Criminality versus Dumb Decisions

Earlier this week Lynn Paltrow, executive director of National Advocates for Pregnant Women, published an open letter to Sarah Palin in Alternet, asking her to reconsider her position on abortion:

According to press reports your water broke while you were giving a keynote speech in Texas at the Republican Governors' Energy Conference. You did not immediately go to the hospital – instead you gave your speech and then waited at least 11 hours to get to a hospital. You evaluated the risks, made a choice, and were able to carry on your life without state interference. Texas Governor Rick Perry worried about your pregnancy but didn’t stop you from speaking or take you into custody to protect the rights of the fetus.

After, Ayesha Madyun’s water broke, she went to the hospital where she hoped and planned to have a vaginal birth. When she didn’t give birth in a time-frame comfortable to her doctors, they argued that she should have a C-section. The doctors asserted that the fetus faced a 50-75 percent chance of infection if not delivered surgically. (Risks of infection are believed by some health care providers to increase with each hour after a woman’s water has broken and she hasn’t delivered).

The court, believing, like you that fetuses have a right to life, said, "[a]ll that stood between the Madyun fetus and its independent existence, separate from its mother, was put simply, a doctor's scalpel." With that, the court granted the order and the scalpel sliced through Ms. Madyun's flesh, the muscles of her abdominal wall, and her uterus. The core principle justifying an end to legal abortion in the US provided the same grounds used to deprive this pregnant and laboring woman of her rights to due process, bodily integrity, and physical liberty. When the procedure was done, there was no evidence of infection.

(Read the whole thing here.)

Paltrow doesn't specify how many hours passed before Madyun's doctors pressed for a c-section. An old New York Times article says she'd been in labor for two days and in the hospital for 18 hours. Rachel Roth's excellent study Making Women Pay: The Hidden Costs of Fetal Rights states it had been 48 hours since her water broke. That's long enough that Madyun's decision starts to look fairly foolish by my standards and by most medical guidelines.

But here's the thing: People do lots of things that are stupid, risky, macho, or otherwise blameworthy. Some of these risk other people's lives as well as their own. Not all of these things are illegal. One example would be driving while very sleepy or distracted.

This is naturally true for childbearing, as well. Some people choose unassisted home birth, where the father catches the baby and no midwife or other trained assistant is present. Many of the people who propagandize for unassisted birth believe that birth, like sex, should only involve the couple; some of them also subscribe to right-wing religious ideologies. This is loony and irresponsible, in my view. (Not to mention it's asking a hell of a lot of the father!) Still, it's not illegal. Nor should it be. Imagine the mess if every baby born after a precipitous labor triggered a court case.

Another example Paltrow cites is of a woman who insisted on a VBAC at home. There are good reasons that no reputable doctor should condone this. If you give birth vaginally after a cesarean, there's a heightened chance of uterine rupture, which endangers the mother's life as well as the child's. If that occurred at home, odds are great that you'd bleed out before you could get help.

This woman, too, was forced by court order to have a c-section. This goes against our law on medical treatment in every other instance. A person cannot be forced to have surgery or undergo radiation even if they would surely die without the treatment. No one can be forced to donate a kidney - even if he or she is the parent of the patient needing a transplant.

If you believe humans have a right to bodily integrity and autonomy, you cannot legislate women's childbearing decisions. You certainly can argue that these people have an ethical obligation to make wise decisions and that some decisions are so irresponsible as to be unethical. However, unless you want to reduce the woman to an incubator and deprive her of basic rights of personhood, the law has no place intruding on ethics.

This is a long-winded way of saying that it's possible to fully agree with Paltrow's arguments and still maintain that Sarah Palin's choice to board a plane while she was at astronomical risk of going into active labor was a foolish decision. She wasn't taken to task for it legally, nor should she be. Her privilege protected her from any legal action. (Women subjected to forced childbearing decisions have been disproportionately young, poor, unmarried, and non-white.) If we trust women to make their own reproductive decisions, we have to acknowledge that while most women are remarkably altruistic and sensible, there will always be some who make decisions that we personally would never countenance.

But Palin's privilege shouldn't stop us from regarding her choice as 1) reckless and 2) completely hypocritical for someone who preaches the sanctity of fetal life. What's legal - and should remain legal - is not always ethical in every situation. We have a right to demand leaders that understand this distinction.