Michael Thomson, professor of health law at the University of Technology Sydney and chair in health law with the University of Leeds, looks to interdisciplinary dialogue to understand aspects of health care.
In his leading contribution to this issue of Talking Humanities, Professor David Sugarman provides an elegant and persuasive account of the complex relationship between law and the humanities, detailing common traditions and a ‘striking overlap in concerns, methods, values, and histories’. In this contribution, I use the same framing, but narrow the focus to provide an illustration of the central points made in the opening text. As a health lawyer I reflect on how analysis of abortion law in subjects that include, but move beyond, law has generated an interdisciplinary dialogue that enriches our overall understanding of the regulation of this aspect of health care.
In the coming months we are likely to see the constitutional right to abortion in the US withdrawn or – at the very least – significantly redrawn. This is of significance beyond the US when we accept the global flows of anti-abortion knowledge claims, intelligence, and funding. The interdisciplinary understanding and dialogue I refer to allows us to understand how we got here and – importantly – how we might imagine a different approach to abortion care.
Two cases are currently under consideration by the US Supreme Court. The Texas law has provoked the most public debate and reflects a growing number of erroneously titled ‘foetal heart beat’ laws. These seek to outlaw abortion care when electrical activity is first detectable in the foetus. This is usually taken to happen at six weeks, before many women know they are pregnant.
Historical analysis of the legal regulation of abortion – in law, history, politics, and gender studies – has highlighted the relatively recent criminalisation of abortion care, particularly when performed before ‘quickening’, the point at which the woman first feels the foetus move. Cross-disciplinary historical studies detail a shifting terrain where the primary motivation for regulatory changes has rarely been an unencumbered regard for foetal life.
Key interests that shaped and energised criminalisation campaigns were the professional interests of an emerging and then consolidating profession, and a broader concern with the changing role of women in the same period. Historical approaches to contemporary regulation – including the Abortion Act 1967 – illustrate the enduring role of these concerns.
Medicine was quick to lay claim to the foetus as a means of flexing its scientific and ethical credentials. Ever since, doctors have been the gatekeepers of abortion care, and biomedical claims have scaffolded shifting arguments and different foetal imaginings. Such historical analysis allows us to place ‘foetal heart beat’ provisions in a shifting landscape of scientific claims and to understand their contingency. As Latour explains, facts gain their facticity when they support the claims and agendas of others.
The Texas legislation has crested a significant wave of ‘speech and act’ provisions that have included requirements for women seeking abortion care to view sonograms, hear the foetal ‘heart beat’, and be subject to a description of the foetus narrated by the performing physician. Studies in such visual and rhetorical tools, particularly in the clinical context, highlight their social and political partiality, as well as their material effects.
As Roe v Wade may disappear so too could the medical model it – and the Abortion Act 1967 – enshrine. Around the world campaigns exist to demedicalise abortion. This is not to take it out of the clinic or suggest it should be provided by the unskilled or untrained. Rather, the aim is to uncouple it from medical paternalism and decision-making.
Different historical studies of the development of abortion and its regulation help us to understand the complex path to ‘foetal heart beat’ laws, and the potential for this new (distorted) scientific discourse to reconfigure understandings of abortion. But these studies, and – to return to Sugarman’s article – their ‘striking overlap in concerns, methods, [and] values’, also allow us to appreciate that other histories were possible. They inform us that every epoch or age has its own particular foetus, embodying the preoccupations and anxieties of the time. Perhaps our epoch will welcome in a demedicalised foetus and, with it, a changed understanding of abortion care.
As a postscript, and acknowledging the important work done at the University of London on the legacies of slavery, the Texas law has been particularly controversial because of its enforcement mechanism, relying on the deployment of citizens to bring actions against anyone who provides or enables a woman to seek care. Such citizens – characterised by some as bounty hunters – are financially rewarded, not just for action against health providers, but also the Uber driver who delivers a woman to the clinic. This seemingly novel mechanism allowed the US Supreme Court to delay hearing the case. It has been pointed out, however, that this is not a novel provision but rather resurrects a legal mechanism used in response to escaped slaves in the 19th century.
Michael Thomson is professor of health law at the University of Technology Sydney, Australia, and chair in health law with the University of Leeds.