Moralizing Pregnancy: The Implications of Anti-Choice Culture Beyond Abortion
For a pregnant person, the decision to proceed with or terminate a pregnancy is but one choice that will be made over the roughly 40 week span of human gestation. And much like the way that the personal, private decision-making process around abortion has become a site of very public debate, so too have myriad other choices that people make in pregnancy. It has become a truism amongst pro-choice advocates that restrictive abortion laws are harmful for all pregnant people, not just those seeking abortions. We often say it is because the anti-choice movement is precisely that– anti-choice– and not “pro-life” at all. The anti-choice movement is characterized by an obsession with the fetus– a “potential life” according to Roe– and a callous, if not always intentional, disregard for the person carrying it. The notion of fetal “personhood” that has become central to anti-choice doctrine sets up a problematic dichotomy between parent and child that is unsupported by biology but nonetheless has real-world consequences for pregnant patients and their providers.
Among the first choices a pregnant person will make is from whom they will receive care. For some, this is obvious, especially if they have a long-standing relationship with an OB provider. For others, this decision is more complicated. For anyone, it is influenced by numerous factors: insurance coverage, state regulations, and the opinions of family and friends, to name a few. In my last post, I hinted at the fraught history of midwifery and obstetrics in the United States. The development of the profession of obstetrics as distinct from that of midwifery relied in large part on the demonization of midwives as uneducated, unsanitary, and even immoral. These critiques were often pointedly racist as well, pitting African-American “Granny” midwives against white doctors. Despite the best efforts of medical men, however, midwifery did not disappear. But even though the profession has persisted (and to some extent has enjoyed a renaissance in the 21st century, as more and more American women are choosing midwifery care), the legacy of stigmatizing and marginalizing midwifery persists in a state-by-state patchwork of disparate certifications and regulations that is not unlike what we are seeing around abortion rights.
I learned about this patchwork first-hand when I decided to become a midwife and began researching educational programs. There are, broadly speaking, two paths to licensed midwifery in the United States– the path through nursing and the direct-entry approach. Nurse-midwives (CNMs) are licensed in every state, while certified professional midwives (CPMs) are only licensed in 37. CNMs are generally able to practice both in and out of hospitals (though the vast majority who are actively delivering do so in hospitals), while CPMs practice exclusively in out-of-hospital settings– homes or free-standing birth centers. They have distinct certifying bodies (the North American Registry of Midwives for CPMs, and the American Midwifery Certification Board for CNMs). While I ultimately chose the path through nursing, the decision was a complicated one. Even within the profession of midwifery there exists quite a bit of in-fighting around the superiority of one pathway over the other (and there are some who eschew licensure entirely, though this is rather rare). CNMs are sometimes called “med-wives” or “mini-OBs,” while CPMs are denigrated for what some perceive to be inferior training. The purpose of this post is not to elevate one over the other, but only to illuminate the fact that, depending on the vision a given patient might have for the birth of their baby, the choice of care provider may be far from straightforward.
In addition to the varied licensing options offered by different states, regulations around scope of practice and physician oversight (as opposed to collaboration) can vary widely, and these variations can have a significant impact on patient care. For example, where in one state CNMs may not have prescriptive authority at all, in others (such as Connecticut, my home state) CNMs can prescribe even controlled substances such as narcotics. Some states regulate the attendance of midwives at certain kinds of births based on perceptions of risk; this includes situations such as breech birth and vaginal births after cesareans (VBACs). In places where obstetric providers are few and far between to begin with (the March of Dimes estimates that 2.2 million women of childbearing age live in so-called “maternity deserts,” counties that lack an obstetric provider), finding a supportive provider for something like a VBAC can be a challenge; therefore, for many American women, the decision to have repeat c-section deliveries is often made by default as a result. This result is not benign; the risks to the pregnant patient of cesarean delivery are greater than those associated with vaginal delivery, and the risks for future pregnancies (including life-threatening placental disorders) increase with each subsequent surgical birth.
So what does all this have to do with abortion rights? The impetus to regulate things like birth place and midwife-led care might seem in step with sound public health imperatives. What, after all, could be controversial about protecting the safety of moms and babies? This, if anything, seems like a place where pro- and anti-choice advocates could meet in the middle. However, if we begin to consider the problematic of the fetus-as-person, we realize that we have a unique medical conundrum where the health and well-being of one patient can at least appear to be in conflict with that of the other. The example of VBAC is instructive here, as it remains a controversial issue in obstetrics even though the practice has been affirmed by ACOG to be a safe option for most patients. As is so often the case when new evidence comes out to support new guidelines, the accessibility of VBAC as a viable option for pregnant patients with a history of one or more c-sections varies widely in spite of current recommendations. The International Cesarean Awareness Network, or ICAN, has amassed a database of state-by-state VBAC bans, and there are already numerous reports of patients being forced into c-sections without their consent. One such mother, Rinat Dray, brought a lawsuit against the Staten Island hospital where she was forced to undergo a repeat c-section. Dray’s physician noted in her chart, “The woman has decisional capacity. I have decided to override her refusal to have a c-section.” The rationale was that her choice to refuse repeat surgical delivery was putting her fetus at risk. Her initial lawsuit failed, and in 2018 a New York State Appellate court affirmed the decision against Dray, stating that “The court thus finds that the state interest in the well-being of a viable fetus is sufficient to override a mother’s objection to medical treatment.” While it is clear that pregnancy produces an interdependent relationship between mother and fetus, it is equally clear that only one party– the pregnant patient– maintains the “decisional capacity” and the right to consent to or refuse treatment.
Rinat Dray’s case is not an isolated one; we can point to such incidences of what has been termed “obstetric violence” all over the country. Women have been coerced into unwanted treatment by being threatened with legal action (including arrest as well as DCF involvement in their families). The present threat to Roe as embodied by Justice Alito’s leaked brief relies on frighteningly similar logic regarding the “state interest” in the life of the fetus, though notably without regard to the criterion of viability. Therefore, we may see an increase in cases such as Rinat Dray’s, as well as an increase in the kinds of cases that may suddenly be deemed to merit the state’s attention. Without the protection of Roe, we are likely to see a slippery slope into the criminalization of poor pregnancy outcomes of all kinds, and concomitant restrictions on the kinds of care pregnant people can expect to obtain. If a needed medication for a chronic illness falls under category C (i.e., lacking clear evidence of either safety or harm in pregnancy), will a given provider be less apt to prescribe it, citing the “interest” of the fetus against that of its parent (coupled with a fear of legal repercussions)? If a pregnant person needs an urgent procedure that is deemed to be a risk to their pregnancy, will such care be withheld? If a parent chooses home birth with a midwife and there is an adverse outcome, will that parent be held criminally liable? What of the patient who consumes alcohol before knowing they are pregnant? Or the patient who suffers from mental illness and attempts suicide while pregnant? The patient who conceives with an IUD in situ and subsequently experiences a miscarriage?
The loss of the protections provided by Roe will effectively threaten the ability of pregnant people (as well as people who can become pregnant, whether or not they want to be) to access appropriate, necessary, and/or desired medical care. Even those carrying wanted, wished-for pregnancies will be at risk of medical coercion and criminal prosecution. It is clear that the current SCOTUS majority is invested in the “interest” of the fetus; but what of the interest in the lives and livelihoods of pregnant people? If SCOTUS determines that the state can indeed step in and require a person to remain pregnant against their will, there is no limit to the potential for government overreach into people’s ability to make decisions about their bodies over the course of pregnancy.
-Sam Cohen
