Birmingham Blues: Reproductive Justice and My Friend Emily

Marcy Bloom

Marcy Bloom reflects on the beauty and the violent history of Birmingham, Alabama -- from the Civil Rights movement to protecting reproductive health today.

This is part one of a series about Birmingham, Alabama.

Are there places in the world about which you have very real images and feelings although you have never been there?

Such were my reflections recently about Birmingham, Alabama. Nicknamed "The Magic City," it is the largest in Alabama. Today it is a leading banking and bio-technology center, a major medical and research hub, with beautiful parks, dynamic museums, a renowned ballet company, opera, and symphony, home to numerous cultural festivals, and a rich nightlife with a very popular music scene.

Of course, as is true of anywhere, Birmingham has many other sides to its texture, demographics, population, and history. As I was reminded by many while I was there, this modern city is also a core part of the fundamentalist Bible Belt. Juxtapose that with my memories from the 50s and 60s of Birmingham as "The Tragic City" and a center of the civil rights struggle for African-Americans.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

I vividly remember the Reverend Martin Luther King, Jr. and so many other courageous freedom fighters engaged in nonviolent protests and demanded their right to humanity, equality, and dignity. I can never forget the hate, brutality, and ferocity of the white supremacist Eugene "Bull" Connor and his henchmen attacking the peaceful civil rights marchers with whips, fire hoses, and vicious dogs.

It seems like only yesterday that four African-American girls were killed on September 15, 1963 by a bomb planted by members of the Ku Klux Klan at the 16th Street Baptist Church. In fact, I went to that church during my recent Birmingham visit. It is truly beautiful and I have always been drawn to this haunting place through faded photographs and grainy TV images.

That place and that incident of death and destruction by racist terrorists in 1963 affected me greatly at the time and always stayed with me. I was 12 years old, about the ages of the girls who died, and I could not quite grasp how anyone could hate that deeply, hate so clear, vicious, raw, and ingrained as to attack a house of worship and peace, and kill young girls with their whole lives ahead of them. I am not sure I completely grasp it today.

Little did I know, in my own youth and innocence of 1963, that I would later enter a profession where I dealt daily with both compassion for the lives and health of women and vitriol by anti-choice protesters. Their view of God, society, sexuality, and women is so twisted, so distorted, and so one-dimensional that they would — and some do — kill in the name of life and in the name of God.

Back in 1963, I also could never have predicted that in the course of my role as executive director of Aradia Women's Health Center in Seattle, I would later meet, and eventually become close friends with, another victim of a different kind of bombing: Emily Lyons. This time the attack was perpetrated by a different type of terrorist: the anti-choice, anti-woman religious extremist who, like the KKK in times past, also sets bombs meant to cause fear, death, destruction, and severe injury.

Actually, Emily Lyons is a true survivor and her passion, dedication, strength, and courage are unlike anyone's. She is my hero. I am always inspired by her Southern wit and quiet charm and her amazing ability to take back her own life in spite of the extensive injuries suffered at the hands of one hateful Eric Rudolph, whose bombing of the New Woman All Women's Health Clinic (NWAWC) on January 29, 1998 changed her life forever. As it did so many others, including mine.

The incomprehensibly vicious attack on Emily brought back my childhood memories of Birmingham, which during the terrorist attacks against racial equality of the civil rights era had become known for a time as "Bombingham." In 1998, a different kind of "Bombingham" emerged once again in "The Magic City." A nail-filled bomb meant to destroy, kill, and maim blasted off part of the front of the building that houses NWAWC, and shattered the front door. As if that was not enough, far more terrifying and devastating, it did succeed in killing Robert "Sandy" Sanderson, an off-duty police officer who was the clinic's security guard. It also very seriously injured Emily, the director of nursing, who since then has endured twenty-two surgeries, is blind in one eye, has scars on many parts of her body, and still has shrapnel in her body. But her indomitable spirit and dignity are not scarred. As outlined in her moving book "Life's Been A Blast: The Inspiring Story of Birmingham Bombing Survivor Emily Lyons", she has persevered and has learned to move forward and live a full life.

Her devoted husband Jeff, the co-author of their incredible story, has been by her side every inch of the way through Emily's perilous journey of recovery. When you are in the presence of these two individuals, their very accessibility, openness, generosity, and thoughtfulness are extraordinary. They have been though pure living hell, an ongoing nightmare of pain and suffering, and yet emerged stronger, smarter, and more committed than ever to women's lives, choices, and dignity. They are passionately in love, have interesting lives filled with good work, family, and protective animals, and are not consumed by bitterness. They certainly were not been deterred by the violent words, bigotry, and the hate of Operation Save America (OSA) that recently descended on their city from July 14-22nd in an attempt to close down Birmingham's two remaining women's clinics that perform abortions.

As I was preparing to go to Birmingham, I thought on what would see and learn. I knew that the resolve of Emily and Jeff would be strong. I also knew that Alabama NOW, Birmingham NOW and numerous other local and national organizations were effectively mobilizing to protect the clinics, staff, and clients from the distorted ravings and destructive actions of Flip Benham, Operation Save America's leader, and his misguided extremist followers. And I thought back to OSA/Operation Rescue (their original name) and their mobilizations over the years. Fortunately, they are much smaller in numbers now than in years past.

I recall when Operation Rescue (OR) was first getting started in 1988 with their disruptive and sexist national actions of blockading clinics to attempt to stop women from getting abortions. On one occasion during a blockade we had positioned a 15 foot ladder on the side of the building of Aradia Women's Health Center so that women could climb up to a second story window to get into the clinic, as OR had completely blocked the front entrance! The determination of women to do what they believe they must do regarding their pregnancies and the future of their lives has never ceased to amaze me. Imagine, in a country where abortion is legal, needing to dodge anti-choice protestors and climb a ladder through a second story window to get into the clinic where you will receive safe abortion care. It was outrageous then … and it remains so. And we are still doing things like this today…

I have the deepest respect for the power and strength of women. I also knew that OSA would try to be as disruptive as possible in front of Birmingham's two remaining clinics and I geared up for my visit there. (See Andrea Lynch's powerful blog.) I knew that the clinics would undoubtedly stay open, but it would not be simple or easy.

Stay tuned for the second part of Birmingham Blues.

Analysis Law and Policy

Justice Kennedy’s Silence Speaks Volumes About His Apparent Feelings on Women’s Autonomy

Imani Gandy

Justice Anthony Kennedy’s obsession with human dignity has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

Last week’s decision in Whole Woman’s Health v. Hellerstedt was remarkable not just for what it did say—that two provisions in Texas’s omnibus anti-abortion law were unconstitutional—but for what it didn’t say, and who didn’t say it.

In the lead-up to the decision, many court watchers were deeply concerned that Justice Anthony Kennedy would side with the conservative wing of the court, and that his word about targeted restrictions of abortion providers would signal the death knell of reproductive rights. Although Kennedy came down on the winning side, his notable silence on the “dignity” of those affected by the law still speaks volumes about his apparent feelings on women’s autonomy. That’s because Kennedy’s obsession with human dignity, and where along the fault line of that human dignity various rights fall, has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

His opinion on marriage equality in Obergefell v. Hodges, along with his prior opinions striking down sodomy laws in Lawrence v. Texas and the Defense of Marriage Act in United States v. Windsor, assured us that he recognizes the fundamental human rights and dignity of LGBTQ persons.

On the other hand, as my colleague Jessica Mason Pieklo noted, his concern in Schuette v. Coalition to Defend Affirmative Action about the dignity of the state, specifically the ballot initiative process, assured us that he is willing to sweep aside the dignity of those affected by Michigan’s affirmative action ban in favor of the “‘dignity’ of a ballot process steeped in racism.”

Meanwhile, in his majority opinion in June’s Fisher v. University of Texas, Kennedy upheld the constitutionality of the University of Texas’ affirmative action program, noting that it remained a challenge to this country’s education system “to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

It is apparent that where Kennedy is concerned, dignity is the alpha and the omega. But when it came to one of the most important reproductive rights cases in decades, he was silent.

This is not entirely surprising: For Kennedy, the dignity granted to pregnant women, as evidenced by his opinions in Planned Parenthood v. Casey and Gonzales v. Carhart, has been steeped in gender-normative claptrap about abortion being a unique choice that has grave consequences for women, abortion providers’ souls, and the dignity of the fetus. And in Whole Woman’s Health, when Kennedy was given another chance to demonstrate to us that he does recognize the dignity of women as women, he froze.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

He didn’t write the majority opinion. He didn’t write a concurring opinion. He permitted Justice Stephen Breyer to base the most important articulation of abortion rights in decades on data. There was not so much as a callback to Kennedy’s flowery articulation of dignity in Casey, where he wrote that “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” are matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” (While Casey was a plurality opinion, various Court historians have pointed out that Kennedy himself wrote the above-quoted language.)

Of course, that dignity outlined in Casey is grounded in gender paternalism: Abortion, Kennedy continued, “is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedures for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted.” Later, in Gonzales, Kennedy said that the Partial-Birth Abortion Ban “expresses respect for the dignity of human life,” with nothing about the dignity of the women affected by the ban.

And this time around, Kennedy’s silence in Whole Woman’s Health may have had to do with the facts of the case: Texas claimed that the provisions advanced public health and safety, and Whole Woman’s Health’s attorneys set about proving that claim to be false. Whole Woman’s Health was the sort of data-driven decision that did not strictly need excessive language about personal dignity and autonomy. As Breyer wrote, it was a simple matter of Texas advancing a reason for passing the restrictions without offering any proof: “We have found nothing in Texas’ record evidence that shows that, compared to prior law, the new law advanced Texas’ legitimate interest in protecting women’s health.”

In Justice Ruth Bader Ginsburg’s two-page concurrence, she succinctly put it, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements.”

“Targeted Regulation of Abortion Providers laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection,” she continued, hammering the point home.

So by silently signing on to the majority opinion, Kennedy may simply have been expressing that he wasn’t going to fall for the State of Texas’ efforts to undermine Casey’s undue burden standard through a mixture of half-truths about advancing public health and weak evidence supporting that claim.

Still, Kennedy had a perfect opportunity to complete the circle on his dignity jurisprudence and take it to its logical conclusion: that women, like everyone else, are individuals worthy of their own autonomy and rights. But he didn’t—whether due to his Catholic faith, a deep aversion to abortion in general, or because, as David S. Cohen aptly put it, “[i]n Justice Kennedy’s gendered world, a woman needs … state protection because a true mother—an ideal mother—would not kill her child.”

As I wrote last year in the wake of Kennedy’s majority opinion in Obergefell, “according to [Kennedy’s] perverse simulacrum of dignity, abortion rights usurp the dignity of motherhood (which is the only dignity that matters when it comes to women) insofar as it prevents women from fulfilling their rightful roles as mothers and caregivers. Women have an innate need to nurture, so the argument goes, and abortion undermines that right.”

This version of dignity fits neatly into Kennedy’s “gendered world.” But falls short when compared to jurists internationally,  who have pointed out that dignity plays a central role in reproductive rights jurisprudence.

In Casey itself, for example, retired Justice John Paul Stevens—who, perhaps not coincidentally, attended the announcement of the Whole Woman’s Health decision at the Supreme Court—wrote that whether or not to terminate a pregnancy is a “matter of conscience,” and that “[t]he authority to make such traumatic and yet empowering decisions is an element of basic human dignity.”

And in a 1988 landmark decision from the Supreme Court of Canada, Justice Bertha Wilson indicated in her concurring opinion that “respect for human dignity” was key to the discussion of access to abortion because “the right to make fundamental personal decision without interference from the state” was central to human dignity and any reading of the Canadian Charter of Rights and Freedoms 1982, which is essentially Canada’s Bill of Rights.

The case was R. v. Morgentaler, in which the Supreme Court of Canada found that a provision in the criminal code that required abortions to be performed only at an accredited hospital with the proper certification of approval from the hospital’s therapeutic abortion committee violated the Canadian Constitution. (Therapeutic abortion committees were almost always comprised of men who would decide whether an abortion fit within the exception to the criminal offense of performing an abortion.)

In other countries, too, “human dignity” has been a key component in discussion about abortion rights. The German Federal Constitutional Court explicitly recognized that access to abortion was required by “the human dignity of the pregnant woman, her… right to life and physical integrity, and her right of personality.” The Supreme Court of Brazil relied on the notion of human dignity to explain that requiring a person to carry an anencephalic fetus to term caused “violence to human dignity.” The Colombian Constitutional Court relied upon concerns about human dignity to strike down abortion prohibition in instances where the pregnancy is the result of rape, involves a nonviable fetus, or a threat to the woman’s life or health.

Certainly, abortion rights are still severely restricted in some of the above-mentioned countries, and elsewhere throughout the world. Nevertheless, there is strong national and international precedent for locating abortion rights in the square of human dignity.

And where else would they be located? If dignity is all about permitting people to make decisions of fundamental personal importance, and it turns out, as it did with Texas, that politicians have thrown “women’s health and safety” smoke pellets to obscure the true purpose of laws like HB 2—to ban abortion entirely—where’s the dignity in that?

Perhaps I’m being too grumpy. Perhaps I should just take the win—and it is an important win that will shape abortion rights for a generation—and shut my trap. But I want more from Kennedy. I want him to demonstrate that he’s not a hopelessly patriarchal figure who has icky feelings when it comes to abortion. I want him to recognize that some women have abortions and it’s not the worst decision they’ve ever made or the worst thing that ever happened to him. I want him to recognize that women are people who deserve dignity irrespective of their choices regarding whether and when to become a mother. And, ultimately, I want him to write about a woman’s right to choose using the same flowery language that he uses to discuss LGBTQ rights and the dignity of LGBTQ people.  He could have done so here.

Forcing the closure of clinics based on empty promises of advancing public health is an affront to the basic dignity of women. Not only do such lies—and they are lies, as evidenced by the myriad anti-choice Texan politicians who have come right out and said that passing HB 2 was about closing clinics and making abortion inaccessible—operate to deprive women of the dignity to choose whether to carry a pregnancy to term, they also presume that the American public is too stupid to truly grasp what’s going on.

And that is quintessentially undignified.

Roundups Law and Policy

Gavel Drop: Despite Supreme Court Victory, Still Work to Do in Texas

Jessica Mason Pieklo & Imani Gandy

Yes, the U.S. Supreme Court announced a victory for abortion access in Texas—and around the country. But it's going to take time to unravel the effects of anti-choice organizing in the state, where abortion opponents have poured resources into HB 2 and have made it hard for physicians to get abortion-care training.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

The U.S. Supreme Court may have struck down the Texas law that threatened to shut down most of the state’s abortion clinics, but Texas’ hammering away at abortion access has had a deleterious effect on medical training there. Houston Public Media’s Carrie Feibel looks at how it’s becoming more difficult for doctors to be trained in abortion services due to clinic closures.

The Bridge Project and NARAL Pro-Choice America dropped a whopping 123 pages of research about how anti-choicers are using Texas to advance their agenda.

Birth control via app? We live in the future. The New York Times reports that websites and mobile applications provide simpler ways for women to obtain contraception.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

A Columbus, Ohio, Planned Parenthood and other reproductive health centers in the city will get new buffer zones.

David Gans at Balkinization explains that although Fisher v. University of Texas marks the first time that Kennedy has been in favor of an affirmative action policy, his opinion isn’t entirely out of character.

The Pentagon will lift its ban on transgender people serving in the military come July.

Suspended Alabama Supreme Court Justice Roy Moore just won’t go away.

Welp. A creationist is running for a spot on the Washington Supreme Court.

Anti-choice activists in Raleigh, North Carolina, are hoping their push for a change to local zoning regulations will kick out an area abortion clinic.

The New Jersey Supreme Court ruled your boss can’t fire you if you’re getting a divorce.