From: "Nathan Goralnik" <rhizome85-AT-home.com> Subject: Bio-Politics in South Carolina Date: Mon, 20 Nov 2000 14:51:54 -0700 Hey~ I think you'll find this really really interesting, so please read and please comment. As I describe the context of my discussion I'm going to have to use a little bit of legalspeak, but then I have a few lovely interesting passages that I've typed up that really animate the issue. Sorry about the length--I think it's worth it. Recently, the Medical University of South Carolina began a collaboration with local police in which pregnant (black) women are tested for cocaine abuse. The results are then reported to the police and the women are separated from their children and arrested, often while still in their hospital gowns. Race, gender, and class bias pervade the program, and the MUSC's own data clearly indicates that the program has deterred women from seeking medically necessary prenatal care. Of the 30 (?) women that have been arrested so far, all but one have been black. Recently, a federal appeals court (Fourth Circuit) upheld the constitutionality of the program in the context of the special-needs exception to the warrant requirement of the Fourth Amendment. As I understand it, this exception has never actually been applied in cases where actual arrests are being made. The Supreme Court is due to make a ruling on Ferguson v. City of Charleston before the current session ends, and the majority of the justices will probably upheld the reasoning made by the Fourth Circuit majority. It is clear that the expected outcome will give a green light to local jurisdictions around America. What's as, if not more important, however, are the long-term legal implications of an extension of the special-needs exception to areas of normal law enforcement. Basically, if the government can use a "special-needs" argument to circumvent the Fourth Amendment's warrant requirement, the Fourth Amendment basically becomes a balancing test between public and individual interest. In other words, the Fourth Amendment becomes a dead letter. If the government has a reason to fuck with you, then it's legal. Here I think it is useful to remember Justice Brandeis's 1928 ruling in Olmstead v. United States: "It is immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." However, it seems that Justice Brandeis's (and the critics of the MUSC program's) analysis itself has some bio-political overtones. Allow me to direct your attention to Graham Burchell's essay in "The Foucault Effect": (All of the emphasis is my own) "Foucault's analysis of liberalism brings into focus the kind of rational principles which have informed the shaping of an essential element of modern politics which is characterized by an oscillation between a suspicious fear and criticism of the state's impertinent interventions in detailed aspects of our lives [i.e. the MUSC cocaine program], AND an expectation that the government will, and/or a demand that it should, respect our [Fourth Amendment] rights while taking responsibility for improvements in the conditions and quality of our individual lives, for sheltering us from insecurities and dangers, for providing the conditions and opportunities for individual advancement, for meeting our individual health needs [the fear that the MUSC program deters women from prenatal care], for protecting the local community and natural environment in which we live, and so on. In other words, our relation to political power has been shaped by what Foucault calls the 'governmentalization' of the state. That is to say, it is in the name of forms of existence which have been shaped by political technologies of government that we, as individuals and groups, make claims on OR against the state. It is in the name of our governed existence as individual living beings, in the name of our health, of the development of our capabilities, of our ethnicity [blacks], of our gender [women], of our forms of insertion into social and economic life, of our age, of our environment, of particular risks [medical] we may face and so on, that we BOTH REVILE AND INVOKE the power of the state" (144-45). How can we resolve this? The MUSC's program is clearly an example of a very hideous example of bio-power, and yet criticisms of this program often seem to affirm the very things (public health, for example) that were the initial justification of the MUSC program! In terms of discursive practice, Jeb Rubenfeld offers an interesting alternative in his 1989 article in Harvard Law Review. Here, he criticizes what he calls the "personhood" defense of privacy protections, which he attributes to Freudian notions of repressed aspects of our identities. The personhood thesis claims that privacy from government intrusion is meant to protect some inviolate aspect of our humanity: "A salient feature of these practices of invidious sexual identification is that they are often conducted in the name of helping the group at issue. Yet it is the very act of "helping" that creates the group at issue as the group at issue. Thus, in Foucault's description, the decision to give medical treatment to homosexuals, which became institutionalized medical practice in the nineteenth century, in fact created the "disease" of homosexuality. It generated a division between homosexuals and heterosexuals that had never been absolute before, and at the same time created new institutional practices through which individuals would more and more sharply identify themselves, be identified, and be processed as homosexuals. <=174> n173 A new and fundamental conceptual difficulty now arises for the personhood account of privacy rights. Personhood may reproduce the very evil that it purports to resist." He continues... "We must reject the personhood thesis, then, not because the concept of "self-definition" is analytically incoherent, nor because it is too "individualistic," but ultimately because it betrays privacy's -- if not personhood's own -- political aspirations. By conceiving of the conduct that it purports to protect as "essential to the individual's identity," personhood inadvertently reintroduces into privacy analysis the very premise of the individious uses of state power it seeks to overcome. Perhaps the example of abortion can best serve to drive this point home. Personhood must defend the right to abortion on the ground that abortion is essential to the woman's self-definition. But underlying the idea that a woman is defining her identity by determining not to have a child is the very premise of those institutionalized sexual roles through which the subordination of women has for so long been maintained. Only if it were "natural" for a woman to want to bear children -- and unnatural if she did not -- would it make sense to insist that the decision not to have a child at one given moment was centrally definitive of a woman's identity. Those of us who believe that a woman has a right to abort her pregnancy must defend the position on other grounds. The claim that an abortion is a fundamental act of self-definition is nothing other than a corollary to the insistence that motherhood, or at least the desire to be a mother, is the fundamental, inescapable, natural backdrop of womanhood against which every woman is defined. Women should be able to abort their pregnancies so that they may avoid being forced into an identity, not because they are defining their identities through the decision itself. Resisting an enforced identity is not the same as defining oneself. Therein lies the real flaw of the personhood account of privacy -- and therein the core of the alternative view of privacy advanced in what follows." He continues... "Hardwick [the Supreme Court decision upholding state sodomy laws] has exposed deep flaws in the prevailing jurisprudence and ideology of privacy. The constitutional ground has shifted; perhaps it is dissolving altogether. The changing membership of the High Court raises the possibility of a wholesale reconsideration of the privacy doctrine's propriety. Yet even when the doctrine was first ascendant, the Court never hazarded a definitive statement of what it was supposed to protect. At the heart of the right to privacy, there has always been a conceptual vacuum. The reason for this, I will try to show, is that the operative analysis in privacy cases has invariably missed the real point. Past privacy analysis has taken the act proscribed by the law at issue -- for example, abortion, interracial marriage, or homosexual sex -- and asked whether there is a "fundamental right" to perform it. n7 But the fundament of the right to privacy is not to be found in the supposed fundamentality of what the law proscribes. It is to be found in what the law imposes. The question, for example, of whether the state should be permitted to compel an individual to have a child -- with all the pervasive, far-reaching, lifelong consequences that child-bearing [*740] ordinarily entails -- need not be the same as the question of whether abortion or even child-bearing itself is a "fundamental" act within some normative framework. The distinguishing feature of the laws struck down by the privacy cases has been their profound capacity to direct and to occupy individuals' lives through their affirmative consequences. This affirmative power in the law, lying just below its interdictive surface, must be privacy's focal point." Perhaps Rubenfeld's alternative for discursive practice can be compared to Deleuze's account of resistance, which interestly enough uses the same example (abortion): "But when power in this way takes life as its aim or object, then resistance to power already puts itself on the side of life, and turns life against power: 'life as a political object was in a sense taken at face value and turned back against the system that was bent on controlling it.' Contrary to a fully established discourse, there is no need to uphold man in order to resist. What resistance extracts from this revered old man, as Nietzsche put it, is the forces of a life that is larger, more active, more affirmative and richer in possibilities. The superman has never meant anything but that: it is in man himself that we must liberate life, since man himself is a form of imprisonmant for man. Life becomes resistance to power when power takes life as its object. Here again, the two operations belong to the same horizon (we can see this clearly in the question of abortion, when the most reactionary powers invoke a 'right to live.') When power becomes bio-power resistance becomes the power of life, a vital power that cannot be confined within species, environmentor the paths of a particular diagram. Is not the force that comes from outside a certain idea of Life, a certain vitalism, in which Foucault's thought culminates? Is not life this capacity to resist force? From The Birth of the Clinic on, Foucault admired Bichat for having invented a new vitalism by defining life as the set of those functions which resist death. And for Foucault as much as for Nietzsche, it is in man himself that we must look for the set of forces and functions which resist the death of man. Spinoza said that there was no telling what the human body might achieve, once freed from human discipline. To which Foucault replies that there is no telling what man might achievce 'as a living being', as the set of forces that resist" (Foucault, 92-93). Nice, eh? I'm still trying to decide how I would ultimately situate Foucault in this whole mess. ~Nate -- "Thought is no longer theoretical. As soon as it functions it offends or reconciles, attracts or repels, breaks, dissociates, unites, or re-unites; it cannot help but liberate and enslave. Even before prescribing, suggesting a future, saying what must be done, even before exhorting or merely sounding an alarm, thought, at the level of its existence, in its very dawning, is in itself an action--a perilous act." -Michel Foucault
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