Hell Hath No Fury like an Entire Female Population Scorned

Andrea Lynch

The Supreme Court has effectively unfurled the judicial equivalent of a banner reading "Bring it on, Roe haters!" by upholding the Partial-Birth Abortion Ban Act of 2003; we can expect even more state-level restrictions in the months and years to come. Meanwhile, Nicaragua women are suffering from that country's total abortion ban—36 women have died from pregnancy- and childbirth-related causes so far in 2007.

Well, it's been a royally depressing few days for reproductive rights. Last Wednesday, the U.S. Supreme Court overturned the previous decisions of six federal courts—not to mention its own precedent—when it declared that the Partial-Birth Abortion Ban Act of 2003 (yeah, this act) didn't violate women's constitutional right to safe abortion and didn't endanger women's health. Why? Because Congress and President Bush say so, and who cares what doctors think and what the legislation actually says?

Say what you will, but I think it's pretty unbelievable that Antonin Scalia, Clarence Thomas, Samuel Alito, John Roberts, and Anthony Kennedy (notice any similarities?) have enough power between the five of them to definitively decide what's best for me and the rest of America's entire female population. There may have been a number of issues at play in this case, but fundamentally, last Wednesday's decision was about one thing: the make-up of the Court, and how that's changed since it found an essentially identical law unconstitutional back in 2000. "Differently composed" is how Justice Ginsburg diplomatically put it in her righteous dissent (scroll down). "Five justices short of justice sandwich" is a little closer to the mark, if you ask me.

Meanwhile, as usual, all kinds of anti-abortion nonsense continued to happen at the state level, like for example the North Dakota legislature voting on Monday to make abortion a felony, provided the law isn't found unconstitutional. The trend is clear. According to the New York Times, we can expect even more state-level restrictions in the months and years to come—and no wonder, considering the Supreme Court has effectively unfurled the judicial equivalent of a banner reading "Bring it on, Roe haters!".

Meanwhile, in Nicaragua, 36 women have died from pregnancy- and childbirth-related causes so far in 2007—a situation that has certainly not been helped by last year's ban on therapeutic abortion, which makes the procedure illegal even if a woman's life is in danger. There are 25 petitions challenging the law currently before Nicaragua's Supreme Court, but last week, Nicaraguan President Daniel Ortega (a long-time equivocator on the abortion issue who threw his support behind the ban last year in a political calculation worthy of Mitt Romney) and Nicaraguan National Assembly President Santos René Núñez strongly confirmed their support for the ban via official reports submitted to the Supreme Court. The reports focused on the inviolability of the right to life, ignoring the fact that several women have already died since the ban became the law of the land, and that 19 Nicaraguan medical associations and countless women's organizations oppose it on the basis that it puts women's lives at grave risk.

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Days after Ortega and Núñez submitted their reports, long-time Nicaraguan anti-abortion crusader Cardinal Miguel Obando y Bravo was back to calling abortion to save a woman's life a "moral crime." In an interview with the Latin American Catholic newswire ACI Prensa, he explained (translation mine):

The legalization of abortion only feeds the abortionist mentality. In countries where abortion has been legalized, it's been recognized that the law hasn't eliminated clandestine abortionsan outcome that advocates for legalization always claim will take placebut rather that liberal abortion laws increase the rate of illegal abortions.

I wonder where Obando y Bravo is getting his data—perhaps from the 109th Congress? He's certainly not getting it by looking at the experiences of countries like South Africa, where the Health Department declared last year that since abortion was legalized in 1997, deaths from unsafe abortion have gone down 91.1 percent.

At any rate, lies and misinformation from Catholic leaders on the abortion issue are nothing new, and I for one am relieved to see that Obando y Bravo has fully recovered from his brief moral struggle over the therapeutic abortion issue. I'm sure his change of heart had absolutely nothing to do with the fact that political BFF (Best Friend Forever!) Daniel Ortega, after months of silence, recently renewed his support for the therapeutic abortion ban. How could I even think such a thing?

Anyway, this all adds up to the sad reality that given the current political environment in Nicaragua, the likelihood of a Supreme Court overturn of the ban is looking slim at best. The Court is dominated by Sandinistas, after all, and Ortega—who runs the party, and doesn't tolerate dissent—has spoken. Sound familiar?

I bring all of this up in light of last week's SCOTUS (Supreme Court of the United States) decision because I really do think that despite the differences in our circumstances (and believe me, Nicaraguan women are far more screwed than women in the United States right now, even given health disparities among American women), we as women—in the United States, in Nicaragua, and worldwide—are essentially in the same boat when it comes to our reproductive rights. All over the world, political battles are being played out on our bodies. All over the world, we are dying as a result of our ability to get pregnant, even though safe, affordable medical technology could all but eliminate those deaths. And all over the world, small groups of men get to make our reproductive decisions for us. So here's my takeaway from the whole stupid debacle that was last week: It's time for us to get serious about moving this issue out of the "controversy" pile and on to the "urgent test of our democracy" one. Not because "Roe" is being threatened, but because we're all at risk in a society that is so willing to subjugate our lives and our well-being to political concerns.

Analysis Law and Policy

With No Scalia, What’s Next for the Supreme Court?

Jessica Mason Pieklo

Justice Antonin Scalia's death complicates an already contentious Supreme Court term.

Few personalities loomed as large over U.S. law and politics as Supreme Court Justice Antonin Scalia, the conservative justice who died Saturday at age 79. In addition to making the 2016 presidential race even more interesting, his sudden death complicates a Court term already packed with marquee culture war topics such as abortion, affirmative action, and union rights. So what happens to those cases now that the Court is down a justice, and what does Scalia’s death mean for progressives? A helluva lot.

First, the nitty-gritty details. Yes, the Court can and will still function with only eight justices. The Court needs a quorum of six to hear cases, so even with possible recusals—themselves not that common—the Court’s business should continue. The Court’s term runs until the end of June, and there is plenty of time left in President Obama’s term to have a replacement confirmed. However, given the level of games-playing demonstrated by senators on the Judiciary Committee since the last Supreme Court nomination fight, I wouldn’t be surprised if the Republicans try to run out the clock on a third Obama Court appointment. But let’s not think about that right now.

In terms of the cases the Court has already heard, Justice Scalia’s votes count only in cases that have already been decided, with an opinion released. For cases where the Court has not yet released an opinion, his votes—to the extent they have happened already after written briefings and oral arguments—are void. That’s a big deal for those cases in which Scalia was part of a 5-4 conservative majority. Those include Friedrichs v. California Teachers Association, where the Court was expected to strike yet another blow to organized labor by limiting fair-share fees, which help fund the organizing efforts that benefit all employees, union members or not.

Assuming, as most legal observers have, that the vote in Friedrichs to strike fair-share fees was 5 to 4, Scalia’s death means the Court is now split evenly. In cases when there is no majority for a decision, the lower court decision is affirmed. In Friedrichs, that would mean a win for organized labor and a loss for the Koch brothers, who helped incubate the union challenge. Like I said, it’s a big deal.

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This brings me to one of the Court’s most closely watched cases this term, Whole Woman’s Health v. Hellerstedt, formerly Whole Woman’s Health v. Cole, which the Court will hear in March. As Drexel University School of Law professor David Cohen wrote in this must-read piece on the immediate implications of Scalia’s death on the case, Roe v. Wade is safe, for now. That’s because Scalia’s death makes it impossible for the remaining conservative justices to issue a sweeping opinion, applicable nationwide, that would effectively gut Roe by upholding Texas’ abortion restrictions, which have nearly regulated abortion out of existence in the state.

Should Justice Anthony Kennedy vote with the remaining conservatives and affirm the Fifth Circuit’s decision, the impact would be devastating for Texans as well as those who live in Louisiana and Mississippi, the other states covered by the Fifth Circuit, but that’s as far as the decision could reach. I still think Justice Kennedy is going to vote to strike the restrictions, which means reproductive rights advocates would win 5 to 3; the Texas restrictions and their copycats in Louisiana and Mississippi will likely go down; and those appellate court decisions blocking similar laws in places like Wisconsin and Alabama will stand. Another really big deal.

There is precedent for the Court to order cases affected by Scalia’s absence that end in a tie for rehearing once Scalia’s replacement is confirmed. But it is not entirely clear if that would apply in this instance, in part because nobody knows how long it will take to get a new justice confirmed, and how many tie votes we will get before then.

In other words, it is possible for the stakes to get even higher about Justice Scalia’s replacement, and rehearing legal challenges to union fees and the contraception benefit, for example, would do just that.

Beyond the impact on the Court’s upcoming business, there is Scalia’s legacy to wrestle with. Already, the tributes are coming in, as is appropriate for a person who served decades in the public sector. But here is where I must part ways with many of my colleagues offering their praises for Scalia.

I am not comfortable honoring a justice who consistently used his power and privilege as a cudgel against the disadvantaged. His dissents, no matter how masterfully written, didn’t strike me as something to celebrate, even ironically, because they became rallying cries for some of the most radical elements of the conservative movement.

Take, for instance, his dissent in Stenberg v. Carhart, the 2000 decision that struck Nebraska’s so-called partial-birth abortion ban.

“I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott,” wrote Scalia, referring to previous Supreme Court opinions justifying Japanese internment during World War II and saying that Black individuals, whether free or enslaved, were not “people” who could bring claims in federal court. “The method of killing a human childone cannot even accurately say an entirely unborn human child—proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion.”

“The notion that the Constitution of the United States, designed, among other things, ‘to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,’ prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd,” he wrote.

It really should come as no surprise that the justice who in his dissent in Planned Parenthood v. Casey flat-out declared reproductive privacy nonexistent and wrote that he was “sure” abortion is not a “liberty protected by the United States,” would invoke racial internment and slavery, and employ terms such as “half-born,” to argue against the fundamental human rights of women. And it should also come as no surprise that more than 20 years after Casey, Scalia’s rhetoric around abortion and slavery finds itself regurgitated by the likes of radical anti-choice operative Troy Newman.

Justice Scalia’s dissents were easy for progressives to write off as the argle-bargle ravings of an angry white man, because they were. It was kind of funny when Scalia snarked about government broccoli during the first challenge to the Affordable Care Act. But for every applesauce quip, there was an example of a sitting Supreme Court justice providing cover and legitimacy to some of the ugliest aspects of the conservative movement.

There are those who contend that it does not benefit African Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well,” Scalia said earlier this term, during oral arguments in Fisher v. University of Texas, a case looking to eradicate affirmative action programs in public universities. The Court has not yet released its opinion in Fisher. “One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”

That quote is not Scalia being provocative. It is Scalia promoting discredited social science to support his own personal opinion that affirmative action policies are themselves racially discriminatory.

Almost immediately after news of Justice Scalia’s death broke, Republicans in Congress promised to block any nominee to replace him. President Obama responded by offering his condolences to Justice Scalia’s family for his passing, before promising to fulfill his constitutional duty to quickly name a replacement. Scalia’s death, like much of his life, was instantly, bitterly partisan. In some ways, that’s a feature of our broken federal judiciary system, where appointments are routinely used as political leverage and capital. But in others, it’s a reflection of the kind of jurist Scalia was and why a critical look at his legacy is imperative. Scalia stoked partisanship in his opinions and public appearances, and not simply in the healthy-exercise-of-differences represented by the friendship between him and Justice Ruth Bader Ginsburg. He was the consummate activist judge, and no amount of flowery prose or biting dissents can undo that devastating aspect of his legacy.

Commentary Abortion

How Abortion Storytelling Was Born

Cynthia Greenlee

The women sharing their abortion stories in the Whole Woman’s Health v. Cole briefs owe much to the women lawyers who filed a 1970 landmark case challenging New York’s abortion ban.

This piece is published in collaboration with Echoing Ida, a Forward Together project.

In 1970, Emily Jane Goodman was a young attorney who got pulled into a landmark case challenging New York’s abortion ban.

The case, Abramowicz v. Lefkowitz, had an unusual legal team for the time (all women, many of them with only a few years of lawyering under their belts) and a radical premise: that the most important testimony came from women who experienced illegal abortions, lack of contraceptive access, and painful experiences with adoption or forced motherhood. Those attorneys, including Goodman, and those women telling their truths became the foremothers of the contemporary abortion story-sharing trend.

Now, more than 45 years later, Goodman is once again participating in a legal instance of abortion storytelling. Earlier this month, she was one of more than 100 women lawyers who filed an amicus (friend of the court) brief for an upcoming U.S. Supreme Court abortion case. The brief’s summary begins: “To the world, I am an attorney who had an abortion, and to myself, I am an attorney because I had an abortion.”

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That brief is one of a number in Whole Woman’s Health v. Cole using women’s words to build the argument that access to abortion is a matter of public health, and essential to women’s futures and gender equality.

The women sharing their abortion stories in these briefs owe much to those women lawyers who filed the New York case, including constitutional scholar Nancy Stearns and the late Carol Lefcourt. That case influenced the state’s passage of the nation’s most liberal abortion law before Roe v. Wade. What made the case so extraordinary was how it brought about change: The attorneys interviewed scores of women, some of whose stories became public record.

Lawyer Diane Schulder also was part of the legal team and later recounted the events in a book co-written with Florynce “Flo” Kennedy, Abortion Rap. Kennedy had a diverse clientele that included Black Panthers and Billie Holiday; played a critical role in the New York chapter of the National Organization for Women; and showed through her legal advocacy how feminism and Black freedom struggles could cross-pollinate one another.

Schulder recalled in an interview with Rewire that there was increasing momentum to challenge New York state’s law. Indeed, a group of radical feminists including Shulamith Firestone of the Redstockings, had recently held an abortion speak-out. A hearing about reforming the law was disrupted by feminists, who insisted that they were just as qualified—if not more qualified—to talk about women’s reproductive lives than the one woman scheduled to speak, a nun.

“Flo and I both went to Columbia, and I clerked for a federal judge,” said Schulder. “He maintained you’ve got to get the facts right. Facts, facts, facts. We thought that women needed to tell their stories, get the facts on the ground, and the law would go from that. It did pave the way for abortion reform” in New York and elsewhere, though the case was declared moot after the state’s assembly changed the law.

To prepare for their case, the lawyers began interviewing women who would be witnesses in the case. Most of them came to Flo Kennedy’s 48th Street apartment, which doubled as her office. Ideally, the legal team was looking for “10 or 12 of the several dozen willing witnesses, anxious to testify to the oppressiveness of the New York State abortion laws and how they were personally affected by them,” according to Abortion Rap.

There was the woman journalist who drank copious amounts of gin, ingested nutmeg, and soaked in countless mustard baths—all because of rumors that these efforts would cause an abortion. The woman who was shipped away to a Chicago home for unwed mothers, where she did the back-breaking work of scouring floors and windows right up until delivery. Or the white woman who noticed that an adoption service encouraged white girls to relinquish their children but Black girls to keep their babies because “there was no market for Black babies.”

And there was the anthropology student who went to her college library and found ideas for home abortion methods in folk medicine books that were usually locked up in a cage like rare volumes. That same woman broke out in a rash from the concoction she mixed and swallowed—a serendipitous eruption, because she was able to pass it off as a case of German measles, which could cause fetal abnormalities and therefore allowed her to get an abortion.

Finding the women to testify wasn’t hard; after all, abortion was a common, if illegal, feature of women’s lives at the time.

But the road that Abramowicz paved wasn’t easy. When the women came to the federal courthouse in Manhattan to testify in early January 1970, the male lawyers for the state raised objection after objection. Flo Kennedy, whose speaking and litigating style Gloria Steinem once called “verbal karate,” was dedicated to making sure that the proceedings wouldn’t be impersonal recitations from doctors.

Kennedy continually pushed the limits of courtroom behavior to make points about social and cultural stigma surrounding women’s roles, sexuality, and abortion. Early in the case, Kennedy requested a panel of three women judges to hear the case—when she knew perfectly well that there weren’t three female judges to be found in New York’s male-dominated legal circuit. When she was in front of the judges, she continually peppered the court with questions about how religious attitudes taught women to be ashamed of their bodies and fed anti-choice opposition.

When the all-male team of lawyers for New York said that depositions about abortions that took place in Louisiana or Alabama weren’t relevant to the New York law, Kennedy and the testifying women rebutted those assertions, saying that the lack of reproductive health care in New York made women travel to seek services elsewhere.

After opposing attorney Joel Lewittes argued that the experiences of unwed mothers were not relevant, Kennedy let loose.

As quoted in Abortion Rap, Kennedy said: “If you [succeed in the motion to strike such testimony], of course, we will not prevail. That does not for a moment stop us from building our case and stating our position and finding out how completely irrelevant these courts think women’s experiences, ordeals, feelings are. And we will be very much better informed about the nature of our proceedings and our courts, once this matter has been ruled on, and we shall not be surprised to learn that you are right and that there is no regard for women’s ordeals and feelings.”

Women were the experts of their own lives, Kennedy asserted time and time again—a point that’s the core of today’s abortion story-sharing trend. Without Flo Kennedy and her colleagues fiercely arguing that women’s lives mattered, there would likely be no briefs from women lawyers who courageously talk about the abortions that have made possible their careers, health, and aspirations.

Even so, using the actual words of clients is not standard in legal storytelling. Lawyers are still interpreters who must cleave to the narrow demands of legal evidence and construct a narrative that’s understandable through the law.

Abbey Marr, a lawyer who co-wrote the Advocates for Youth brief for the Whole Woman’s Health case (which also used women’s stories taken from more than 900 testimonials it’s collected over three years) said in a phone interview: “There always will be a tension between the speaking to the court and being true to the story and having the client take agency. The answer in law school was always client-centered lawyering—talk to your clients, explain everything to them. I wish that was as easy as it sounds. How do you do that when you want to win a case?”

But it’s clear that stories do sometimes matter—even if those stories must be accompanied by legal and other advocacy strategies. They’ve mattered in abortion-related cases since Abramowicz, including those before the nation’s highest court. Women’s abortion experiences figured prominently in a NARAL brief filed in 1985’s Thornburgh v. American College of Obstetricians and Gynecologists. In the 2007 case Gonzales v. Carhart, the stories of women who claimed harm as a result of abortion influenced Justice Anthony Kennedy’s majority opinion.

“While we find no reliable data to measure the phenomenon [of abortion regret],” reads the majority opinion, “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Then, it cited an anti-choice amicus brief recounting women’s stories of negative post-abortion feelings or consequences.

Today, advocates say that women must be able to talk about their abortions because such stories are deeply powerful. They may, as in legal cases, form compelling arguments for policy change. They may serve to normalize abortion, which is, after all, an essential and legal health-care service.

For Emily Goodman, the women lawyers’ brief is both an opportunity to come full circle and a marker of how much work is left for abortion advocates. Now a retired New York Supreme Court judge, she signed the brief as a woman lawyer who had an abortion.

“This and other briefs show the Supreme Court what everybody else already knows: that women of every class, occupation, background, education, can be full participants in society only if they have control of their bodies and reproductive role,” Goodman told Rewire. “It is imperative that I and others show them who we are, how productive we are, and let them know that we are powerful and unwilling to go backward. I am joining with other women reiterating that we will not be controlled by women-haters, personal religions that have no place in courts, cruel politicians, or judges.”

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