Deploying fetal death: “Fetal burial” laws and the necropolitics of reproduction in Indiana

Abstract

While abortion foes in the United States rhetorically promote “life,” discursive invocations of death are foundational to antiabortion advocacy. Pro-life strategists have made gains mandating the mourning of aborted fetuses through fetal burial bills, which require abortion providers to cremate or bury fetal tissue from abortion procedures. Fetal burial bills are inextricably tied to biopolitical regimes that make and manage grievable life. Drawing on cultural anthropology, feminist social science, critical race theory, and long-term research on white evangelicalism, this article examines government documents (e.g., Indiana statutes, court rulings, health reports, legislative activity, and state prosecutions) to provide a discursive critique of Indiana's fetal burial law. Constructions of aborted fetuses as grievable human life and the formations of personhood they promote undergird what anthropologist Leith Mullings called the necropolitics of reproduction—a framework explaining how reproduction is constitutive of political regimes that use systemic violence to determine who (or what) lives and dies. Legal conceptions of fetal personhood that hyper-value fetal subjects entwine with systemic racism, Christian ideology, and anti-environmentalism to diminish the Black and Brown bodies and environments on which their futures depend. This case is a bellwether for broader dynamics in anti-abortion policy and activism in the post-Roe era.