Forensic Vagina Inspectors

by hilzoy

When I ask myself what exactly is it that makes killing a person such a terrible thing, the answers I come up with generally involve the possession of consciousness or sentience. It's a terrible thing to cause someone pain, as killing her often does. It's worse to kill a being who can feel not only pain but emotions, and who can participate in social relationships. And it's worst of all to kill someone who is capable of autonomy: to cut short the story that someone is trying to tell with her life, or to pull the curtain down on all her hopes and plans and dreams. She has the right to decide what to do with her life, I think; and for someone else to barge in and end it without consulting her -- to tear apart the web of relationships, aspirations, idiosyncrasies, and so forth that is her life, and to ignore completely her right to decide for herself what to make of it -- is unconscionable.

I could go on and list more reasons for objecting to killing people. All the items I could list, however, require the possession of some sort of sentience or consciousness, or on the fact that the person in question has developed sentience or consciousness, but has temporarily lost it. (Thus, it is wrong to kill someone who is in a coma, since this person retains the right to determine what to do with her life, just as she retains, for instance, her property rights, or her marriage. It does not follow from the fact that someone can remain married while in a coma that someone who had been in a coma all her life could get married. Likewise, I think, for the right to autonomy: it is retained when all consciousness has been temporarily lost, but is not possessed by those who have never been conscious to start with.)

For this reason, I think that there is no reason to object to think that abortions that take place before the earliest point at which these sorts of considerations kick in are morally wrong*. The first to appear is the capacity to feel pain, and it probably does not occur before the third trimester. The third trimester begins at 27 weeks; according to the CDC (PDF: Table 16, p. 166), 98.6% of abortions in this country are performed before the 21st week, and 94% before the end of the first trimester. So even if, to be on the safe side, I were to conclude that abortions after, say, the 22nd week were immoral, the vast majority of abortions in this country would still be OK by my lights.

Not everyone agrees, of course. But it's harder than you'd think to be consistently pro-life.

Some people make it needlessly difficult. Tacitus, for instance, thinks that the crucial issue is the humanity of a fetus, and that humanity means what we share with stem cells -- that is, being biologically human (as opposed to lupine, bovine, feline, etc.) A "consistent ethic of life" developed on this basis would preclude the destruction of any living human cells, including, for instance, cancer cells. It would therefore entail that amputation, chemotherapy, appendectomy, pulling your hair out by its roots, and any other procedure in which living human cells were consigned to death is murder.

But even those who restrict their solicitude to human embryos, as opposed to human cells, face more difficulties than one would think. Obviously, they should oppose all elective abortions (though the idea of saying, for instance, that a single woman who decides not to have a child because she would have to drop out of her medical residency in order to care for it adequately, thereby scuttling a career that she has worked towards for years, is having an "abortion of convenience" seems to me grotesque. Deciding to pay more for milk rather than drive to a more distant store is a matter of convenience. Declining the enormous changes in one's life entailed by anything resembling responsible parenthood is not.)

While it should go without saying that anyone who believes that killing any human embryo is murder should oppose any form of IVF in which excess embryos are created, it doesn't. Most such embryos are simply discarded; and the fact that some might be frozen should not comfort anyone. Embryos do not last forever in a freezer. There is such a thing as freezer burn. Even if there weren't, an eternity in a freezer is less life than life-in-death:

"Her lips were red, her looks were free,
Her locks were yellow as gold :
Her skin was as white as leprosy,
The Night-mare LIFE-IN-DEATH was she,
Who thicks man's blood with cold."

Moreover, someone who believes that abortion is wrong at any stage of fetal development, because it is wrong to kill any fetus, should take a dim view of our current practice of declaring people dead when their brains have died. I have no problem with this: as I said, I think that sentience and consciousness are crucial, and therefore I can accept both brain death and first- and second-trimester abortions, which you might think of as occurring before 'brain life'. Those who oppose killing fetuses who have not yet developed brains, however, cannot take this view. To be consistent, they should regard our current practice of declaring people to be dead when their hearts are still beating as completely wrong, and the practice of removing people's organs when they are in this condition as carving up living human beings for their body parts. And they should, on these grounds, oppose any form of transplantation that uses the organs of people who are brain-dead.

They should also oppose any exceptions to a ban on abortion. For instance, normally we don't think that the circumstances of someone's conception affect her right to go on living, or that a person conceived in rape is somehow more expendable than other people. We would be appalled by a mother who decided that her ten year old son reminded her of the rape in which he was conceived, and therefore decided to kill him. If killing a fetus or embryo at any stage of development is just like killing a child, we should regard rape exceptions to abortion bans in the same way.

Likewise, the law of self-defense does not allow you to kill people if they merely threaten to injure you, especially if the threat they pose is unintentional. While there might be a good reason for adherents of a "consistent ethic of life" to allow exceptions to save the mother's life, therefore, there is no good reason for them to allow exceptions to spare her serious injury or disability.

Adherents of a "consistent ethic of life" should absolutely oppose any failure to enforce abortion bans vigorously. If killing an eight week old fetus is murder, then people who perform abortions are murderers, and the women who ask them to perform them are, essentially, people who hire assassins to do their dirty work. And if you think that, then the idea of passing abortion bans and then refusing to enforce them would be appalling.

(This means that Scott Lemieux's takedown of James Joyner is absolutely right:

"Shorter Joyner: It's so unfair to compare American pro-lifers to ones in El Salvador--I swear, we're completely unprincipled hacks who don't take the only legitimate rationale for abortion criminalization seriously, and don't think women are moral agents! It never ceases to amaze me that American pro-lifers think that the illogical construction and aribtrary enforcement of abortion statutes is an argument in their favor."

He's also right about this:

"The only major question about abortion policy is whether poor women will have the same access to safe abortions inevitably enjoyed by the affluent.)"

Naturally, none of this should matter to those who believe that killing any human fetus or embryo is murder. We do not contemplate relaxing the murder laws on the grounds that they might actually be enforced, or that the poor should have the same right to kill people that wealthy mafia bosses now enjoy. But it is part of what consistency requires of anyone who thinks not only that abortion is wrong, but that their views on this topic should be written into law.

***

What would a consistent anti-abortion policy mean in practice? There's a fascinating and terrifying story in today's NYT magazine that allows us to answer that question in detail. It's about El Salvador's abortion laws and their effects:

"There are other countries in the world that, like El Salvador, completely ban abortion, including Malta, Chile and Colombia. El Salvador, however, has not only a total ban on abortion but also an active law-enforcement apparatus — the police, investigators, medical spies, forensic vagina inspectors and a special division of the prosecutor's office responsible for Crimes Against Minors and Women, a unit charged with capturing, trying and incarcerating an unusual kind of criminal. (...)

Today, Article 1 of El Salvador's constitution declares that the prime directive of government is to protect life from the "very moment of conception." The penal code detailing the Crimes Against the Life of Human Beings in the First Stages of Development provides stiff penalties: the abortion provider, whether a medical doctor or a back-alley practitioner, faces 6 to 12 years in prison. The woman herself can get 2 to 8 years. Anyone who helps her can get 2 to 5 years. Additionally, judges have ruled that if the fetus was viable, a charge of aggravated homicide can be brought, and the penalty for the woman can be 30 to 50 years in prison."

Moreover, there are no exceptions whatsoever. Are you a rape victim? A ten year old girl impregnated by her father? Too bad. Does your pregnancy come with horrifying health problems, like the ones Mary Beth Williams describes here? Tough luck; suck it up. Will the pregnancy endanger your life? Oh well, them's the breaks.

There is, of course, a de facto exemption for the wealthy:

"Abortion as it exists in El Salvador today tends to operate on three levels. The well-off retain the "right to choose" that comes of simply having money. They can fly to Miami for an abortion, or visit the private office of a discreet and well-compensated doctor. Among the very poor, you can still find the back-alley world described by D.C. and the others who turn up in hospitals with damaged or lacerated wombs. Then there are the women in the middle; they often rely on home-brewed cures that are shared on the Internet or on a new underground railroad that has formed to aid them."

To see what this means for the poor, we might start with this list: "A report by the Center for Reproductive Rights offers this grim list of tools used in clandestine abortions: "clothes hangers, iron bars, high doses of contraceptives, fertilizers, gastritis remedies, soapy water and caustic agents (such as car battery acid).""

Alternately, consider ectopic pregnancies: pregnancies that occur outside the uterus, most commonly in the fallopian tubes. Such pregnancies are doomed: a fetus needs the uterus in order to develop, and cannot be brought anywhere near term elsewhere. If an ectopic pregnancy is caught early, it can be treated with drugs or laparoscopic surgery, and presents relatively little risk to the mother. If not, the fallopian tube will eventually rupture. In this case, treatment requires major abdominal surgery, and the mother may die. As of 1992, the CDC estimated that almost 2% of pregnancies in the US (or 108,800 pregnancies) are ectopic. While improvements in treatment have caused the mortality rate for ectopic pregnancy to plummet, ectopic pregnancies are still the leading cause of pregnancy-related deaths in this country, and all of those deaths involve ectopic pregnancies that rupture before they can be treated.

So: catching ectopic pregnancies early, and treating them before the fallopian tube ruptures, is critical. If you do this, the treatment is relatively minor; if not, it's a serious health emergency. The problem is that all the early treatments involve killing the fetus. The fetus is doomed in any case: it cannot come to term in the fallopian tube, or anywhere else outside the uterus, nor can it be relocated to the uterus at this stage. It will therefore die long before it would be viable. The only question is: should one kill it, thereby preventing a potentially lethal health emergency for the mother, or allow the fallopian tube to rupture, and the fetus to die a natural death, before operating?

Guess which approach is legally required in El Salvador?

"According to Sara Valdés, the director of the Hospital de Maternidad, women coming to her hospital with ectopic pregnancies cannot be operated on until fetal death or a rupture of the fallopian tube. "That is our policy," Valdés told me. She was plainly in torment about the subject. "That is the law," she said. "The D.A.'s office told us that this was the law." Valdés estimated that her hospital treated more than a hundred ectopic pregnancies each year. She described the hospital's practice. "Once we determine that they have an ectopic pregnancy, we make sure they stay in the hospital," she said. The women are sent to the dispensary, where they receive a daily ultrasound to check the fetus. "If it's dead, we can operate," she said. "Before that, we can't." If there is a persistent fetal heartbeat, then they have to wait for the fallopian tube to rupture. If they are able to persuade the patient to stay, though, doctors can operate the minute any signs of early rupturing are detected. Even a few drops of blood seeping from a fallopian tube will "irritate the abdominal wall and cause pain," Valdés explained. By operating at the earliest signs of a potential rupture, she said, her doctors are able to minimize the risk to the woman.

One doctor, who asked to remain anonymous because of the risk of prosecution, explained that there are creative solutions to the problem of ectopic pregnancies: "Sometimes when an ectopic pregnancy comes in, the attendant will say, 'Send this patient to the best ultrasound doctor.' And I'll say, 'No, send her to the least-experienced ultrasound doctor.' He'll say, 'I can't find a heartbeat here.' Then we can operate.""

This is a lot like saying that you have to wait for an appendix to rupture before removing it, or that you have to wait for an amputated limb to develop gangrene before you can prescribe antibiotics. It's irresponsible and inhumane: it involves placing the woman's life at risk, and subjecting her to major surgery when much less serious treatments are available. And this is not done to save the fetus' life; it is doomed in any case.

***

Doctors in El Salvador are legally required to report women they suspect of having an abortion:

"Doctors in El Salvador now understand that it is their legal duty to report any woman suspected of having had an abortion. Abortion rights advocates point out that Salvadoran law also spells out a conflicting responsibility: the doctor's duty to keep the patient's medical information confidential. What this blurring of medical and legal obligations means, in practice, is that doctors have to choose for themselves what to do. The result is a country in which some doctors eagerly report women, some eagerly search for loopholes to avoid having to report and some simply want to stay out of trouble.

"Many doctors are afraid not to report," says Mira, the obstetrician I spoke to. This fear is heightened for doctors, she explains, by the fact that nurses also have a legal duty to report abortion crimes but are often confused about their obligation of confidentiality. So doctors are afraid that the nurses will report them for not reporting. "The entire system is run on fear," Mira said."

Sometimes, the grounds for suspicion are fairly clear: if your uterus has been perforated by a coat hanger, scorched with lye, or poisoned with pesticides, that's a fairly good indication. However, there are other grounds for suspicion:

"Vargas said that in medical school she read in a gynecological textbook, published in the late 1990's in Chile, that the doctor should listen carefully to the patient's story. If the woman is "confused in her narrative," Vargas said, that could well indicate that she'd had an abortion."

Because heaven knows there's no other reason why a pregnant woman might be confused or uncertain.

Once reported, the woman must be investigated. Here's where the forensic vagina inspectors come in:

"During the first round of investigations, police officers interview the woman's family and friends. "The collecting of evidence usually takes place where the events transpired — by visiting the home or by speaking with the doctor at the hospital," Tópez said. In some cases, the police also interrogate people who work with the woman. Tópez added that that didn't happen very often because, she said, "these are women who don't work outside the home." (Indeed, the evidence suggests that the ban in El Salvador disproportionately affects poor women. The researchers who conducted the Journal of Public Health study found that common occupations listed for women charged with abortion-related crimes were homemaker, student, housekeeper and market vendor. The earlier study by the Center for Reproductive Rights found that the majority were domestic servants, followed by factory workers, ticket takers on buses, housewives, saleswomen and messengers.)

As they do in any investigation, the police collect evidence by interviewing everyone who knows the accused and by seizing her medical records. But they must also visit the scene of the crime, which, following the logic of the law, often means the woman's vagina.

"Yes, we sometimes call doctors from the Forensic Institute to do a pelvic exam," Tópez said, referring to the nation's main forensic lab, "and we ask them to document lacerations or any evidence such as cuts or a perforated uterus." In other words, if the suspicions of the patient's doctor are not conclusive enough, then in that initial 72-hour period, a forensic doctor can legally conduct a separate search of the crime scene. Tópez said, however, that vaginal searches can take place only with "a judge's permission." Tópez frequently turned the pages of a thick law book she kept at hand. "The prosecutor can order a medical exam on a woman, because that's within the prosecutor's authority," she said.

In the event that the woman's illegal abortion went badly and the doctors have to perform a hysterectomy, then the uterus is sent to the Forensic Institute, where the government's doctors analyze it and retain custody of her uterus as evidence against her."

The vagina: a crime scene, for which search warrants can be issued, and to which forensic inspectors can be dispatched. The uterus: evidence of a crime, which can be retained by the state as evidence. This is where the logic of criminalizing abortion leads.

***

Criminalizing abortion also affects women who do not want to abort. Here's a horrible story that came out last year, about a woman whose child died in the uterus. It turns out that the procedure known as 'partial birth abortion' is also the best procedure for removing a fetus that dies at an advanced stage of development.

"Legally, a doctor can still surgically take a dead body out of a pregnant woman. But in reality, the years of angry debate that led to the law’s passage, restrictive state laws and the violence targeting physicians have reduced the number of hospitals and doctors willing to do dilations and evacuations (D&Es) and dilations and extractions (intact D&Es), which involve removing a larger fetus, sometimes in pieces, from the womb.

At the same time, fewer medical schools are training doctors to do these procedures. After all, why spend time training for a surgery that’s likely to be made illegal?"

Thus it was that the woman who wrote the story found herself in this situation:

"My doctor turned around and faced me. She told me that because dilation and evacuation is rarely offered in my community, I could opt instead to chemically induce labor over several days and then deliver the little body at my local maternity ward. “It’s up to you,” she said.

I’d been through labor and delivery three times before, with great joy as well as pain, and the notion of going through that profound experience only to deliver a dead fetus (whose skin was already starting to slough off, whose skull might be collapsing) was horrifying.

I also did some research, spoke with friends who were obstetricians and gynecologists, and quickly learned this: Study after study shows D&Es are safer than labor and delivery. Women who had D&Es were far less likely to have bleeding requiring transfusion, infection requiring intravenous antibiotics, organ injuries requiring additional surgery or cervical laceration requiring repair and hospital readmission.

A review of 300 second- trimester abortions published in 2002 in the American Journal of Obstetrics & Gynecology found that 29 percent of women who went through labor and delivery had complications, compared with just 4 percent of those who had D&Es. (...)

We told our doctor we had chosen a dilation and evacuation.

“I can’t do these myself,” said my doctor. “I trained at a Catholic hospital.”

My doctor recommended a specialist in a neighboring county, but when I called for an appointment, they said they couldn’t see me for almost a week.

I could feel my baby’s dead body inside of mine. This baby had thrilled me with kicks and flutters, those first soft tickles of life bringing a smile to my face and my hand to my rounding belly. Now this baby floated, limp and heavy, from one side to the other, as I rolled in my bed.

And within a day, I started to bleed. My body, with or without a doctor’s help, was starting to expel the fetus. Technically, I was threatening a spontaneous abortion, the least safe of the available options.

I did what any pregnant patient would do. I called my doctor. And she advised me to wait."

It took over a week of heavy bleeding, with her dead child decomposing inside her, before this woman was able to find someone who could perform the safest and best surgical procedure to remove the corpse from her body.

***

These are the horror stories. But it should not take horror stories to convince people. As I noted earlier, 94% of abortions are performed in the first trimester, long before it is possible that the fetus feels pain. Most abortions are not performed "for convenience" or "as a form of birth control". They are performed because, for any number of reasons, women do not wish to accept the enormous responsibilities of motherhood. Some women choose to have abortions because pregnancy threatens their health, or because their children were conceived as a result of rape or incest.

Some choose to have abortions for other reasons. Sometimes the reason for an abortion is simply that the woman recognizes the enormous responsibilities that motherhood entails, and does not want to accept them at a given point in her life. As I said earlier, this is not a matter of "convenience". When you have worked towards a given career for years, and having a child and raising it responsibly would force you to give it up, for instance, that is not "convenience"; that's the entire shape of your life. When you are not married, and you cannot raise a child alone, that is not "convenience". When you already have more children than you can really afford, and having another would place an enormous strain on your limited resources and perhaps on your marriage itself, that's not "convenience". When you are fifteen years old and not remotely ready for parenthood, that's not "convenience".

(Every so often, in this debate, someone notes that perhaps fewer men will support banning abortion when they realize that with modern paternity testing, they might become liable for more child support. That's true, although I would hope that men would support legal abortion for better reasons. However, it's worth noting that onerous as child support is, it's nothing compared to what women are asked to accept by people who would criminalize abortion. For starters, women already make serious financial sacrifices for the sake of their children. For another, child support payments only affect your wallet. They do not involve massive changes to your body itself, and the risk of serious health problems and death.

Any man whose mind might be changed on these grounds should already have become pro-choice. For he plainly accepts the idea that it's OK to abort a fetus if it involves a significant sacrifice to anyone he cares about. He just hasn't had either the imagination to realize that pregnancy, even planned and wanted pregnancy, involves significant sacrifices, or the compassion to care about anyone other than himself.)

And it's no good saying that if these women didn't want to have children, they shouldn't have unprotected sex. For one thing, not all sex is voluntary. For another, contraception is not infallible. More importantly, though, there are a lot of areas in which we recognize that people can accept risks without thereby forfeiting their right to do anything to help themselves if those risks materialize.

When people get into car crashes, for instance, we do not look at them with disdain and say: well, if you didn't want to get into a car crash, you shouldn't have chosen to drive. We recognize that the risks of getting into a car crash are relatively small, if you're a safe driver; that for many people, not driving at all would involve real sacrifice; and therefore that there are a lot of people for whom accepting that risk makes sense.

Sex is a wonderful thing. A life without it would be impoverished -- a lot more impoverished than a life without driving. Expecting people not to have sex except in situations in which they would welcome a child, and be able to raise it responsibly, is, for many people, expecting them to sacrifice a genuinely wonderful human good for much of their lives. This sacrifice would of course be worth making if the alternative were murder. But if the alternative is not murder -- as anyone who accepts exemptions to a ban on abortion, or who opposes treating women who have had abortions like criminals, would seem to believe -- then it's not at all clear why it makes sense to ask it of someone else who does not share your view of the matter.

***

Since there are lots and lots of people, and human nature is various, I am sure that there are women who have abortions for stupid or frivolous reasons. However, I have known a variety of women who have had abortions, and none of them have done so. (I leave you to speculate on whether or not I am one of those women. If I'm not, it's entirely a matter of luck: of things like contraceptives that might have failed, but didn't.) Every one took the decision to have an abortion extremely seriously. While none thought that abortion was morally wrong, all those I've asked would count the day they had their abortions as one of the worst days in their lives. All had very serious reasons for deciding not to continue with the pregnancy. And all of them, including the one who decided to abort because the internal physical damage caused by childhood sexual abuse precluded bringing any pregnancy to term, would be criminals, not only in El Salvador but in South Dakota.

It's up to all of us whether they, or we, become criminals here.

***

* Update (near the top): Thanks to rilkefan for pointing out that when I originally said that there "was no reason to object to" abortions performed before the development of sentience, that sounded like the claim that they were just a sort of minor inconvenience. I didn't mean that, and as I said in comments, I don't know anyone who has had an abortion who feels that way. What I meant was that there is no reason to think that they are morally wrong. I should have said so more clearly.

Comments

[Jesurgislac]

Speaking of which: New 'Anti-Abortion Pill' Kills Mother, Leaves Fetus Alive.

[Drak Pope]

By the way, 'Forensic Vagina Inspectors' sounds like the title of a Ron Jeremy motion picture.