JUDGES' VOICES IN THE FRENCH ABORTION DEBATE OF THE 1970s

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    Syndicat de la Magistrature (Report on Abortion Stand)   Selected Related Works

ANON. (1974) Regards sur l'actualite, Numero 6 (French Government Publication) (Paris).

BADINTER, Elisabeth (1989) (translated by B. WRIGHT) Man/Woman: The One is The Other (London).

BAIR, Deirdre (1990) Simone de Beauvoir (New York).

BLAYO, Chantal (1979) "Les interruptions volontaires de grossesse en France en 1976," Population, 34 (2) March-April 1979.

BLAYO, Chantal (1985) "L'avortement legal en France (1976-1983)," Population et Societes, Numero 187 (January 1985).

BOURDIEU, Pierre (1990) "La Domination masculine," Actes de la recherches en sciences sociales 84 (Paris).

BOURGEOIS-PICHAT, Jean (1974) "La politique demographique en France," Population Policy in Developed Countries (New York, McGraw Hill).

CALOT, Gerard (1979) "A propose de la liberalisation de l'avortement," Population et Societes, Numero 130 (December 1979).

COHEN, Sherrill and TAUB, Nadine (1989) Reproductive Laws for the 1990s (Clifton, NJ, Rutgers University Press).

CONDIT, Celeste Michelle (1990) Decoding Abortion Rhetoric (Chicago, University of Illinois).

DARDIGNA, Anne-Marie (1974) Femmes-femmes sur papier glace (Paris, Maspero).

DELPHY, Christine (1984) Close to Home: A Materialist Analysis of Women's Oppression (Amherst).

DEROGY, Jacques (1956) Des enfants malgre nous (Paris, Minuit)

DEZALAY, Yves (1976), in D. LEONARD BAKER and S. ALLEN (eds.) Sexual Divisions and Society (London).

DUCHEN, C. (1983) "French Feminism since 1968: A study in politics and culture," (PhD Thesis, New York University).

DUCHEN, C. (1987) French Connections: Voices from the Women's Movement in France (Amherst).

GLENDON, Mary Ann (1987) Abortion and Divorce in Western Law (Cambridge, MA)

HAAN, Willem de; SILVIS, Joseph; and THOMAS, Philip A. (1989) "Radical French Judges: Syndicat de la Magistrature," Journal of Law and Society, 16.

HUSS, Marie-Monique (1990) "Pronatalism in the Inter-War Period in France," Journal of Contemporary History 25. p 39-68.

ISAMBERT, Francois and Paul LADRIERE (1979) Contraception et Avortement: Dix Ands de Debat dans la Presse - 1965-1974 (Paris, CNRS).

JENSON, Jane (1990) "Representations of Difference: The Varieties of French Feminism," New Left Review (London).

LAGRAVE, Rose-Marie (1990) "Recherches feministes ou recherches sur les femmes?," Actes de la recherche en sciences sociales 84 (Paris).

LERIDON, Henri et. al (1987) La Second Revolution Contraceptive (Paris: Presses Universitaires de France).

MACKINNON, Catherine (1983) "The Male Ideology of Privacy: A Feminist Perspective on the Right to Abortion," Radical America 18. p. 23-35.

MINISTERE DES DROITES DE LA FEMME, (1983) Guide des droits des femmes. (Paris).

MINIST RE DES DROITS DE LA FEMME, (1983) L'Egalite professionnelle entre les femmes et les hommes (Law of 13 July 1983).

MOUVEMENT DE LIBERATION DES FEMMES (1970-1973) Le Torchon Brule.

MOUVEMENT FRANCAIS POUR LE PLANNING FAMILIAL (1978) Les interruptions de la grossesses. Colloque international (Paris, Tierce).

MOUVEMENT FRANCAIS POUR LE PLANNING FAMILIAL (1982) D'une revolte a une lutte, 25 ans d'histoire du planning familial (Paris, MFPF).

PETCHESKY, Rosalind (1990) Abortion and Woman's Choice: The State, Sexuality and Reproductive Freedom (revised edition) (Boston, Northeastern University Press).

PETCHESKY, Rosalind (1983) "Abortion as 'Violence Against Women': A Feminist Critique," Radical America 18. p. 64-70.

PISAN, A. de and A. TRISTAN (1977) Histoires du M.L.F. (Paris, Calman-Levy).

SIMONE, Pierre (1979) De la vie avant toute chose (Paris, Mazarine).

SOTOUL, Jean-Henri (1977) Consequence d'une loi. Avortement, An II (Paris. Table ronde).

WATSON, Cecily (1952) "Birth Control and Abortion in France since 1939," Population Studies V (3) March 1952.