Friday, December 30, 2011

A Woman and Her Doctor

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.


Neil H. Buchanan said...

Excellent Verdict column and DoL post, Sherry! I realize that this question is not relevant to the careful analysis that you offered, but I have to ask: Is medical science capable of distinguishing a 24-week aborted fetus from a 25-week aborted fetus? The factual predicate of this prosecution really surprised me.

Paul Scott said...

The statue creates an odd place for pharmacies. Since it places no limitation on the lower limit, nor does it attempt to define what constitutes "commencement of pregnancy" I wonder (not that I can see it being enforced) if Plan-B can be sold in NY without a prescription to those over the age of 17.

It seems without the prescription (for an otherwise prescription free medication) the pharmacist must know that the intended use and that use is very likely not to be with the advice of a duly licensed physician.

It also creates an impossible position for the woman, since preemptive medical advice is impossible and timely medical advice for the use of Plan B seems unlikely.

To answer's Neil's question, the short answer is no. Additionally, there is the definition problem, since even in the medical profession fetal age is not consistent with the actual age of the fetus (it being measured by the date of last menstruation rather than date of conception, date of implantation, etc.)

I do not know how it was determined that the fetus in this case was 25-weeks old, but I do think regardless of the manner in which it was determined, the defense should have some decent arguments wrt the vagueness of "commencement of pregnancy."

Of course, that only gets the mother so far, since Second Degree Self Abortion requires neither a determination of fetal age nor even a successful abortion. Which gets me back to the morning after pill and the definition of "commencement of pregnancy."

NY would probably be best served to revisit this statute.

Sherry F. Colb said...

Thanks, Neil and Paul, for your very helpful comments. I would concur with Paul on the difficulty of determining the difference between 24 and 25 weeks, unless the woman offered the information when she was arrested. As for the definition of when pregnancy commences, doctors generally settle on the woman's last menstrual period, as Paul notes, but in the absence of a specific definition in the statute, the rule of lenity -- perhaps ironically -- counsels in favor of the pro-life definition (which has pregnancy beginning at conception rather than LMP).

Paul's comment about the use of the morning-after pill over-the-counter is fascinating. I do think the statute may be construed to support such a prosecution (though I suspect that few if any prosecutors would have the appetite for it). I agree that the New York statute calls for revision, and there have been efforts to revise with the New York Reproductive Health Act (see discussion here: One of the other oddities of the statute is that it is inconsistent with Roe v. Wade in providing only a life-of-the-mother but not a health-of-the-mother exception (although the federal Partial Birth Abortion Act also includes no such exception, and the Court nonetheless upheld it in Gonzales v. Carhart...).

Anonymous said...

Neil and Paul, for the very beneficialBuy RS Gold comments. i'd concur with Paul within of the problems of figuring out the distinction between twenty four and twenty five weeks, unless of course the gal supplied the data when she was arrested. regarding the standard of when being expecting commences, physicians generally settle within of the woman's very last menstrual period, as Paul notes, but within absence of your specific standard within statute, the guideline of lenity -- probably ironically -- counsels in favorBuy world warcraft Gold in the pro-life standard (which has being expecting starting at conception very than LMP).

Unknown said...

As for the definition of when pregnancy commences, doctors generally settle on the woman's last menstrual period, as Paul notes, but in the absence of a specific definition in the statute, the rule of lenity -- perhaps ironically -- counsels in favor of the pro-life definition (which has pregnancy beginning at conception rather than LMP).Buy Windows 7 Key
Windows 7 professional product Key
Windows 7 ultimate activation Key

smith rose said...

Microsoft Project 2010 Download introduces new features to significantly improve how you manage, schedule, and view your project.

Timbaland said...

Serving as a Marine recruiter in western North Carolina ro zeny, I found a young man who met all the requirements and was ready to enlist. I explained the importance of being truthful on the application, and he began filling out his paper work ragnarok online zeny. But when he got to the question "Do you own any foreign property or have any foreign financial interests?" he looked up at me with a worried e xpression Ragnarok zeny. "Well," he confessed, "I do own a Toyota."

Timbaland said...

One day a lady saw a mouse running across her kitchen floor rose zulie. She was very afraid of mouse, so she ran out of the house, got into a bus and went to the shops. There she bought a mousetrap. The shopkeeper said to her, "Put some cheese in it and Shaiya gold you will soon catch that mouse." The lady went home with her mousetrap, but when she looked in her cupboard, she could not find any cheese in it. She did not want to go back to the shop, because it was very late, so she cut a picture of some cheese out of a magazine and put that in the trap. Surprisingly, the picture of the cheese was quite successful! When the lady came down to the kitchen the next morning she found a picture of a Shaiya gold mouse in the trap beside the picture of the cheese!

panca-samudera said...

The article posted was very informative and useful
thanks for sharing..
jaring futsal || jaring golf || tali tambang || jaring proyek || jaring bangunan || jaring gedung

Unknown said...

Very awesome post , i am really impressed with it a lot

فوائد الزنجبيل

فوائد الرمان

فوائد الحلبة

فوائد البصل

فوائد الزعتر

فوائد زيت السمسم

علاج البواسير

فوائد اليانسون

فوائد الكركم

قصص جحا

صور يوم الجمعه

علامات الحمل

تعريف الحب

حياة البرزخ

فوائد الزبيب

seoamine said...

thanks so much for that great blog and thanks also for accepting my links thanks
طريقة عمل الدونات طريقة عمل البان كيك طريقة عمل الكنافة طريقة عمل البسبوسة طريقة عمل الكيك طريقة عمل عجينة البيتزا فوائد القرفه

Unknown said...

thanks so much i like very so much your post
حلى الاوريو الفطر الهندي صور تورته حلى قهوه طريقة عمل السينابون طريقة عمل بلح الشام بيتزا هت كيكة الزبادي حلا سهل صور كيك عجينة العشر دقائق said...

علاج الزكام
اعراض القولون
كيفية التيمم
كيفية صلاة الوتر
كيفية الوضوء
تمارين كيجل
علاج سرعة القذف
علاج الكحة
اعراض مرض السكر
علاج القمل
دعاء قبل النوم
دعاء قضاء الحاجة
طريقة عمل عجينة البيتزا
طريقة عمل بلح الشام
فوائد البقدونس
دعاء المظلوم
دعاء للمريض
دعاء النوم
دعاء ليلة القدر
دعاء المطر
دعاء ختم القرآن مكتوب
دعاء الصباح مكتوب
دعاء الرزق
دعاء الزواج
دعاء الهم والحزن

دعاء الجمعة
سوق الذهب بجدة
دعاء الهم والحزن
دعاء النوم

Unknown said...

Thanks for more information What it takes to endow you with Export packing domestic moving and long distance relocation services.
Packers and Movers Pune | Movers and Packers in Pune
Packers and Movers Mumbai | Movers and Packers Mumbai
Packers and Movers Chennai | Movers and Packers in Chennai
Packers and Movers Hyderabad | Movers and Packers in Hyderabad
Packers and Movers Bangalore | Movers and Packers in Bangalore