Labor pains in feminist jurisprudence: an examination of birthing rights.

• Author: Murphy, Sarah D.

INTRODUCTION

Pregnant women wait and prepare nine months. Some agonize over the details and anticipate the moment when they are able to hold their babies, but for Laura Pemberton things would be much different. The day Laura gave birth, she probably did not expect to be escorted to a hospital, where a judge conducted a hearing in her labor and delivery room and ultimately forced her to undergo a cesarean section. In fact, Laura made a particular plan that would not involve medical intervention; she made arrangements to deliver her baby at home with a midwife. (1)

While Laura's experiences may represent an extreme situation of forced medical intervention, her experience, nonetheless, sheds light on the increasing interference that many women encounter in their particular labor and delivery. With advancements in medicine, pregnant women are no longer required to deliver their babies the way nature intended. Instead, women and doctors can schedule the birth of a baby through elective cesarean sections or other procedures that accelerate a woman's labor. Despite the convenience of scheduling a birth, these advancements provide doctors with incentives that may motivate them to persuade women into a fast and easy birth. (2)

Some women believe that specific medical interventions, such as a cesarean section, provide physicians an excuse to ignore a woman's birthing plan. As medical malpractice premiums increase for doctors, some doctors feel unable to follow a woman's decision in the labor and delivery room if such a decision presents the slightest risk of injury. The baby's life and health also provide doctors a rather convenient excuse to ignore a woman's decision regarding childbirth. This Note shows that it is not only the medical profession that ignores women's concerns, but also an ostensibly important area of legal scholarship, which looks to improve women's role in society: feminist jurisprudence. This Note addresses the absence of, and the need for, a discussion of birthing rights in current feminist jurisprudence, so all women's experiences may be rightfully recognized.

Part I of this Note traces the historical progression and emergence of feminist jurisprudence from first wave feminism to second wave feminism to understand the focus and scope of the subject matter. Part II discusses birthing rights and the experience of women giving birth in today's hospitals, while Part III analyzes the amount of deference given to a woman's birthing plan. After addressing the scope of feminist jurisprudence and the issues pertaining to women's birthing decisions, Part IV argues that excluding birthing rights from feminist jurisprudence undermines the legitimacy of the subject whose purpose purportedly embraces the experience of women in order to raise awareness in a legal system that ignores the concerns, interests, fears, and harms experienced by women.

1. THE EVOLUTION OF FEMINIST JURISPRUDENCE

   Jurisprudence is "the study of the general or fundamental elements of a particular legal system." (3) In other words, jurisprudence addresses questions about law that an inquisitive person might think particularly important. (4) Before and after their enfranchisement, women examined the fundamental elements of law and how women were perceived through the law. (5) From this examination, women revealed that the law limited women's participation in society. (6) To understand the focus and scope of feminist jurisprudence, the following sections provide an overview of women's examination of the law and how it relates to them. Thus, this Note starts at the beginning of women's fight for a voice in government and society.

   1. The Birth of Feminist Jurisprudence

      The leaders of the American Revolution looked to build a new foundation on the recognition that all men are created equal. (7) Despite this new spirit of equality and basic rights, women and their ideas were left out of the process. (8) While men drafted the Constitution in Philadelphia, women were at home. (9) While representatives drafted the constitutions of the new states, none of them granted women the right to vote after 1807. (10) In a letter to her husband John Adams, Abigail Adams pleaded for the Second Continental Congress to consider women in this new government. (11) She wrote:

      I long to hear that you have declared an independancy--and by the way in the new Code of Laws which I suppose it will be necessary for you to make I desire you would Remember the Ladies, and be more generous and favourable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could. If perticuliar [sic] care and attention is not paid to the Ladies we are determined to foment a Rebelion [sic], and will not hold ourselves bound by any Laws in which we have no voice, or Representation. (12) John responded to Abigail's letter sarcastically:

      As to your extraordinary Code of Laws, I cannot but laugh .... Depend upon it, We know better than to repeal our Masculine systems .... We have only the Name of Masters, and rather than give up this, which would compleatly [sic] subject Us to the Despotism of the Peticoat [sic], I hope General Washington, and all our brave Heroes would fight. (13) Accordingly, "[s]ilence, absolute and deafening, is the central theme of the original founders' discussions of women." (14) Mrs. Adams's letter to her husband to "remember the ladies" foreshadows the struggle of women's fight for a voice in government.

      The pioneering spirit of America, derived from man's aggravation with an oppressive king, inspired women--aggrieved by the lack of vote and representation--to fight for a role and voice in the new nation. (15) The struggle for women's suffrage arose out of the desire to improve women's position under the law. (16) Men and women were not considered equals before the common law, and this helped to perpetrate archaic assumptions regarding women's ability and role in society. (17) Bradwell v. Illinois, wherein the Supreme Court refused to allow a woman to practice law, exemplifies the common law's perception of women. (18) In Bradwell, Justice Bradley stated that nature has always recognized a difference between the sexes and woman's nature makes her unfit for many occupations of civil life. (19) Muller v. Oregon provides another example of a court preventing women from deciding their role in society. The Court justified a law limiting the number of hours a woman worked in a day. (20) The Court reasoned that women and men differ in their physicality, functions, strength, and in their capacity to work long days. It stated, "Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men, and could not be sustained." (21)

      Women's exertions for emancipation from archaic stereotypes rooted in the common law were supported by advocates of women's rights, which included Thomas Paine, (22) John Stuart Mill, (23) and Mary Wollstonecraft. (24) Sarah Grimke, one of the first Americans to publish essays on women's rights, protested laws that denied her essential rights and a voice in government. (25) Dissatisfied with no voice or representation, Elizabeth Cady Stanton and other women helped form the first women's rights movement. (26) After convening their first convention, they composed a manifesto modeled after the Declaration of Independence. It stated:

      We hold these truths to be self-evident: that all men and women are created equal .... The history of mankind is a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her. To prove this, let facts be submitted to a candid world. (27) The first women's rights movement objected to the unequal laws that subjected and subordinated women to men: disenfranchisement, the inability to own property or be educated in a formal setting, and limitations on women's role in the public sphere. (28) They argued that "[man] has endeavored, in every way that he could, to destroy [woman's] confidence in her own powers, to lessen her self-respect, and to make her willing to lead a dependent and abject life." (29) Florence Kelly, a labor reformer and women's suffrage advocate, implemented pragmatic arguments in support of women's fight for equality. She argued that women needed the right to vote to protect themselves from exploitation by their employers. (30) Elizabeth Cady Stanton described the need for women's independence and a distinctly feminine voice. (31) Stanton stated:

      The strongest reason why we ask for woman a voice in the government under which she lives ... is because of her birthright to self-sovereignty; because, as an individual, she must rely on herself .... It matters not whether the solitary voyager is man or woman; nature, having endowed them equally, leaves them to their own skill and judgment in the hour of danger, and, if not equal to the occasion, alike they perish. .... Whatever the theories may be of woman's dependence on man, in the supreme moments of her life, he cannot bear her burdens. Alone she goes to the gates of death to give life to every man that is born into the world; no one can share her fears, no one can mitigate her pangs; and if her sorrow is greater than she can bear, alone she passes beyond the gates into the vast unknown. (32) Women tirelessly worked to improve their legal position and to obtain the fundamental rights on which the nation was built: life, liberty, and property. These fundamental rights endow people with the freedom to make their own decisions regarding their government so as to avoid exploitation. However, the silence concerning women's fundamental rights in America's founding documents and the presumptuous reasoning regarding women in judicial decisions...