” of play Foucault recognizes between the sovereign right to kill and the mechanisms of biopower, attributed at one point to “the workings of all States.” While the theme of birth is going to be of particular interest to Esposito, it so happens that he doesn’t identify birth as having a particular interest for Foucault in this respect.
Is it an accident, then, that Bios,8 in which the development of Esposito’s “immune paradigm” partially takes the route of responding to Foucault’s biopolitics, begins with a particular group of seven vignettes, four of which discuss sex-selective abortion in China; pregnancies resulting from the ethnic rape of Tutsi and Bosnian women;9 forced pregnancy; forced abortion, totalitarian eugenics; regimes of forced sterilization, some of which have incurred high death rates of women; the preemptive destruction of the possibility of birth pursued as a Nazi tactic; and a controversial French legal case in which damages were claimed following a diagnostic error leading to the carrying to term of a pregnancy with severe congenital disabilities, contrary to the mother’s intent.
Characterizing the concerns of these vignettes, we might have supposed Esposito to be undertaking an account of the thanatopoliticization of reproduction. But they are grouped with other framing examples of Bios (including the killing of Chechen hostages as a means of defending their lives, the “humanitarian” bombing of Afghanistan, and infection by AIDS through negligent administration of blood collection in a Chinese province). Ought all these examples be grouped together, or is the first group I have mentioned linked by a more specific phenomenon for which we would need to develop its own conceptual language? Is Esposito right to characterize all these vignettes as “exactly the tragic paradox that Michel Foucault, in a series of writings dating back to the middle of the 1970s, examined” (Bios 8)? Their content seems far from the themes articulated by Foucault.
Moreover, they are grouped under the rubric of the “growing superimposition between the domain of power or of law [diritto] and that of life [and] an equally close implication that seems to have been derived with regard to death” (Bios 7–8). But, while Foucault describes a new status sometimes assumed in biopolitical contexts by the law (traditionally the expression of sovereign authority, but taking on new functions as the auxiliary of biopower),10 he attributes no particular role to the law with respect to the merging of power and life.11 Above all, when Esposito describes these vignettes as expressing the question asked by Foucault—“Why does a politics of life always risk being reversed into a work of death?” (Bios 8)—he could be said to miss a problem that also evaded Foucault.12 First, despite embedding it in his framing vignettes, Esposito misses the opportunity to introduce thanatopoliticized reproductive biopolitics as a specific problematic. Similarly, he misses the opportunity to describe it as a problematic absent (and, for his own purposes, interestingly so) from Foucault’s work. If the reversal of a politics of life into a politics of death also takes a more singular form as a mode of reproductive thanatopolitics, it calls for a conceptual approach adequate to that specificity. Esposito may undertake to account for what is missed by Foucault, yet that project omits in turn the Foucauldian omission of thanatopoliticized reproduction. Curiously, one might say, given Esposito’s own interest in reconfiguring birth and given the themes of Bios’s prefatory material.
The emphasis on contingency of formation that is available from Foucault’s work is replaced by Esposito with an analysis of inevitable and accelerating formations. This is one reason for his claim that the biopolitical “always” risks reversing into a politics of death (Bios 8). But such a claim would have a different status for Foucault. Foucault may describe a politics of death undergirding biopolitical strategies and aims,13 but not with the structural necessity attributed by Esposito, understood by him as leading to catastrophic results.14
Returning to the opening vignettes, and the interval of meaning established by Esposito in Foucault’s work, we can press the project further. The point is not that Esposito himself entirely neglects the thanatopoliticization of reproduction: to the contrary, as we saw. But he neglects its role within Foucault’s projects. This is all the stranger, given that his opening vignettes lead into his analysis of Foucault. That transition includes an additional discussion by Esposito of oscillation in Foucault’s work with respect to whether sovereign and biopolitical modes can be given a linear periodization. We should recognize, he answers, that such modes are also described by Foucault as coinciding, and so identify the more “ancient” genesis of biopolitics, “one that ultimately coincides with that of politics itself which has always in one way or another been devoted to life” (Bios 52). The examples which follow then include “the power of life and death exercised by the Roman paterfamilias,” Plato’s account of infanticide as a form of reproductive eugenics, and the latter’s enlarging “of the scope of political authority to include the reproductive process” (Bios 52-3).
A thanatopoliticized reproductive biopolitics is circulating as a tacit theme in Esposito’s work, contributing to his elaboration of the immune paradigm. Yet Esposito’s problematics are different than those of Foucault. Much of what is specific to the latter—the focus on conduct of bodies, stimulation by space and architecture, capillary intensifications, the complex multiplicities of power-knowledge-bodies—are outside Esposito’s interests. Articulating Foucault’s missing link, Esposito establishes his paradigm, and leaves Foucault behind. Let’s say that he does so just at the point where his own examples of a thanatopoliticized life—and reproduction—are prompting a discussion of the immune paradigm. This means he departs from Foucault’s resources, just short of that point where he might have turned to them for the elements contributing to a possible articulation of a reproductive biopolitics.
In HS I Foucault does not hesitate to include reproduction, optimal child raising, birth, and birthrate among the long-standing biopolitical preoccupations. As I asked in chapter 3, why, then, do we hear of biopolitically justified execution, the atomic bomb, the uncontrollable virus, an order given for the suicide of a people, when Foucault turns to thematize biopolitical powers of death—but not of biopoliticized birth and birthrate under the rubric of the latter? Are there not formations of powers of death arising from a biopolitized reproductivity? What of that account of the biopolitical in Society Must Be Defended, as effecting the split in the biological continuum between what must live and what must die, for example in light of the discussion of eugenic strategies intended to deter certain women from reproductive transmission (deemed thanatopolitical by Esposito in the final chapters of Bios)?
I have argued that to see reproduction and parenting taking shape as technologies targeting the health and optimization of individual and population futures is to see them concurrently taking shape as parallel technologies of death, with corresponding conducts including averting, managing, gridding, stimulating, predicting, distributing, and proliferating.
Yet for all that Psychiatric Power, Abnormal, HS I, and the last lecture of Society Must Be Defended all mention biopoliticized formations of reproduction conceived as countering (and so managing) the corresponding (individualized and collective) mortal risks to peoples, Foucault does not overtly conclude that these are the reproductive variants of biopolitical powers of death. Esposito’s immune paradigm might seem more promising in this respect, given that it both undertakes to explore Foucault’s missing link and pays more attention to historical techniques of forced or deadly sterilization, forced or withheld abortions, projects to annihilate a people’s reproductive possibility, and the suppression “not only of life but of its genesis” (Bios 143).
Esposito deems the forestalling of life in advance an extreme point of the thanatopolitical. But this discussion occurs under the general rubric of a thanatopoliticization of “life.” In consequence, a more specific attention would need to be directed at how reproduction, in particular, takes shape as the threshold of concurrent protection and destruction, prospect of life and death—this is not developed in his work.
My suggestion is that Esposito’s project of identifying Foucault’s oscillations can therefore be refracted back to his own work. Esposito oscillates between a thanatopoliticization of “life” and a more specific phenomenon, the thanatopoliticization of reproduction and maternity. Just as Esposito describes a missing interval in the Foucauldian account, a missing interval can similarly be identified in his own.
For we can ask: what are the conditions for maternity becoming a plausible candidate for a thanatopolitical biopoliticization of life? Esposito takes this possibility for granted, not considering that it requires its own genealogy. It is included in the immune (bio)politization of “life.” But women and reproduction are only available for biopoliticization (and so thanatopoliticization) in the terms described (through which they appear as “principle of life,” vector of life, vector of concurrently individual and collective life) by virtue of contingent formations of reproduction for which he does not account.
Consider also how, with one swing of the oscillation, the thanatopoliticized mother is supposed when Esposito describes the sterilization of women and the impact of selective antinatalism on “pregnant women” as leading to large numbers of deaths of women (Bios 144). We saw an oscillation to the other pole when Esposito also describes something else—sex-selective abortion in China, “the abortion of all those who would have become future women” (Bios 6, my emphasis). Esposito swings between the deaths of women and the suppression of birth,15 the “nullif[ied] life in advance,” (Bios 145) as if these can similarly be grouped under the rubric of suppression of “life.” Here what ought to be given close scrutiny: the very plausibility of an interchangeable reference to a biopoliticized woman-as-reproductive, her subsumption as principle of “life,” and that of a biopoliticized potential fetus is exempted by Esposito from critique and genealogical analysis.
ESPOSITO AND FOUCAULT: SUSPENSIONS
This is an encounter between the work of Foucault and Esposito in which the resources of each are retaining good potential to resist and stimulate those of the other. On these questions, it is Foucault, not Esposito, who broached the emergent status of reproduction as a biopoliticized responsibility for staving off new forms of lurking death. Yet it is Esposito, not Foucault, whose immune paradigm has, and in conversation with the latter, linked the biopoliticization and thanatopoliticization of women as reproductive. We can turn back to Esposito (citing Gisela Bock) for the corresponding reminder that women have been exposed,16 accordingly, to greater possibilities of their own injury and death, partly in association with the perception of their biopolitically promising or harmful impact. But we would need to turn to Foucault for a genealogical perspective on any of the forms of life (reproductive, infant, maternal, individual, that of populations) Esposito takes to be available for thanatopolitical forestalling. The resulting articulation is offered by neither Foucault nor Esposito, but it can be productively dislodged from the confrontation not only of their respective interests but also of their respective omissions.
Of Foucault, I had asked how we might theorize women’s comportment in reproduction insofar as it comes to be deemed, for example, obstructive to the interests of family, population, or nation, religion, ethnicity, the law or the state? How should we understand the sanctions sometimes emerging in this context—as stimulating new understandings of resistance and civil disobedience? As the new legal auxiliaries of biopolitical interest? The residual capacities of otherwise weakened sovereignties, lashing out in an exercise of phantom powers and so challenging what seems to represent a competing sovereign authority over life? A new division in a biological continuum since groups of women will, accordingly, by virtue of wealth, race, age, or immigration status be differentially exposed to such legal and social sanctions, prohibitions, harm, and death?
Or could it be, to recall the earlier discussion of Foucault’s paradoxical alternatives, that either the state imposes itself as sovereign over the woman’s capacities to reproduce—and then this is not “biopolitical”—or that reproductive women become a biopolitical technology of the health and life of the nation or the abstractions of collective “birthrate.” But, as such, they have reformed as the corresponding risk of harm to futures, collectivities, population. In the administration of this counterpossibility, we see what Foucault might have called the corresponding envers of (reproductive) biopolitics. We see the making of the possibility of excess, uncontrollability, unregulatability, located in reproduction-as-threat. We see, as Foucault might have said, the formation of a biopolitical excess to sovereign powers—or else the paradoxical limit, a kind of self-cancellation in the harm to or destruction of what was to be administered and in the capacities of such administration—in the very biopolitical interest in reproduction.
Exploring this, we could similarly ask if this point of excess and paradox (a lurking ungovernability) stimulates or marks the emergence of new objects and new governmentalities?
To return to Foucault’s “it is as though” (SMBD 249), he speculates about the “living on” or survival of a tiring or increasingly incapacitated sovereignty in new, biopolitical forms. This is a possibility explored (though not more specifically about thanatopolitical reproduction) by Esposito, for whom Foucault returns to “a logic of copresence.… On the one hand, he hypothesizes something like a return to the sovereign paradigm within a biopolitical horizon. In that case, we would be dealing with a literally phantasmal event, in the technical sense of a reappearance of death—of the destitute sovereign decapitated by the grand revolution—on the scene of life” (Bios 40–41). But it is also a possibility briefly broached by Wendy Brown, whose Walled States adds to reflections of the effects of nostalgic or phantasmatic sovereignty. She describes the exaggerated expression of sovereign authority in contemporary contexts where it otherwise,17 and simultaneously, can be understood to have weakened: in legitimacy, authority, field of influence, capacity for due process. Her discussions of more aggressive border and immigration control, walled states, military actions and rhetoric briefly mentions the resurgence of interest in controlling and restricting access to abortion.18
Brown and Esposito belong to a widespread trend among post-Foucauldian theorists who have interrogated the status of sovereignty in Foucault’s work through an exploration of more adequate models. Brown adds the compensatory efforts of phantom, nostalgic, or voided sovereignty, giving greater attention to contemporary crises in political legitimacy. Esposito locates the thanatopolitical extremes of an immune paradigm precisely in the “complex relationship, which [Foucault] instituted, between the biopolitical regime and sovereign power” (Bios 8). But the most extensive reconfiguration of Foucauldian sovereignty and biopolitics has been offered by Giorgio Agamben’s homo sacer project. For Agamben, by contrast, the contemporary status of the biopolitical would in no way indicate a weakening in the contemporary capacity of sovereign power.
The question I explore in tandem with Agamben’s response to Foucault is, however, an unusual one. Again it concerns the relationship between these reconfigurations of the sovereign-biopolitical relationship and reproductive politics.
FOUCAULT AND AGAMBEN ON SOVEREIGNTY
Prior to Esposito, Agamben had modified Foucault’s understanding of both biopolitics and sovereignty, revising Foucault’s deemphasis of the role of the law in contemporary biopolitics. Foucault primarily associates legal institutions, judgment, and enforcement with the appropriative and privative aspects of sovereign power, overlooking the significance of a sovereign capacity to suspend the law. Adopting the understanding of that power of suspension as definitively sovereign,19 Agamben gives his attention to phenomena overlooked by Foucault: in modern biopolitical contexts, and by virtue of the capacity to suspend a subject’s legal status and legal rights: “sovereign is he who decides on the value or the non-value of life as such” (HS 142). Both Foucault and Agamben explore sovereign power to take life. But Agamben’s variant is able to include the particularly lethal variant seen in the capacity to cancel the status of what is put to death, so that it will not have had value or counted as human life, rights-protected life, or life worth living.20
Sovereign power will be seen in techniques, legal and otherwise, exposing to death what is considered to be not fully human or rights entitled, and in particular rendering less than human what it exposes, so that a death will count as neither murder nor sacrifice.
We saw that, for Foucault, the status of the “life” (and so the lives) that are grasped (or left to die) by biopolitics or exposed to possible termination in an exercise of sovereign power are not clearly distinguished. It is, however a defining point of his work that these would not be considered the same “life,” nor the same death.21 Agamben develops this problem. Foucault, he argues, lacks a distinction between bare human life (that of a human reduced to its merely being alive) and the life of humans understood as rights bearing, as citizens, or as qualified life “worth living.” The missing distinction is the difference between zoe and bios. With it, Agamben can redefine sovereign power as the power to reduce bios to zoe, or bare life. This is seen in forms of political exclusion, in forms of exposure or putting to death that do not count as homicidal. Thus Agamben is able to respond to Foucault on the problem deemed underdeveloped in his work: “when life becomes the supreme political value, not only is the problem of life’s nonvalue thereby posed, as Schmitt suggests but further, it is as if the problem of sovereign power were at stake in this decision” (HS 142).
Foucault acknowledges that mechanisms including the deprivation of resources, “increasing the risk of death for some people, or, quite simply, political death, expulsion, rejection” amount to indirect forms of murder he associates a) with the powers of death of biopolitics, b) their overlap with formations of racism and modern modes of normalization of biopower, and c) with a survival of the “old sovereign right to kill” (SMBD 256). But Foucault never deems a specific capacity to transform the status of human life to “less than human” life, the extreme or paradigmatic capacity of sovereign powers of death. One of the significant points of divergence, even in their closest point of proximity, therefore concerns the different capacity Agamben attributes to sovereignty.
Their definitions of biopolitics are correspondingly different as well. For Agamben, the Nazi camp is the most absolute biopolitical space, as an anomic extreme in which internees are stripped of political rights and human status and wholly reduced to bare life (HS 170–71). This is not the case for Foucault. We have returned multiple times to Foucault’s own reminder that “wars were never as bloody” (HS I 136) as in biopolitical regimes (though always to the ends of the putative collective good and the collective future) and to his identification of the “formidable power of death” as the counterpart of biopolitics (HS I 137), even an end point or culmination. Yet there is no reason to think he considered this the most absolute form of biopolitics.
Also, in the “camp” analyzed by Agamben in these terms, the law functions to demarcate a space of anomie, a space of exception from its general application. This paradigmatic use of the term camp would refer to that legal space within which the law can be set aside: the space in which rights are deprived as an exception from what the law encompasses.22
Agamben generalizes both this possibility and the conjoinedly biopolitical and sovereign capacity to unmake human life, to deprive it of legal or ontological status. It is at once the paradigmatic space of the “camp,” the fundamental sovereign capacity and characteristic of Agamben’s understanding of the biopolitical. Thus it becomes the thanatopolitical quality of the biopolitical Agamben sees exemplified in the Nazi regime (HS 153, 122). In Remnants of Auschwitz Agamben revisits Foucault’s treatment of this relationship in Society Must Be Defended. As Esposito would later, Agamben deems erroneous Foucault’s identification of biopolitical paradox in the Nazi regime’s combination of “an unprecedented absolutization of the biopower to make live [intersecting] with an equally absolute generalization of the sovereign power to make die … [this] represents a genuine paradox.”23 By comparison, this combination is entirely consistent with the alternative definitions of sovereignty and biopolitics Agamben has proposed.24 Agamben gives greater attention than Foucault to the capacity of the law to effect anomic spaces, to revoke humanity and rights entitlement. Building on this response, I propose an additional layer be added that can take into consideration what may at first seem, by contrast, a very specific phenomenon: the form of legal mechanisms in place to make precarious women’s legal access to abortion. This is not a revocability of human rights in general, nor of the status of the “human,” but of abortion’s legality. I will argue that the phenomenon depicted by Agamben, the potential for political and legal reduction to bare life, assumes a distinctively redoubled quality for women in modern biopolitical contexts. As we will see, it is characteristic of a phenomenon one might term thanatopoliticized reproduction, and it can be understood in terms of a threefold revocability. This comprises, first, a combination of reversibility and exceptionality belonging to legal regimes governing abortion. (This is seen when the latter’s legality is an exception to its ongoing illegality. Legal access or legality carries a practically fluctuating, unstable, or historically reversible status.). Second, the malleability of embryonic life cannot be disconnected from the rescindable status of women as rights-bearing in a reproductive rights context. Third, a pseudosovereignty over fetal life is both attributed to the woman associated with reproductive rights and concurrently undermined.
BIOPOLITICS AND SOVEREIGNTY
This complex malleability is seen not just in a choice about a fetus or the variable meanings of a pregnancy. It is seen also in the intermittent appearing and dissolving of a woman’s possible subjectivity as “decision maker.” Insofar as reproductive decisions emphasize the malleability of both the object and the subject of the decision, there is a conjoined malleability in the status of the contemporary fetus or pregnancy and of the woman attributed with decision making. This may be a factor distinguishing populations (most obviously according to their legal regimes of reproductive rights) or groups within populations (for whom reproductive choice might be more, or less, available). Thus decisions may manifest as plausible or implausible in relation to the contextual malleability of the fetus and of the woman as “chooser.” In some contexts, pregnancy might never present as plausibly prompting decision-making conduct. Or a number of social, cultural, and religious factors might divide such conduct as either appropriate or inappropriate for some versus others, including and excluding subjects, producing and deconstituting them. Or reproduction might present as a giving rise to contests between competing “claimants.” Or reproduction might manifest as a problem of biopolitical “trends,” sometimes depicted as demographic crisis. Or it might associate with diverse political aspirations: not just to manage individual conduct, but to modify overall patterns of behavior. Reproduction’s stimulated subjectivities might involve interfaces with nature, politics, religion, technology, medical protocols, the law, or illegal or ad hoc measures. The emerging protagonists might include the activist, the criminal, the moral philosopher, the good or covert citizen, the problematic population trend.
Thus women may come to redouble the legal regimes interpellating them. In other words, women may be deemed capable of impeding life (variously understood) or revoking life or reversing its status. And regimes concerning abortion can be highly revocable, so that the one revocability comes to mirror the other. My suggestion is that this generalized rescindability (of fetus, of decision, decision making, of decision maker, of the phantom decision maker, of legal contexts for such decisions) be understood as a general field in which reproductive rights, abortion, and abortion law are negotiated. I turn next to the latter: the chronic revocability of abortion law.
INVERTED EXCEPTIONALITY
Access to abortion has repeatedly been made available through structures that might best be described as inverted states of exception. This form of exceptionality is unlike a general state of exception—it is not that the laws of a nation are set aside under such pretexts as a state of emergency. Instead a general practice—in this case regular and nonillegal abortion—takes shape through the granting of a general exception to an ongoing law that, in fact (except for the exception), continues to render abortion illegal. So we could ask what kind of sovereignty is produced when reproductive practice intertwines with a structure of exception to laws instigating, organizing, criminalizing abortion,25 in relation to which the exception becomes regularized and regulative, yet unreliable?
From the 1820s and throughout the nineteenth century in the United States, abortion past the fourth month was increasingly banned by individual states. Though this was reinforced by the passage in 1873 of the Comstock Law “for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles for Immoral Use,” which was applied to bans on obscene literature, information about birth control, and the practice of abortion, abortion remained a matter of state rather than federal law. It had become illegal in all fifty states by the 1960s until, in 1973, Roe v. Wade newly established the grounds for its legality under the right to privacy protected by the Fourteenth Amendment so long as the fetus is not viable (meaning it cannot survive outside of the mother’s uterus). According to this judgment: “State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy.”
Such legal configurations have frequently been entangled with the language of exception. Throughout the nineteenth and twentieth century, increasingly entrenched state-based criminalization of abortion had usually allowed for exceptions on grounds such as rape or concern for the woman’s life, health, or well-being. The bans therefore included exceptions that could, according to the contingencies of individual states, doctors, judges, contexts, and cases, allow for considerable variation in the actual liberality of access to abortion. And, though Roe v. Wade is widely considered to have decriminalized abortion, Mary Poovey has noted how it simultaneously reconfirmed the state’s readiness to intervene. Demarcating a woman’s right to terminate her pregnancy as limited by the state’s interests in safeguarding women’s health, in maintaining proper medical standards and in protecting “potential human life,”26 Roe v. Wade specified that although the state cannot override that right, it did have legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life increasing with the woman’s approach to term.27
Challenges to Roe by individual states have included pressure on the point of pregnancy after which abortion becomes illegal. At state level, abortions have been banned from the point of heartbeat detection through abdominal ultrasound (Arkansas in 2013),28 thus at about twelve weeks, or through transvaginal ultrasound (North Dakota, also in 2013), thus at about six weeks.29 As women would rarely identify their pregnancy before five weeks, then having to meet abortion’s procedural requirements, “heartbeat bans” can render most abortions effectively illegal without challenging their technical legality. State by state, the pro-life movement has found these and other legislative means to obstruct abortion. Another means has been the attribution of personhood rights to fetuses or court appointed legal representation for unborn fetuses who testify against women seeking abortions (under Alabama’s HB 494). Case by case, such laws have been challenged. But, even when destined to be struck down by the Supreme Court—as the “heartbeat bans” were in 2016—abortion’s obstruction has been accomplished by the need to seek injunctions, by legal battles, procedural uncertainty, and disruption of access.
Moreover, Roe has not guaranteed practical access to abortion,30 nor redressed economic inequality in the ability to access abortion. Frequently abortion has been legal yet inaccessible. Thus there are currently states with only one abortion clinic (South Dakota and Mississipi), and a number of states with five or less clinics (Idaho—two, Utah—two, Louisiana—two, Kansas—three, Alabama—five), limiting access and imposing travel requirements. There are states requiring a seventy-two-hour waiting period and consultation with an accredited antichoice counseling center (South Dakota, Missouri, North Carolina, Oklahoma and Utah). In addition to bans and new legislation, access can be impeded through bureaucratic obstruction regulating how abortion clinics are located or run (Louisiana, Virginia). Thus abortion clinics may be closed for minor violations, held to hospital standards, or unable to access doctors because of requirements that physicians possess hospital admission privileges.31 Poverty and youth might exclude abortions available only at a distance or interstate, particularly at clinics requiring waiting or “reflection” periods, periods of counseling, or local residency.
An effective and expanding practical illegality can be accomplished through bureaucratic pockets of anomie within the national regime of an ongoing federal right to abortion. The latter can enfold widening spaces in which it is illegal or inaccessible. There is a corresponding distribution of precariousness within the population among those who would seek it, with greatest impact falling on those who are least visible or consequential politically. Given the resulting hardship and danger for the young and the poor, such variabilities effect their differential disposability and grievability.32
The fact that Roe made mention of state interest in “life,” while exempting women from that interest under their right to privacy, had already instituted abortion’s legality as a set of exceptions from the persisting conditions of its illegality: the point at which fetal or state interests were deemed to become overriding. In fact, the decriminalizing of abortion has often followed a repeating pattern of dispensation, exemption, or exception from an established and persisting illegality—without repealing earlier laws rendering abortion illegal. For example, the “privacy” and “individuality” of the American version is often contrasted with the more “communitarian” values of abortion’s post-1949 legal trajectory in Germany. Abortion in Germany was outlawed in 1871, an illegality that persisted under the Weimar constitution, yet with exceptions liberally granted on medical grounds. It was illegal under the Third Reich while also being forced on women on eugenic pretexts or to genocidal ends. It was again illegal after German defeat, with exceptions liberally granted on medical grounds. It was legalized for the first three months under the 1974 Reform Act, but the latter still mandated preliminary counseling (without which it remained illegal). It was illegal in 1975 when the Reform Act was struck down by virtue of a judgment that there was a fetal “right to life.” Abortion is considered legal under current German law. In fact, this amounts to a suspension of the legal prosecution of abortion under stated conditions (if the abortion takes place during the first twelve weeks of pregnancy, and in conjunction with appropriate—pro-life inflected33—counseling, and after twenty-two weeks of pregnancy only on medical grounds). Given that exceptions can apply throughout the entire term of the pregnancy, every abortion could (hypothetically speaking) be allowed, with every abortion nonetheless remaining an exception to its own illegality.
Without discounting the important differences, one will find that a large number of those countries who decriminalized abortion in the twentieth century did so by instituting categories of exception to its illegality.34 Describing this trajectory in France, Michèle Le Doeuff has argued that the so-called Veil law, decriminalizing abortion in 1975, also reconfirmed its criminalization. On her view, the Veil law amounted to an exception reconfirming that abortion is illegal (except under the specified circumstances), however broadly the scope of exception had become the norm. Under the French legal regime she considers, abortion was made illegal under the 1810 French Penal Code and was redeclared punishable in 1920 by the Cour d’Assises. The 1975 modification was in some respects, she claimed, misinterpreted:
Under the law passed in 1920 … abortion, information on abortion and … [about] contraceptive products [were] … offences under the law.… The Veil law which permit[ted] abortion in certain circumstances, [was] simply [a] dispensation … in relation to the law of 1920. This [meant] that the right of women freely to control their own fertility [was] still not legally recognized. Together, the underlying principle of a penalizing prohibition and two dispensations posit a non-right combined with minimal concessions …
We should also recall here the correct formulation of an old legal adage:
“The exception proves the rule for non-excepted cases.”
From this point of view, the dispensations provided for by the Neuwirth and Veil laws correspond[ed] to a reproclamation of the 1920 law …
The legalization of an exception amounts to letting go of one element in order to uphold the fundamental point.35
This form of legality and exceptionality has been a primary form of investment in and incitement, stimulation, production, and regulation of women’s bodies as bearing reproductive biopolitical interest. Irrespective of how readily women can, as a result, access abortion, the law marks that access as conditional. Its status as an exception to illegality reinscribes the possibility of its unavailability, administering states of unease, and enshrining if not administering the possibility of revoked access.
Broadly, Agamben has argued that “the voluntary creation of a permanent state of emergency … has become one of the essential practices of contemporary states.” The state of exception has become not only a “constitutive paradigm of the juridical order,”36 but a ubiquitous technique of government. The phenomenon described with respect to abortion law is a different phenomenon. Whereas Agamben pursues understandings of contemporary sovereignty by virtue of a setting aside of the law and the institution of spaces of anomie, a different variation of sovereignty is seen in the inverted exceptionalities of abortion law: the legal regimes in which even where (in the optimal case) there is almost never an illegal abortion there is almost never a legal abortion that is not an exception to its own illegality.
A language would need to be developed to register the significance of the forms, juridical and otherwise, through which women’s reproductivity is produced as concurrent target and result of such forms. One could adopt Agamben’s reminder that “there is not first life as a natural biological given and anomie as the state of nature, and then their implication in law through the state of exception. On the contrary, the very possibility of distinguishing life and law, anomie and nomos, coincides with their articulation in the biopolitical machine” and the phenomena produced by reproductive biopolitics: effects of freedom, fetal life, potential personhood, right to life, rights over one’s body, autonomy, privacy, etc.37 With respect to the widespread legality, in a number of countries, of abortions taking place as exceptions to their own illegality, we can add the reverse phenomenon, seen in challenges to reproductive rights in the United States, in which increasingly wide states of illegality have taken shape within the space of a legality which itself is instituted provisionally.
THE PSEUDO HOMO SACER AND THE BIOPOLITICIZATION OF WOMEN’S REPRODUCTIVITY
What consequences would arise from an interrogation of the biopoliticization of women’s reproductivity from the perspective of Agamben’s work? When he mentions the replacement of the historical political distinction between one’s status as “man” and one’s status as “citizen,” by the modern category of bare life to which both can be reduced, he mentions as candidates a curious series in which not only the “voter,” and the “worker” figure as the social or political entities “resting on” and vulnerable to being reduced to bare life: “The Marxist scission between man and citizen is thus superseded by the division between naked life [ultimate and opaque bearer of sovereignty] and the multifarious forms of life abstractly recodifed as social-juridical entities (the voter, the worker, the journalist, the student, but also the HIV-positive, the transvestite, the porno star, the elderly, the parent, the woman) that all rest on naked life.”38 So we should ask: who are those women whose social-juridical status rests on a division from the bare life to which they can readily be reduced? Women in general? Why? My suggestion is that this be redefined as applying to those women who bear a redoubled and additional status as potentially reducible to bare life—by virtue of their potential or actual, symbolic and historical relation to reproductivity. For that relation has historically been the grounds for their liminal or excluded political status. Modern political humans bear the capacity to be reduced to bare life. But some also have a redoubled (and more specific) exposure to this reduction by virtue of belonging to a sex, a race, or a category traditionally excluded from political rights.
For this reason, there is an additional paradox at work when women are figured as a threatening and competing sovereign power over the fetus, the latter sometimes acquiring (as seen in antiabortion rhetoric) the status of a pseudo homo sacer. For (as seen in even Roe’s language of competing interests) this very association particularly exposes the woman to a barer reproductive life: it is the point at which her rights are likely to be challenged or deprived. It is precisely insofar as she is figured as the pseudosovereign whose body seems to offer a fetus the pseudoanomie of a pseudocamp (and precisely insofar as she is concurrently understood in biopolitical terms as a capacity to optimize life) that she is all the more produced as a form of political life bearing correspondingly unstable and rescindable rights.
FEMINISM AND AGAMBEN
A number of feminist readings have criticized Agamben’s work for his neglect of sexual difference in the discussion of infancy, possibility, potentiality, the happy life, community after identity, the human beyond metaphysics.39 It is widely recognized that this work is inhospitable to an interrogation of gender and sexual difference.40 In the words of an early assessment by Astrid Deuber-Mankowsky: “As in all of Homo Sacer, which turns centrally upon bare life, neither natality nor gender, neither sexuality nor the relations of the sexes, neither the heterosexual character of the symbolic order and of political culture nor the interest of women in the reproduction of life is thematized. The entire sphere of the question of sexual difference … is banned from Agamben’s horizon.”41
Alex Weheliye points out that Agamben’s bare life would, formally, be “prior” to race and sex difference,42 rendering complicated a sex- and race-based critique. In recent years a cluster of feminist and critical race theory responses to Agamben have nonetheless emerged,43 ranging from analyses of productions of bare life in specific spaces of slavery, such as the colony and plantation,44 to at least one feminist speculation that the fetus would, in Agamben’s terms, be considered a form of bare life.45 Ewa Ziarek notes that feminist and race-inflected readings will be more interested in “the negative differentiation of bare life with respect to racial and gender differences” and in “the way bare life is implicated in the gendered, sexist, colonial, and racist configurations of the political and, because of this implication, how it suffers different forms of violence.”46 She is also one of a number of readers to have questioned Agamben’s neglect of the political and revolutionary resistance that can be sparked by the relegation of some humans to the status of bare life. A perspective inflected by gender and critical race studies is less likely to omit such phenomena (as seen in her own analyses and those of Weheliye of the phenomenon of hunger striking). These analyses both challenge and enrich Agamben’s project, showing how variants of reduction to bare life become political resistance.47 Exploring how the sexuality and reproductivity of some groups of women and children, whose marginal status constitutes a social or political vulnerability, also amounts to a social and political threat,48 Stoler has also argued this may give an additional or differently specific relationship to suspended rights generally discussed by Agamben. Of course, women occupy such zones in many capacities— as illegal immigrants, as stateless, as objects of incarceration, enslavement, or genocide. But women are also vulnerable in a way specifically inflected by the association with actual or potential reproduction. This association may lead them to being seen as all the more a resource of slavery, or, in the instance mentioned by Stoler, a biopolitical threat: as when illegal immigrant mothers and “those who care for children are potential [national or border control] dangers.”49
Agamben’s concept of bare life and his multivolume homo sacer project more generally, (particularly its first volume) has been the focus of most feminist responses to his work. There is no doubt that the homo sacer project overlooks sexual difference and questions relevant to a feminist reading. But a reading for suspended potential allows an exploration of women’s reproductive life as a distinctive, phantasmatic form of homo sacer: one almost but not quite addressed by Agamben. This form connects with the peculiar status taken on by those whose citizenship (acknowledged or denied) is both traditionally, and biopolitically, associated with the capacity for maternity. Among the many possibilities for this critique, I have concentrated on two specific points: first, by adding to the analysis of bare life (the human bearing the possibility of being rendered less than human in an anomic space or status for which Agamben has offered the camp as paradigm) a redoubled level (through which the woman attributed reproductive rights is produced as bearing the possibility of their loss). Here I have suggested attention to the legal regime of abortion as a persistent, inverted exceptionality, producing a special form of precariousness for some women. The second point concerns the political status assumed by women insofar as they are traditionally excluded from political life by virtue of their association with reproductivity. My argument is that the curious status assumed by women in this respect lends itself well to the intersection of a Foucauldian understanding of biopolitics and that developed by Agamben.
Responding to Foucault, Agamben argued that politics had always been concerned with life and had always placed life in question. An ancient Greek context established political life as more than mere human life, including the latter’s exclusion as extra- or prepolitical. Insofar as politics variously makes and demarcates categories of life, one could say it always has been (in this sense) “biopolitical.” Thus Agamben’s recoins the term used by Foucault, offering a different understanding of biopolitics to new ends.50 I next consider an element of this argument that has seized the attention of a number of feminist readers: the ambiguous status of reproductive life to which Agamben refers in the homo sacer projects.
These fleeting references prompt the question of how the changing status of a biopoliticized reproduction accompanies the transformations in the status of politics, law, and life he describes. I will argue here for a possible reading which retakes the text’s treatment of bare life from the perspective of prepoliticized, politicized, and depoliticized reproductive life.
HOMO SACER
When Agamben reminds us that “the Greeks had no single term to express what we mean by the word ‘life’ ” (HS 1), distinguishing between zoe and bios, the following remark has received considerable feminist commentary: “Simple natural life is excluded from the polis in the strict sense, and remains confined—as merely reproductive life—to the sphere of the oikos, ‘home’” (HS 2). Catherine Mills, for example, describes this as silence “on issues of gender in his reference to Aristotle’s distinction between the life of the oikos and politics, even though gender is insistently present in the designation of the oikos as the domain of reproduction that necessarily precedes and supports the life of politics.”51
How does this exclusion relate to the included illusions of the political life of the citizen? This reference concerns the status of the domestic domain, where one finds those beings responsible for basic life processes (including matters of reproduction) whose proper sphere is restricted to the household: women and, differently, slaves. When Agamben reminds us that the status of the citizen as bios (as qualified political life) can be distinguished from the latter’s status as zoe (mere life processes), this distinction will not capture those who are associated with domestic life and reproduction. We see the moment of suspended potential when Agamben does refer to those of the household, those responsible for the reproduction of life, and the somehow related categories of exclusion, without asking what is needed here analytically. So Agamben’s reference reminds us, even if this is not his intention, that the political citizen also has a status as not those entities primarily responsible for merely reproductive processes taking place in the oikos (women, servants, and slaves). Reworking Johanna Oksala’s description of bare life, reproductive life, “through its exclusion, is [another] hidden foundation of politics.”52 Agamben must be deemed insensitive to the gendered dimension of exclusion of natural life from the realm of the political, Mills adds, given the many feminist analyses of femininity’s association with natural biological life.53
A similar elision is seen in Agamben’s subsequent discussion of ancient Rome. Here we find a discussion of the father who, as head of the household (domus) has a kind of power of life and death over his son. It is unlike that “which lies within the competence of the father or the husband who catches his wife or daughter in the act of adultery, or even less with the power of the dominus over his servants” (HS 88). Agamben continues as follows: “both of these powers concern the domestic jurisdiction of the head of the family and therefore remain, in some way, within the sphere of the domus.”54 This exposure of the son or citizen’s life to father or sovereign is identified by Agamben as the “originary political element” (HS 90).55 The wife and daughter would be differently exposed, let’s extrapolate, insofar as they are already politically excluded, or politically liminal, in the domestic domain.
Wife and daughter on the one hand, son and political citizen on the other—Agamben has again embedded in his text the difference between these figures as exposed forms of life. Agamben marks the relevance of sexual difference with respect to forms of exposure of life, we might say,56 but there is no elaboration of this point. Later even Agamben mentions reproductivity as associating women with biological and national futures in a way exposing them to attack.57 He specifically mentions this phenomenon in Homo Sacer in referring to procreatively oriented ethnic rape, naming it a “perfect threshold of indistinction between biology and politics” (HS 176, 187). However incoherent its objectives,58 this is a form of deprivation of rights and reduction to the homo sacer that is unique to women.
AGAMBEN AND THE BIOPOLITICS OF MODERNITY
Having offered an alternative sense in which “Western politics is a biopolitics from the very beginning” (HS 181), Agamben develops the consequences for a problematic of included exclusion. The modern variant of biopolitics is that (as Foucault also has it) as biological life, those governed are now of political interest. But the consequence identified by Agamben is as follows: when political interest is directed at the collective biological life of a population, the latter redivides into fully human lives and new forms of excluded life. Those who have a reduced status as mere bare life are not excluded “outside the city” as against the included rights bearers. Rather, all the rights bearers acquire a new status as easily reducible to the status of mere life, a phenomenon that occurs increasingly in internal spaces of anomie in which one is alive but not rights bearing: not just the camp and the blackbox, but also statelessness, collateral damage, acceptable margins, permissible killing, even the overcoma. For there may well be a comprehensive biopolitical interest in taking charge of our biological life, but that administrative interest is not the domain of legal protection and political rights. It is the technics of management, at best pastoral care, and it is the space where the law easily withdraws or is set aside. To occupy its administrative space is to approach anomie, rather than the basis for political claims, and as such to be highly vulnerable. In this modern variant, with the rise of post-eighteenth-century biopolitics (as described by Foucault), we all become (according to Agamben’s modification) the virtual homo sacer, exposed to the ways in which the law can abandon life. Agamben includes here the deprivation of citizenship, the interning of refugees, border detentions, those interned without due process, those interned as lesser forms of life, or those possessing lesser (or no) rights.
On this argument, the growth of modern biopolitics has been accompanied by a growth of such states of exception: settings aside of the law, or specific laws, for designated reasons. “Emergency powers” become exemplary of an increasingly banal structure. Legality becomes a domain enveloping its ever expanding space of anomie—the included exclusion—so extensive in its application and frequency as to become the new biopolitical norm. The space of anomie expands to exceed the space of the law and yet remains encompassed within it as exception so that the anomie never quite counts as illegality. We can have a strong sense of human rights, and of the fundamental importance of habeas corpus, and yet accept or tolerate concurrently with these commitments an ever increasing set of contemporary exceptions: the conditions under which surveillance and detention on suspicion are deemed acceptable, the internship of “enemy combatants,” the exceptional use of torture, exceptions to the rights of detained prisoners, illegal refugees, those suspected of terrorism or of terrorist sympathy, or the targeting of particular races, ethnicities, or nationalities as security measures. This offers a new variant on the concept of the homo sacer as the included exclusion: the camp as the “biopolitical paradigm of the modern” (HS 117).
REPRODUCTIVE MODERNITY: AGAMBEN ON THE PASSIVE CITIZEN
I situated Agamben’s brief mention of reproductive life in the initial account of the homo sacer of antiquity and turn now to the second variation attributed to biopolitical modernity. Again my question is how reproductive life either is, or could, be situated in this context.
When Agamben discusses the 1789 French Declaration of Rights of Man and Citizen, he identifies the distinctive fact that “it is precisely bare natural life—which is to say, the pure fact of birth—that appears here as the source and bearer of rights. “Men,” the first article declares, “are born and remain free and equal in rights” (HS 127). Agamben emphasizes the consequences of this overlap between birth and the rights of the citizen indicated by the declaration. He claims that it is not possible to understand the “‘national’ and biopolitical development and vocation of the modern state in the nineteenth and twentieth centuries if one forgets that what lies at its basis is not man as a free and conscious political subject, but, above all, man’s bare life.… The fiction implicit here is that birth immediately becomes nation … rights are attributed to man … solely to the extent that man is the immediately vanishing ground (who must never come to light as such) of the citizen” (HS 128).
But Agamben emphasizes that another fiction is also at work. He recalls that in the first version of the French constitution a number of individuals born on French soil did not automatically become full citizens, but were so-called passive citizens.59 That legal tradition persisted, particularly in its inclusion of women. It is exemplified in Agamben’s argument that modern political interest in life (also seen in claims to political rights by virtue of one’s status as human life, or one’s birth) in fact stimulates new divisions at the heart of civic space between included and excluded humans: “Hence too … the rapid growth in the course of the French Revolution of regulatory provisions specifying which man was a citizen and which one not, and articulating and gradually restricting the area of the ius soli and the ius sanguinis” (HS 129-30).60 Discussing the division between active and passive rights, Agamben cites two passages, one from Emmanuel-Joseph Sieyès and one from Jean-Denis Lanjuinais,61 which outline the exclusion of women from this newly defined citizenship, the first grouping them in this regard with children and foreigners and the second grouping them with children, minors, the insane, and some categories of criminals.
What does this mean for women’s relationship to bare life? For all that his attention is not especially on the status of women, Agamben makes the illuminating point that their exclusion is coherent and not in contradiction with the Declaration of Rights and its principle that “Les hommes naissent et demeurent libres et égaux en droits.” This coherence manifests through its biopolitical prism. Where “mere” birth coincides with the claims of political life, human zoe has passed over from the exterior to the interior of the political sphere. In consequence, the threshold of inside and outside will now be constantly redrawn at the interior of this political space.
Again we can identify suspended potential for an elaboration not undertaken by Agamben. The form and logic of the exclusion of women from the 1789 Declaration of Rights has been of interest to many feminist readers and historians of women’s rights.62 We can add to Agamben’s elaboration a) that the exclusion of women from political life is not in contradiction with the newly internally dividing status of biopolitics and that b) to the contrary it manifests the very form and function of the new biopoliticization of the polis.
Agamben proposes we identify a new political entity: the living dead human (HS 131), a category that includes the traditional passive citizenship assumed by women in France in the wake of 1789. Grouped with others who do not vote (including children, the mad and criminal), they are deprived of the rights otherwise belonging to the French born. A point Agamben does not make is that it is as potentially or metonymically procreative that women take on this status. They are passive citizens because their natural function is deemed to be the reproduction and nurture of citizens.63 At the point where mere birth can be a qualification for eventual political rights, women become a political exception. They were, in this sense, abandoned by France’s political institutions, deemed excluded from the definitionally broad inclusions of universal rights on the pretext of their naturally maternal role, if not their traditional status as feme covert.
This is a tradition of included exclusion in which the alternative possibility of women’s political life (real or hypothetical) is excluded by virtue of their association with reproductive life. Their traditional exclusion from the political space certainly provides early examples (insofar as women are noncitizens in ancient Greece and citizens without voting rights in ancient Rome). So does their special inclusion within the political space in the guise of a specific exclusion from franchise, as the—effectively—passive French citizens of the period 1789–1945. I turn now to a third variation: as full political citizens, women may suffer an attack on or preclusion of their political status that is overridden by politically or nationally or ethnically oriented interest in women as reproductive life. This produces another possible variation on living dead humanity or the homo sacer—the moments of production of women’s procreation as nationally or ethically significant, vital to peoples, populations, and futures. This is a thanatopolitical moment in their political life in which their reproductivity would survive their political rights.64
LIVING DEAD REPRODUCTIVE LIFE
If women’s marginal political status has historically been associated with their reproductive role, what is the significance of the following two overlapping phenomena? First, the management of biological life has come to be one of the projects of political governmentality. Second, throughout the twentieth century, women progressively gained full citizenship in European and Anglo-American countries. What has been the interconnection between their traditional status as primarily responsible for reproductive life and their concurrent status as formally equal political agents whose rights were previously precluded on the basis of their reproductive role? As modernity has produced political contexts increasingly oriented toward the administration of biological life, women’s traditionally “apolitical” status has changed accordingly. As reproductive women have been represented as making a vital national contribution while also being newly problematized as a threshold of possible risk to the political future—and, as we have seen, associable with new concepts of choice, agency, autonomy, impact, volition, recalcitrance, and competing interests.
Thus, even as women have achieved full citizenship and voting rights, they have continued to be associated with a biopoliticized reproductivity. In addition to abortion laws, they have been the targets of a number of forms of public policy and new senses of “responsibility” aimed at promoting a milieu in which women are the primary locus of moralized choice with respect to reproduction (where duty may be given both individual and collective or public inflections).65 They may also be objects of policy aimed in some countries at modifying national birthrate.66 The point is that when women’s capacity to reproduce has, as a matter of biopolitical concern, been variously targeted for stimulation, regulation, control, or destruction—sometimes with the deadly results mentioned by Esposito, this reproductivity does not preclude them from political interest or status. It can no longer be the case that they are, as reproductive, rendered pre- or apolitical. Another way of putting this (we would turn to Foucault for this insight) is that, all appearances to the contrary, this is not a privative or reductive function. Women’s association with reproductivity is consistent with Agamben’s account of a category of “mere life” produced as the concern of politics, creating new internal divisions as a result. It has manufactured a new kind of thanatopolitics in two forms. First, it produces women’s rights as more precarious (for reproductive rights are precarious rights), and the precariousness of such rights (or their deprivation), in many cases, exposes their health, if not their lives, and causes states of structural unease. Second, this can also amount to a conversion of women’s political significance to a teleologized or controversial biopolitical reproductive significance. Here the very association with the principle of life produces results ranging from the coercive, punished, sanctioned, violent, or deadly.
THE DIFFERENTIAL POLITICAL RELEVANCE OF WOMEN’S REPRODUCTIVE LIVES
Agamben does not refer to the biopoliticized reproductive life of women in such terms. Yet we can amplify the brief moments in which such a path of inquiry is averted. Similarly, Ziarek sees Agamben as strangely including, while failing to follow, the implications of the race, ethnic, and historical diversity of his own examples: “Although Agamben’s heterogeneous examples of bare life—for instance, the father-son relation in antiquity, Nazi euthanasia programs for the mentally ill, the destruction of the Romany, ethnic rape camps in the former Yugoslavia, Karen Quinlan’s comatose body, and especially the most important case of the Muselmann—are always diversified along racial, gender, and ethnic and historical lines, his conceptual analysis does not follow the implications of such heterogeneity.”67 A text neglecting difference, including sexual difference,68 rarely does so comprehensively. More typically, it intermittently gestures toward these omissions. To bring the challenge of sexual difference to Agamben’s homo sacer project is to look for those moments where such questions are broached, to reread the text through this prism and refract it back accordingly, disturbing the limits it sets.
But this is not to say that the sheer biopolitical interest in the management and administration of reproductive life amounts to the setting aside of women’s political life. To the extent that there is a consensual expectation that governments and public health campaigns will be interested in healthy pregnancies, there is not necessarily a corresponding reduction of women’s political life to their reproductive life. (Similarly, health campaigns concerned with reducing rates of colon cancer will not necessarily be considered the reduction of political life to combatting disease.) Instead, biopoliticized reproduction moves toward the thanatopolitical insofar as it belongs not just to legality but to the institution of anomic spaces within the law and their associated precariousness. One way of understanding this is as follows: as equal rights-bearing citizens, women are legally and politically within the law. But they concurrently enfold a reproductive space, which was traditionally the pretext of exclusion from political rights, only to become the object of particular biopolitical interest. That space has a more specific capacity to become anomic. I’ve suggested abortion law as a particularly good example, since the annulment of a previously established legality is not a simple “privation”: it is, for example, a stimulation of the woman’s status as that of contest, challenge, significance, unease, disorder, uncertainty, persistent reversibility or rescindability, criminality, resistance, rights polemics, the dividing point of wealth, medical insurance, mobility, and privilege.
In this chapter I have argued for a more specific factoring of (bio)politicized reproduction as a depoliticization, and one that accompanies the political history of women’s entry into the history of rights bearing. Such an exploration is not available from Agamben, but, I have argued, it is not irrelevant to his account, nor even entirely absent from it. For this reason, reiterating a methodological gesture proposed throughout this book, I have proposed it be seen as a suspended capacity of Agamben’s account of the making of anomic bare life.
Pursuing this account, I have suggested an analysis of women’s redoubled political status in these terms. The exclusion of women from full political status by virtue of their role as wives and mothers has carried over and survived their attaining full citizenship. This association can take place under the rubric of biopolitical interest in and care about the good conduct and administration of reproduction in populations. Thus there is a supplementary paradox to be added to the dissensus between Esposito, Agamben, and Foucault concerning biopolitical paradox. In fact it manifests particularly clearly when their different accounts of the relation between sovereign power and biopolitics are read together. This additional paradox circulates through their own pages: all of them are referring intermittently to women and to the forms of biopolitical interest that come to include reproduction and the conduct of real or hypothetical maternity.
Thus we would add to Agamben’s sex- and race-neutral account that we are all the virtual homo sacer, an additional production of a form of bare life that takes place in relation to the management of women’s reproductive lives. Its more specific inflections relate to the long history of women’s exclusion from political status because of their (attributed) responsibility for reproduction and persists with the more generalized mode of biopower associated with modernity.
REPRODUCTIVE RIGHTS
Reviewing the 2011–2012 war of prominent Republicans against Planned Parenthood and reproductive rights more generally, Jill Lepore commented in the New Yorker, “if a fertilized egg has constitutional rights, women cannot have equal rights with men.”69 This remark identifies the association of Western women with a heavily regulated and politicized reproductive life concurrent with the time in which they are assumed to have equal political rights. It assumes that the former amounts to a preclusion, or inhibition, of the latter. The problem can be formulated differently: the women to whom Lepore refers do have equal rights with men, and they are associated with forms of stimulated biopolitical interest in their fertilized eggs, an interest that also produces them as accordingly extrapolitical figures. But biopolitical interest itself is newly politicizing rather than depoliticizing. At the same time it is productive of a category whose traditional associations do bear a prepolitical connotation. Women have long been understood as enfolding the space of the potential “child” that is itself the space of potential futures. Today, this is also to enfold the space by virtue of which, in a more specific sense than the concurrent, general possibility described by Agamben, the woman’s body contains the possibility of becoming anomie. She becomes at least three modes: the phantom sovereign deemed capable of a revoking of life, the principle of life (and of its potential undermining: whether with respect to individuals or collectivities such as nations, populations, or the general good or community interest) and a bodily space enfolding more intense instability and revocability of the corresponding legal regimes.
Since reproductive rights have been formulated only in the context of modern biopolitical contexts, it cannot be said that this biopoliticization itself infringes “prior” or preestablished reproductive rights.70 We can turn here to a recent argument by Ruth A. Miller, who has proposed that the womb, not the camp, is the paradigmatic biopolitical space. Her argument is not that the womb is like Agamben’s camp: a space in which legal rights are set aside. It is also not a space (as an antiabortionist might want to argue) in which “fetal rights” will not count as such. Instead, as a biopolitical governmentality, this is a space of particular political-administrative interest for “taking care of life” rather than a rights-bearing space.71 Paradoxes will then emerge where rights claims are made on behalf of this space.
As compared to traditional forms of political inclusion (excluding mere human bodily existence as non rights bearing), Miller agrees that once politics gives itself the task of governing human bodily existence, political existence becomes more precarious. One is administered politically as a category whose very status equates with an absence of rights, for all that that status (the paradigmatic camp) may be replaced by biopolitical administration, care, and the optimization of life. Reproductive rights are, therefore, claimed as political rights even though reproduction is the bodily space of the absence of rights. This offers a new challenge to a long-standing feminist argument that the male subject was paradigmatic of the political rights bearer. The problem had been that women were relegated to a private, domestic sphere considered extrapolitical. Miller proposes a feminist revision of this received narrative, for, in a modern biopolitical context, this is decreasingly correct. In fact, the woman (in all her stimulated revocability and enfolding of potential states of anomie) has become paradigmatic of the paradoxical status of the modern political citizen.
It is unsurprising, in consequence—this is to add to Miller’s argument—that reproductive rights are established and persist in states of extreme revocability. One might say: reproduction compresses multiple states of revocability. It fits particularly well the definition of sovereignty as the demarcation of life denied political rights (Agamben’s definition of the biopolitical). Perhaps the woman is a figure one can also understand as biopolitically “thanatopolitized” in the sense that (because of her traditional association with a reproductive role) the forms of death to which this also exposes many women systematically are less likely to “count” as political forms of death or as politically consequential forms of death. Moreover, could it not be said, both in the senses available from Foucault, and from Agamben, that these are, quintessentially, biopolitical deaths? They are a biopolitical making of women as figures of death, a making of women as enfolding the space of legal anomie and challenged political status. They make states of political and biopolitical unease. Not infrequently, they have been sovereign and biopolitical makings of women’s deaths.
OVERLAPS
In fact, one might see Agamben as effectively describing the overlapping of regimes, modes, and techniques Foucault proposed. True, he redefines biopolitics and sovereignty: both take on senses they do not possess for Foucault. But these recoinings also become means of offering a new understanding of biopolitics and sovereignty as enmeshed and as coinciding. Agamben adopts and expands the definition of sovereignty as power over and power to dispose of, adding the power to set the law aside, to create the widening state of anomie, rescindability, and exception. Foucault retains a definition of sovereignty as power over (territory, bodies) and the power to deprive (taxes, property, freedom of movement, life), and, at the extreme power to kill. He defines biopolitics as the power to administer, enhance, and optimize life and describes the administration and optimization of life as a primary political project. Agamben defines the originary political gesture as the division between forms of political life and forms of life excluded from political existence and its associated rights claims. But these are different definitions allowing us to revisit the Foucauldian definition of both biopolitics and sovereignty.
Thus we find new means in which, from Foucault’s perspective, the administration of life could be said (with Agamben’s addition) to a) include the thanatopolitical-“sovereign” capacity to “let die” (to produce life as not worth being lived); and b) by the same means to have a thanatopolitical-sovereign capacity to expose (to harm or death) as a means of administering life; and c) this is a production of forms of life and governmentality that are not best understood as privative—irrespective of whether they are understood as biopolitical in Foucault’s sense or that of Agamben.
Agamben’s focus on the camp and on the more specific forms of sovereignty required and produced by the camp’s state of exception certainly move into a domain of the administration of life, death, of sovereignty and of thanatopolitical biopolitics neglected by Foucault. Similarly, the administrative, juridical, and sovereign mode of setting the law aside allows a different understanding of the overlap of biopolitical modes and sovereign modes and of how the sovereign acts as biopolitical and vice versa. These understandings can be parsed through Agamben’s definition (sovereignty producing anomic spaces of rights deprivation and forms of exposure and death not counting as murder) or through Foucault’s definitions (biopolitical administration of life may include a deadly effect understood as part of the management of life). For all that Agamben’s definitions should be held distinct from those of Foucault, they offer new options for conceptualizing the overlapping of sovereignty and biopolitics also explored by Foucault.
If we explore the connected argument that revocability is the “pre-eminent modern political space” and that (as Miller proposes) reproductive space has become the pre-eminent modern political space,72 we would also return to the possible consequence, that (as I suggested in chapter 3 in the company of Foucault) reproductive life particularly emerges as the coalescing of dehiscent modes of power. This is exactly the possibility explored by Miller: “Rather than a progression or movement from a traditional focus on marital status to a liberal focus on individual freedom or privacy to a post-liberal focus on bodily integrity … the situation that I will be describing involves an overlap of all three,”73 giving rise to her conclusion: “it is in the arena of this overlap that the biopolitical subject is formed— … it is, in other words, the blurring of these political boundaries that allows for reproductive space to become the pre-eminent modern political space.”74
Again considering collective administrative interest and the interest in optimizing health, I will, finally, consider the conjoined production of new kinds of responsibilized subjects and new kinds of responsibilities: as when sovereign powers “over life” long associated in France with illegal abortion, were then associated with its legalization: in new conducts of responsibilization that could not be declined, and in a stimulation of new kinds of illegibility. In visiting these recent effects of subjectivation, I will explore one final sense of the thanatopolitical, seen in the divisions between those who are considered to exercise reproductive choice appropriately or inappropriately. Abortion controversies have been contexts in which women may find themselves associated with agencies of death (fetal, individual, collective, population, and futural), and I have argued that these associations and their conjoined revocability be understood as one of the senses of thanatopoliticized reproduction. But another sense of thanatopolitics can also be seen in the capacity of these very associations, and regimes governing abortion, to divide groups of women and their biopolitical and sovereign decision making into the more and less visible or legible or appropriate or individualized decision makers: producing some as “less than subjects.”75 As such they manifest one more variant of Foucault’s biopolitical caesura dividing populations. A thanatopoliticized reproduction can expose women in the following way: insofar as they become figures of impediment, thresholds of harm, or responsibility for procreative and population harm or death, they have a conjoined exposure to harm and death.