In March, the Supreme Court will hear arguments in the June Medical Services v. Gee case. At issue is a Louisiana law that requires any doctor performing an abortion to have admitting privileges at a state-approved hospital within 30 miles of the clinic. While not a direct challenge to the constitutionality of Roe v. Wade, if it is upheld, it will mean the end of women’s reproductive freedom across the country.
Just three years ago the Supreme Court ruled on a case based on an identical law in Texas, Whole Woman’s Health v. Hellersted, striking down the law which had “few, if any health benefits for women” while being “a substantial obstacle to women” in exercising a constitutional right. The only thing that has changed since then is the make-up of the Supreme Court. Following the death of Justice Scalia, Justice Kennedy—who has since retired—voted with Breyer, Ginsberg, Sotomayor, and Kagan to strike down the Texas law.
Linda Greenhouse reviewed some of the legal issues that are being used and abused in the current case. But it is important to be clear: the requirements in the Louisiana law have nothing to do with protecting women’s health. According to the American College of Obstetricians and Gynecologists and the American Medical Association, legal abortion is one of the safest medical procedures performed in the United States. An email from a proponent of the Texas law that was entered into evidence makes the goal very clear. It claimed that the law was having “tremendous success in closing abortion clinics and restricting abortion access in Texas.”
What is at stake is the issue the Supreme Court settled in Planned Parenthood v. Casey. The 1992 case upheld Roe v. Wade, but gave legislatures the ability to regulate the procedure. A regulation is unconstitutional if it constitutes an “undue burden” on a woman’s right to choose to obtain an abortion. If that requirement is removed, states will be able to implement restrictions that make the procedure basically unavailable to women.
There isn’t much doubt about where the nine Supreme Court justices stand on the upcoming case. Three years ago, Justices Roberts, Thomas, and Scalia all voted to uphold the Texas law. The two new Justices—Gorsuch and Kavanaugh—would have allowed the lower court’s decision to uphold the Louisiana law go into effect.
The upshot of all of this is that the situation looks pretty hopeless for maintaining women’s reproductive freedom in this country. But that hasn’t stopped several hundred courageous women from taking action. They filed an amicus brief in support of overturning the Louisiana law.
The 368 signers — now partners at top-10 law firms, counsel to Fortune 100 companies, public defenders, prosecutors, retired judges, award-winning professors and current law students — “speak for many more of the past, present, and future members of the legal profession who have, like one in four American women, terminated a pregnancy in their lifetimes,” the filing stated.
Having exercised what they say is their right to a safe and legal abortion, for varied personal and medical reasons, the women said they were compelled to tell the nation’s highest court the role it played in their life trajectories.
Take a look at some of the stories they told.
“Becoming a first-generation professional would have been impossible without access to safe and legal abortion services,” one signer wrote. “The ability to make my own choice, to even have a choice, gave me control over my life when I felt like I was utterly powerless.”
A woman who was accepted to Harvard Law School shortly after her abortion said in the brief: “A doctor’s appointment years ago is not the most important part of who I am, but it has allowed my life to be everything that it is today.”
Another described her 31-year-old mother’s death in 1959, after she attempted to perform her own abortion.
“My mother used a knitting needle and was dead of sepsis within 24 hours,” she wrote in an email included in Monday’s filing. “More than loss of career or marriage, or disability, she lost her life. And she was just one of thousands of girls and women who died in that terrible, wasteful way.”…
“I feel the need to speak out to protect the rights of every other woman who deserves access to this care. I am a licensed attorney ONLY because I had access to a safe abortion,” one signer wrote, noting that participating in the brief would likely end her relationship with her mother. “I cannot stay silent anymore.”
For these women, the personal nature of their stories is the point (emphasis mine).
Many of the brief’s signers are women with whom the Supreme Court justices went to law school, clerked alongside and employed as clerks. Some are the female attorneys who stand up and argue before them.
Claudia Hammerman, the lead lawyer and a litigation partner with Paul, Weiss, Rifkind, Wharton & Garrison, said they wrote the filing with the five male justices tasked with deciding the upcoming case in mind.
“We wanted the stories to help them understand that many women joining a profession — whose rigors and demands they comprehend — are largely dependent on their ability to control their reproductive lives,” she said. “When people who you otherwise believe make good, cogent and sensible decisions had an abortion, say an abortion had a profoundly positive impact on their lives and their ability to direct the course of their lives, it becomes harder to demonize the choice.”
Leaving aside the desire to handicap whether this effort will be successful, what struck me is the insight it offers all of us about something feminists have been saying for a long time: the personal is the political.
In an era when most of us have given up on the idea of stopping the demonization that has so dominated our politics lately, these women are tapping into the one thing that could still hold out potential. I am reminded of the mother whose note to her son led to final passage of the 19th Amendment. The Tennessee house was deadlocked on the issue when this happened.
Harry Burn—who until that time had fallen squarely in the anti-suffrage camp—received a note from his mother, Phoebe Ensminger Burn, known to her family and friends as Miss Febb. In it, she had written, “Hurrah, and vote for suffrage! Don’t keep them in doubt. I notice some of the speeches against. They were bitter. I have been watching to see how you stood, but have not noticed anything yet.” She ended the missive with a rousing endorsement of the great suffragist leader Carrie Chapman Catt, imploring her son to “be a good boy and help Mrs. Catt put the ‘rat’ in ratification.”
The rest, as they say, is history.
Harvey Milk employed a similar strategy when it came to fighting for gay rights. Here is Sean Penn playing Milk in the movie about his short life.
Milk was convinced that when gay and lesbian people came out of the closet to their families, friends, and coworkers, it would become much more difficult to demonize them. He was right.
The one thing that could be standing in the way of an end to women’s reproductive freedom in the coming months are the personal stories that these hundreds of women told so courageously. I not only salute them. I am inspired by them.