Richard Jeffrey Newman

First, from The New York Times, The New Abor­tion Providers:

[After Roe vs. Wade,] the clin­ics also truly came to stand alone. In 1973, hos­pi­tals made up 80 per­cent of the country’s abor­tion facil­i­ties. By 1981, how­ever, clin­ics out­num­bered hos­pi­tals, and 15 years later, 90 per­cent of the abor­tions in the U.S. were per­formed at clin­ics. The Amer­i­can Med­ical Asso­ci­a­tion did not main­tain stan­dards of care for the pro­ce­dure. Hos­pi­tals didn’t shel­ter them in their wings. Being a pro-choice doc­tor came to mean refer­ring your patients to a clinic rather than doing abor­tions in your own office.

This was never the fem­i­nist plan. “The clin­ics’ founders didn’t intend them to become vir­tu­ally the only set­tings for abor­tion ser­vices in many com­mu­ni­ties,” says Car­ole Joffe, a soci­ol­o­gist and author of a his­tory of the era, “Doc­tors of Con­science,” and a new book, “Dis­patches From the Abor­tion Wars.” When the clin­ics became the only place in town to have an abor­tion, they became an easy mark for extrem­ists. As Joffe told me, “The vio­lence was pos­si­ble because the rela­tion­ship of med­i­cine to abor­tion was already ten­u­ous.” The med­ical pro­fes­sion rein­forced the out­sider sta­tus of the clin­ics by not speak­ing out strongly after the first attacks. As abor­tion moved to the mar­gins of med­ical prac­tice, it also dis­ap­peared from res­i­dency pro­grams that pro­duced new doc­tors. In 1995, the num­ber of OB-GYN res­i­den­cies offer­ing abor­tion train­ing fell to a low of 12 percent.

“Under pres­sure and stigma, more doc­tors shun abor­tion,” wrote David Grimes, a lead­ing researcher and abor­tion provider of 38 years, in a widely cited 1992 med­ical jour­nal arti­cle called “Clin­i­cians Who Pro­vide Abor­tions: The Thin­ning Ranks.” In a 1992 sur­vey of OB-GYNs, 59 per­cent of those age 65 and older said that they per­formed abor­tions, com­pared with 28 per­cent of those age 50 and younger. The National Abor­tion Fed­er­a­tion started warn­ing about “the gray­ing of the abor­tion provider.” In the decade after Roe, the num­ber of sites pro­vid­ing abor­tion across the coun­try almost dou­bled from about 1,500 to more than 2,900, accord­ing to the Gutt­macher Insti­tute. But by 2000 the num­ber shrank back to about 1,800 — a decline of 37 per­cent from 1982.

There’s another side of the story, how­ever — a delib­er­ate and con­certed coun­terof­fen­sive that has gone largely unre­marked. Over the last decade, abortion-rights advo­cates have qui­etly worked to reverse the mar­gin­al­iza­tion encour­aged by activists like Ran­dall Terry. Abortion-rights pro­po­nents are fight­ing back on pre­cisely the same turf that Terry demar­cated: the place of abor­tion within main­stream med­i­cine. This abortion-rights cam­paign, led by physi­cians them­selves, is try­ing to recast doc­tors, chang­ing them from a weak link of abor­tion to a strong one. Its lead­ers have built res­i­dency pro­grams and fel­low­ships at uni­ver­sity hos­pi­tals, with the hope that, even­tu­ally, more and more doc­tors will use their train­ing to bring abor­tion into their prac­tices. The bold idea at the heart of this effort is to inte­grate abor­tion so that it’s a seam­less part of health care for women — embraced rather than shunned.

Sec­ond, from Newsweek​.com, The Anti-Lesbian Drug:

Genetic engi­neers, move over: the lat­est scheme for cre­at­ing chil­dren to a parent’s spec­i­fi­ca­tions requires no DNA tin­ker­ing, but merely giv­ing mom a steroid while she’s preg­nant, and presto — no chance that her daugh­ters will be les­bians or (worse?) ‘uppity.’

Or so one might guess from the storm brew­ing over the pre­na­tal use of that steroid, called dex­am­etha­sone. In Feb­ru­ary, bioethi­cist Alice Dreger of North­west­ern Uni­ver­sity and two col­leagues blew the whis­tle on the con­tro­ver­sial prac­tice of giv­ing preg­nant women dex­am­etha­sone to keep the female fetuses they are car­ry­ing from devel­op­ing ambigu­ous gen­i­talia. (That can hap­pen to girls who have con­gen­i­tal adrenal hyper­pla­sia (CAH), a genetic dis­or­der in which unusu­ally high pre­na­tal expo­sure to mas­culin­iz­ing hor­mones called andro­gens can cause girls to develop a deep voice, facial hair, and masculine-looking gen­i­talia.) The response Dreger got from physi­cians and sci­en­tists who were out­raged over this unap­proved use of dex­am­etha­sone caused her to dig deeper into the sci­en­tific papers of the researcher who has pro­moted it.

Dreger is one of the women who brought the cli­toral surg­eries per­formed by Dr. Dix Pop­pas to light.

I have wanted to write about this for a while, now, ever since I read through the thread called (Very) Basic Eco­nom­ics and Abor­tion over at Alas, A Blog. Since then, though, a num­ber of things have hap­pened: the Supreme Court has agreed to hear a case con­cern­ing so-called “partial-birth abor­tions,” South Dakota has passed the most restric­tive law in the coun­try against abor­tion, Utah has a pro­posed law that would elim­i­nate incest excep­tions in its parental noti­fi­ca­tion law, and I have been in another con­ver­sa­tion, What If Your Mother Was Pro-Choice, on Alas, the ini­tial post of which con­cerned a com­mon strat­egy used by peo­ple who are anti-choice to try to silence those of us who are pro-choice: what would have hap­pened if your mother had cho­sen to have an abor­tion instead of giv­ing birth to you?

At one point the thread became a con­ver­sa­tion about whether the immac­u­late con­cep­tion was an instance of divine rape or not (start read­ing here). This was rel­e­vant because it went to the ques­tion of what it means for women to have real choice in terms of preg­nancy and child­birth — which also means in terms of when and whether and under what con­di­tions to have sex — and, though I don’t remem­ber that this point was brought out explic­itly, to the ques­tion of what we model our under­stand­ing of women’s repro­duc­tive choice on. (I have ital­i­cized this because it will become impor­tant later on, towards the end of what I want to say.) What I want to do here is to try to tie all these var­i­ous things together under the title I have given this post because I think it goes to the heart of under­stand­ing a rarely artic­u­lated aspect of what is at stake in the anti-choice posi­tion, whether it is artic­u­lated in explic­itly reli­gious terms or not, and because, under the gen­eral strat­egy of “know thine enemy,” I think this is an impor­tant under­stand­ing to reach. It’s going to take a while, and I’m going to have to make a num­ber of leaps, to get where I want to go in this, so I hope you will bear with me.

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This post is a con­tin­u­a­tion of my sec­ond response as part of this thread on repro­duc­tive rights at Alas, A Blog where I raised the dif­fer­ences between the Jew­ish and Chris­t­ian approaches to the sta­tus of the fetus — because I think there is no way to avoid the fact that the entire abor­tion debate in this coun­try is being car­ried out, explic­itly and implic­itly, in Chris­t­ian, or at least Chris­tian­ized terms — and also between the Jew­ish approach and the approach which made abor­tion legal in the United States, which is grounded in a woman’s right to pri­vacy. I’m not so much inter­ested here in argu­ing that either the Jew­ish or right-to-privacy approach is bet­ter than the other in sup­port­ing a woman’s right to choose than I am sim­ply in lay­ing out a dif­fer­ent way of fram­ing the issue of abor­tion and see­ing what peo­ple make of it in the con­text of the strug­gle to main­tain abor­tion rights that is going on in this country.

In pre­sent­ing the Jew­ish posi­tion on abor­tion, I will be sum­ma­riz­ing from Rachel Biale’s book, Women & Jew­ish Law (Schocken Books 1984), and David M. Feldman’s Mar­i­tal Rela­tions, Birth Con­trol and Abor­tion in Jew­ish Law (Schocken Books 1968). Each of these two authors dis­cusses at great length the jus­ti­fi­ca­tions within Jew­ish law for ther­a­peu­tic abor­tions, abor­tions that are pre­formed in order to save the mother’s life, at the core of which is the assump­tion that there is, as Biale writes, “a clear distinction…between the woman and her child: the woman is a liv­ing person…and any­one who…kills her [has com­mit­ted a cap­i­tal crime].… The fetus is not a per­son in this sense” because the fetus has not yet become an indi­vid­ual; it can­not live inde­pen­dently out­side the womb and so is not under­stood to have the same sta­tus in legal or moral/ethical terms as the mother (220). After this dis­cus­sion, the authors turn their atten­tion to the Jew­ish posi­tion on non-therapeutic abor­tions, cit­ing a pas­sage in Trac­tate Arakhin in which the rab­bis ask – and here I am going to para­phrase rather than quote, but imme­di­ately rel­e­vant pages in the two texts are: Biale, 223 – 225; Feld­man, 289 – 294 – whether a woman who is sen­tenced to death and who is dis­cov­ered to be preg­nant after her sen­tence has been pro­nounced can be exe­cuted before she gives birth.

The point of the ques­tion is to con­sider not the ethics of the death penalty, but rather the sta­tus of the fetus. If the sen­tence is car­ried out before the woman gives birth, exe­cut­ing her means killing the fetus as well, and so the ques­tion arises, since there is no med­ical rea­son to con­sider the fetus a dan­ger to the mother’s life, whether the fetus’ life should be given suf­fi­cient prece­dence so that it is not killed for its mother’s crimes. The answer the rab­bis come to is that one does not wait for the woman to give birth to exe­cute her because “a delay between sen­tenc­ing and exe­cu­tion is a form of tor­ture” called in Jew­ish law innui ha-din, and “innui ha-din, delay in car­ry­ing out the sen­tence, is pro­hib­ited in Jew­ish law because it adds unwar­ranted anguish to the pun­ish­ment” (Biale, 225), and one can only imag­ine how much more anguish would be added in this case, forc­ing a woman to carry a preg­nancy to term know­ing all the while that the birth of her child will also sig­nal the end of her life. Accord­ing to Biale, “It is pos­si­ble to deduce from [this pas­sage in] Arakhin a gen­eral prin­ci­ple that a fetus may be aborted to avoid men­tal anguish (any con­di­tion anal­o­gous to innui ha-din) or dis­grace to the mother” (ibid.).

Biale seems to hint that, depend­ing on the inter­pre­tive strate­gies one uses and the prece­dents one chooses to cite, it might be pos­si­ble to arrive at a posi­tion within Jew­ish law that would allow abortion-on-demand and that would give a woman con­trol over her own body in the way we think about repro­duc­tive rights today, though that posi­tion, as I read Biale and Feld­man, is not sur­pris­ingly not in the main­stream of Jew­ish thought. What really inter­ests me about this rea­son­ing, how­ever, is that it posits the per­mis­si­bil­ity of abor­tion not from the point of view of a woman’s right-to-privacy, but rather from the point of view of pro­tect­ing and pre­serv­ing the qual­ity of a woman’s life, even if that life is mea­sured only in the rel­a­tively short time between the hand­ing down of a death sen­tence and the exe­cu­tion it man­dates. More to the point, this rea­son­ing oblig­ates the state to respect the qual­ity of the woman’s life even when the state has an inter­est in bring­ing that life to an end. This posi­tion is only pos­si­ble, how­ever, because Jew­ish law starts from the posi­tion that the fetus is not and can­not be con­strued as a per­son in the same way that the mother can.

Unfor­tu­nately, I will have to pick this up again in another post. I am off to play with my son, whom I can­not put off any longer.