-Margaret Sanger

You see, I trust women.  I’m not fooled by people who diminish women’s choices and the process by which they make them by saying that they make their choices out of vanity, convenience, or hedonism. I believe in women to make the right decisions for themselves and for their families. Sure, we get it wrong sometimes, but I also trust women to know the risks and own their mistakes.

I’m a mother, a feminist, and an advocate for reproductive justice. I care deeply about the threat of women being forced to carry pregnancies to term against their will, I worry about women being forced or manipulated into sterilization, my heart aches and my belly burns because women still don’t have universal access to contraception without question, burdensome cost, or judgment. I’m sick at the thought that women are arrested for being pregnant and addicted, and I’m goddamned furious that they are locked up for being honest about their ambivalence about motherhood and commanded by the law to do what’s “best” for them as though they were recalcitrant children. It is only natural, then, that I feel that VBAC is a vital matter. Not just vital, a write-your-congressman, call-the-media, picket-in-the streets matter!

Having been raised Catholic, I think of hospitals primarily as charitable institutions, the inheritors of St. Jude and St. Vincent de Paul. In my mind, hospitals take the sick and the broken without question, without judgment, and without discrimination. They are supposed to serve the afflicted, whether they have the flu or got caught in a combine, so for them to effectively tell a woman that what she is doing is far too dangerous for them to let her through the doors unless she consents to surgery is not only absurd, it is discriminatory. So-called “VBAC bans” send a clear message to women: we don’t think that you will make the right decision, we feel that you are putting your own birth experience over your child, and we will therefore take matters out of your hands. Women with uterine scars, you are not welcome here unless you do what we tell you, because we know what is best for you.

The resoundingly paternalistic and anti-woman message is all the more clear when hospitals try to make excuses.

• But you will sue us over a less-than-perfect outcome. The funny thing about malpractice is that plaintiffs don’t win unless there is actual malpractice. And you know who gets to set the standard? Other OB/GYNs. You’ve got most of the cards here, there must be a way to create guidelines for safe VBAC that ensure access without forcing women to sign away their right to legal vindication if a doctor commits malpractice.
• But it costs far too much for us to insure our facility/practice. So now the financial bottom line is more important than the lives and health of women? I’m sorry, there is a lot wrong with my profession and we fail to serve a lot of people in a lot of ways, but I don’t see throwing up my hands and turning the other way as the solution. If my profession is failing the people we are supposed to serve, you can bet your cookies I’m working to change it. I know doctors care! I’ve seen doctors picket and speak out against laws that restrict women’s healthcare decisions and insurance practices that leave Americans in the cold. VBAC is no different! If you care about the women you serve, grab your stethoscope, roll up your lab coat sleeves, and join us in the trenches because we need your help!
• But our hospital is not equipped to handle VBAC! This is perhaps the most frustrating of all the excuses, because it is an admission that the hospital is not equipped to handle any labor. If we accept the technocratic paradigm of childbirth, which focuses on the possibility of catastrophic consequences, every birth has the potential to end in disaster, every birth should have an anesthesiologist and an obstetrician on the premises at all times. If a maternity ward can only handle emergencies scheduled between the hours of 9 to 5, they need to seriously rethink the message that birth in a hospital is safer than birth anyplace else.

What I see even intelligent people around me fail to grasp is that when we talk about “lack of access to VBAC” we are not just talking about lack of access to the latest fad in cosmetic procedures, we’re talking about forcing women who want to deliver in hospitals to choose between unwanted and possibly unnecessary surgery and not procreating. To a feminist, and to a birth activist who wants to see women be able to safely deliver their babies in a variety of settings, this is not an acceptable choice. VBAC is indeed a vital option, and until it is a viable choice that all women can make without fear of manipulation, coercion, or reprisal from doctors and even the child protective system, women are not fully equal.

This post was written as part of the ICAN VBAC Blog Carnival in celebration of International Women’s Day and in anticipation of the NIH VBAC Consensus Development Conference.

This was my first time because meetings have not been accessible to me in the past, but now that I have “free time” I can do stuff like this. I had no idea what to expect. I’ll just cut to the chase and say that I like CIMS a lot, and I definitely respect the idea of coalitions, and maybe I’ll join or donate. The one thing on my mind, though, is that I wonder what the points of difference are. From what I can tell, coalition in Birth World looks sort of different from coalition in reproductive justice, or social justice broadly, where we have knock-down, drag-out fights over things, and leave the table angry, and (usually) come back friends.

During the award ceremony at the end of the evening, Ricki Lake talked about a new movie that she’s making, which sounded a little like Our Bodies, Ourselves meets The Business of Being Born, and is supposed to be intended for use in schools to teach young women about childbirth (hopefully as a part of comprehensive sex education, holla!). She seemed to express a little bit of frustration at the “preaching to the choir” element, saying something like she wanted to branch out to women who had not yet had kids because “all these [birth] people know all of this already!!”

And it’s true. Sometimes I can’t read birthy stuff because it’s like yeah yeah, episiotomy bad, upright position good, is there anything really new under the sun… Anyway, even though there were some fascinating data presented (like the stuff about breastfeeding and PPD, which apparently contradicts some of the PPD literature), nothing so far that really shocked the room… with possibly the exception of Raymond DeVries pointing out that “Listening to Mothers II” isn’t all as clear-cut as we make it out to be.  So with so much agreement in the room, I’m interested to see where people disagree. I mean, I get that there are schisms like Bradley vs. Hypno____, and some internal politics among midwives, but being a lawyer and an activist and whatever else I am, I want to know where the dirty laundry is! What does CIMS, as a coalition, have to “work through”? Where are the points of friction?

I was glad to see a little more diversity than I expected–some black/brown faces, some young faces (a smooshy baby face!), some male faces–but I was still reminded of my deep-seated worry about midwifery as an aging profession. I met some young apprentice midwives, but I still feel like there is going to be a big midwifery shortage unless something changes here pretty soon. For those keeping score at home, this applies equally to nursing and (surprise!) abortion providers. So I guess maybe if law doesn’t work out, there’s always healthcare professions…

I was also happy to see that there was respect for the “other side” (although I think that the “other side” is actually a false dichotomy and we’re actually all just birthing women, how about that!). I practically burst with excitement at DeVries talking about “social marketing,” literally selling ideas to people. Because, look, I love birth people, but I’m interested in change. I come from a goldmine, an untapped market of people who Give A Fuck about women. I think that the birthing movement is gaining a lot of traction, but we really, really need to reach and resonate with more women! He hit the nail on the head so very, very hard with some comments about the pitfalls of “us vs. them” thinking, namely underestimating “them,” and failing to see that they have reasons for making the decisions that they do. And, of course, underestimating the powerful force of people clinging tighter to their beliefs even (especially!) in the face of contradictory evidence. Couple it with something as personal as a birth, and you’ve got yourself a hot-button issue! I think that sometimes we fall into a trap of thinking of women who don’t make choices similar to our own as FemBots who more or less deserve what they get if they don’t make the “right” choices in maternity care. Obviously most people are way more nuanced in their thinking about it, but, well, we don’t always sound that way. Sometimes we sound preachy and judgey and, yes, even sanctimonious. It’s clear that we think of ourselves as “non-mainstream,” and as long as we do that, we’ll continue to be seen as “non-mainstream” or even (yikes) “fringe.” As much as I spent my teens and twenties wanting to be “edgy,” seeming like the fringe rather than the Totally Reasonable Side is less than stellar for serious, long-term movement-building.

Again with the superficiality, they kept us fed. Hey, man, I’m an eater! There’s nothing worse than an all-day event with no food, where they’re all “okay, there’s a Quizno’s a block away! See you in 15 minutes!”

Note to self: two comments that I want to write more about (after the smoke from the conference clears… I’m wiped out from adrenaline and expect the same tomorrow…). To sum up:

1) We have crappy maternity care because of abortion.

2) We have crappy maternity care because of feminism.

Exciting, right? Stay tuned.

“State Delegate Bob Marshall of Manassas, [VA] says disabled children are God’s punishment to women who have aborted their first pregnancy.”

…disabled children are God’s punishment…

…disabled children are God’s punishment…

…DISABLED CHILDREN ARE GOD’S PUNISHMENT…

I can’t bring myself to read the comments because I have a rule against reading anything that has significant potential to induce a murderous rage. I try to remain as “lefty-I’m-ok-you’re-ok” about people’s personal morality and values around abortion because I know that people draw upon a multiplicity of faith and cultural traditions in determining their values. But, please, tell me which book of the Bible, exactly, says that any child is a punishment to its parent? Or that people with disabilities are less-than?

It seems that part of his argument against funding for Planned Parenthood is that Margaret Sanger was a racist/classist, which may be the truth, for all I know, but is not in any event sufficient to tar the organization a hundred years out. This argument has come on to my radar a few times recently, as some Georgia right-to-life group leans pretty hard on the idea that Black children are an “endangered species” because of abortion. Ergo abortion–and not the conditions of poverty that might drive women to abortion, or the lack of social support, or the racism that the kids will face, or the environmental policies that will leave them perennially exposed to toxins at much greater levels than their white peers–should be illegal. Like, it’s never occurred to anyone that without a prerequisite societal change these same women would continue to seek abortions if they were illegal, but would be much more likely to suffer morbidity or mortality from unsafe conditions than the middle-class white women those damned eugenicists at Planned Parenthood want to have populate the world. Wait, who gets to procreate when poor women and women of color die of sepsis from clandestine abortions? Oh…

So… the good people of Virginia should withdraw their support of Planned Parenthood because it failed to respect the value of a class of people? Pot, I have a kettle I’d like you to meet.

I wish I could move to Manassas just to vote against this guy.

Jill’s recent post about BaZi and planned cesareans brought up a question that has been lurking in my head for a long time.  Some of the comments on Facebook showed a distaste (to put it lightly) for elective cesareans on auspicious dates.

The tenor of the conversation reminded me of a particularly difficult conversation in international women’s human rights: female genital cutting. Most of the major US-based international human rights organizations have campaigns against the practice, and we even have a cute acronym, FGM (female genital mutilation).  This was all well and good until activists from the global south were like “um, hey guys, we’ve undergone the procedure and we don’t feel like we’re ‘mutilated.’ Hello, cultural hegemony!”

This, along with some interesting critiques of Western campaigns against FGC, has made me ask myself some tough questions, specifically am I inappropriately applying my values to someone else’s experience? After much reflection, it occurs to me that I have virtually no context from which to judge the practice. What entitles me to judge the “validity” of a culture or religion? I can fight against the practice being carried out on unwilling young girls in dangerously unsanitary conditions, and work toward a world in which women are valued and don’t feel “unclean” just by dint of being women, but ultimately it’s not my call to make. (and yes, it is WAY more complicated than this, but that’s a whole different blog!) It seems like the best I can hope for is education, informed consent, and harm reduction.

So, following that logic, what entitles me to judge a woman’s reason for a cesarean section, whether it be tokophobia or astrology? Astrology and numerology are central to some Eastern religions; is there a hypocrisy in supporting a woman’s right to refuse a cesarean on religious grounds but not the right to have one on those same grounds?

I recognize that, according to studies and surveys of women who have given birth, the truly elective cesarean is so scarce as to be nearly mythical in the United States. Nevertheless, I think it may be valuable for us to examine our gut reactions to the specter of elective cesarean surgery regardless of the reason. Most of the evidence that I have read indicates that the risks to a baby from cesarean surgery are approximately coequal to those of vaginal birth, and that the real difference lies in the risks to the mother (who is often invisible in the calculus of whether a cesarean is warranted in any given situation).  There are legitimate concerns that putatively elective cesareans are “elected” based on scare tactics or misinformation. This is a Very Big Deal, and I don’t mean to dismiss this fact; however, the message of the birthing rights movement at large is a lot less clear in the hypothetical situation of a woman who has read the studies and nonetheless made the decision to bear the risks and have a cesarean section.

I personally know a woman who had an elective cesarean section. She delivered one child via emergency cesarean section –after a very, very long labor– for true CPD with serious fetal distress. Her surgery was conducted under general anesthesia, and the experience was traumatizing to her. Rather than attempt a VBAC delivery as her OB encouraged her to do (obviously she’s not in the U.S.), she preferred to have a planned cesarean. In fact, she had to fight for ERCS. She would rather have another cut than possibly have to be put out again and miss the first hours of her baby’s life.  She had serious complications with her second and third surgeries, but those babies were never in any danger and she got to spend time with them as soon as they were born.  I can’t say I begrudge her that.

Sure, you say. That was a repeat. But what about a primary? I know another woman with an android pelvis and generations of family history of surgical or medically-assisted deliveries (with catastrophic injury to the pelvic floor) because of this. If I were in that situation, I might consider still trying to deliver vaginally. But I’m not. Consider this: if you were the one making the rules, how long should she have to labor before you decide that she’s officially obstructed? Who gets to make that call? If she gets to make the call to refuse, shouldn’t she get to make the call to consent as well?

If there is going to be a cohesive movement for the rights of childbearing women, we need to figure out what exactly our values are.  Are we simply anti-cesarean or anti-medicine (because, as Emjaybee points out, some feminists think we are)?  And what do we lose if we are? I’ve witnessed online conversations in which people go off on doctors who administer epidurals as “War Lords” (presumably meaning drug lords, pushing drugs to fetuses?) and the words “slice and dice” seem to roll off the keys a little too easily.  Even though it is in the minority, this type of rhetoric creates “noise” that undermines any coherent message we’re trying to convey.

At a recent birth conference, Robbie Davis-Floyd urged attendees to consider our audience.  Despite Randi Hutter Epstein’s characterization of our current birth culture as an ‘era of extremism,’ the vast majority of women will fall somewhere in the middle ground between unassisted birth and elective cesarean surgery. In fact, most will want to deliver in hospitals, most will want epidurals. My sense is that, again, the best we can hope for is education, informed consent [and refusal!!!], and harm reduction. We can work toward a culture in which pregnant women are valued and their rights aren’t threatened, and we can demand evidence-based maternity care, but when it comes down to it, isn’t it the woman’s call?

If we want to reach who Dr. Davis-Floyd refers to as “the epidural woman,” we should make sure that our message is clear.  To the extent that any message has even a whiff of judging the woman as opposed to the practice, or paints all of any type of practitioners with a single stroke, it will fall on deaf ears.

And if we don’t want to reach the Epidural Woman? If we choose to cast disdain on the moms on Babycenter or on those insipid TLC shows, we should get comfortable at the margins, because it’s pretty easy to get pushed aside if your message doesn’t resonate.

Read this slowly: she was arrested and jailed for being ambivalent about her pregnancy.

Before anyone starts wanking about “no, she was jailed for trying to illegally kill her baybee!!,” I’d like to point out that the police never would have been involved had she not expressed her ambivalence at being pregnant. You know, because having a miscarriage is not a crime.

Most feticide laws do not apply to a pregnant woman’s conduct in relation to her own fetus. This is not the case in Iowa. As it stands, Iowa Code § 707.7 applies only in the third trimester:

1. “Any person who intentionally terminates a human pregnancy, with the knowledge and voluntary consent of the pregnant person, after the end of the second trimester of the pregnancy where death of the fetus results commits feticide.”

2. “Any person who attempts to intentionally terminate a human pregnancy, with the knowledge and voluntary consent of the pregnant person, after the end of the second trimester of the pregnancy where death of the fetus does not result commits attempted feticide.”

3. “Any person who terminates a human pregnancy, with the knowledge and voluntary consent of the pregnant person, who is not a person licensed to practice medicine and surgery or osteopathic medicine and surgery under the provisions of Chapter 148, commits a Class C felony.”

Iowa recently avoided extending this law to all pregnant women when the governor vetoed an Unborn Victims of Violence Act.

As though it weren’t bad enough as it is, a law professor brings up the fact that the police never should have been able to get a statement made by a patient to medical personnel during the course of treatment, especially not evidence used to prove a propensity toward a certain type of criminal act.  Such evidence would be considered inadmissible under federal rules.

It appears that the hospital may have tried to hide behind mandatory reporter status, although it’s worth noting that there was no “child” here for legal purposes. In fact, most jurisdictions do not extend juvenile court jurisdiction to fetuses. It is a little hard to glean the chain of events from the article, but it seems as though a nurse reported Ms. Taylor to the police, saying that she was in her third trimester when she was actually in her second. The police came to the hospital and interrogated Ms. Taylor. According to the article:

Shortly after she was released from the hospital, two squad cars pulled up behind the taxi she was in on her way home to meet her two girls. She said she spent two days in jail, while her daughters wondered where she was.

Police indicated in their report that they would notify child protective services. Typically, it seems, protocol is to report suspected child abuse to the agency, which does not intervene before a child is born. Nevertheless, such an investigation could conceivably interfere with her right to custody of her other two children.

Fortunately, no formal charges will be brought, but it seems that this is only because her doctor confirmed that she was in her second trimester rather than because such charges would be completely inane and would call every stillbirth into question.  Unfortunately, however, untold reputational damage has already been done.  It seems that even when the criminal justice system determines that they don’t have a case against a woman, the court of public opinion is harsher, as evidenced by headlines such as “No Charges in Attempted Fetus Death.”

Cases like this are highly troubling to me because they reinforce, on pain of criminal prosecution, the idea that a woman carrying a pregnancy to term must be immediately and unequivocally happy about the prospect of motherhood. Like parents scolding a toddler, the state says “you’ll carry that fetus and you’ll like it, goddamit, or I’ll really give you something to cry about.”

Wait–what? I was so stunned that I didn’t say anything and left feeling a little dizzy. What the hell was that? For the record, yes, it is quite cold outside, but the kidlet was decked out in a shirt and pants, a furry bear snowsuit that makes him look like a teddybear (!!!), a BundleMe (effectively a sleeping bag), and covered with a fleece blanket. He was definitely the warmest person around! About a block away, it hit me.

I was a victim of a drive-by mansplaining.

I really can’t describe the concept any more eloquently than Zuska did in the post linked here (nor exemplify it better than Michael Hawkins’s furious mansplanations all over her blog, in her links), so you should just take a moment to read it in its glorious hilarity. I had heard the term “mansplaining” in various contexts, but I thought it was just a cheeky web neologism. No! Turns out it gives a name to a phenomenon that has driven me nutso since I was old enough to feel indignant, a term for what my father and brother do in 99% of my conversations with them. Sort of the opposite of speaking truth to power.

There’s a certain type of condescension that can only come from a knowledge –no, an expectation– that you are right and that the other person is going to just roll over. I know that people of all genders can be prone to pedantic asshattery (paging Courtroom Mama!), but it’s really only mansplaining if it comes with the certitude of dominant status. What, other than a feeling of superiority, could compel a perfect stranger to give me very serious instructions on how to care for my own child? And now that I’m thinking about it, our pediatrician–a septuagenarian with all the vim and vigor of a Coney Island strong man, but a mansplainer of the highest order–has recommended that we let our 2 1/2 month old get some of that bracing winter air, it’ll do him good. So there, condescending door-holding guy!

Mansplaining is something that most women encounter on a near-daily basis, but I think that motherhood in particular seems to bring all the ’splainers to the yard.  When my first son was born, my male law school career counselor informed me that I should breastfeed because it’s better for babies. My father insisted that he needed talcum powder (I wondered, did he ever change my diaper?), and pitched a tanty when I said that talcum is currently poo-pooed by pediatricians. Some dude told me I should be getting exercise by swimming laps. The waiter at breakfast served me decaf because “coffee is bad for babies.” I got a lot of advice, both solicited and unsolicited, from other women, but the I definitely know what’s going on with your body and likewise what is best for you came from men.

It’s sort of funny-not-funny-ha-ha when it’s your loved ones or strangers pontificating about biological processes they’re incapable of undergoing or telling you what your own baby wants, but becomes a grotesque tragicomedy in the family courts, welfare policy, and pretty much any situation where pregnant women are involved. Add in age/race/class (all obviously at play in my interaction with the door holder), and you’ve got a perfect storm. Unfortunately, it seems like the only thing worse than a person who thinks they have the authority to comment on your situation without details or context is that same person after you point out that they don’t know your damned life.  For example, next time you got to the ER and they ask where your baby sleeps, try to explain cosleeping to the doctor. Or try explaining that you understand the risks of VBAC and want to be offered a trial of labor (oooh I hate that term). It doesn’t matter if you wrote your damned dissertation on the issue and present the doctor with a stack of research from the hallowed halls of the ivy league. Suddenly empirical research is “just numbers” and you’re sent off with a pat on the head (or if you’re “recalcitrant,” maybe a threat, a slap on the wrist, or worse).

Mansplaining is particularly poisonous in the area of law closest to my heart, the rights of childbearing women. I’m thinking of one situation in particular that I’ve seen in several incarnations.  A pregnant woman goes to give birth and something terrible happens. Maybe she doesn’t want an episiotomy and ends up getting cut anyhow as the doctor explains that they’re just far too busy to be massaging everyone’s perineum and that he just rescued her baby AND her sex life. Maybe she has to transfer to a hospital from an attempt at a home VBAC and the doctor tells her what a stupid choice she made as he cuts in for the repeat cesarean, and recounts  how he’s stood ankle-deep in blood from a uterine rupture as he angrily stitches her up. Then the woman has that a-ha moment when she recognizes that there should be some sort of legal vindication for her experience and tries to get a lawyer. She googles anyone who says they deal with birth, and gets mansplained at by a bevvy of attorneys who assure her that, notwithstanding her trauma or physical pain, if there’s a healthy baby and a healthy mother, she has sustained no injury and has no case. She should go home and count her blessings. She just got the twofer mansplanation!

At its very essence, the problem [of the secondary manspanation, the first is its own post] was best articulated by a colleague of mine: the Constitution wasn’t written for people who look like you and me. It’s almost depressing to think about the ways in which the law has failed women. Like, we didn’t even have a word for domestic violence for the longest time, it’s only in recent history that rape has been treated like anything other than an affront to a woman’s value to some male. Is it any surprise, then, that the rules for recovery in childbirth cases are confusing and inconsistent between jurisdictions? It’s funny, as much as activism, legislation, and even Supreme Court opinions would lead you to believe that women are unfailingly and irretrievably damaged by abortion, relatively little attention seems to have been paid to the fact that childbirth can be traumatic to women.  In fact, some jurisdictions pretty much bar all recovery for emotional pain and suffering related to a birth the mother survives without major injury unless the baby dies. Because having healthy mom/healthy baby is all there is to it, right?

Right.

The problem with the mansplanation of birth-trauma-as-noninjury is particularly frustrating because it’s technically correct according to the rules, but assumes that the rules themselves are a) correct, and b) immutable. We basically find ourselves one mansplanation away from disaster, away from legal vindication, and sometimes even away from full Constitutional and human rights. But there’s hope! The nice thing about the law: we can change it. Instead of being dissatisfied by what we’re given, we should make something new! Take it to our legislators, and failing that, take it to the streets.

Photo Courtesy of http://www.njmaternitycare.com.

Which reminds me, I should really get to know my local elected officials. I’ve lived in an oblivious fog of law school and motherhood for the past 3 1/2 years that I really have not kept up with local and state politics. Who knows, maybe reform of pain and suffering damages for birthing women or prevention of punitive CPS calls by healthcare providers might just be the star a cub legislator needs to hitch their wagon to.

A note on “womansplaining.” Some people insist that there is such a thing as “womansplaining,” where a dumb broad tries to talk to a man about stuff he already knows about, but she clearly doesn’t know anything and is irrational. And probably on her period. I agree that there is a phenomenon of “womansplaining,” but it’s not mansplaining by a woman; quite the opposite in fact. I’d say it’s when you over-explain yourself to accommodate someone else’s feelings.

Par exemple, just yesterday my husband ran into a friend of ours. She immediately launched into a preemptive apology for an email that she had sent that she worried might have made me uncomfortable. She almost hadn’t forwarded it because of blah blah and she hadn’t really expected me to blah blah but thought I might like to know about blah blah, and she was really sorry if it had upset me in any way. But here’s the thing: I wasn’t offended in the least, nor was there really any reason for me to have been. The thing that popped into my head (and this is no commentary on the friend!) was when a big dog walks in and the little dog lays on his back and pees on himself. And, when you parse it out, it really is the same thing: an immediately passive/defensive response, conditioned by years of being confronted with an immediately dominant response. Next time I apologize for just taking up space in an elevator, I’m going to ask myself am I womansplaining?

I don’t know what to say about the case itself beyond that which you would expect from me. I mean, it’s fucked up, right? And never, ever should have happened. I guess the one thing that I can add to the conversation is that this was not that hospital’s first rodeo at ordering cesarean sections (click for PDF). It just reinforces my sense that when this stuff goes unchecked, it just gets further and further out of control.

I have this morbid fascination with the comments section of webpages, which really bring out the seedy underbelly of our society in its barely-literate glory. One commenter keenly notes:

Just the beginning. Sad how these people believe they have the right to hold you against your will. Especially when they perform late term abortions daily! last I heard about a million a year! Ever notice that the people who are all! about choices and population control are already here

I’m having a hard time putting together what the sentence is even supposed to mean from a purely syntactical perspective, but I think that they’re trying to say that this was all perpetrated by the people who perform late-term abortions. Interesting, considering the court in Pemberton interpreted Roe vs. Wade’s trimester framework to mean that the mother loses virtually all of her rights at the “compelling” point of viability… in Tallahassee Memorial’s favor. (Before you choke on your heart, recall that Pemberton is an outlier with virtually no precedential value… except where Samantha Burton  happens to be… oops.) That court basically says that at viability, not only does the woman not have a right to abortion, she doesn’t have a right to decide whether or not she gets cut open. Whom, exactly, does it sound like Tallahassee Memorial was listening to this time?

And then there was the requisite reference to OBAMACARE! RARRRGH, THE ZOMBIES ARE COMING!!! Look, I can’t say for certain what SenateCare is going to look like, but if they are indeed demanding evidence-based medicine like the teabaggers fear, it won’t look anything like restraining mothers for the sake of their fetuses because that’s definitely not supported by the evidence. As a side question: which is it? Obama wants to kill all teh baybeez, or he wants to forcibly restrain the mothers to save the baybeez?

This particular article struck me as a little glossy, but I was impressed by the fact that 1) it didn’t justify the hospital’s action on the basis of malpractice fears, and 2) it talked about a pregnant woman like she was a normal, rights-bearing person. Well how do you like that? The idea of a pregnant woman as a human being with rights just like everyone else!

One last thing that stuck out:

It used the state’s authority to act as parent when parents won’t get medical care for a child — an irrelevant and improper comparison, since in this case there was no child and the patient was an adult.

Some people got their dander up because they believe as a matter of morality and personal belief that a fetus is a child. That’s cool and all, but when a fetus is legally considered a child, all bets are off. Why? Because the child protective system is a byzantine mess with virtually no protection for parents. I’ve heard these issues be referred to in parents’ rights language before (like “the decision that I made on behalf of my [fetal] child”), and I can’t emphasize enough how wrong of a tree that is to bark up. Why? Because parents actually have only a circumscribed right to medical decisions about their children. Just ask the Jehovah’s Witnesses and Christian Scientists… And anyway, when you think about it that way, it completely overlooks the fact that if there is a child, then the juvenile courts have jurisdiction, which means sealed proceedings that, as far as the record is concerned, never happened. Talk about Kafkaesque. The state has no problem whatsoever taking custody of people’s kids. When they can do that, they have pretty much total control over the pregnant woman.

Like, I was reading a case recently, I forget from where, but the court ordered that the fetus be brought in for further testing. The court notes, sort of cavalierly, (I’m paraphrasing) “this means, of course, that the pregnant woman will have to be detained.” In another one of these cases, it was the state’s attorney that got to live out the delusions of grandeur… when asked by the court how, exactly, they would deliver the fetus-in-custody if the mother didn’t agree to a cesarean, she replied, “drugs will have to be administered.” Yipes!

In 2006, 95 California women died from causes directly related to their pregnancies – out of more than 500,000 live births. That’s a small number by public health standards. But if California had met the goal set by the U.S. Department of Health and Human Services to bring the state’s maternal mortality rate down to a level achieved by other countries, the number of dead would have been closer to 28.

I also appreciate that the article comments on racial disparities, even if it seems a little “throw up your hands”-ish:

It’s not clear which mothers are most at risk, but researchers have long known that African American mothers are three to four times more likely to die from pregnancy-related causes. That racial association is not stratified by socio-economic status: Even high-income black women are at a greater risk.

I think I was a little annoyed at first because there seemed to be a lot of focus on maternal factors instead of looking at the possibility that labors were mismanaged, but the article finished strong by talking about the rise in cesarean surgeries and the health risks posed. Here’s where it got an A+ from me:

Dr. David Lagrew, meanwhile, thinks he may have arrived at an answer. In 2002, Lagrew, the medical director of the Women’s Hospital at Saddleback Memorial Medical Center in Orange County, noticed that many women were having their labor induced before term without a medical reason. He knew that having an induction doubled the chances of a C-section.

So he set a rule: no elective inductions before 41 weeks of pregnancy, with only a few exceptions. As a result, Lagrew said, the operating room schedules opened up, and the hospital saw fewer babies admitted to the neonatal intensive care unit, fewer hemorrhages and fewer hysterectomies.

All this, however, came at a cost: The hospital had to take a cut in revenue for reducing the procedures it performed. Lagrew doubts that any hospital has increased its C-section rate in pursuit of profit, but he adds that the first hospitals to adopt controls on early elective inductions have been nonprofits. (emphasis added)

Nice. Very nice. Follow the money, folks.

I feel like I have a pretty firm respect for people who are opposed to abortion, but the idea that saving fetuses justifies a necessity defense makes my blood run cold. Mostly, I think, because I could see where this sort of thing would go. I could rhapsodize at length about the problems that arise when medical professionals see themselves as “rescuing” babies by cutting into their mothers over their strenuous objection. One particularly disturbing example of this type of objectification of pregnant women arose in the Baby Boy Doe case out of Illinois. In re Baby Boy Doe, 260 Ill.App.3d. 392 (Ill.App. 1 Dist. 1994). During the hearing in that case, then-Public Advocate Patrick Murphy asked the appellate panel:  “Is this just a mass of human cells or is it a real life being kept prisoner in its mother’s womb and tied to an oxygen source that is not working? This is no different than a person in a hospital being tied to a respirator that is working inefficiently.” Because we know that pregnant women keep their babies hostage.

But no, what’s more chilling is an example from Maryland where a man savagely beat his pregnant wife with a baseball bat to protect his fetus from the mother’s drug addiction. Or a story recounted by a clinic escort on Feministing wherein a woman miscarried as a result of an assault by clinic protesters who (mistakenly, it appears) thought she was going to get an abortion. When the fetus is privileged over the woman carrying it, I’ve got a problem.

Anyway, there’s not too much more for me to see except that Randall Terry is scary and insane, stating there that the trial is a “scam” because Roeder isn’t being allowed to polemicize against abortion on the stand.

…cue circus music…

Here’s the short version: any time you talk about VBAC, the issue of medical malpractice comes up. There are several perceptions that go along with this “conversation,” summed-up here:

1. Doctors are constantly beset with the threat of a medical malpractice suit
2. Such suits are unjustified (i.e. the doctor did not actually commit malpractice)
3. The people who bring these cases are just looking for a payout.
4. This is all because of greedy malpractice attorneys.

I’ll address 4 first, because it’s the one I was most guilty of, and I think I’ll pick up the others along the way. Part of my silence last semester was that I was taking a humongous course load (may the record reflect, however, that I made straight A’s in my final year of law school. Pregnant. Parenting a toddler.). One of these classes was Medical Malpractice. You might ask yourself: why the hell did she take that class? Is she one of THOSE?!?! In fact, I asked myself the first question a few times, and the professor asked us on the first day of class as well.

Now this guy was probably the epitome of the slick malpractice attorney; think along the lines of My Cousin Vinny, but more Long Island and less Brooklyn, and tall. My answer to him: because I am a childbirth activist, and malpractice concerns are cited as one of the primary reasons for limiting women’s options and right to informed refusal of unnecessary surgery.

So he says to me: so we’re like Darth Vader to you, right.

Right. Exactly. You greedy attorneys and your 1/3 contingency fees are fucking it up for the rest of us, so just DIAF already.

He asked me if I had seen “The Verdict.” I said no – nobody in the class had. This upset him. “Why the hell did you come to law school then?!” Um, to Kill a Mockingbird? I don’t think that’s a bad answer…

Anyhow, as the semester pressed on, there were several things that I learned about sleazy malpractice attorneys. First of all, every single one of them has a client. Every single one of those clients has been somehow fucked up. In fact, I eventually watched the movie during the hazy days of bar study – days not unlike the first week of parenthood, but substitute the fog of “feed, burp, change,” for “outline, multiple choice, flashcards.” I needed inspiration, so I moved all my law-related movies up the ol’ Netflix queue. Turns out, the movie is about a woman who is injured by medical malpractice during childbirth and is left in a coma by administration of an inappropriate anesthetic. The drunkard ne’er-do-well Paul Newman, barely hanging on to his law license, is inspired by this young mother, and the nasty cover-up that took place to hide the malpractice that left her husband effectively a widower with a passel of kids. Gotta tell ya, I cried.

So it got me to thinking; we talk a hot mess about how overly litigious our society is, blah blah malpractice blah blah greedy. But the simple truth is that doctors DO occasionally really fuck people up – BAD. Some of the cases I read, I couldn’t handle in the queasy early days of pregnancy. Like one where a woman had been improperly prepped for a cauterization or something (I think they had dripped betadine on her sheets) and they LITERALLY CAUGHT HER ASS ON FIRE. Turn on the machines, and BANGO! Third-degree burns to the anus. Sometimes they cut off the wrong leg. Sometimes they fuck up a circumcision and leave a guy a eunuch. Without a private cause of action (aka a tort), what are you left with? Nada.

TORTS 101: In fact, that’s the way it works for ALL torts. I don’t know if it’s just that people don’t understand this, or that they are actually opposed to it, but if someone beats the crap out of me, even if the police haul them off and they are tried for assault, that’s the STATE’s case, not mine. It’s the People vs. Asshole, and I’m just a complaining witness. When he gets put in jail, I get the satisfaction that a bad person is now locked away (or… whatever… that’s another thing entirely), but I am still stuck with the bill from the ER, the reconstructive surgery to put my face back together, the money I lost because I couldn’t go to work. Society has been “made whole” again, but me? I just get that satisfaction…

So we, as a society, have come up with the idea of torts, the idea that a person should be made to pay for the harms that they commit to other people. Since we don’t have the stocks or the scarlet letter anymore, and you can’t force people to do nice things for you in restitution (pesky 13^th Amendment, I’d really like for Douchey McBatterer to be my indentured servant to pay me off for the assault), we use money as a surrogate. For the most part, there are pecuniary damages, or the straight up costs of the tort (fixing my face, the ER bill, the time I lost at work), and nonpecuniary damages, a more nebulous concept of the pain and suffering cause by the tort (the pain, the PTSD I now suffer, the horrendous pain of the facial surgeries I have to undergo for the next year). This is intended to “make me whole” (resitution), and to keep people from doing shit like that again (deterrence). This is not too far from the ends of the criminal justice system: retribution (make ‘em feel sorry for what they did), and deterrence (keep them from doing it again, keep others from doing the same), but note that the criminal goals are much more society-focused than victim-focused.

Now in intentional torts, like battery, the tort I would sue my hypothetical assailant for, you have punitive damages as well. These are damages that are intended to punish the wrongdoer (or tortfeasor, the best word ever). It’s like restitution/deterrence-plus: what they did was SO bad, you want to make it hurt extra for them. For the record, this generally doesn’t come up very often in malpractice, which are negligence cases, which don’t carry punitive damages. Once in a while you get something CRAZYTIME, like the OB who carved his initials into a woman’s abdomen after performing a cesarean, but it’s pretty rare.

So if we as a society have decided that it’s appropriate for me to have to pay you if I break your lawnmower, or run over your foot, or set your house on fire, why should a doctor not have to pay if he sets your arse on fire?  There used to be this thing, now defunct in most states, called “charitable immunity.” It meant that people who went to charity hospitals couldn’t sue, because beggars can’t be choosers, and you get what you pay for, and after all, who wants to sue the Sisters of St. Vincent de Paul. As it happened, people got really shitty care, and nobody really gave a fig because they were poor. Turns out that the deterrence factor makes a difference.

This is something that I don’t like very much because it reminds me too much of the whole Moral Compass thing that people like to use, arguing that without God, people would just devolve into a Lord of the Flies state of anarchy and hedonism, whereas I prefer to believe that people are ultimately good an altruistic because I’m a huge goody-goody and am wracked with guilt at the smallest transgression. See parents, Catholicism works even after your sheep flee the flock. Ah but which came first, the conscience or the Catholicism? The world may never know…

So if you’re still with me, you might have some misgivings about the sheer size of the payouts in obstetrical malpractice. Query: if a doctor commits malpractice during a birth and the baby comes out with, say, cerebral palsy, how much do you think it is going to cost the family to raise that child relative to how much it would have cost if the child were not born palsied? Will the parents magically start making more money to meet the shortfall? (in fact, if the birth injury is severe enough, one parent may have to stop working to care for a disabled child). How much will they have to pay in future medical costs? And remember how we’re having this debate about healthcare and how the costs are out of control and how more and more people are uninsurable because insurance companies are risk-averse? People throw hissy fits about medical malpractice reform being central to healthcare reform, but I think that health care reform will “reform” medical malpractice. People sue, in part, because malpractice is expensive for the victim.

As for compensation of attorneys, I don’t know a lot about that. What I do know is that they get absolutely nothing if they lose (this is to provide access to justice for people who wouldn’t otherwise be able to afford an attorney), and are out the costs of litigation, which are VERY high considering they have to pay experts to testify, review the medical records, etc. This means that the vast majority of malpractice cases never see the light of day because the attorneys need to pick a winner, and enough of a winner to cover the costs of the losers, which are most of the cases because, contrary to popular lore, medical judgment is an 800-lb gorilla defense. Basically, if reasonable minds can differ, the plaintiff loses. Period.

So, far from being a bunch of greedy people looking for a payout, you have people who are actually injured at the hands of doctors, with injuries that may cost them a lifetime of expense, going before juries that are likely to rule against them because of the general anti-plaintiff sentiment and virtual inviolability of the judgment defense, and the fact that the professionally-determined standard of care is basically an invitation to collusion.  Under a “regional standard” regime, for example, if medical practitioners wanted to make the standard of care that every woman gives birth via vaginal bypass surgery, they can do that.  Given the relative uniformity of the surgery, the low risk per individual surgery, etc., this is totally something that they could do under malpractice law – as a matter of other areas of doctrine,  like antitrust or human rights or something, this won’t fly, but for the most part malpractice is not calibrated to fix this particular problem… there are a couple of exceptions, but I digress. The point is, if a person wins a verdict and payout, I’m not only willing to bet dollars to donuts that they actually deserved it, I’m probably go so far as to say that they represent an entire constellation of cases that didn’t win, but should have.

In my health law class, we discussed a somewhat troubling study that showed that a far greater number of deaths in hospitals were attributable to medical malpractice –and particularly medication errors—than anybody ever knew. That worries me. When I hear people talk about how 1/3 of every graduating class of med students has a malpractice case pending against them, I don’t worry as much about out of control litigious patients as I do medical schools matriculating students who are committing malpractice.  Most of all, I worry that doctors aren’t doing very simple things that can help them protect themselves from malpractice.

A wise woman recently told me “nobody who cried at a demise ever got sued.”  Now, factually speaking, I sort of doubt that that’s true, but it makes sense and appears to have been corroborated by studies. It makes you wonder – why is it that midwives somehow manage to practice without living in constant, crippling fear of malpractice suits, even when they occasionally have bad outcomes?  Could it be, perhaps, that people feel less rancour –and thus less need for restitution—toward practitioners that treat them like full humans with the power to make decisions on their own behalf? Not that all doctors fail to do this,  but I definitely can say that the doctor/patient power differential is a lot greater than that in the midwife/patient relationship, and a lot of it has to do with the socialization process of medical training.  I am guessing it’s substantially similar to what we go through as legal practitioners: if you come off like the jerkface hotshot law school trains you to believe and act like you are, you’re likely to 1) not actually be listening to clients’ wishes, and 2) eventually get sued when you fuck up.  It also seems like a little apology goes a long way. In that same vein of human connection, could it be that the further away we move from a system of healthcare where people know their doctors and their doctors know them, the less likely people are to hesitate when considering whether to sue?

I just keep thinking back to this really ugly thread on Feministing and how these hypercapitalist libertarians just kept saying “oh yeah, you want the hospital to allow VBAC so this woman can sue them? Fat chance!” and I can’t help but wonder whether a woman who does obsessive research like me and knows her chances of catastrophic outcome, has everything explained to her by a supportive obstetrician and signs consent forms to that end, and truly wants a vaginal birth would actually sue if the harms that she’s so aware of materialize. I have only heard of one person who was very unhappy to have had a VBAC, and this was one from the 1990s when they were pushing doctors to push VBAC as a cost saving measure without regard for the risks of using the usual host of unnecessary medical interventions on a scarred uterus.  Interestingly, this makes me feel like it validates the need for the mythical maternal request cesarean… I’ll have to stew on that a little.