Unbearable Weight: Feminism, Western Culture, and the Body (13 page)

inspired vision of a society purged of "defective genes," the history of involuntary sterilization of the "mentally defective" in this country has in practice largely affected those groups considered genetically suspect and racially inferior: those convicted of crimes, the poor, African Americans, Native Americans, Spanish Americans, and Puerto Ricans.
14

Less often noted is the overwhelming genderbias that began to develop in the 1930s and 1940s, as the Depression shifted the concerns of those officials empowered to sterilize from the prevention of genetic defect to the prevention of parenthood in those individuals deemed unable to
care
adequately for their children. Philip Reilly, in
The Surgical Solution,
notes the change in ideology and the increasingly glaring disparity between the numbers of men and of women sterilized.
15
He fails, however, to see the connection between the two. Today, virtually all sterilization abuse (as well as proposals for less drastic bodily invasions, such as the use of Norplant) is directed against women on welfare, and is rationalized by the "inability to care" model. Often, as in the case of
Rust,
the reproductive rights of poor women are threatened without outright legal deprivation of those rights. In
Walker v. Pierce,
for example, the defendant admitted that his practice was to require consent for postpartum sterilization of his Medicaid patients who came to him pregnant with a third child. If consent was not given, he would refuse to treat the patient, and on occasion he threatened to try to have their state assistance terminated. He did not insist on these conditions for patients
not
on Medicaid, no matter how many children they had.
16

Turning to courtordered obstetrical interventions—and these include forced cesarean sections, detention of women against their will, and intrauterine transfusions— the statistics make clear that in this culture the pregnant, poor woman (especially if she is of non European descent) comes as close as a human being can get to being regarded, medically and legally, as "mere body," her wishes, desires, dreams, religious scruples of little consequence and easily ignored in (the doctor's or judge's estimation of) the interests of fetal wellbeing. In 1987, the
New England Journal of Medicine
reported that of twentyone cases in which court orders for obstetrical intervention were sought, 86 percent were obtained. Eightyone percent of the women involved were black, Asian, or Hispanic.
17

In one of the most extreme and revealing of the forcedcesarean cases, George Washington University Hospital won a court order requiring that a cesarean section be performed on a terminally ill patient, Angela Carder, before her fetus was viable, and against the wishes of the woman, her husband, and the doctors on staff. Both the woman and her baby died shortly after the operation. The District of Columbia Court of Appeals, in affirming the order against a requested stay, ruled that the woman's right to avoid bodily intrusion could justifiably be put aside, as she had "at best two days left of sedated life."
18
Here, clearly, a still living human subject had become, for all'legal purposes, dead matter, a mere fetal container. A woman whom
no court in the country would force to undergo a blood transfusion for a dying relative
had come to be legally regarded, when pregnant, as a mere lifesupport system for a fetus.

It is important to emphasize here that the legal analogues to cases such as these are
not
interventions such as those involved, for example, when a Jehovah's Witness is ordered to permit a dependent child to receive a blood transfusion, but precisely cases such as
McFall v. Shimp,
in which the
body
of the person subject to the court order is required for the intervention. This is why the protection of bodily integrity is an issue in cases of this latter sort, but not in cases solely involving the overriding of parental wishes, where the body of the parent is not itself involved. With the correct moral analogues in mind, it is clear that even granting full personhood to the fetus does not mute the force and depth of the legal and moral inconsistency here. On the one hand, we have Shimp's refusal to submit to a procedure that could have saved his cousin's life, a refusal which was upheld by law on the grounds that to do otherwise would be a gross invasion of the privileged territory of the subject's own body. On the other hand, we have numerous cases in which judges not only have ordered pregnant women to submit to highly invasive procedures
19
but have conceptualized these interventions as the protection of the fetus's rights against the inappropriate and selfish maternal evaluations of the physical, emotional, and religious acceptability of those procedures.

Consider the language of court orders for medical treatment of pregnant women. These orders, in striking contrast to the rhetoric of violent subjugation, the metaphors of the rack and the screw, the analogies with fascist regimes employed in the rulings on
McFall v.

Shimp
and
Rochin v. California,
often dismiss the proposed intervention as minor, inconsequential, of significance only to an individual whose desires for personal freedom and "convenience" are excessive. So, the judge in
Taft v. Taft
(1982), in issuing an order for cervical surgery against the will of the woman (the order had been sought by her husband), referred to the procedure as "the operation of a
few sutures . . .
to hold the pregnancy."
20
This is clearly to sidestep utterly, in the case of the pregnant woman, the doctrine of informed consent, which requires that the individual affected be the final judge of the degree of invasiveness and risk that is acceptable. Without that requirement, informed consent has no meaning at all.

Even, however, if we are likely to agree that cerclage is a minimally invasive procedure,
21
let us not forget the judicial horror expressed at even less intrusive procedures carried out on the bodies of suspected criminals (such as the forced regurgitation that was the issue in
Rochin
)
.
The discomfort, risk, and invasiveness of cesareans are another matter. The court record has made it abundantly clear (cf.
Winston)
that major surgery without consent is an extreme and demeaning violation of bodily integrity and control; it is also risky, no matter how "routine" the procedure. If marrow transfusions and even blood tests have not been required, surely a refusal to undergo the "massive intrusion"
22
of a major surgical procedure such as a cesarean section should be honored. Yet when Ayesha Madyun refused a cesarean on religious grounds the judge ruled that for him
not
to issue a court order forcing her to have the operation would be to "indulge" Madyun's "desires" at the expense of the safety of her fetus.
23

As a number of analysts have pointed out, there are no legal justifications for the discrepancies between the treatment accorded pregnant women and that given to nonpregnant persons.
24
Rather, to explain such contradictions we must leave the realm of rationality and enter the realm of gender ideology (and, in many cases, of racial prejudice as well). These decisions, clearly, are mediated by normative conceptions of the pregnant woman's appropriate role and function. Note the judge's choice, in the
Madyun
case, of the term
desires
(over, for example, the more legally conventional
wishes).
The idea of female "desire" is potent and threatening in our culture, with its sexual overtones and suggestions of personal gratification and capricious selfinterest—particularly when paired with the no

tion of indulgence, as in this judge's ruling. Madyun's objections, we should remember, were religious (as are most maternal refusals of obstetrical intervention).
25
For the judge, however, religious scruples are on a par with the flightiest of personal whims when they come into conflict with the supreme role the pregnant woman should be playing: that of incubator to her fetus. In fulfilling that function, the pregnant woman is
supposed
to efface her own subjectivity, if need be. When she refuses to do so, that subjectivity comes to be construed as excessive, wicked. (The cultural archetype of the cold, selfish mother—the evil goddesses, queens, and stepmothers of myth and fairy tale— clearly lurks in the imaginations of many of the judges issuing court orders for obstetrical intervention.)

Thus, ontologically speaking, the pregnant woman has been seen by our legal system as the mirrorimage of the abstract subject whose bodily integrity the law is so determined to protect. For the latter, subjectivity is the essence of personhood, not to be sacrificed even in the interests of the preservation of the life of another individual. Personal valuation, choice, and consciousness itself (remember the
Winston
court's horror at unconsentedto anesthesia) are the given values, against which any claims to state interest or public good must be rigorously argued and are rarely granted. The essence of the pregnant woman, by contrast, is her biological, purely mechanical role in preserving the life of another. In her case,
this
is the given value, against which her claims to subjectivity must be rigorously evaluated, and they will usually be found wanting insofar as they conflict with her lifesupport function. In the face of such a conflict, her valuations, choices, consciousness are expendable.
26

Intersecting with this gender ideology, in cases such as Madyun, is our historical tradition of effacement of the personhood of people of color, racist beliefs about their "irresponsibility," and disdain for religious and cultural diversity. These elements can come into play at both ends of the spectrum of reproductive abuse—coerced sterilization, and coerced cesareans. In coercedsterilization cases the mediating racist image is often that of the promiscuous breeder, populating the world irresponsibly, like an unspayed animal. One of the witnesses in Walker v. Pierce said that Pierce lectured her: "And, he said, 'Listen here young lady . . . this is my tax money paying for something like this I am tired of people going

around here having babies and my tax money paying for it.'"
27
In forcedcesarean cases like
Madyun,
the mediating racist image may be that of the ignorant, uncivilized primitive whose atavistic religious beliefs are in conflict with the enlightened attitudes of modern science.

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Clearly, there has been one legal tradition for those who occupy the cultural location of the subject and another for those who are marked as "other." Some acknowledgment of the injustice of forced cesareans was finally made when the District of Columbia Court of Appeals, in a widely publicized decision, set aside the original ruling on Angela Carder's case and even raised the question of whether "there could ever be a situation extraordinary or compelling enough to justify a massive intrusion into a person's body, such as a cesarean section, against that person's will." (It is not to depreciate the court's ruling to note that Angela Carder was a white woman.) The appeal had been filed by the American Medical Association and thirtynine other organizations, whose consciousness had been significantly raised by the efforts of Lynn Paltrow of the American Civil Liberties Union, George Annas of the Boston University School of Medicine, and several others who brought the Carder case and others to national attention.
28
In 1987, 47 percent of the obstetricians surveyed by the
New England Journal of Medicine
had approved of forced cesareans and had agreed that the precedent set by the courts in cases requiring emergency cesarean sections for the sake of the fetus should be extended to include other procedures such as intrauterine transfusion.
29
Since the Angela Carder case, these attitudes may be changing. Yet there are extremely vocal and powerful advocates of pervasive obstetrical intervention,
30
and pregnant women continue to be treated as fetal incubators in other ways as well. The past few years have seen increasing numbers of cases in which braindead pregnant women have been kept alive for

as long as seven or eight weeks, until the fetus is mature enough to deliver by cesarean section,
31
and the Catholic church has declared lifesustaining treatment to be mandatory for a pregnant patient "if continued treatment may benefit her unborn child."
32

Indeed, I believe the ideology of womanasfetalincubator is stronger than ever and is making ever greater encroachments into pregnant women's lives. The difference is that today it is most likely to emerge in the context of issues concerning the "lifestyles" of pregnant women. In 1986, Lawrence Nelson and his colleagues warned that "compelling pregnant women to undergo medical treatment sets an unsavory precedent for further invasions of a woman's privacy and bodily integrity." As though imagining the horrifying terrain of a future dystopia (such as that depicted in Margaret Atwood's
The Handmaid's Tale
)
,
they list such potential intrusions:

[These] could include court orders prohibiting pregnant women from using alcohol, cigarettes, or other possibly harmful substances, forbidding them from continuing to work because of the presence of fetal toxins in the workplace, forcing them to take drugs or accept intrauterine blood transfusions, requiring pregnant anorexic teenagers to be force fed, forcing women to undergo prenatal screening and diagnostic procedures such as amniocentesis, sonography, or fetoscopy, or mandating that women submit to in utters or extrauterine surgery for the fetus The prospect of courts literally managing the lives of pregnant women and extensively intruding into their daily activities is frightening and antithetical to the fundamental role that freedom of action plays in our society.
33