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eLaw Journal: Murdoch University Electronic Journal of Law |
| Author: | David Applebaum |
| Issue: | Volume 2, Number 3 (December 1995) |
My interest in the subject of abortion and choice began in 1970. At the time, I
was immersed in research on the Revolution of 1848
at the National Archives in
Paris. One afternoon I came home and my wife, Judy, told me she needed to see a
gynecologist as soon
as possible. I was able to communicate in French and Judy
could not. Hence, my language skills in "medical French" and
"gynecological English" developed. This took place in conjunction
with the discovery of the lack of knowledge of physicians.
Skepticism about my abilities to translate and the quality of French physicians
carried us to London and Harley Street. On a rainy
afternoon, the specialist
examined Judy. He thought she might be pregnant with twins. Her use of birth
control pills during early
pregnancy meant she should have an abortion.
We packed our bags, returned to Paris and flew home to New York. By the time we
arrived in Dr. Z.'s office in Manhattan, there was
no indication of any
pregnancy. The gynecologist probably thought we were nuts. After a brief visit
to Madison to make plans for
the following year, we returned to Paris. Within
two weeks the symptoms that carried us across the channel and the ocean returned.
Now we had the name of a bilingual gynecologist, trained by our friend in NYC.
The diagnosis changed and the need for surgery upon
returning to the U.S. was
noted. We were told not to travel outside Paris in case there was an
"emergency". Our life was
complicated
by the fact that we had no health insurance. Under normal circumstances,
registration at the university bought coverage.
But I had enrolled for only two
credits of "thesis" which bought no coverage. We faced the prospect
of pauperization. It
taught us about the marketplace realities of medical
services and choices in America.
Judy came home one week before I did for pre-operative tests and a surgical
procedure. The morning after my return to the states,
five hours before
scheduled surgery at Montefiore Hospital, the head of the radiology group
called. He asked us to come in for one
more test. The exam took place on Park Avenue, three blocks from the offices
of the gynecologist. While I was sitting and waiting,
I saw Dr. Z. come flying
into the office after a three block run. Needless to say, this was
disconcerting. Within a few minutes I
was told that the
"pseudo-pregnancy," "spontaneous abortion of twins" and/or
"mysentary cyst" was a
"floating ectopic kidney". After we
told Judy that she did not need surgery, she thought, "Is it too
late?" More
than twenty years later she has come to accept an answer she
doubted at the moment. These personal
events took place during a turning
point in the history of reproductive rights
in France. In April of 1971, the "Manifesto of the 343" broke years
of public
silence by women who had illegal abortions. After a march in Paris in
November of '71, there was a series of meetings held at the
Mutualite called
"days of denunciation of crimes against women" in May of 1972. These
events symbolized the arrival of
abortion rights as a source of national
debate.
Several years later Judy became pregnant. Our local gynecologist pulled a
manual from his bookshelf that explained her risks in childbirth.
It was a wait
and see proposition as we anticipated what the floating kidney would do. There
was time to think about the choice that
Judy would have to make. The
paradoxical relationships between knowledge and power along with the dilemmas
of choice became a part
of our lived history together.
During the twenty years since these events, we have been active in the movement
to secure the right to choose. The connections between
the personal and the
political remained clear in our minds. There was no thought in my mind to connect
the personal and political
with the professional. This changed during the
summer of 1990. While I was researching
in the offices of the syndicat de la magistrature
[a French labor union of
magistrates founded on June 8, 1968], I found a dossier marked "avortement."
Simultaneously, the
news of Justice Brennan's resignation from the Supreme
Court lead to discussions with French judges (members of the syndicat) about
the implications of the Souter nomination for reproductive rights. It was in these
circumstances that I decided to focus my energy
on the study and analysis of
the materials collected by the syndicat about the abortion question. And it was
in these circumstances
that I discovered links between personal history and
French history.
SOURCES AND METHODS The file marked
"abortion" kept by the syndicat de la magistrature contained:
a) a packet of materials prepared by the Association Nationale pour l'Etude de
l'Avortement including a membership list, minutes
from a press conference, a
position paper and a brochure dated 1970,
b)correspondence from a union militant suggesting strategies to react against a
campaign to maintain the 1923 statute prohibiting
abortion,
c) a copy of the questionnaire mailed out from the central union to locals
including tabulated results of responses to the questions,
d) letters which accompanied the questionnaires returned to union headquarters
in Paris along with a group of letters from magistrates
who were opposed to
changes in the law,
e) a copy of the transcript of testimony given by union leaders to the
committee of the National Assembly charged with evaluating
proposed legal
changes,
and f) a summary of the union position taken at the National Assembly (which
was distributed to union members).
This group of documents was supplemented by printed materials found in
a) a newsletter, L'Auditeur (September, 1973), distributed by student union
members enrolled in the Ecole National de la Magistrature
union local,
b) the union magazine (Justice '74, Numero 30 (May 1974)) and
c) a summary report prepared by the leaders of the union which locates the
public stand on abortion rights in the context of the
union position on
liberties. In order to read and analyze
the meaning of these documents, it was necessary to study the history
of
reproductive choice, abortion and contraception in France. It was equally
important to study the immediate events that produced
the intense discuss ion
and written records of 1973. In addition, it was essential to study the literary
forms, i.e. the rhetoric
and representations that shaped the creation of a
magistrates voice in the construction of contemporary French legal culture.
The historical background set the stage for looking at the sequence of
documents in terms of observing a process called the "secondary
production
of meaning." Through the act of "using" thoughts and ideas
developed in earlier contexts and prior moments,
we can locate the way that the
"users transformed the meaning, value and experience constructed at the moment
of primary production."
(Certeau, XIII).
In order to read these texts I looked to the recommendations of Roger Chartier.
My ambition is to be faithful to his three demands
required for deciphering a
symbolic system: first to take the text as a text and determine its intentions,
its strateg ies and the
effects produced by its discourse; next to avoid
supposing a stable, full value in its lexical choices, but to take into account
the semantic investment or disinvestment of its terms; finally to define the
instances of behavior and the ritual s present in the
text on the basis of the
specific way in which they are assembled or produced by original invention ...
(Chartier, 109)
Further development of these demands calls for a careful examination of literary
processes, i.e. metaphor, figuration and narrative.
These processes affect the
way cultural phenomena are registered and the configurations "make sense
in determined acts of reading."
(Clifford and Marcus, p.4)
It is equally important to examine the social dynamics of dialogue and identify
the complex and nuanced shades of difference from
private to public statements
and responses. In other words, the literary format is related to the intended
audience. The genre employed
by individual and collective authors established
different symbolic possibilities in conveying, meaning and intensity of the
understandings
and goals of different persons engaged in the debate.
Manifestos, cartoons, private letters, dialogic testimonies and summary reports
change the timbre of a voice and the harmonic resonances that are possible in
using words that appear the same visually on a printed
page. There are important benefits to be derived
from this method of critical-historical reading of texts. First, one recognizes
that a) "the ways in which an individual or group appropriate an
intellectual theme or a cultural form are more important that
the statistical
distribution of the theme or form (Chartier citing Carlo Ginzburg) and b) one
avoids the danger of a "separation
of the production and consumption of
ideas that leads one to postulate that ideas have an intrinsic meaning
independent of the appropriation
by a social group or a group of
subjects." (Chartier, 40) To reiterate, the method allows us to look at a
specific texts and
their forms in relation to other texts and different forms
which enhances critical understanding of their meaning. It is from this
reading that I can talk
about the ways in which unionists constructed a syndicalist representation of
self (union) alongside yet
apart from representations of women's interests.
This combination of self and interest yields understanding of two
interdependent
developments: the development of a white collar syndicalist
movement seeking its identity as an "anti-power" to the dominant
Gaullist state authority and the development of a political movement seeking
social rights for women.
The connection between white-collar professional union identity and women's
rights developed in the constitution of a new power that
altered relations
between a) the French State, b) French magistrates and c) women in French
society. In this process we can see a
moment in which the world turned upside
down; an inversion of power relations between union-employer, male-female,
client-judge,
patient-physician and child-mother. The judges voices of 1973
reveal how "patterns of practice and a series of discourses produced
what
can legitimately be designated as a new reality in the history of French women.
We know that French law on abortion changed
in the mid 1970's. This study is
intended to examine the constructions of one of the underlying forces t hat
helped produce the change.
Jane Jenson tells us that, "Political discourses are packages of four
connected clusters of ideas - a) those providing a map
of the contours of the
social world, b) practical schemes to change that world in the immediate, c)
utopian visions of an imp roved
world and d) understandings about how to do
politics." This is a study that illustrates political discourse organized
around
the four connected clusters of ideas that have dual representation -
each cluster contains a representation of self and a representation
of
interest. We are looking at the constitution and development of institutional
actors in a world where the "recognition of
difference was linked to the
inequalities of power." (Jenson, 130- 131)
BACKGROUND - VOICES OF 1973
On June 25, 1973 a union militant from the syndicat de la magistrature sent a
letter to the President of the French Association of
Juvenile and Family Court
Judges. The typed letter responded to one he received from the professional
sub-group June 18. He sent
a copy to union headquarters in Paris. The carbon
copy is one of two letters filed at the beginning of the dossier of documents
kept
in the union archive. The opening
paragraph focused on general flaws in the government's proposal to change
French abortion law.
The author said, "the restrictive conception of cases
where pregnancy might be terminated, risked emptying the project of any
change
it might carry," and "the procedures adopted, in many cases, preclude
legal abortions." The 500,000 to 800,000
illegal abortions carried out
each year in France would continue.
The law allowed physicians to refuse any medical counsel which the judge said,
"placed some women in very difficult circumstances."
He noted,
"the position taken by the Profession" (allowing doctors the right to
refuse to participate in abortion decisions)
confirmed this point. The writer's
position was "it would be more judicious to "substitute the
OBLIGATION of the judge
to authorize an abortion for the POSSIBILITY of a judge
to authorize." He wanted to remove judicial discretion in dealing with
requests for abortions. And he expressed special concern about "the
authorization by some juvenile court judges because of their
known moral
objections to such an act." The author argued "in order for a future
mother to choose in a real and clear fashion,
all laws liberalizing abortion
had to be accompanied by a holistic politics (his underlining of politique
d'ensemble) that produced
massive social aid." The provisions put forward
in the Loi Neuwirth of 1967 and never funded, (legalizing contraception), would
give social and financial recognition to the statute on homemakers, and would
allow widows to live in secure material and moral conditions
to bring up their
children. In his elaboration of a holistic politics of choice, he also called
for "multiplication in the numbers
of small homes, encouragement of
adoption, creation of facilities for the handicapped and research on educatio n
for all types of
pedagogues for the handicapped."
Thus the judge's concept of choice was expansive. He argued that repressive
criminal law did not address the causes of abortion in
France. Moreover,
repressive law offered no solutions to persistent violations of the law because
it narrowly defined a social problem
as a legal problem. This letter was
written while the anti-abortion campaign among judges was taking shape. At the
same time, French
bishops were issuing a letter of opposition to any
legalization of choice. The second
letter received at union headquarters elaborated
upon the campaign of the
anti-abortion faction within the judiciary. The content and styled of the
second letter was different from
the first. It was a handwritten, two page note
sent by a member of another union in a coalition of syndicalist forces within
the
Ministry of Justice. The group, called the Comite National de Liaison de
Justice, started in 1969. The syndicat de la magistrature
was the dominant
force within the coalition.
The letter contained detailed information about an organization of judges
created to oppose liberalization of the law. It referred
to their activities in
a highly critical fashion. And the writer suggested a strategy of response to
the anti-abortion jurists. Thus,
the author shifted from his initial premise
for writing. His theme changed from the reproductive issue to a broad range of
concerns.
First, the writer expressed distress about inflammatory rhetoric employed by
the anti-abortion text. The phrase signaled as most
offensive was the one
calling pro-choice advocates, "Groupies of the sexual revolution."
The author attacked the private
solicitation of letters. This request was
attached to a prepared form with a line for a signature and job title. There
was also a
list of names of "powerful men" who already had signed the
same letter drafted by the anti-abortion campaign. The author
of the letter sent to union headquarters objected to
the methods used. He argued that they were an overt abuse of hierarchical and
coercive power. His letter suggested that the process was a right-wing
conspiracy aimed at preventing any reform of French abortion
law.
The writer expressed fear about the capacity to mount effective
counter-strategies. He worried that the syndicat de la magistrature's
"scrupulous concern for internal democracy" would be an obstacle to
fast and effective action. He argued in favor of a
collective response to the
members of "Let Them Live" (the anti- abortion group of conservative
French jurists). The suggested
emphasis of the response would be upon the issue
of judicial reserve.
For much of its history, the syndicat challenged the barriers between political
speech and legal speech - the central issue in the
debate on judicial reserve.
The control of magistrates public conversation was an on-going problem,
especially after May-June of
1968. For the first time, however, in 1973 the
boundary of permissible public expression by magistrates was altered by
traditionally
conservative individuals and groups. The letter to the union noted the inconsistency of the
anti-abortion group. On other issues
they attacked the union and called for
political disengagement and professional silence. The conservative shift was a
tool for progressives.
He suggested it would help to justify the union's
initiative in breaking silence in cases of preventive detention (garde a vue
(detention
without trial) and droit de licenciement (an employers right to fire
employees). He concluded was that 1973 provided a rare opport
unity to
challenge internal and external efforts "to maintain conformism among
magistrates." This letter signaled the reproductive
issue as a vehicle
that would carry the debate on professional role and civil liberties in a new
direction. These two letters suggested
different risks and chances for magistrates to respond to the French abortion
debate. They show the range of options of contexts
and constructions of problems
and issues associated with abortion. As events unfolded, poss ibilities
revealed in both letters became
part of the dialogue among magistrates and
between political leaders and legal officials.
THE UNION POLL
On 20 July 1973 the President of the Commissions des affaires culturelles,
familiales et sociales of the National Assembly, M. Henry
Berger, sent a letter
to the syndicat. He asked them to appear at "a hearing before the working
group of deputies of this commission
and the commission on laws charged with
studying the proposed law on the voluntary termination of pregnancy."
During its meeting of 11-12 August, the union board decided to respond
affirmatively to this invitation. They also decided to consult
union locals on
the problems. In a letter they sent to the locals they wrote, "The union board is aware that each of
us can
react to these questions essentially in light of religious,
philosophical, moral and political options ..., all opinions are worthy
of
respect, but it is as MAGISTRATES charged with the application of the law - current
and future - that we are being consulted and
it is in this quality that we
ought to respond." They built a
boundary for discussion, based upon a definition of professional
role and legal
discourse. Their control of speech reflected separation from other discourses.
The walls they built were a defensive
perimieter in the long time struggle
between political and legal discourse in France.
The feeling of the union was that the consultation with members would be the
product of discussion and the elaboration of responses
at the local level. They
also told the locals, "all supplementary material that could be sent for
our dossier will be welcomed."
The suggested contours of the discussion
along with the structured decentralized formula contrasted with the normal
patterns of hierarchical
of discussion in a magistrates day to day work. It
also differed from the structured patterns of discussion in most French
political
parties. Because of the time frame and deadlines for the response,
the leaders wrote, "it is vital to answer as quickly as possible."
A questionnaire, prepared in Paris, accompanied the August cover letter. The
fear that union democracy would prevent fast action
in response to the proposed
law was, in part, sustained. If the legislative/political forces had not asked
the legal/juridical forces
to respond, the timing and scope of responses by
magistrates would have been different. It would have been slower and, I
believe,
minimal. The poll sent from
Paris to the locals was divided into five parts. It included a) requests for
advice on the appropriate
union response to the request to appear, b)
assessments of the 1920 legislation on abortion, c) assessments of a
hypothetical state
intervention in reproduction, d) analysis of legislation and
e) "additional comments."
The results of the poll revealed unanimous support for the leaders to appear at
the legislative hearings. There was also unanimous
agreement that current
legislation could not be adapted to resolve the "social, cultural and
economic problems" associated
with abortion. And there was unanimous
agreement among the respondents that the French law should be changed . When asked about
state intervention,
"the vast majority of respondents" (176) unequivocally supported a
role for the government in matters
relating to abortion. A minority (83) felt
that the state should a) decriminalize and b) assure actions consistent with
"medical
and social responsibility" Additional clarification of
responses revealed that decriminalization was supported less than state
action
"to assure medical and social responsibility." The latter concept,
reflected the rhetoric of funding for choices
associated with the 1967 Loi
Neuwirth (legalizing contraception in France).
There was a deep division among the members about whether or not to limit the
cases in which abortion was legal (92 vs 75). A plurality
(75) found the law
limited choice too much. Yet a number almost equal in size (74) found the
proposed limits upon choice satisfactory.
Only a small group (20) found the law
gave too much choice in terminating pregnancy.
The magistrates approved the specific role
given to the President of the
Tribunal of Grande Instance, albeit unenthusiastically (55). By comparison,
there was strong support
given to the role of juvenile court judges (108) in
working with pregnant minors. This support, however, also produced the most
extensive
written commentaries received at union headquarters in Paris. The group who answered the survey supported
the prosecution of abortionists
(137). They found proposed criminal sanctions
satisfactory. A number, almost as large (127), opposed criminal sanctions for
women
who had abortions. Most of the
returned questionnaires were not kept in the union's file on abortion. There
were about ten kept
in the dossier which included comments in the fifth
section. There is some indication that these documents were references used for
prepared testimony given by union leaders at the National Assembly in September
of 1973. Some of the locals honored the request for
a listing of votes taken
about specific questions. Still others referred to individual positions and
unidentified union members within
the local group.
I have chosen to examine the longer responses to question five in detail. It is
logical to think that this was the intention of the
authors as well as the
response of the union leaders/readers in Paris. Rather than being
representative, however, they are exceptional
and suggest the range of views
expressed and not any central tendency within the labor union of magistrates.
Written comments included a) one favoring a role for fathers in
decision-making, b) a challenge to the definition of mental illness
as being
too broad and therefore too lax, c) support for abortion on demand during the
first trimester of pregnancy, d ) the suggestion
that in place of specific
cases, time (the first trimester of pregnancy) determine a period of
legality. Most comments focused on
the
specific role assigned to magistrates. The proposed law gave special
responsibilities to a) the president of tribunals of grande
instance and b)
juvenile court judges. The former had discretion to authorize abortions in
cases of "violence, crime or incest."
The latter had authority to
allow minors (defined as less than eighteen) "to have abortions without
the consent of a parent
or legal guardian."
The clearest and most unequivocal opposition to the law sent to the Paris
leadership came from a union local in Southeastern France.
Their commentary had
six points. The first summarized proposed legislation and outlined the specific
role of the president of the
criminal court and juvenile court judges. The
second point cited the text, stating the "problem of voluntary
interruption of
pregnancy is one of the most painful and difficult that could
be put to the human conscience." They connected this thought to
an attack
on the idea that a single judge, "even in ancillary matters" could
decide these cases.
The civil law prohibiting decisions by single judges (article 3-1 of the law of
22 December 1958, modified by the law of 10 July
1970) on "questions
relative to the state of persons" was cited. The legal principle meant,
according to the Southeastern
group, that no solitary judge could take
independent action. Hence, absent civil procedural requirements, the proposed
law contradicted
other legislation. This was because the abortion decision
involved the "physical integrity of two people." In French criminal
law as in civil law, only
limited action by solitary judges was permitted. Single judges could not give
sentences of more than two
months imprisonment. When a more basic act
"risked individual freedom, the law required agreement by a three judge
panel."
The local reasoned, since many thought abortion involved the death
penalty, the criminal rules precluded action. The Southeastern
unionists argued
that a group of twelve judges and jurors ought to deliberate and "vote on
these questions by secret ballot."
The references to civil and criminal law lead to the conclusion that the law
"seemed to contradict the fundamental principles
of organization of
jurisdictions." The subject-matter and construction of these points fit
established patterns of acceptab
le public speech by French magistrates. The
thoughts resonated with the rhetoric of individual rights protected by
procedural safeguards.
The third point
focused upon the role assigned to the president of the tribunal of grande
instance. The proposed law assigned the
magistrate decision-making power "in
chambers" and "on request" in cases of violence, crime and
incest. The hypothetical,
according to the local, presupposed that these
matters were uncontested. They also cited the ambiguity of this point, asking
if the
request was to be free (a reference to court costs). They also noted
that in cases involving incest, that the local prosecutor was
not to be asked
his advice or even informed of the action taken by the judge. The implication
of the question was the problem associated
with criminal prosecution of
rapists. On the basis of this reading of
the role of the president of the tribunal, they read the proposed
law as a
"dangerous assault on an essential principle." The principle stated
"all capital questions in justice must
be subject to
cross-examination."
The phrasing of the local did not challenge capital punishment, per se. It only
challenged the change of procedures in the rhetorical
dynamic of
decision-making. The fourth point
focused on the section in the proposed law's plans for juvenile judges. The
text cited
article 375 of the civil code. The reference was the section on
educational aid which delegated power to juvenile judges. The opponents
in the
local argued that article 375 required application of articles 888 to 888-16 in
the same code (1970). According to the local,
these additional procedural
requirements included, "hearing the prosecutor and getting his written
opinion, gathering informati
on at a meeting in the judges' chambers, listening
to the parents of the minor and eventually obtaining their counsel." In
such
cases, according to the local, even though the practical dialogue of
discourse did not produce the usual pattern of criminal court
dialogues (see
Garapon), the ritualized pattern frequently showed that the minor was
"just being defiant." The
most serious
gap in the proposal for the Southeastern magistrates was the
"absence of a clause of conscience." They wanted magistrates
to have
the right to decline to participate in abortion decisions. The opportunity to
abstain followed the principle that "judges
ought to rule according to
their consciences." They based this point on "dispositions of the
law." Article 353 of
the code of criminal procedure stated, "the law
does not ask judges to account for the means by which they are convinced."
At the same time, "it (the law) requires them to question themselves in
silence and meditation and to look, in the sincerity
of their conscience to
forge a convincing decision." Thus, they implied that the construction of
the law challenged the moral
integrity and individual autonomy of French
magistrates. However, they did not carry this point to an explicit demand for
protection
of separation of powers and the need for an autonomous
judiciary. Using the stated principles,
the local group made the following
argument: a) "no judge can be forced in
the secrecy of deliberations in a criminal court, to vote for the death
penalty, b)
no prosecutor can be forced to ask for the death penalty, and c)
"the assimilation of the voluntary interruption of pregnancy
to the death
of a human being can doubtlessly be debated in biology and
philosophy." They supported their
perspective by citing
motives listed in the preamble to the government's
proposal. "From the first days after conception, the infant to be already
shows the energy that pushes all beings to survive and develop" and
"the human exists at conception as the adults exists
in the child and the
elderly exist in the adult."
Thus the political posturing in framing the law became a part of the debate and
discussion within the union. There was also a claim
for "professional
equity" in allowing judges to abstain from abortion decision. The local
called for "the same respect
for the conscience and scruples of
physicians, embraced by their profession to defend life." For their part,
they said they
could "never accept participation in an act of
death." The sixth point recapped
the arguments. "It would be hoped
that if abortion comes to be
liberalized, the statute will remove it from the action of a single judge,
introduce cross-examination
into the process and take into account matters of
conscience." They suggested that a defense attorney be chosen to represent
the interests of the child against his mother in a special five person
commission.
These six points represented the perceptions, strategies and legal arguments of
magistrates opposed to a bortion. The argument made
it clear that there was a
segment of the judiciary that would resist legal change. In a text from another local, titled
"Justice
Aborted," the issue of conflict between juvenile justice and
parental power received careful scrutiny. Reference to laws of
1958 and 1970
spelled out the limited legal competence of the juvenile court judge. The text
said if a minor was in danger, a magistrate
could intervene to protect their
"health, security or morality." In addition, the juvenile judge could
act "when questions
of education were gravely compromised." These
situations allowed for "limited measures to restrain or temporarily
paralyze
parental rights." In the
local's report, the proposed law appeared to conform to the law. "A
pregnant minor in some family
situations could be in grave danger."
However, the provisions of the 1970 law included procedural safeguards for
cases when a juvenile court judge might intervene. These
safeguards included,
a) advising parents of the opening of any procedure, b) informing them in
advance of all decisions and c) informing
them of their right to participate
and have legal representation at the hearings. In addition, they noted that a
judge had several
investigative tools he could use to get information from
social workers, teachers, physicians, and psychologists (the group Foucault
euphemistically would call the helping professions). The goal was to "shed
light on the personality of the minor and on her
familial situation."
Until the abortion issue, "No decision was irreversible." Each
provisional choice "required
notification and could be the subject of an
appeal." The writers did not think
that the new law could conform to the principles
and provisions of the 1970
guidelines. "Urgency brought a dramatic character due to delays in
consulting physicians and the
consequent delays in seeking the judge." The
latter, closed in by a dilemma of "either rendering an immediate decision
... or ordering investigations at the risk of definitively changing the
situation."
The recognition of the dilemma, resulted in a series of questions:
"Should the parents be advised?
heard? If gravity and urgency dictate an immediate decision, on which elements
should the magistrate
base his decision to pacify and reassure the minor and,
eventually gain the approval of her legal guardians? What rights of recourse
will they (the guardians) have? Is the juvenile judge still a magistrate if no
debate is possible in front of him, no investigation
possible, no useful
recourse possible? Will he decide
outside his job, from a personal ethic?
Is truth in the Pyrenees error outside
...? In addition, can't one see that this new image marks the return
of the judge to the most archaic and retrograde era of a judicial
imperium?" At a union local in
Eastern France there was a meeting on August 30. They produced a two page
typewritten statement.
The story was one of long debate and discovery "it
was not possible to take a global position for or against the government."
They said "In effect, abortion expresses a conflict between the presumed
interest of the child (the right to life) and that
of the mother to dispose of
her body as she sees fit." They also said, "Magistrates were not able
to privilege one of these
parti es over the other."
They devoted a paragraph to attacking "so-called Jurists of France"
who circulated the anti-abortion letter at the court
in July. (One of the few
comments about the activities of "Let Them Live"") They also
rejected the suggestion that
abortion had to be denounced because it was
"legalization of assassination."
Most of their interest and attention focused
on the section that
assigned responsibility to juvenile court judges. They said that the proposal
was "full of risks."
Their hypothetical included a judge substituting
for parents without respecting the "principle of cross-examination, such
as
it exists in supervised education." A second paragraph on the need to
follow, at the very least, a common law model of cross-examination.
A third
paragraph noted that the law was "anomalous in setting up the pow er of
the magistrate in relation to the minor."
Juvenile judges could not
"authorize marriage, or issue acts of emancipation." This was based
on the paradigm of limitation
of the competence of magistrates to interfere in
family matters. It made no sense that in abortion, when decisions could not be
reversed,
they had more power than in other matters where one could turn around
a decision.
The proposed remedy for these flaws in the role and relationship of the
juvenile judge and the pregnant minor, according to the local,
was an
"administrative commission or a judicial filter." Following debate,
"we concluded that in planing the institution
of such a filter, we would
be participating in some way against the liberalization of abortion." This
realization ended the
story. They could not agree about creating a bureaucratic
institution that could fulfill contradictory roles. Letters fr om locals
show
the connections between the problems of family autonomy, individual rights and
state power as elements in the debate on reproductive
rights. Rather than being
treated in isolation, the abortion question in French legal culture coupled
with a debate over power relations.
This debate reflected the permeable
boundaries and multiple memberships of individuals in different groups. The
debate reflected
a blurring of lines of separation between public and private
as lived experiences and categories for analytical understanding of
law.
There was one series of meetings in Paris, the location with the highest
concentration of judges. A small group produced a two page,
single spaced and
typed response to accompany their response. Marginal notes alongside the text
called for 100 copies for duplication
and distribution. The urban group, thus,
was planning to do more than just share thoughts with union leaders. There were
twelve participants
in the Paris local meetings; eight were criminal court
judges, three were juvenile court judges and one was a woman. Ballots were
distributed and results counted. They said "question III 3 on the survey
should have come before question III 2 on the form
(see appendix A). In
addition, the term "decriminalize" was criticized. They reported all
answers were unanimous. They
claimed that a meeting of the full local (fifty
members) "would not have altered the sense of the group." The
reporters
from the group proceeded to share their analysis. First, they said "the facade of unity
should not be mistaken for enthusiasm."
There was a "marked
difference between the regional meeting of June 1973 at Charbonnieres and the
smaller session in Paris at
the end of the summer." There was a
"spirit of resignation" on liberalization. The writers speculated
about age as
a factor in the response of the Parisian magistrates. They noted
"no one at the meeting was less than 43 years old and the median
age being
considerably higher." The implication was that either a) older men and/or
b) those at the end of or beyond the reproductive
years in their life cycles
were more conservative in their perspective than younger magistrates. "Even among those who maintained
the
firmest moral condemnation, ... the dominant consideration was the social injustice
and inapplicability of repressive legislation."
They realized the
"evolution in customs" and "medical progress" meant that
"it was a practical impossibility
to restrain abortion liberalization,
from the moment one decided to raise the question." They concluded,
"All penal repression
against women who secure abortions or women who are
victims of underground angel-makers are inopportune."
THE STUDENT VOICE
The strength of the idea of significant generational differences among
magistrates on abortion is clarified by two documents prepared
by students
preparing for careers in the magistracy. One was a letter from the students
enrolled at the Ecole National de la Magistrature,
members of the Bordeaux
local of the syndicat. The second was an article published in a short-lived
student paper that was the voice
of the Bordeaux local. The intended audience
for the first source was narrow and limited. The audience for the second text
went beyond
the union group. It was circulated on campus and across
France. The students reported on a
meeting held on Saturday, 15 September.
Several (14) members of the class of
1972 answered the questionnaire on the interruption of pregnancy. Their text
was written and
sent to Paris three days before the hearings at the National
Assembly. I imagine they were hand delivered by the student member of
the union
delegation. They unanimously agreed
that the questionnaire was "bad." They said, "Questions were
often
"oriented" and Questions were interdependent upon one
another." The words may have been intended to invalidate or
partially
modify the reading of results from other locals. These remarks may have been
written to demonstrate scientific seriousness
of purpose or rationality in
understanding an emotional issue. Regardless, they were willing to challenge
their leaders, the intellectual
integrity and objectivity of the research
conducted by the syndicat. Their comments revealed an awareness of the
subjectivity of
social sciences when the ideas of Michel Foucault raised the
Nietzschean issue of biased social research to center stage in French
national
educational culture.
The students reported, "A very strong majority spoke in favor of
completely free access to abortion which made it difficult
to answer questions
on the proposed law." The conditions of abortion are not envisioned by the
questionnaire. On this subject,
many students estimate, contrary to the
proposed law, that an abortion is not a medical act. Thus, in this reading of
the proposed
law, abortion did not belong in the professional world of either
doctors or judges. They said, "dispositions of this pr oject
providing for
the intercession of a doctor in service in a hospital or other agreed upon
institution , with this regard, were "too
restrictive." The text
prepared for the stenciled student paper, L'Auditeur, went beyond these
points. The title of the article
on
abortion was "Cachez ce ventre que je ne saurais voir" (Hide This
Pregnancy That I Don't Want To Know About). The story
had a captioned cartoon
(see Below) which ridiculed and mocked the artificial public/private division
of judicial decision-making.
The use of a picture in place of words by judges
was unusual in the world of magistrates yet normal in the legal sub-culture
developed
within the syndicat.
The student story was different from other essays. It spoke directly to the
social realities of underground abortions. Legal language
and references to
codes were minimal. Social facts emphasized and detailed hypotheticals
populated by realistic ideal types. The
essay began with an assessment of the prospect of new legal possibilities.
"In the year that follows the passage of the new
law on the voluntary
termination of pregnancy, if it is adopted by the Parlement, several hundred
thousand women will want, as in
every year in France, have an abortion."
They would be, "[f]ully conscious of their rights, and, perfectly informed
of
the procedures to follow, the majority will go to a doctor and a few will go
to a judge. After an objective and conscientious examination
- but rapid in
their case - the doctor or the judge will make a decision. Some, armed with
official authorization will be welcomed
by the medical centers where abortions
will be performed with all security. Others, perhaps a bit deceived, will
adjust rapidly and
begin to knit layettes. Without doubt some of the women
deemed worthy of having a baby will be overwhelmed by gratitude toward the
doctor of the judge who refused authorization and will ask him to be the
Godparent of the baby. Is he not, in part, the second father?"
The official story, as told by the students,
combined irony with sarcasm. The image of a woman knitting a layette was a step
to thinking
about other uses of knitting needles referred to later in the
newsletter. The simplistic and false hope of a legal remedy for the
underground
abortions in France was strengthened with the idea that magistrates would be
surrogate fathers to unwanted babies. Moreover,
the power of the argument
flowed from the difference between student sarcasm and magisterial legalism.
The student's alternative reading of the new law was, thus doubly different.
The prospective judges raised key points. They expressed
doubt that women would
take advantage of the law, asking "How many pregnant women, single, minor,
immigrant, rural will go to
the doctor or the judge?" Thus, they
integrated class, marital status, ethnic origins and geo-cultural experience as
factors
in their analysis. These facts replaced legal facts in the ritualized
discourse characteristic of other locals mess ages to Paris.
In cases when individuals did go to a
physician or judge and their claims (in cases of rape or incest) or requests
(in cases involving
minors) were refused, the students asked, "What is the
petitioner to do? What will make them want the child they hoped to be
rid
of?" They demonstrated that a woman could go part way through the proposed
legal process and be prevented from securing
a legal abortion. This would
happen if the second or third physician contradicted the medical claim. The students made the assumption
that legal
decisions would not alter affective relations. They argued that women who
wanted abortions "will look elsewhere for
what the official doctor of
justice refuses them. For the richest, it will be Switzerland or England;
others in large cities can
present themselves to these "abortionists"
who create such emotion among the Order of Physicians - justly because these
doctors do it (one does not make so many stories for the abortionists)."
Without explicitly referring to the literature published by the National
Association for the Study of Abortion, the students named
the methods that
women would use to secure abortions. They warned of "knitting needles and
toxic chemicals with all the risks
of hemorrhage, septicemia and sterility ...
and still worse infanticide." The students
concluded that the issues raised by
others were irrelevant in dealing with the
realities of abortion in France.
"One does not come here to speak of the massacre
of innocents, of
the responsibility of the mother, or religion, of respect for life ... all the
arguments, respectable in themselves,
have no currency for the simple reason
that next year these 300,000 to 500,000 abortions will take place by any means,
no matter
how regrettable that might be. Neither this new law nor any
repression can do anything. The fetuses that the partisans of "let
them
live" want to save are already condemned."
This perspective resulted in student rejection of a) the proposed law, b) the
union poll and c) the development of arguments within
legal discourse to focus
upon abortion. They said, "It is necessary, therefore to refuse as a whole
this hypocritical law project."
Their alternative new law included a
combination of a) free abortion services, b) sexual education, c) dissemination
of contraceptives,
d) increases in social assistance for single mothers and e)
a change of "mentalites." The unionized students assessed the
social
impact of the law in somewhat unusual terms. They said, "Nevertheless, it is necessary to
underscore the most shocking
aspects of this project; this is in the
relationships it sets up between the woman who wants an abortion and those who
are the masters
of her decision. The
woman who wants an abortion usually is traversing a critical crisis; she has to
come to explain herself to
the doctor or to the judge - to plead her case. On
the one hand, she "knows" that the judge will decide, without appeal
(time is pressing), on the other hand, an anguished women is alienated and
reduced to an inadmissible state of uncertainty and dependence.
Will the institution
of such a relationship of subordination not bring us to a combat against the
liberation of women and a greater
freedom for the individual?" Thus, they transformed the issue of
reproductive choice to an issue of power relations. They
constituted
reproductive choice as a matter of gender based oppression. And the envisioned
change and choice as necessary steps in
the creation of freedom and the end of
sexually bassed subordination. The
union leaders had two weeks to piece together the responses
they received from
31 locals and 215 individuals. By the time they appeared at the Luxemburg
Palace, they had a coherent order of
presentation as well as a systematic
response to the proposed law.
TESTIMONY TO NATIONAL ASSEMBLY
The union received an eighteen page typed transcript of the "Working Group
Charged with the Study of the Law Project on the
Voluntary Interruption of
Pregnancy." The record of the conversation was to be private "until
the personalities heard and
the questioners had given their approval to the
transcript." Members of the working group were told to "make prudent
use
of texts that had a confidential nature." The search for accuracy and
the desire for confidentiality, in time, gave way to the
need to publicize the
record.
There were no marginal notes or comments on the document, unlike other items
kept by the union. Six members of the union were present,
four men and two
women. Their names and union offices were listed. Five of the six listed job
titles. Those in attendance were thanked
for either a) coming to Paris during a
political campaign or b) cutting short their annual vacations. The greetings
set the tone
of connection between those who were present as part of the
political discourse, i.e. the members of the National Assembly up for
election,
and those who were there as a part of the legal discourse, i.e. the members of
the judiciary who were on annual summer
leave. The term preferred by the
politicians to designate the subject matter under discussion was
"voluntary interruption of
pregnancy." And the term preferred by the
unionists was "abortion." A
paragraph of welcoming remarks from the committee
chair was followed by a three
page opening statement presented by the general secretary of the union. He
began by noting that the
event set a precedent; it was the first time that
members of the National Assembly asked members of the union to speak about
pending
legislation.
Thus, his first point marked the procedural shift that altered the nature of
judicial reserve and modified the patterns of speech
and silence in the
judicial order. Emphasis was placed
upon "the wish to consult representative organizations" when
"individual
magistrates had shown their support or disappointment over the
proposed law." The phrase clearly toned down the intense and
often
vitriolic statements of th e anti-abortion forces. He noted that in abortion
debate "individual actions transgressed or
at the very least expanded the
notion of the obligation of judicial reserve." The union welcomed this
shift in judicial speech.
Their viewpoint was "it was more opportune to
intervene within the framework of a representative organization." The
value
and meaning the union placed on speaking in a collective voice carried
forward the suggestion made in the Spring of 1973. The statement
also sheds
light on a) the problems of legal speech and b) the accuracy and authenticity
of the testimony given to the National Assembly.
>From its earliest days, union members had faced individual
professional persecution by the executive branch of government. Gaullist
action
against the union for violations of judicial reserve focused upon internal
legal discourse, i.e. a union local' s press conference
about corruption within
the legal process. One of the speakers at the National Assembly for the
syndicat had faced personal prosecution
for violation of judicial reserve. The
silence imposed by political limits on legal talk was a major problem. Hence,
the opening
of discussion marked a shift in patterns and limits of speech and
the rules of silence.
The reason for constructing a collective voice was twofold. It preserved the
anonymity of the individual judge or prosecutor. One
might be compromised in
subsequent legal actions, i.e. trials or juvenile justice hearings. The
collective voice, like the judicial
robe, preserved the ability to separate
different aspects of the role. The collective voice also protected the
individual from persecution,
allowing for fuller freedom in individual speech
in non-judicial settings. The
collective identity of the union enabled a social
right of freedom of speech.
In turn, within the framework of decentralized union democracy, the union
enhanced individual's rights
to express diverse views on political issues. The
distinction between two different public fora, one created by a private
non-profit
work organization and one a governmental institution, structured the
differences in the creation of alternative voices. The double
development of
different patterns of public dialogue transformed the union from a collection
of individuals into a social entity
with a collective identity. It made it
possible to connect union solidarity with the interests of women and
justice. The speaker
said, the
"problem of abortion was of concern to the corps of magistrates" in
three different ways. The three specific
jobs within the union that dealt with
the problem were a) judges in criminal courts, b) members of the prosecution an
d c) juvenile
court judges. Those in the criminal court system "faced the
problem of prosecutions to be pursued and penalties to be imposed."
Judges
in the juvenile court system faced "minors who came to find them to ask what
to do in difficult cases."
As described, the problems of judges in the criminal court system were as old
as the creation of laws to repress abortion in France
(see Fuchs). After establishing a) a collective voice and
b) experiential expertise the statement outlined a three part discussion
process within the union. The first phase was the regional meeting at
Charbonieres, near Paris. The session took place in June of
'73. The second
phase was the poll. The leader stressed union democracy saying "in an
organization like ours, opinions are shared."
Only one person in the
general discussion opposed "liberalization" at that time. At the end of the June and during July
and
August of '73, the third aspect of discussion developed. "Members and
non-members of the union" sent letters to leaders
of professional groups.
The text "implored them to do everything in their power to stop passage of
the law." There was
an implied threat in the letters that judges would not
fulfill their obligations under the new law.
The secretary-general's testimony
responded directly to the
anti-abortion letters. He noted there were many criminal laws which offended
his conscience. However, "it
was the obligation of a magistrate to apply
the law, whether or not it pleased him." His comment inverted the meaning
of the
comparison between doctors and judges in the letter from the local that
highlighted article 162-6 of the proposed law which complained
about "the
absence of a clause of consciences is the most serious lacunae in the
legislation." Whereas some locals suggested
that judges should have the
same choice as doctors in refusing to participate, the leadership decided that
the opposite was true.
The collective voice contradicted individual local
interests.
There was no reference in the general secretary's statement to the union
leaders' knowledge of a) the organization of the letter
writing campaign, b)
the use of coercive practices and hierarchical power to stimulate letter
writing by individual judges or c)
the proposed strategy to use conservative
statements to undermine earlier conservative attacks upon the union in matters
about judicial
reserve. Nor was there any reference to the differences between
the process employed by the union to construct a coll ective voice
and the
process deployed by the opponents of liberalization in the creation of multiple
individual voices. The secretary
general
described to the members of the National Assembly the way the poll was
created and the way that the responses were gathered. He provided
a brief
assessment of the group answers. The
interpretation of the answer was, "Magistrates are currently confronted by
an
intolerable situation ... the contradiction between legislation that no
longer corresponds to either the social consensus or the
directives of the
Chancellery." The reference to
social consensus drew upon a reality expressed since the manifesto of 1971.
The
reference to inconsistent directives from the Chancellery were made famous in
the Grenoble case made famous by the publication
of Choisir (Halimi). The
contradiction of policy and action produced two metaphors in one sentence. The
speaker said, "Magistrates
were caught between a hammer and an anvil that
makes them wear a hat that was uncomfortable."
The union recognized the interplay of direct social action and political
directives; a bottoms-up united mass feminist movement followed
by a top-down
change in public action. The double force of change created a crisis in
institutional legitimacy for magistrates.
The story of union efforts to control the boundaries of responses was
repeated to the National Assembly committee. The deindividualization
of answers
was emphasized. The desire of the union was "to make known the
difficulties of application that might result from
legislation when it does not
correspond to the aspirations of the people who are sovereign. There was a
connection between union
democracy and political democracy. The general secretary concluded his
statement, repeating the union's wish to avoid individual
responses and to have
local meetings respond in a dispassionate debate. He said the presentation to
the committee was subdivided
into three parts with three different questions
and speakers. The first part was "what do you think of present
legislation?"
The second part was "what do are your opinions about
future legislation?" The third part was "What are your reactions
to the
law project presented by the Government?" In all of these questions,
abortion per se was treated as a medical question
and therefore not part of the
statement.
The theme of responses focused upon the capacity of magistrates, in particular
the presidents of the Tribunals of First Instance
and juvenile judges, to
enforce the law. In the assessment of the current law, the testimony stressed
the class bias built into the
enforcement. Noting that there were few
prosecutions (the decision taken by the government following the publication of
the Manifesto
of April 1971), the speaker noted "the most disadvantaged
social classes are touched by repression ... women who do not have
the means to
go overseas to have abortions in sanitary conditions have run the risk of their
physical well-being because of this
penal legislation." For the union,
"legislation that was selective in this manner profoundly affected human a
nd individual
liberty." Thus, they identified two kinds of liberty. They
found that the double violation of freedom was the basis for making
change in
French law. In the testimony on the
best of all possible laws, the speaker stated that there was "a strong
minority
current in the union that favored complete freedom during the first trimester
of pregnancy. The reason for limited freedom to the
first trimester was that
"after the first three months medical difficulties can increase." The
control was defined in terms
of the well-being of a woman. The speaker noted
that those favoring decriminalization felt no need for special criminal law on
abortionists.
It was sufficient to prosecute individuals for practicing
medicine without a license. One speaker
focused on the role of the criminal
court judge. The shift in the pattern of
legalized abortion, as proposed, noted the split within the union. The
interpretation of
the data focused on the "failure of the law to consider
the social and economic position of women, when they made decisions
to secure
abortions." The statement implied that poor women should not be prosecuted
or persecuted for making this decision.
The speaker also stressed that the new
law "did not correspond to the current evolution of French morality and
ethics (moeurs).""
The general disapproval of the criminal statute was noted. The speaker offered
a hypothetical of father-daughter incest where no
legal remedy would be
possible. Problems associated with the differences and interplay between the
law on granting a request for
an abortion and prosecution for sexual violence
(rape and incest) were also stressed. In sum, the criminal component of the
statute
was rejected as flawed and a failure.
The speaker who focused on juvenile justice and abortion began by
stating that the language
of the law was ambiguous. The key issue stressed the
interplay between family law (revised and passed on June 4, 1970) and the
proposed
abortion law. He restated the procedural requirements of parental
notification of "juveniles in danger" cited in reports
received from
the locals. He also noted "the danger when a pregnant teenager feared violent
reaction from her parents."
In concluding the testimony, the speaker
recounted his experience after eighteen years in practice. He had never
encountered a teenager
who wanted an abortion and a parent who refused. His
professional life, in France, was one in which teenagers sought protection from
parents who forced daughters to have abortions.
Following these presentations the union recapped its position. They said that
they would only speak to the capacities of the courts.
They would not speak in
ways to substitute themselves for legislators as political decision-makers.
They were thanked for their work
and then there was a political-legal
dialogue. Representative Neuwirth,
author of the law legalizing contraception asked the first
question. He wanted to
know "if they thought it was desirable to create a law of strict
interpretation or one which allowed
for discretion by the magistrate?" He
expressed concern about the power of "a solitary doctor to force the
intervention
of a juvenile judge" and asked for their opinion.
The first union response to Neuwirth said the proposed law created a
"strict enforcement" model for the criminal court
judge. The
respondent said in his reading of the law it was suggested that "the
sequel to an act of violence would disturb the
men tal and physical health of
the women." The union respondent spoke against strict enforcement and
loose enforcement. In place
of the two possibilities suggested by Neuwrith, he
called for delegalization, saying "one could easily dispense with the
intervention
of the criminal court judge." In this view the legal process
compounded and exacerbated a woman's medical and psychological
problems. A second union speaker noted that
discretion was really put into the hands of the doctor. "If he thought the
woman
was in distress, then he could immediately call upon a second
physician." The third union speaker noted that the role of the
crimina l
court judge as a "referee" was opposed by the majority of the union's
membership.
The most difficult problem for criminal justice was who to believe in cases
where there was opposing testimony. These were cases
where the problem of
discretion of choice truly surfaced. After noting that it was almost impossible
to separate out th e truth,
the speaker said, "In the majority of cases
one takes the woman at her word."
In those cases where the judge came into
the process as a result of the
request of a physician, the union speaker argued there was really no
discretion. Since he was being
asked to act in relation to "a medical
act" the judge could only "conform to the medical advice." This
judge
did not trust French doctors. He warned that a requirement to consult a
second doctor would restore judicial discretion. This would
prevent
anti-abortion physicians from preventing a woman to exercise choice.
The provisions of the law as interpreted in relation to the juvenile justice
system indicated a loss of discretion for the juvenile
court judge. "He
can only follow advice, he is there to confirm an act which he has no possibility
of developing a de eper appreciation."
In the course of the exchanges between legislators and magistrates, the
situation in French courts was described as "anarchy."
Directives
from the chancellery demanding consultation before prosecution were ignored in
some jurisdictions and carried out in others.
In some locations women were
prosecuted while in others (Paris) ministerial directives to stop were ignored.
In some cases judges
inflicted the most severe penalties while in other cases,
the "jurisprudence of Bobigny" (acquittal based upon application
of a
previously ignored clause in criminal law in a new way) prevailed. They hoped
that passage of the law would create a softer
and immediately legal strategy of
action.
The issue which finally surfaced through dialogues was the problem of a)
separation of powers and b) a government of judges. The
union speaker argued
that "one should distrust a judge and his decision-making power because it
inevitably leads to a government
of judges." When one asks a judge to
intervene, "it should only be in cases where procedural rules do not allow
him to
exercise his passions or personal convictions." This perspective on
state and court power carried the mark of Michel Foucault's
critique of state
power. In subsequent training sessions conducted for the union by Foucault at
Goutelas (1973 and 1977)(a retreat
near Lyon used by progressive groups), the
issue of state power and civil liberties would be discussed in terms of capital
punishment.
The law, as proposed in
1973, according to the union, in the specific attributes of power to criminal
court and juvenile court judges.
It did not offer the necessary safeguards
against the abuse of judicial power. For this reason, "the majority of
members of
the union were opposed." They hoped for "a procedure that
would protect the freedom of citizens."
REFLECTION OF THE UNION EXECUTIVE
The report of the union executive in 1974 gave a recap of union activities and
development for the two year period. The text included
the position taken on
abortion. It was placed in a sub-text on liberties. The item was part of the
section titled "classical
freedoms". The preface read, 1.1.1
"The first liberty is the integrity of the human person - physical and
moral and we
have confronted this year in situations in Chile and Greece as
well as in the problem of wiretapped telephones at the Canard Enchaine.
"In a very different register that touches intimately on the human person,
the problem of abortion posed itself and stirred
the union as it did all public
opinion."
In a separate paragraph, the bi-annual report stated, "Abortion was the
moment for a broad search by the union as a whole. They
retold the story of
being invited by the Mixed Commission on Social Affairs and Laws of the Senate
to give their views. They told
of the requests by numerous union members and
non members to take a position against the project. They said "we
proceeded to
have a large discussion by the locals and we shared the results
with the Parlement, finding the maladjustment of legisl ation in
force. At no
time did they explain or defend the decision-making process and the call for
the clear abatement of repression. Yet
they stated their goal was to see
"the complete disappearance of repression of women who secure abortions."
They reported to the membership about the publicity they received. These
positions were carried to the public through the publication
of the Parlements
documents. The context and larger reading of the union given to the position
taken is outlined in the conclusions
of the section on liberties and reads as
follows: "The path followed by
the SM might seem rash to some, it is not taken to
be pretended or provocative.
It follows the difficult line that allows us to give a concrete content to the
frequently abstract positions
that we take, to verify on the principle of the
real the commitments that we proclaimed at our congress. This would not be
sufficient
if, at the same time, these actions did not also correspond to the
conception that we made for ourselves of the role of justice and
of
magistrates. To prevent inequalities before the law and, additionally to make
the judicial space the place where expression is
possible and where
jusiticiables, whoever they may be have rights to citizenship - this is the conception
of the union.
CONCLUSIONS
In December of 1973, after months of hearings by the special commission on
cultural, social and familial affairs, the National Assembly
rejected the
proposal of June 1973. In its place they proposed a series of laws to dissuade
abortion (Regards: 1974,22). On 13 December,
the matter went back to the
commission for further study. The final product was a law adopted by the
Council of Ministers on 13 november
1974 and approved by the National Assembly,
284 votes to 189 votes on 29 november 19 74. The text that went into effect was
know
as the Loi Weill (see Appendix).
Under the new law, "... the freedom to have an abortion was, at least
partially, acquired." In 1981 the provisions of the
law were extended so
that all French women had access to abortion (See Appendix B). The Socialist
Government of Francois Mitterand
funded abortions in a way that carried out the
1973 student agenda of equal treatment under the law. French legal culture, produced
in part by the men and women of
the syndicat de la magistrature, helped make abortion an individual choice and
a social right. The
unity of the revolutionary, syndicalist, and egalitarian
French feminists on this issue was central to the outcome of debate. In
part
the syndicalist-feminist construction of the French labor union of judges, made
this unity a possibility.
The French resolution of the abortion question is different from and opposed to
the privatized and privileged construction of choice.
It runs against the recent
Supreme Court decisions in the United States of America. The French legal
debate changed and challenged
the division between the juridical and political
culture in modern French history. For the first time since the creation of a
group
voice among magistrates, the debate brought judges into the process of
policy formation.
The juridico-political construction of a social right provided the context for
the development of clarified rules for the health
care system and physicians.
French abortion law became part of a holistic politics which did not treat
abortion in isolation from
larger social realities (see Appendix B). The revised statute ended the repression of
women. After 1981, economic class was reduced
as a factor in a woman's
reproductive choices. The educational component of the right to decide
stimulated the development of pregnancy
tests. This in turn, made first
trimester termination of pregnancy a real possibility. The dissemination of
knowledge set the stage
for the search for an abortifacient that would simplify
first trimester reproductive choices. The new technology of the later 1980's,
RU-486, emerged from the transformed social relations shaped by the legal
culture.
In their assessment of factors that circumscribe individual reproductive
choices, Cohen and Taub (6:1990) argue that the overarching
framework is gender
relations. Within the context of power relations among and between women and
men, they identify several specific
factors that shape the social relations
that define choice: "Socio-economic circumstances, the health care
delivery system,
the legal culture, racial bias and attitudes toward the
disabled." Taub and Cohen argue "new technologies have e merged
out
of old social relations, and often play on old notions about a women's
place." (Cohen and Taub, 6) This paper demonstrates
the ways in which a
legal culture through debate and the creation of a collective voice helped
construct the technological and market
possibilities for safe and effective
abortion.
APPENDIX A
SYNDICAT DE LA MAGISTRATURE QUESTIONNAIRE ON LAW PROJECT OF 1973 HANDWRITTEN RESPONSES IN MARGINS
Copies of the tabulated results were sent to the Senate of 8 March 1974 with a
cover letter from the Vice-President as well as a
"note summarizing the
union's position."
I. The National Assembly wishes to consult the SM on the law project relative
to the voluntary interruption of pregnancy. Do you
think that the SM should
follow up on this request?
For ......................YES
(UNANIMITY)
Against ..................
Abstentions ..............
II. Current legislation runs against problems of application that have lead the
Chancellery to send a circular that tends to reduce
its field of application.
1. Do you think that current legislation
might be adapted to social, cultural or economic realities? (illegal abortions,
abortions
by class, criminal prosecutions)
For ......................
Against ..................unanimity
Abstentions ..............
2. Should this legislation be
changed?
For ......................YES
(UNANIMITY)
Against ..................
Abstentions .............. III. State intervention
1. Should the state intervene in the
domain of abortion?
For ......................176
Against .................. 7
Abstentions .............. 5
2. in order to decriminalize and
assure medical and social responsibility
decriminalize|take responsibility
| 14 | 38 For .............83 | 22 |
1 Against .........34 | 7
| 4
Abstentions .....18
3. To limit the cases in which
abortion is legal?
For ......................92
Against ..................75
Abstentions ..............28
IV. The Proposed Law
1. The cases in which abortion is
legal are
Too limited ..............75
Insufficiently limited ...20
Satisfactory .............74
Abstentions ..............12
2. Do you think that the intervention
of the President of the Tribunal of Grande Instance is
Expedient .....55
Inexpedient ...35
Abstentions ...27
in the second case, who should make the decision?
(Handwritten note, Few responses: recorded in rank order, the woman (6), the
doctor or a medical commission (2), An elected commission
from the court ...)
3. Do you think that the intervention
of a juvenile court judge is
Expedient ....108
Inexpedient ...48
Abstentions ...27
in the negative, who should make the
decision?
The minor .....15
The parents ....4
The doctor .....1
Another ........1 (Handwritten: a
commission of the court)
4. The repression of abortionists,
does it seem
Expedient ....137
Inexpedient ...34
Sufficient .....33
Insufficient ....5
(Handwritten) Excessive ...3
5. The repression concerning those
who have abortions, does it seem,
Expedient ......43
Inexpedient ...127
(Handwritten) Abstentions ...1
Sufficient ....23
Insufficient ...8
Abstentions ....2
V. Complimentary Observations:
APPENDIX B
Loi Weill
Law Number 75-17 of January 17, 1975 relative to the voluntary interruption of
pregnancy
Title I
Article 1 - The law guarantees respect for all humans from the beginning of
life. It does not bring not attack this principle except
in case of necessity
and according to conditions defined by the present law.
Article 2 - For a period of five years, beginning with the promulgation of this
law, the applications of the first four provisions
of article 317 of the penal
code is suspended when the voluntary interruption of pregnancy takes place
before the tenth week by a
physician in a public or private hospital that
fulfills the conditions of article L. 176 of the Public Health Code .
Title II
Changed the Public Health Code in the following ways:
Article L 162-1 A pregnant woman who is in a situation of distress can ask a
doctor to terminate her pregnancy. This interruption
can only take place before
the end of the tenth week of pregnancy.
Article L 162-2 Only a doctor can perform a voluntary termination of pregnancy.
It can only take place in a public hospital of in
a private medical facility
that fulfills the requirements of article L 176.
APPENDIX C
The following interchange was published in 1983 by the French Ministry of the
Rights of Women. It explains, in simple and clear terms,
the legal problems and
issues, questions and answers about abortion in France.
Questions and Answers - 1983
Q. Can you learn quickly if you are pregnant?
A. Yes, all you have to do is buy a pregnancy test at a pharmacy. You can do
the test yourself. It is easy to use if you follow the
directions. Some of
these tests work within two days of a delay in your cycle. If you think you are
pregnant and don't want to be,
these tests will give you time. The test can
also be done by a laboratory; if you have a prescription, social security will
reimburse
you.
Q. Can you ask for a voluntary interruption of pregnancy?
A. Yes, since January of 1975.
Q. What is an IVG?
A. It is the legal way of saying abortion. (the French term was
"interruption volontaire de grossesse" and like much of
French life,
an acronym, IVG, became the most frequently used term. Acronyms in France, in
some ways, parallel the construction of
new vocabulary in English and provide a
way to synthesize, transform and create new meaning (see Baudrillard, The
Political Economy
of the Sign).
Q. Can you interrupt your pregnancy at any time?
A. You cannot do it after the 10th week (in French legislation) without it
being a matter of your health. Therefore, take steps as
soon as possible.
Q. Who makes the decision to interrupt a pregnancy?
A. You alone are responsible for your decision but you must take certain steps
and follow legal formalities.
Q. Can you interrupt a pregnancy if you are a minor?
A. Yes, but you must follow normal procedure; you must have permission from one
of your parents, your guardian or a juge d'enfant.
In addition, your written
consent must be given in front of the parent or guardian (Reflects the story
from Aix).
Q. Can you interrupt a pregnancy if you
are a foreigner?
A. Yes, on condition that you have been in France three months before the IVG.
Therefore, you must have proof of being in France.
Women who are refugees, on
the other hand, do not have to provide proof. For them, there is no residency
requirement.
Q. What steps must you take if you want an IVG?
A. 1. Go to a doctor (at his office, a hospital or a family planning center.
After this first visit, the doctor
must:
a) confirm your pregnancy; If there is
a doubt, ask him for a prescription for a lab test. b) inform you about your
medical risks.
c) give you a medical certificate attesting to the fact that you
are pregnant and a guidebook.
If he does not perform abortions, he
must tell you on the first visit. This visit is paid for by national health
insurance.
2. Go to a family planning center, a
source of information, a social service agency or an approved group (listed in
your guidebook)
and have a talk with the family counselor or social worker who
will attest to the consultation and give you a list of places where
you can go
to secure an abortion.
The decision to interrupt the pregnancy
belongs to you and the consultation cannot be used to put any pressure upon
you.
3. Confirm, in writing, to the doctor,
that you want to interrupt the pregnancy.
4. After these steps, you can go to a
hospital or a clinic to have an IVG.
Q. Can anyone perform an IVG?
A. No, not anybody can perform this procedure. It could be dangerous to go to
an abortionist (faiseuses d'anges - angel maker). Only
a skilled physician is
trained to do this procedure.
Q. Can a doctor refuse to perform an IVG?
A. Yes, the doctor always has the right to refuse to practice abortions (That
is his right). He must also inform you, give you a
certificate attesting to
your pregnancy and a guide with a list of addresses where you can take the next
steps.
Q. What happens when you have the consultation with the social worker? (A conversation
required for an IVG).
A. You will meet either a family counselor or a social worker who will listen
to you and, thus, be able to help you reach your decision.
She can, if you
want, give you information about IVG and, eventually, about contraceptive
methods (ways to chose the time when you
want a child). Q. How much does the
consultation cost?
A. Nothing, the law provides for you to be better informed, it is free.
Q. Are there delays to be aware of?
A. Yes. Don't forget that after the 10th week you cannot ask for an IVG. Don't
lose time. Act quickly once you have decided.
Q. Can a hospital turn you away because you are not local?
A. No. One cannot give this as a reason if you ask for an intervention.
Q. How much does it cost?
A. The Mean costs (1982) were 1,279f (ca $175). 256 MD 153
anesthesia 360 twelve hour hospital
stay 570 twenty-four hour hospital
stay 150 an extra day in the hospital
Q. Will social security reimburse you?
A. This will be possible in 1983. Keep a record of you application date. ...
Some insurance companies will reimburse you. In any
case, medical assistance is
given by the DDASS if you are not insured by social insurance and you do not
have sufficient resources.
Q. What is a therapeutic abortion?
A. It is an interruption of pregnancy that can be performed at any time if two
expert doctors find that continuation of the pregnancy
endangers your health or
if they determine that the child to be born has a profound malformation.
Q. How do you place a child for adoption?
A. If you make the decision before your birth, you must have an anonymous
identity throughout the pregnancy. The child will have
no relationship
(filiation) to you.
If you decide after the birth, you must
go to DDASS to sign and "act of surrender." You can ask that this be
kept out of
your civil records.
In both cases, the child will be
adopted into a family very quickly. In both cases, you have a three month
period in which you can
change your mind.
SOURCES
I. Archives of the Syndicat de la
Magistrature Text prepared by Senator
Henriet on Gaullist project Minutes of
Meetings of the
Union Executive Board
Union Poll on abortion rights (Nicole Obrego) Group and Individual Responses to Union Poll (letters)
Letters from non-union judges opposed to
abortion Association National pour
l'Etude de l'Avortement a) Pamphlets
in union files
b) Poll of French
physicians c) Report on European
Law L'Auditeur, Numero 6 (September
1973) Stenciled Newsletter of union
local of students at judge school
(cartoons and text) Reprint of
testimony of union leaders at the National
Assembly Annual
Report of union
executive (1974) with detail on
abortion rights and union perspective on civil liberties Justice
'74, Numero
30 (May 1974) Journal of the
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