Currently pending before the Supreme Court is a case arising out of - where else? - Texas, challenging that state’s draconian 2013 laws restricting access to abortion. The case is called Whole Women’s Health v. Cole, and it presents the greatest threat to the ongoing viability of the right to abortion since the Casey decision in 1992.
In Casey, three justices stitched together a plurality opinion that, quite literally, saved Roe v. Wade from being overturned. Of those three justices, only one - yes, attention hog Anthony Kennedy, again - remains on the Court.
To put it politely, Kennedy has not been a friend to the right to have an abortion in the 23 years since Casey. In particular, he authored the majority opinion in Gonzales v. Carhart, a 2007 decision upholding a federal ban on partial birth abortion that was indistinguishable from a Nebraska law that the Court struck down just seven years before in Stenberg v. Carhart. In Gonzales, Kennedy took what could most politely be called a paternalistic attitude towards women who have experienced an abortion. Dalia Lithwick of Slate let Kennedy have it right between the eyes:
The key to comprehending the Supreme Court’s ruling today in Gonzales v. Carhart upholding the federal partial-birth abortion ban is a mastery not of constitutional law but of a literary type. Justice Anthony Kennedy’s majority opinion is less about the scope of abortion regulation than an announcement of an astonishing new test: Hereinafter, on the morally and legally thorny question of abortion, the proposed rule should be weighed against the gauzy sensitivities of that iconic literary creature: the Inconstant Female.
Kennedy invokes The Woman Who Changed Her Mind not once, but twice today. His opinion is a love song to all women who regret their abortions after the fact, and it is in the service of these women that he justifies upholding the ban. Today’s holding is a strange reworking of Taming of the Shrew, with Kennedy playing an all-knowing Baptista to a nation of fickle Biancas.
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And then Kennedy quickly returns to the business of grossing us out. With a stirring haiku about how “respect for human life finds an ultimate expression in the bond of love the mother has for her child,” the justice interpolates himself between every one of those mothers and every child she might ever bear. Without regard for the women who feel they made the right decision in terminating a pregnancy, he frets for those who changed their minds. (“It seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”) (The “infant,” not the “fetus.”) As both the dissenters and my colleague Emily Bazelon have pointed out, this portrayal of a rampant epidemic of regretful women may or may not be scientifically accurate. (The American Psychological Association doesn’t think so.) But even if the numbers of women who would truly choose differently if they could choose again are larger than most of the medical literature indicates, one might question whether such women should be the pole star of national abortion policy.
Nobody disputes that whether or not they decide to go through with an abortion, women face a heart-wrenching choice. But for Kennedy only those women who regret the decision to abort illuminate some deeper truth. And Kennedy’s solution for these flip-flopping women is elegant. Protect them from the truth. “Any number of patients facing imminent surgical procedures would prefer not to hear all details,” he concedes. “It is, however, precisely this lack of information concerning the way the fetus will be killed that is of legitimate concern to the state.” In Kennedy’s view, if pregnant women only knew how abhorrent the procedure was, they’d always opt to avoid it. But as Justice Ruth Bader Ginsburg points out in dissent, Kennedy doesn’t propose giving women more information about partial-birth abortion procedures. He says it’s up to the Congress and the courts to substitute their judgment and ban the procedures altogether. (“I’m sorry Bianca, there is a procedure out there that may be safer for you, but some day, you will thank me for sparing you from it.”)
Then Kennedy sorrowfully returns to the Indecisive Women. “It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound, when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast developing brain of her unborn child, a child assuming the human form.”
While particularly infuriating in the context of that case, Kennedy’s analysis is characteristic of his jurisprudence. He sees himself as a protector. It’s what led him to many of the decisions that are hailed as pathbreaking on LGBT rights. But with women, he clearly has more than a little of the “ick, girl cooties!” about him.
All of this is a long winded way of getting to a remarkable brief that was filed on Monday with the Court by a group of 113 women in the legal field who have themselves had abortions. Here’s how they describe their interest:
Amici are lawyers who have obtained abortions and who have participated in a wide variety of different aspects of the legal profession, including at private law firms, corporations, multinational governmental organizations, nonprofit organizations, and law schools.
Amici care deeply about the reproductive rights this Court has recognized—in Roe v. Wade, 410 U.S. 113 (1973), Planned Parenthood v. Casey, 505 U.S. 833 (1992), and elsewhere—as constitutional entitlements. And Amici believe that, like themselves, the next generation of lawyers should have the ability to control their reproductive lives and thus the opportunity to fully participate in the “economic and social life of the Nation,” as promised in Casey. 505 U.S. at 856.
Amici obtained their abortions at different ages and life stages, under a variety of circumstances, and for a range of reasons both medical and personal, but they are united in their strongly-held belief that they would not have been able to achieve the personal or professional successes they have achieved were it not for their ability to obtain safe and legal abortions. They are 113 individual women but they represent many more of the past, present, and future members of the profession who have, like one in three American women, terminated a pregnancy in their lifetimes. Guttmacher Institute, Fact Sheet: Induced Abortion
in the United States (July 2014), http://www.guttmacher.org/pubs/ fb_induced_abortion.html (last visited Jan. 3, 2016).
The testimonials in the body of the brief are heartfelt and real. They’re not about esoteric legal concepts - they recount real world decisions with enormous personal consequences. For the individual women, they were life-changing. For our society as a whole, multiplying these individual stories out a million or ten million times over, they’ve been transformational. You want to know what will happen if the right to an abortion is abandoned? Read the brief.
I’ve reproduced below the “Summary of Argument” section of the amicus brief. It’s targeted at Anthony Kennedy, who wrote the “ability of women to participate equally in the economic and social life of the Nation” language. He’s enough of an elitist that stories from his own profession will appeal to him. And he loves being called on to rescue people in need. But as screwed up as he is, he may be the only hope for the survival of Roe and Casey.
“To the world, I am an attorney who had an abortion, and, to myself, I am an attorney because I had an abortion.”
Email received from an Amicus, an appellate court attorney, December 18, 2015.
In reaffirming a woman’s right to safe and legal abortion access in Casey, this Court observed that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” 505 U.S. at 856. The statutory provisions at issue in this case would dramatically restrict women’s ability to exercise their right to safe and legal abortions—and thus their ability to participate equally in the life of the nation—not only in Texas, but in any other state that has or will adopt similar laws. The right to terminate a pregnancy, to autonomy in decision-making and bodily integrity, should be a right in fact and not just in theory.
This brief is intended to inform the Court of the impact of the right this Court has recognized in Roe, Casey, and elsewhere on the lives of women attorneys, and, by extension, on this nation. As this Court held in Casey, a woman’s right to terminate a pregnancy necessarily follows from her “dignity and autonomy,” which are “central to the liberty protected by the Fourteenth Amendment.” Casey, 505 U.S. at 851.
Amici live and practice across the country, including in Texas, and hail from diverse backgrounds. Amici are partners, counsel, and associates at private law firms; they are government attorneys, a former state legislator, and public defenders; they are members of legal service organizations and law school professors; they are counsel to corporations, universities, and foundations; and they include several attorneys who have argued before this Court or authored briefs submitted to it. Many Amici are former federal and state judicial clerks, and two Amici were judges themselves. Amici have achieved considerable professional success; among them are a MacArthur Fellow, published authors, former editors-in-chief of leading law journals, and former academic deans. Many are mothers, and some are grandmothers.
For all Amici, meaningful access to reproductive choice allowed them to become, remain, or thrive as lawyers.
Amici write respectfully to urge the Court to overturn the Fifth Circuit’s decision at issue here. That decision, if affirmed, would have the very real effect of preventing numerous women, including many current and future attorneys, from effectively planning their family and professional lives. The legacy of this Court’s decisions, in Roe, Casey, and others—specifically, women’s full participation in economic and social life—has enriched not just individuals like Amici, but this esteemed profession, and our nation itself.
Short version: either women get to participate fully in their own lives, and in the affairs of our country, or they don’t, and they’re second class citizens. We’ll find out where Justice Kennedy stands on the issue in a few months.