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.