Neglected or Misunderstood Page 14
When Trump told MSNBC interviewer Chris Matthews that women who had illegal abortions should face “some form of punishment” he broke an important rule of the pro-life lobby – and quickly recanted. Formally, the pro-life position is that it is the doctors who provide the procedures who should be subject to criminal charges, since they are the ones doing the harm, both to the fetus, and, it is claimed, to the mother. As Anthony Zurcher, a BBC reporter, states, ‘The reason for this is simple – to make abortion bans more acceptable to a general public that does not want to see possibly distraught women grappling with unwanted pregnancies sent to prison.’89 Criticizing Trump’s comments, Jeanne Mancini, President of the March for Life Education and Defense Fund, said: “No pro-lifer would ever want to punish a woman who has chosen abortion.”90
But what this obscures is that US women are already facing punishment for allegedly having chosen abortion. This is taking place in circumstances where pregnancy complications, miscarriage or stillbirth are being interpreted as being suspicious; as suggesting that a woman has acted to induce her own abortion. And it is in turn part of a creeping criminalization of pregnancy that sees pregnant women increasingly subjected to surveillance and investigation, especially if they are on low incomes, are women of color or from immigrant backgrounds.
When birth control and abortion exist as formal rights but in reality are denied to many people, one result is that women are forced into seeking illicit ways of controlling their reproductive biologies. This will only happen more frequently as the result of measures to close down still further women’s access to reproductive health services: not only the Hyde Amendment; but also attempts at state level to introduce versions of the federal Religious Freedom Restoration Act, that would allow medical professionals to refuse contraception and abortion on grounds of conscience; and the Hobby Lobby Supreme Court judgment, which established that some companies can opt out of including birth control coverage in their employee health insurance packages. At the same time, there is a burgeoning of laws that are being used specifically to do what the pro-life lobby denies is its agenda: to punish women for having – or appearing to have had – illegal abortions. In reality, anti-abortion forces are producing the very phenomenon that they then seek, through the back door, mercilessly to punish.
Feticide and “personhood”
In July 2015, Purvi Patel, an Indian American woman, was sentenced by an Indiana court to 20 years’ imprisonment for feticide and child neglect. The prosecutor had requested 40 years, and Patel in fact received 30, but with 10 years suspended. In July 2013, Patel had given birth to a fetus91 in the bathroom of her family home. She claims that the fetus was stillborn. She placed its remains in a bag of trash and left it in a dumpster behind her family’s restaurant, before heading to a medical facility to seek treatment for her uninterrupted bleeding. While there, doctors and then a police officer questioned her, and Patel admitted to having recently given birth. A search for the baby – whom doctors believed might possibly still be alive – ended in the discovery of its remains.
Patel’s conviction and imprisonment rightly caused outrage among women’s reproductive rights advocates. In order to punish her for what it was claimed was an illegal, self-induced abortion, Indiana’s prosecutors drew upon the state’s feticide law to charge her for killing her fetus. There are so many things wrong with this that it is hard to know where to start. Firstly, the claim that Patel had brought about an abortion was based on some mobile phone text messages, which seemed to suggest she had illegally bought abortion-inducing drugs online from Hong Kong. Patel denies that she took the drugs, and no traces of them were found in her body. The drugs themselves are legally available in Indiana for the purpose of inducing abortion, but they must be obtained through prescription. Secondly, however, even had Patel taken the drugs, she would only have been bringing about illicitly a termination to which she was, probably, legally entitled. As per Roe v. Wade, abortion is legally available in Indiana up until the point of viability, which is taken to be at around the end of the second trimester. Patel’s legal team argued at her trial that the fetus was stillborn at 24 or 25 weeks, although Patel says that she had believed the pregnancy was less advanced than this. It is not hard to conceive of some of the reasons why Patel might have considered ending her pregnancy through illicit means. Indiana makes it very difficult for a woman to obtain an abortion. There are just 12 abortion providers in the entire state, and women must go through a process of two separate visits, counseling and a waiting period to obtain a termination. Patel was acting as the carer to her parents and grandparents with whom she lived: highly religious and morally conservative, her family does not believe in sex before marriage, and she had kept her pregnancy secret from them.
Most worryingly, however, is that in order to punish her for her alleged abortion the prosecutors charged her under Indiana’s feticide law. Feticide laws, which many states now have, supposedly protect women and their unborn children from the violence of third parties, such as abusive partners. At the same time, the prosecutors charged her with child neglect, alleging (on the basis of a discredited “lung float test”) that the fetus had taken at least one breath upon its delivery. The prosecution’s pathologist testified that the fetus was in fact between 25 and 30 weeks old, and therefore might have lived, had Patel taken it for immediate medical attention. Her prosecutors were therefore in the paradoxical position of accusing Patel of a crime which required that her unborn fetus had been killed – feticide – and of a crime that required that it had been born alive – child neglect. They attempted to resolve this by arguing that a feticide charge could be made for attempting to end a pregnancy even if the fetus survived.
Patel’s imprisonment ended in September 2016, after the Indiana Court of Appeal had reconsidered her case in July. The appeal judge overturned the feticide verdict on the basis that the use of the feticide law to punish women for self-inducing abortions was an “abrupt departure” from the intent of the law as shown by previous usage. Ruling that the prosecution had proved that the child was born alive, but that they had not proved it would have survived had it received medical attention, she also reclassified the child neglect charge to the lesser one of felony neglect, ordering that Patel be resentenced. Patel was eventually given a sentence of 18 months, which was less time than she had already served. For many who have followed her case, Patel still has not received justice; there is, after all, no conclusive evidence that she did not merely suffer the accidental miscarriage of a stillborn fetus, and respond in understandable trauma.
And Patel’s conviction is not a one-off, an anomaly or an outlier. Rather, it is part of a strategy to establish feticide laws as a way of punishing women who are deemed to have had illegal abortions. It is part of a movement to establish the legal “personhood” of fetuses, embryos and even fertilized eggs, which itself is a route towards the banning of abortion altogether. Indeed, this would even threaten some forms of contraception, such as some IUDs, which prevent a fertilized embryo from implanting in the womb’s lining, and the morning-after pill. At the time of Patel’s conviction, attorney Katherine Jack commented that it “basically sets a precedent that anything a pregnant woman does that could be interpreted as an attempt to terminate her pregnancy could result in criminal liability.”92 Also responding to the issue of precedent, Sue Ellen Braunlin, co-president of the Indiana Religious Coalition for Reproductive Justice, said, “I know how aggressively prosecutors in this state were going to expand the application of this feticide law. This is what they wanted so badly.”93
Criminalizing miscarriage, criminalizing despair
In fact, Patel was not the first Indiana woman to be charged under its feticide laws. In 2012, Bei Bei Shuai, an immigrant to the US from China, was charged with the attempted feticide and the murder of her fetus. She faced a prison sentence of 45 years to life. In December 2010, and after being abandoned by her boyfriend, Shuai had tried to end her own life by consuming rat poison. She sur
vived, but just over a week later and while still in hospital, the fetus, at 33 weeks gestation, was showing signs of distress and was delivered by Caesarian section. A few days later, doctors removed the infant from life support, and allowed it to die in Shuai’s arms. Shuai ‘begged for her own life to be taken so that her child’s might be spared.’94 The murder charge was eventually dropped in 2013, after Shuai pleaded guilty to a charge of criminal recklessness. She had served 1 year in jail.
It seems incomprehensible that a woman so deeply despairing as to attempt suicide, and so grief-stricken at the loss of her baby, should be thrown in jail rather than cared for. But it is also entirely in keeping with what Lynn Paltrow, executive director of the National Advocates for Pregnant Women (NAPW), notes is a practice of “making pregnant women – from the time an egg is fertilized – subject to state surveillance, control and extreme punishment.”95 In Texas in 2003, for example, a local district attorney took advantage of a new feticide law to write to local doctors, requiring them to report pregnant women who were drug users; more than 50 women were reported and charged with crimes. In a 2014 opinion piece in The New York Times, Paltrow and her co-author, Fordham University professor, Jeanne Flavin, report on the increasing use of laws to arrest women who have no intention of ending their pregnancies and to force unwanted treatments upon them. Their examples include a critically ill woman who was forced by a judge to undergo a Caesarian section at 26 weeks, although he knew it might kill her – neither she nor the fetus survived; an Iowa woman who fell down the stairs and, after arriving at hospital to check that her unborn baby was unharmed, was arrested for attempted feticide; a Louisiana woman, hospitalized for vaginal bleeding, who was incarcerated for a year on second degree murder charges, before it was revealed that she had suffered a miscarriage. The NAPW say that they have documented hundreds of cases in which women have faced criminal charges for “suspicious miscarriages,” for drug use or for trying to induce their own terminations.
One thing these legal measures do is to establish beyond doubt the status of women as mere incubators for something that is more important than them. The alleged interests of the fetus are deemed to legislate the overriding of a woman’s most basic of human rights: to physical liberty, and to the ability to refuse medical procedures that may harm or kill them.
Another thing they do is to criminalize uncertainty. Both Patel and the Iowa woman mentioned by Paltrow, Christine Taylor, had expressed doubts about whether they wished to continue with their pregnancies. Their stories and those of other women show that any articulation of ambivalence about being pregnant may be a dangerous thing, for it establishes a context in which subsequent complications, miscarriage or stillbirth, are liable to a criminalizing interpretation.
And yet another is to place still further beyond the reach of many women access to reliable reproductive information and safe treatment, for fear that should they approach medical practitioners they may be subject to investigation and punishment.
Conclusion
It is women of color who “are bearing the brunt of [these] unscientific laws and misplaced moral outrage against abortion,” as Yamani Hernandez, Director of the National Network of Abortion Funds, notes.96 And this is a further instance of a pattern of racialized reproductive injustice that is evident in other areas too, as grassroots organizations such as SisterSong point out.97 Shockingly, maternal mortality rates are actually rising in the US (the only developed nation of which this is true) and black women are dying at four times the rate of white women, at all income levels.98 The reasons for this are complex, but are thought to include the stresses of enduring racism on maternal and fetal health, and a pattern of many black women delaying or not initiating prenatal care. The growing criminalization of pregnancy will cost still further lives.
This is not to suggest that the US is the only country in which advances in reproductive freedoms gained through second wave feminism are at risk. In the UK there have been moves (so far unsuccessful) to reduce the time limit within which abortions may take place. Trade unions in Northern Ireland have warned that women who present at hospitals with miscarriages may face abortion questioning, after a woman was found guilty of procuring abortion pills in 2016.99 The rise of right-wing populism across Europe threatens women’s reproductive rights and health, as evidenced in the recent attempts in Poland to introduce a total abortion ban, defeated only when tens of thousands of women boycotted work and took to the streets in protest. In Nicaragua, a total abortion ban was introduced in 2008, with women and their physicians facing jail for terminations, even in the instances of rape, incest and threat to the woman’s life. Child victims of rape are forced to give birth. Doctors and nurses are fearful of providing pregnant women with even life-saving medical care in relation to cancer, cardiac emergencies and HIV/AIDS, for fear of an ensuing miscarriage. The situation, according to a recent Amnesty International visitor, is one of “sheer horror.”100
But the US is leading the way in the West in a rolling back of hard-won reproductive rights, both through the use of legislation to withdraw from women the material supports they need to make use of those rights, and through laws that make of pregnancy an object of surveillance, discipline and punishment.
Firestone was right. US pregnancy is barbaric. And unless there is an effective campaign of feminist resistance, it is set to become still more so.
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Conclusion
Firestone’s is still the only historical-material explanation of the ubiquity of women’s oppression, arguing that in the circumstances of early humans, the biological facts and consequences of reproductive sex were sufficient to establish societies in which men predominated in the majority of social functions. She may be wrong to infer from this that it remains the case that if male domination is to change, then biology has to be changed: that transforming reproductive biology through technology is a necessary condition of social change.
But even if she is wrong in this, that detracts neither from her historical-material explanation nor from the need to examine the continuing role of reproduction in contributing to women’s oppression. Changing biology may not be necessary: it certainly isn’t sufficient. But in explaining, and thus demystifying, the ubiquity of patriarchy, she utterly denatures it. Removing that misunderstanding is already an achievement.
In fact, I think Firestone is wrong that there needs to be a transformation of biology. For me, key to her contribution to feminism is her materialism, which insists on the fundamental inseparability of production and reproduction. These are two sides of the same coin, she insists; indivisible aspects of the economic problem always facing human beings – of how to create and sustain life.
But does “material change” have to mean altering biology? I think not. For another aspect of her contribution is her imaginative daring; her refusal to be bound by “capitalist realism”: the belief that there is no alternative to the endless instrumentalization of others and ourselves. The feminist thinker too often recalled only as the one who wanted artificial wombs is also, as we have seen, committed to a socialist transformation of production and distribution, and not as an adjunct to her program for women’s liberation but as a necessary condition of it. She sees clearly that there can be no freeing of women from their domestic roles for as long as the responsibility for maintaining life (children, and we might add, caring for the elderly, or the unwell) is privatized and put onto the individual or the family. Her analysis entails that redress of gender and other inequalities does not lie within the hands of individuals alone; that it cannot be a simple matter of individuals thinking differently about things, deciding to act or feel otherwise than they do, or adjusting themselves differently to the world that confronts them. The fundamentals of that world must be changed instead.
For me, what her analysis points to is that reproduction must be voluntary: for which is required access to contraception and abortion, and a cultural shift in our attitudes to people who are not parents. That it must b
e materially supported: which requires a radical rethinking of how childrearing is paid for, and a shift from the privatization of these costs to their collectivization, through such things as increased public/state support of childcare provision and parental employment leave, and the provision of an income upon which those who need or wish to concentrate full-time on parenting can live and raise their children with dignity. And it requires that reproductive possibilities be extended beyond the nuclear family through the support of alternative structures for the raising of children.
We need today more than ever a feminist radical politics that will put these issues on the agenda. The challenge that Firestone poses to us today is how to accomplish the changes that her analysis calls for. This is the provocation of her book: “What then, is to be done?” If not Firestone’s own (tentative) proposals, what then instead?
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Epilogue: Airless Spaces
Firestone’s second, and final, book, appeared 28 years after The Dialectic of Sex, in 1998. Shortly after publication of the Dialectic, Firestone had withdrawn from feminist activism and had ceased to publish. One of the most dynamic figures of the women’s liberation movement had effectively vanished from it, just as the decade of second wave feminism was really getting going. The precise reasons for Firestone’s withdrawal are unknown, although her second book gives us glimpses into what her life had been since 1970.