By Sherry F. Colb
In my column for this week, I examine a recent arrest of a New York City woman for self-inducing an abortion, a misdemeanor for which she could face up to a year in jail. As I suggest in my column, the "self-induced" aspect of the woman's abortion turns out to be largely irrelevant to her particular case. It turns out that the feature of her case distinguishes this woman's arrest is the designation of a pregnant woman who obtains an abortion as a culpable offender. In the column, I explore some implications of this designation.
In this post, I want to focus on what I had originally imagined had driven the New York City arrest: the decision of a woman to terminate her own pregnancy rather than seek a licensed physician's services. Under New York law, a woman who wishes to have a legal abortion must involve a licensed physician.
At first glance, it might seem reasonable to require the involvement of a medical professional in a procedure that could be risky. Inducing an abortion generally requires dilation of a woman's cervix, for example, and such dilation can make the woman vulnerable to infection if proper precautions are not taken. But the New York statute does not simply require a medical professional: it requires the participation of a "duly licensed physician," as either a provider or an adviser. The woman who prefers to be under the care of nurses or other medical professionals who lack an M.D. is out of luck.
In a related phenomenon, pregnant women who wish to take their pregnancies to term and deliver their babies at home with a midwife rather than at a hospital with a medical doctor can also find themselves out of luck. Though women throughout history have delivered their children with the help and support of midwives, the medical profession has come to dominate the process of birth and delivery in the United States. This is true despite the fact that for the overwhelming majority of women, childbirth is a natural and safe process that does not call for services that doctors are uniquely capable of providing. And for low-risk pregnancies, a large study suggests that home birth is as safe as hospital birth (with the added advantage of significantly reducing the odds of unnecessary, painful, and costly interventions).
Yet in a number of states, a certified nurse midwife, a highly trained and qualified professional, may not attend a home birth without a written collaboration agreement with a physician, a requirement that midwives find both insulting to their professional standing and challenging to their work, given how many physicians are hostile to midwifery and may have nothing personal to gain from supporting the practice.
Though there are obviously important distinctions between abortion and childbirth, it is noteworthy that for a woman undergoing either experience, medical doctors, a group of individuals who are not exactly famous for their humility and capacity to listen to patients, control the provision of reproductive health care. Ending a pregnancy, whether in abortion or in the birth of a baby, is a highly personal, emotionally intense experience that only women endure. Many women would, of course, voluntarily choose to involve a medical doctor in their experiences, but some number would prefer the support and care of a non-physician professional who may have more to offer along a variety of dimensions than her analogue with an M.D. When such women are essentially compelled to rely on a licensed physician, their reproductive choice is curtailed.
The State is surely right to demand that only qualified people hold themselves out as professionals who can attend the end of a pregnancy, whether in abortion or in labor and delivery. But such qualified people are often graduates of nursing schools or other professional training programs rather than medical schools, and the right of every woman to make her own reproductive choices ought to include the option of selecting from a range of suitable and competent professionals. The fundamental right to determine one's reproductive life should extend to selecting not only whether and when to bear children but to how as well.