Peripheral Thinking and Abortion Care

By Ruth Fletcher

‘Peripheral thinking’ seems to me to be one useful framework for identifying what states do when they respond to residents’ practices of travelling away for care.   States take a variety of actions when their residents cross borders for care; actions which produce, stigmatise, ease, regulate and represent that flow all at the same time pulling it in different directions. If we want to understand better the effects of those actions and perhaps even how to steer them, we need a way to differentiate between them while acknowledging the transnational space they occupy. Here I want to distinguish between three different kinds of peripheral thinking that inform such state actions – inverted, tangential and circular – in order to consider further how best to respond to the spaces for engagement that they open up. My reflections work out from the example of state actions and transnational care flow with which I’m most familiar, that of Irish state practices as they contribute to women’s outward flow for abortion care (Fletcher, 2013).

Inverted peripheral thinking

When states adopt law and policy that support travel for care whose provision is restricted at home, one kind of peripheral thinking they use to justify their actions takes an inverted form. They claim that the failure to provide the particular care at issue is actually evidence of a central role in international care provision and not a peripheral role.   In arguing that Ireland is an international leader in care for the ‘unborn’ and in maternity care more generally, the state has often represented its failure to care for pregnant women as a success. This is a familiar if crude form of thinking, which Barrett (1992), drawing on Marx, called the ‘camera obscura’ version of ideology.   The periphery represents itself as central to the delivery of care (to the ‘unborn’), with the effect of negating a peripheral role and obscuring failures in care delivery (to pregnant women).

Tangential peripheral thinking

But inverted peripheral thinking is not the only rationality that states use when they play a role in generating outward flows for abortion care. They may turn authoritarian in restricting or punishing travel for abortion care (Fletcher, 1998), but that is relatively rare. It is more usual for states that are peripheral to the provision of abortion care to end up accommodating use of that care to some extent because their residents compel them to. In the 1990s the Irish state famously compromised on its anti-abortion position by constitutionally recognizing freedoms to travel to and receive information about abortion care abroad. Since then the Crisis Pregnancy Programme has developed a network of predominantly pro-choice counselling agencies throughout the Republic of Ireland which provide free pregnancy counselling and post abortion check ups.

In a two-tier health system where many people pay fees to attend a general practitioner, the provision of free pre- and post- abortion care, with all its limits, is significant. In using regulatory techniques such as public funding, training and communication to normalize travel for abortion care, the Irish state demonstrates tangential peripheral thinking. Here the peripheral thinker does not want to become core as care provider, but instead approaches the core provision of abortion care sideways.   Peripheral thinking develops tangential connections with the core provider of abortion care by taking on activities which are a key part of abortion care, but are themselves on the periphery of that care, namely the provision of information, counseling and check ups. Tangential peripheral thinking then is conscious of being at a distance from core care provision, and does not want to become core. Rather tangential thinking connects periphery and core care providers by taking peripheral care activities, which are needed for the provision of core care, as the object of its attention and facilitation.

So far, civil society critics of Irish abortion policy have focused on the discriminatory and hypocritical aspects of this kind of tangential thinking (e.g. ARC, CRR, DfC, ICCL, IFPA, WHRA). Travel policy has discriminatory effects and is not an adequate means of the state meeting its public responsibilities, because the less mobile will be less well served. Abortion travel policy is hypocritical because it cedes its domestic anti-abortion moral stance and supports access to abortion on grounds that would not be legal within the territory. But these critiques can retain their truth while we also recognize that travel policy has some positive effects from a feminist perspective.

We can welcome the way that this public recognition of women’s use of abortion care has likely contributed in some way to increased tolerance of abortion.   Opinion polls now regularly reveal greater levels of support for abortion than the state is willing to entertain in domestic provision. Although, as in many other countries (e.g. Sanger, 2014), Irish women are far from feeling free to speak openly at will about their abortion experiences, there have been several initiatives which tackle the association of abortion with stigma in the public sphere (Enright, 2014). The state’s tangential peripheral thinking has opened up (and indeed arguably resulted from) spaces for feminists and pro-choice advocates to engage and push the state further towards recognizing and serving women’s needs.

Circular peripheral thinking

A third kind of peripheral thinking that we see in Irish abortion travel policy takes a circular form and argues that there is nothing the state can do to change its own practices. Here the state argues that its own rules, or the views of the people, prevent it from acting to cure some harm or wrong that it cedes is in contravention of international human rights norms. There was a particularly spectacular example of this kind of peripheral thinking evident in the state’s response to the UNHRC during Ireland’s review under the ICCPR in July 2014. The Minister for Justice and her staff faced hard-hitting criticism by the HRC members for the failure to protect women’s civil and political rights in relation to abortion but also more generally (e.g. Cahill, 2014).

Representatives of the Department of Justice responded by relying on Article 25 and the right to vote to say that past abortion referendums meant it could not do any more legally to bring Irish abortion law into conformity with the Covenant. As Enright tweeted during the hearings (I’m paraphrasing), “to recap, the Department of Justice has just argued that Parliament can vote to inflict inhuman and degrading treatment on women”. Much was made at the time of this failure of the state to recognize that this ‘tyranny of the majority’ type argument contradicted the whole premises of the state’s claimed commitment to human rights, and indeed HRC member Mr Shany asked the state party to withdraw the relevant statement.

But here the point I want to make is that this way of thinking is a circular denial of sovereign power to make and interpret law. This state is so embedded in the periphery of abortion care that it can’t even imagine the possibility of proposing a referendum which would liberalise abortion provision, rather than restrict it (see further Flinterman’s comments). A state which refuses to act in legislating for abortion care (except when forced to by the ECtHR in ABC) on the grounds that its own legal rules so prevent, or that the people would not tolerate such action, has a strange understanding of its own legal power and moral responsibility.

In representing itself as a passive effect of its own legal authority, the state adopts a circular form of peripheral thinking which renders it eternally peripheral to its own power in a spectacular act of legal misrecognition. Of course, the state could introduce a Bill to remove Article 40 3 3. It could decriminalize abortion. It could promote an interpretation of Article 40 3 3 that recognizes substantive differences between pregnant women and fetuses, and permits domestic abortion in a way that would likely reduce the outward flow. But it chooses not to.

Conclusion

States, particularly the Irish state, have actually been quite creative in responding to their residents’ practices of travelling abroad for care that is restricted at home. They have used a range of regulatory techniques that have effects on cross border care flows. In the case of law and policy on abortion-related flows, these different techniques present challenges and resources to those of us who wish to make abortion access easier. First of all, we need to throw our net more widely when we try to capture legal tools that have an effect on women’s abortion practices. The legal instruments which restrict women’s access on the territory of the nation-state are significant. Inverted peripheral thinking, which denies harms to women while celebrating care of the ‘unborn’ as a marker of international leadership, arguably takes care and international norms seriously, but requires redirection.

But as women’s cross-border abortion practices illustrate, norms of domestic restriction are not the only legal instruments that are significant. Regulatory measures that promote non-judgmental information and counselling and provide public funding do acknowledge extra-territorial abortion use and attempt to reduce harms to travelling women. Working with such tangential peripheral thinking may provide further opportunities to destigmatise abortion and promote a harm reduction framework. And finally, the kind of circular peripheral thinking, which sees the state deny its own power to have an impact on care flows, provides welcome opportunities for reminding the state that women are not the only ones who bear public responsibilities for care provision.

PS I wrote this before the news of the recent abortion refusal case broke.  My initial thoughts on that failure in abortion care are here: http://humanrights.ie/constitution-of-ireland/contesting-cruel-treatment-ruth-fletcher/

If you would like more information about civil society’s campaigning responses to this case and more generally please see: http://www.abortionrightscampaign.ie and https://www.facebook.com/pages/Speaking-of-Imelda/571659212932533

Comments welcome.

ReValuing Care in 2013

A wordle of the ReValuing Care Blog 2013

ReValuing Care in 2013

As we approach the end of 2013, the time is ripe for a brief look back over the activities of the ReValuing Care research network in the last 12 months, and a peek forwards into ReValuing Care activities for 2014.

I’ll begin with a heart-felt “thank you”. To all of you – who have written for the blog, read contributions to this blog, shared those contributions on twitter, facebook and other social media. Since the launch of our regular blog series in June of this year, there have been nearly 50 blog contributions from members of the network. The website visitor numbers have increased from just 120 in January, to over 2,000 unique visitors in November. The ‘wordle’ image on this page provides an overview of the topics that have been covered. Of course, we’ve been talking about ‘care’; but we’ve also seen posts on topics as diverse as dementia, gender identity, soup kitchens, parenting, childlessness, sexuality and ageing (to name but a few). Care has been explored in its personal, practical, and conceptual senses. Blog contributors have explored the challenges and possibilities of care, and the multifaceted ways that research into and about care can lead to the (re)valuing of all forms of care. The international nature of our network has been demonstrated by the diverse locations of care research that have been shared: we’ve had contributions from the UK, the Republic of Ireland, India, Kenya, the US, Italy, and Australia. Creating a network is a very difficult thing to do. It takes time, energy, thought. It takes care. We all have to care about the potential and possibilities that arise from being in touch with others who care about care.

The way this blog has developed over the last six months, demonstrates the vitality and diversity of research about care. The challenge we face for the future is how to keep our conversations going; how to make the most of the network that we have created. Our AHRC grant, which funds the current phase of the ReValuing Care research network ends in the next few months. It would be all too easy for our network to spit, and fade and fizzle out when the money runs out. For the network to continue to develop, and for the conversations to continue beyond that time, we need to think creatively about how to take things forward. I have some ideas, and I’m sure you all do too.

To keep this network going, to build on the work that we’ve done, we need to nurture it, feed it and let it grow. We need to take care of it.

How? We could hold another ReValuing Care workshop (does anyone want to host?). We could reach out more to sectors beyond academia through other types of events (do you have ideas?). We could consolidate our academic contributions so far through an edited collection. We could apply for further funding to take forward additional questions and ideas. We could encourage our colleagues and contacts to get involved (from PhD students to professors, policy makers to activists, it doesn’t matter who you are, so long as you are interested in care). Perhaps the easiest thing of all to do is to keep up this blog. When we see a news story about care that makes us feel (in many ways it doesn’t matter which emotion sparks us off: angry, confused, impressed, concerned, happy…) we should write about it.  There are so many things we can do. I hope that we do at least some of them.

I’ll end with the caring equivalent of a call to arms (maybe a call to alms?): 2013 has seen the ReValuing Care research network develop into a community of scholars from across the globe. I very much hope that 2014 has even more in store for us. For this to happen, we need you to join in. I hope you will.

The Liverpool Care Pathway Controversy: Time to Revisit the Ethics of Care?

Back in July an Independent Review headed by Baroness Julia Neuberger published a report into the controversy over the use of the Liverpool Care Pathway (LCP) – a holistic plan for care of dying patients, within the acute hospital sector (Neuberger 2013) This came in the wake of a long line of recent enquiries into the standards and practices of care within the healthcare sector (Francis 2013, Patients First 2013, Keogh 2013) and in response to media headlines such as “Distraught families allege that the NHS protocol designed to allow the terminally ill ‘a good death’ is being abused” (The Telegraph 29 October 2012).

The LCP had originally been developed by the Royal Liverpool University Hospital and the Marie Curie Hospice Liverpool in the late 1990s, for the care of terminally ill cancer patients. It comprises of 10 key elements, including a recognition that the patient is dying; communication with the patient and relatives; spiritual care; reviews of medication, nutrition and hydration; and collaboration and shared decision-making. All of which are intended to be guidelines that aim to support, but not replace, clinical judgment (Ellershaw 2013, 2).

The controversy centres around the conflict between the recognition of the LCP as a model of good practice, (NICE 2003, 2006) and the findings of the Review that in reality incidents of poor treatment – “uncaring, rushed, ignorant – abound” (Neuberger 2013, 3). The title of the Review, “More Care, Less Pathway” neatly sums up its flavor. It concludes that patients were often treated with less respect than they deserved, with the use of the LCP being reduced to a “tick box exercise” and that communication with the families was inadequate or entirely absent (Neuberger 2013, 3-4).

This tension between laudable intention and implementational failure generates questions about how policy and law can effectively promote practical and realistic care practices and yet remain sensitive to the myriad of vulnerabilities experienced in the face of death. This is all the more pertinent in relation to dying, where care’s traditional preservative purpose is subverted, so that care not only reaches beyond survival but entirely precludes it. Further, the aim of the LCP to “ensure that uniformly good care is given to everyone, wherever they are (…)” (Neuberger 2013, 12) brings into sharp focus the socio-spatial notion of caring (Johnsen et al 2005). This examines the potential of such ‘caring spaces’ as the hospital, to accommodate the apparent merger between the private and the public, the intimate and institutional in the care of the dying. This in turn raises the question not only of institutional support and time for care (Groenhout 2004) but also of whose role it is to care, which feeds into the wider debate surrounding the education and training of doctors and nurses.

It seems evident that the absence of both the virtues (Engster 2005, 55) and practices proclaimed by the advocates of the Ethics of Care, such as a recognition of the relational self (Gilligan 1982), the need for particularist solutions (Bowden 1997) and a recognition of the ‘expertise’ that can arise as a result of practical engagement in caring practices (Ruddick 2009,) were instrumental in the failure in implementation of the LCP. Problems such as poor communication, with “brutal and callous” language being used by clinicians when speaking to relatives about the patient (Neuberger 2013, 25), may be remedied with training. Yet a recognition of the patient’s ‘relational autonomy’ (Nedlesky 2011) in order to foster practices of shared decision-making, or the over-coming of the apparent taboo that even healthcare professionals feel in speaking about death, (Neuberger 2013, 21) may require a more significant change of culture.

One wonders how other, more subtle aspects of the Ethics of Care as it relates to the process of dying, might be feasibly accommodated within institutional practice. How could notions of the embodied experience of the dying patient, which would provide an anchor to the notion of particularity in care, (Fox and Murphy 2013, 13) be recognized? The current link between the LCP and embodiment is a paradoxical one, with the physical body at once occupying the place as its central object, yet silenced by the routine and often unexplained use of heavy sedation and the withdrawal of nutrition and hydration, causing great distress to the relatives (Neuberger 2013, 24). Likewise the accommodation of aspects of spiritual care, such as the importance of religious and cultural aspects of dying, or the desire to place remaining lucid above pain relief in order to cherish time with their relatives (Neuberger 2013, 24). Could a caring response that may even require a retreat from the desire to minimize suffering, ever be countenanced? A recent example is found in the case of VT, a 72 year old devout muslim man whose family argued that their father, for whom they had cared devotedly for 10 years, would want his life preserving for as long as possible, even if he was suffering, as he would view that suffering as an opportunity for purification in preparation for the next life (The Guardian 13 November 2013).

Ultimately, the final recommendation by the Review that the LCP be phased out by July 2014 and be replaced by personalised care plans for each patient, backed up by condition-specific guidance (Neuberger 2013, 48) is surely right. The potential for us and our loved ones to die in accordance with our own view of a ‘good death’ is an appealing one. Yet the Review is also right that a system wide-change is needed to improve end-of-life care, and still one wonders how institutional mechanisms operating under such a nuanced and sensitive approach will be either practical or feasible?

Kirsty Moreton – Birmingham Law School, University of Birmingham.   KLM180@bham.ac.uk

 As a result of the Review, the Leadership Alliance for the Care of Dying People (LACDP) has been set up to respond to the Review’s recommendations and publish a system-wide response, primarily focusing at this stage on clinical practice. Its Engagement Document is still open for consultation until 6 January 2014 https://www.engage.england.nhs.uk/consultation/care-dying-ppl-engage.

References:

-           Bowden, Peta. 1997. Caring: Gender Sensitive Ethics. Routledge.

-           Ellershaw, John. 2013. Statement regarding LCP Review Publications. Marie Curie Palliative Care Institute, Liverpool. www.mcpcil.org.u

-           Engster, Daniel. 2005. ‘Rethinking Care Theory: The Practice of Caring and the Obligation to Care’ 20(3) Hypatia 50.

-           Fox, Marie and Murphy, Therese. 2013 ‘The Body, Bodies, Embodiment: Feminist Legal Engagement with Health’, in Davies, Margaret and Munro, Vanessa. (eds) The Ashgate Research Companion to Feminist Legal Theory. Ashgate 249.

-          Gilligan, Carol. 1982 (2nd edn 1993) In a Different Voice: Psychological Theory and Women’s Development. Harvard University Press.

-          Groenhout, Ruth. 2004. Connected Lives: Human Nature and an Ethic of Care. Rowman and Littlefield.

-          Johnsen, Sarah: Cloke, Paul; May, Jon 2005 ‘Day Centres for Homeless People: Spaces of Care or Fear?’.

-          Nedelsky, Jennifer. 2011. Law’s Relations: a Relational Theory of Self, Autonomy and Law. OUP

-          Neuberger, Julia. 2013. More Care, Less Pathway: A Review of the Liverpool Care Pathway. Independent Review of the Liverpool Care Pathway.

 -          Ruddick, Sara. 2009. ‘On Maternal Thinking’ 37 (3&4) Women’s Studies Quarterly 306.

 

Caring in Kenya, by Ann Stewart

While young men and possibly young women were laying siege to a shopping mall in Nairobi, killing young and old indiscriminately despite press reports to the contrary, I was spending the day with Maasai families experiencing care at first hand.  While they were forcing their way into this space where love and care was being bought in the same way as elsewhere in the global market place, through children’s cooking parties, coffee and tea drinking and the body work of hairdressers and cosmetic sales persons, I was sitting outside a one roomed home, made with corrugated iron sheets, drinking smoky milk tea from a pot on the open fire, with 4 generations of women from one family, the eldest 100 years old, the youngest 2 years.  The great grandmother was given her food by her grand- daughter.  She was sitting on her goat skin leaning against her hut wall eating her lunch from a bowl with a spoon.  The food had been provided by her last surviving child of 12, her youngest daughter in her 60s now living with her mother, having moved from the local ‘town’, some 8 kilometres away on a deeply pitted dirt road.  The ugali and goat meat with vegetables had been made into a stew on an open fire.  She spooned out all the liquid on to the earth in front of her because she wanted it dry.  Her daughter and grand- daughter looked on while she did this, ensuring that the food did not tip out.  When we had arrived in the sort of SUV which is ubiquitous in ‘developing’ world contexts with her grand- daughter and two great grand-daughters, she had come out to greet them but immediately went back inside the hut and come out again carrying all her belongings in a cloth bundle, secured on her head and back, which was almost her size, and her long stick.  She was intent on getting back to the town to visit her grand-daughter.  She was persuaded gently to put the bundle down and to have her food and to share tea and talk.   She was not going to be able to go back with us.  She and her widowed daughter had moved here because a grandson had taken responsibility for them.  Sons are important.  They provide this economic protection although widowed women are socially powerful within families.    We debated how we would leave when the time came.  The answer was for the men in the party to drive off in the vehicle and wait further off and for the women to stay behind.  Then at a moment when we hoped she was distracted we ran towards the vehicle.  She was not fooled and proceeded to follow us with remarkable swiftness for her age.  We clambered in and left her with her daughter to return to their home.

We were there because my Kenyan research student had studied the interaction between gender and ethnicity in matters relating to land in 3 different communities in Kenya.  The grand daughter was the sister of her interpreter for the Maasai field work.  Agnes had spent time much time and many experiences with this group of women who in Maasai terms are a wealthy and influential family, owning much land.  She was paying a visit to reminisce and to catch up on events.  I was sharing this visit as her teacher.  I also had a ‘husband’ my male partner with me.  Agnes had her husband and we had two male drivers, one for the Maasai area, an influential young man who had assisted Agnes with her fieldwork in this area, and a driver whom Agnes had used generally for all her fieldwork who drove for her family.  Undertaking fieldwork in rural Kenya is not easy.  It involves many challenges which I was only now learning about as we met up with those who had been involved.  Everyone was enjoying the stories. The interpreter’s sister, who set up many of the interviews, had been 8 months pregnant at one stage.  Her mother made it clear that Agnes must be prepared to attend the birth if this should occur on one trip which involved very bumpy terrain.   On one occasion the interpreter had had to climb a tree to try to get a mobile signal to enable someone to come and tow the vehicle out of the ditch.   The Maasai driver had been able to clear the road of a large herd of goats while the Kisii driver had not.  When the great grand- mother had been interviewed she had wanted Agnes to write down her entitlement to land on a piece of paper.  She still had this piece of paper.

I am deeply uneasy about the potential voyeurism involved in this type of narrative but it was not that sort of day.  The men in the party wandered off somewhere and the women chatted to each other lined up along the hut wall for a number of hours.  They spoke Swahili and the Maasai language and English when necessary.  I was made to feel completely welcome but not special.  I shared photos from my newly bought flash smart phone of my two small grandchildren.  They were struck by their very blue eyes.

A few days before I had delivered a public lecture entitled ‘caring about care; recognising and regulating body work in a global market’ at the British Institute in Eastern Africa.  It was based upon my book Gender, Law and Justice in a Global Market (CUP 2011).  As part of the presentation I had shown some photos of the elderly in institutional settings in the UK: older women lined up against walls in wheel chairs, heads down.  I had shown pictures of migrant care workers tending to these elderly frail people.  In the discussion which followed the presentation, we had had a very interesting discussion of the tensions and dilemmas that urban middle class/professional women face in coping with paid work and caring responsibilities in urban Nairobi where use of paid assistance in the home – domestic workers, nannies, care workers generally –are the norm.  We discussed the consequences of privatising social responsibilities with no welfare state safety net  – individual women feel responsible for the lot of other women who have left children and other family members behind to undertake these roles.  The women are not paid enough to replace their care and they may be far from their own homes in the informal settlements in Nairobi.  The Kenyan state has provided some legal protections and minimum wage requirements.  But how are these to be met by individual women with no support from the state?  Women are pitted against each other.

I looked after my mother and father in our home for the last two years of their lives.  My mum was by then very frail and needed constant care.  They both died aged over 90 in our home.  I recognised the care that the women around me were giving on Saturday.  I recognised its quality.  I recognised the power relationships, the negotiations, the vulnerabilities, the love.  I saw the dignity and worth of this very elderly woman’s life – her clean clothes, her neat hair, her alertness, her sense of being part of this community, her frustration at not being able to out run us to the vehicle.

Ann Stewart

School of Law University of Warwick