As some of you will have seen, several Network members were involved in a project this past year, which culminated in the publication of draft abortion legislation for Ireland, see here and here. 10 academic lawyers acted as legal experts to a commission appointed by Labour Women to look into options for #Repealthe8th, repeal of the constitutional amendment which makes the right to life of the ‘unborn’ equal to the right to life of the pregnant woman in Ireland. The draft legislation which we produced, under the leadership of Mairead Enright and Vicky Conway, is legally compliant with international human rights norms, but is not our ideal legislation. Rather it was the result of the consultation process in which we were involved and was published as the results of a legal experiment, for others to repeat, modify, evaluate and criticise. Labour Women did not accept this draft and went onto publish their own version, see here.
Rosie, Ruth and Chris are currently putting the final touches to the edited collection developed from some of network’s activities. Many thanks to all our fantastic contributors. You can find out more about the book here. It will be published in Routledge’s Social Justice series in 2016.
Here’s the summary from the Routledge website: In light of contemporary debates and challenges, this book introduces a new framework for articulating the value of care. Existing work on care has cohered around three key themes: the need to value caring and domestic labour in law and society; the utility of a feminist ethics of care; and latterly, the limitations of care as a normative and conceptual framework. The proposed collection expands these themes: both theoretically, and in a movement beyond the usual focus on familial interconnection, to also include professional care contexts, care by strangers, and care for and about animals. Containing sixteen original analyses of care practices across a range of interdisciplinary and international contexts, it formulates a more nuanced ‘cycles’ approach to care that captures how subjects move between instances of care-receiving and care-giving. In this respect, the book proposes an approach to care that centralises embodied experiences of responsiveness and affect – both in relation to caring for and caring about different people, practices and places.
Note: These comments were originally written for a talk I gave at ‘Liberation through Law’, an event organized by SOAS Feminist Society and SOAS Law Society, on the 25th February. I am grateful to them, particularly Aleksandra Wolek and Sabeehah Motala, and to my co-panelists, Diamond Ashiagbor, Samia Bano and Linda Mulcahy, for generating such a great space to discuss the role of feminist legal theory in the university curriculum.
My comments arise from wanting to think more about how I draw on feminist activisms and organisations as sources of legal knowledge when I teach. This has been inspired in part by the recent successful campaign against Fiona Bruce’s efforts to outlaw sex selective abortion, which involved a wide range of feminist, health and pro-choice civil society organisations, including the End Violence Against Women Campaign, the Iranian and Kurdish Women’s Rights Organisation (IKWRO), Southall Black Sisters, the Royal College of Obstetricians and Gynaecologists (pdf), Antenatal Results and Choices (pdf), the British Pregnancy Advisory Service (pdf) and Voice for Choice. As we consider and evaluate the ways in which law regulates reproductive lives, what can we learn from the experience and expertise of feminist civil society?
Typically a key feminist topic like abortion rights is taught in a medical or health law course. And the typical things we talk about are the fact that the Abortion Act, 1967, makes abortion a matter of medical discretion rather than a woman’s decision (Sheldon, 1997). Black letter medical law treats abortion differently from most other kinds of healthcare in that women’s views are not legally relevant. What matters according to the law is whether two doctors believe that a particular pregnancy is more likely to put a woman’s health at risk if continued rather than terminated. This takes abortion out of ordinary health care, which is governed by the doctrine of consent for those who are capacitated to make healthcare decisions, and the doctrine of best interests for those who are not so capacitated. Abortion becomes exceptional and women have to negotiate the discipling effects of that regulation when they need to access abortion care. So teaching about abortion law is a great way to consider how legal paternalism makes reproductive decisions on women’s behalf and uses medical authority to distance women from their own lives.
But abortion law also mobilises old-fashioned coercive power against women and their health professionals. Women who find themselves needing an abortion on terms which fall outside of the Abortion Act, 1967, are criminalized and stigmatized. Sarah Catt, who procured her own abortion by taking the abortion pill after the 24 week time limit, was sentenced to 3.5 years in prison, reduced on appeal from an original 8 year sentence by the trial judge (Prochaska, 2012). The full force of the criminal law was brought to bear on this woman as she tried to control her reproductive life. In criticizing and contextualizing that law I, in common with lots of other teachers of health law, use a variety of strategies. One such strategy is the familiar critical doctrinal strategy of flagging up the inconsistencies in black letter law, and looking to general principles of patient autonomy in other areas of health law. I look to critical engagement with human rights norms as a tool for tackling the inadequacies of abortion regulation. And I look to theoretical arguments about voluntary reproduction as an aspect of women’s equality.
But the point I want to focus on here is that often students are surprised to learn these two things about British abortion law: that doctors’ approval is necessary for non-criminal abortions and that some abortions are still criminal. And their surprise presents teachers like me with an opportunity to raise another important aspect of feminist approaches to law and that is the significance of the gap between law and practice. In practice, in the law of everyday life, the way people experience something like legal access to abortion care can be quite different from the way it’s represented on the books (Lee, 2004). And as scholars of legal consciousness have long argued, that everyday experience of law matters. It matters because actual access has immediate impact on people’s lives. But it also matters because those everyday understandings provide important resources for challenging official accounts in their violent, coercive forms and in their disciplining and governmental forms.
One important reason why there is a gap between law on the books and law in practice in the context of abortion in contemporary Britain is due to the presence and effect of pro-choice abortion providers. The presence of a pro-choice provider like BPAS, which has been providing woman-centred abortion care since 1968, makes a profound difference to women’s experience of abortion law. Their willingness to interpret and implement the Abortion Act in light of women’s life concerns has meant that sometimes at least women experience abortion care as if law is listening to them and taking their concerns seriously. But these vital aspects of women’s experience of law, the presence of feminist civil society organisations who work hard to make law a little more liveable, often don’t make it on to the legal curriculum. Or at least they make it on the curriculum in particular kinds of ways: as initiators of judicial review actions, collaborators in clinical education and providers of legal internships.
So how might I address this when I teach about abortion and law? I’ve been thinking about this anew in light of the recent campaign by a wide range of feminist, health and pro-choice civil society organisations against Fiona Bruce’s effort to criminalise sex selective abortion. The successful and collaborative nature of the campaign mark it out for attention in the first place; but I’m particularly curious about the ways in which it mobilised feminist knowledge of care practice. Conservative MP Fiona Bruce, together with Jeena International, Stop Gendercide and Karma Nirvana, was initially relatively successful in mobilising concerns about abortion of female fetuses towards support for an amendment to the Abortion Act, 1967. On 4 November 2014, a majority of 181 to 1 voted in favour of debating an amendment to prohibit sex selective abortion at its first reading. But on Monday 23 February 2015, 292 MPs voted against Bruce’s amendment while 201 voted for, defeating the amendment by a 91 vote majority. Why did the momentum change and what does this change have to tell us about the role of feminist civil society in making law a little more liveable (Cruz 2013: 467 citing Butler, 2010: 31)?
In making the case for the amendment, Fiona Bruce made two arguments which looked like they addressed feminist concerns. The first was that sex selective abortion was harmful and worth prohibiting because it was discriminatory in suggesting that girl fetuses are less valuable. The second was that a prohibition of sex selective abortion would help pregnant women who were being abused and pressured into abortion for reasons of son preference. In response, a number of civil society organisations drew on their collective experience of working with women who seek access to abortion care and with women who have lived with violence. In one important intervention in a letter on 19th February, a wide range of people argued that the amendment would have the effect of criminalizing women and their doctors for sex selective abortion, that criminalisation does not help women who are experiencing sexist abuse and pressure, and that funding of support services would be a preferable alternative.
Their arguments reminded us that criminal law itself can be harmful, rather than a means of protecting people from harm, in stigmatising women and preventing them from seeking out help. Others such as Hashmat argued that taking reproductive choice away from a woman in a desperate situation does not tackle the causes of that situation and denies her options in responding to her actually existing reality. These interventions were really good examples of feminist critiques of the carceral state in action and of engagements with a critical harm reduction approach (see further Erdman, 2012; Todd-Gher, 2014; Lamble, 2013; Fletcher, 2014). These kinds of reforms can be dangerous even if they may look to have gendered concerns, because they encourage the punitive state to intervene in women’s sexual and reproductive lives, and are likely to expose women to more rather than less risk.
A second important point was that sex selective abortion is not that prevalent in the UK and is not necessarily a discriminatory decision if and when it does happen. The Department of Health has not identified any evidence of difference in sex ratios and the clinics tell us that women do not report sex of the fetus as a reason for abortion (BPAS, 2015). Fetal sex may be one part of a more complex story as when bringing a girl child into the world at a particular moment may be a threat to a woman’s mental health because she is under significant pressure to have a boy. In making this kind of argument organisations like BPAS and Voice for Choice remind us of the important of evidence and personal stories in feminist evaluation of legal reform. Concerns about sex selective abortion practices sometimes mobilise a kind of feminist ‘common sense’ that selection must be sexist. But any such ‘common sense’ needs to be challenged in light of contesting evidence and narrative. We can’t be in a position to decide whether a given practice is actually discriminatory and harmful until we have heard from those experiencing that practice themselves.
Feminist advocacy and care organisations are important legal actors and we could make more of them, with all their imperfections, in the legal curriculum. They provide great examples of legal ideas in practice, as they argue for sexual and reproductive autonomy in a way that is sensitive to diversity and vulnerability. They challenge the reason/affect dichotomy that permeates public debate as they mobilise affective knowledge of women’s experiences towards rational ends. And they show us how to make legal interventions by drawing on feminist experience and expertise while speaking to non-feminist audiences.
What to say about Savita? What to say about the story of a woman who dies from septicaemia in Galway, after termination of a miscarrying pregnancy was refused?Â The lawyer in me knows that we haven’t heard the full account yet.Â But the critic in me thinks about the outpouring of emotion provoked by her husband’s story.Â I batter the keyboard to try and stop my own frustrations from taking hold.Â What use is yet another comment on yet another woman who has been failed by a health system which refuses to provide abortion care?Â But I donât want to be quiet either.Â I want to try and make sense of the awful spectacle of Savitaâs seemingly needless death.
I talk to a pregnancy counsellor who works for a Irish pro-choice service.Â She has worked for years supporting women with unplanned pregnancies, many of whom decide to travel for abortion.Â She has been having a bad time recently in the wake of a sting on pregnancy counselling services, which accused counsellors of giving women poor advice.Â She says: âI know why I do what I do, and why I say what I sayâ.Â Everyday she negotiates the moral and legal complexity, which has baffled the politicians for 20 years since the X case.Â She doesnât have the luxury of getting overwhelmed and throwing her hands up in the air because âabortion is complexâ.Â While 6 governments have failed to implement the 1992 X case ruling, which allows abortion when there is a real and substantial risk to the life of the woman, she has listened to womenâs assessment of their options.Â She knows that women need abortions, even women who have anti-abortion views.Â She knows that women make complicated moral judgments about the best course of action in their particular reproductive circumstances.Â This public servant has found a way through the legal uncertainty to support women as they travel in search of abortion care.Â Imagine if we valued her experience more.Â Imagine how abortion law would benefit from understanding complexity as an element of, not an obstacle to, reproductive decision-making.
I listen to Mary Favier of Doctors for Choice on the Pat Kenny show on RTE radio.Â Mary calls for the decriminalisation of abortion and the recognition of womenâs right to control their own fertility.Â She calls on doctors to act and to push up against the imagined boundaries of lawful abortion in Ireland.Â It’s such a relief to hear Mary claim public space not just for women in life-threatening circumstances, but also for ordinary pregnant women.Â One of the most distressing things has been hearing so many media commentators fixate on the narrowest of legitimations for abortion.Â At times the scope of the argument has seemed limited to the meaning of life-saving abortion. Â But we know thousands of Irish women end their pregnancies every year for all kinds of reasons. Â Yet the mainstream public debate seems to proceed as if medical practice is never about tackling risks to health, or promoting patientsâ well-being.Â Itâs as if women canât be trusted with moral decisions, decisions whose consequences they will bear.Â Itâs as if a non-conscious, non-sentient, non-viable foetus has the same moral status as a conscious, sentient, viable woman.Â Itâs as if there is only an audience for the most distressing, blood curdling stories of abortion need.Â But as Mary points out, Savita was also a woman whose request for a termination was refused.Â Mary shows us what Irish abortion care could be like if it supported womenâs moral agency.Â Others like her – Clare Daly, Ivana Bacik, Susan McKay – allow us hope for a politics which addresses the ordinary everyday stories of pregnancy and abortion.
Hungry for information, I flick through my tweets and watch an older clip of Mara Clarke of the London-based Abortion Support Network tell the Dublin Pro-choice Rally, 28 September 2012, about the women theyâve helped over the last 3 years.Â Mara talks about the vulnerability and resourcefulness of all kinds of women: rape victims, mothers with families, young asylum-seekers, students, women in gender transition.Â She makes ordinary ingenuity come alive as she tells stories of the friends who raise funds and mind children so that women can travel.Â Imagine having to ring a complete stranger for help, she says, when youâre under this pressure and need access to abortion.Â These ‘strangers’ open their homes and their lives to women who need them for a day or two.Â They take it on themselves to reduce the harmful effects of a healthcare system that ignores abortion-seeking women. Â And before them ESCORT in Liverpool and the Irish Womenâs Abortion Support Group in London (Rossiter, 2009) looked after women who travelled during the 1980s and the 1990s.Â This hospitality of strangers makes caring across borders a reality as people connect over the simple act of wanting to help.
The reaction to Savitaâs death has made the ‘distant suffering’ (Boltanski, 1999) of abortion-seeking women a little less distant.Â Ordinary people keep apologising for not having taken action against Irish abortion law before now.Â They’re taking moral responsibility for the legal and medical regime which produced Savitaâs death and routinely sends abortion-seeking women abroad.Â This failure in our public institutions â in law and in medicine â is at odds with a clear desire to care in other public spaces.Â And perhaps thatâs all I want to say at least for the moment: This is a terrible tragedy for Savita and her loved ones.Â But the wave of revulsion is not just revulsion at what Enright has called the bloodthirsty nature of Irish abortion law. Â Itâs a wave of connection that’s bringing together these different challenges to an anti-abortion ethos.Â We have to find a way to bring abortion care home: to take domestic abortion care beyond questions of life and death and into a respect for the ordinary moral messiness of peopleâs lives.