Courting Reproductive Justice: 30 Years of Linda Greenhouse

Sarah Seltzer

As New York Times Supreme Court reporter Linda Greenhouse retires, looking back on some reproductive rights cases she covered reveals an alarming trajectory.

As NY Times Supreme Court reporter Linda Greenhouse retires, a look back on some reproductive rights cases she covered-and the alarming trajectory they reveal.

Linda Greenhouse, who won countless awards, including a Pulitzer, for her NY Times reporting on the Supreme Court, retired this week to teach. Her byline became a familiar one for those who followed the court’s decisions-and even those who don’t know the who’s who of the beltway media world likely read her words at some point in the past decades.

Over those decades, Greenhouse’s analysis of decision after decision have tracked the court’s backslide from Roe, which now essentially hangs by a single vote on the court.

A few times when the backslide seemed most precipitous, Greenhouse quietly demonstrated her own support for reproductive rights. She sent a message that women could not entirely abstain from opinion when it comes to the laws that govern their bodies. But she was able to continually report on the issue using rigorous analysis that betrayed no discernible bias.

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Greenhouse’s  unwillingness to muzzle her views seemed courageous because she worked in a field that was so obsessed with an unrealistic standard of objectivity.  She must have had her male colleagues and bosses in a tizzy whenever she reminded them that these decisions were not abstract, but affected real women like herself.

1989: First Roe challenge

Greenhouse began reporting on the court in 1978, five years after the historic "Roe v. Wade" and "Doe v. Bolton" decisions struck down all pre-viability state abortion bans. For years, the architects of "Roe" held firm on the court. But in the Reagan era, with a host of Supreme Court retirements, the solidity of Roe appeared to waver-and restrictions on abortion mounted.

In 1989, the worrisome "Webster v. Reproductive Health Services" decision upheld a very restrictive Missouri abortion law (which limited the use of  federal funds, facilities and staff from performing abortions) without overturning Roe v. Wade. This was the first time the court had acknowledged any state’s right to impede access to abortion. Greenhouse analyzed the decision by saying "The effect of the decision was to narrow the scope of Roe v. Wade and to leave states more room to restrict abortion, while deferring a more decisive ruling to another case."

The logic behind the decision was that Roe, while stopping states from banning abortion, did not require states to allocate funds for the purpose of providing abortion. This development sparked a flurry of pro-choice activism. It was that year that Greenhouse, along with several other prominent journalists, quietly marched at a pro-choice rally in DC, drawing criticism from several colleagues. But she continued reporting on the court.

1992: Chipping Away

And as Greenhouse had predicted in her analysis of Webster, several other abortion cases followed closely on that case’s heels. Another lightning rod was 1992’s "Planned Parenthood v. Casey" because it was the first abortion-related decision for new justices David Souter and the controversial Clarence Thomas.

The court did not overturn Roe, as many feared it would, thanks to votes from Souter, Sandra Day O’Conner (the court’s first female justice) and Anthony Kennedy. But it did allow kind of restrictions that reproductive rights activists still rue, such as parental notification laws and mandatory waiting periods, providing that such restrictions did not impose an "undue burden" on women.

The original interpretation of Roe, Greenhouse wrote, was that "abortion was a ‘fundamental’ right that could not be restricted… But the new ‘undue burden’ standard will permit considerably more regulation."

2000s: The Threat of a Ban and the Partial-Birth Myth

In the last decade, the Bush era and his court appointments have led to one of the most dramatically disturbing developments in the fight to save Roe. "Stenberg v. Carhart," in the year 2000, struck down a Nebraska law that attempted to ban certain forms of pre-viability second-trimester abortion. With the moderate Sandra Day O’Conner still on the court, the importance of having a health exception for the mother and the broad wording of the Nebraska law meant that it could be interpreted to ban abortion more broadly, which is why the court rejected it.

In her article summarizing the case, Greenhouse explained the birth of a new right-wing strategy, the invention of the term "partial-birth abortion: "Anti-abortion forces coined the term in the mid-1990’s and have focused on graphic descriptions of the procedure as a way of undermining public support for abortion. The ruling today represents a significant setback to that strategy."

Intact dilation and extraction, the procedure targeted by the right wing as partial-birth abortion, was invented in the 1990s as an alternative to the sometimes, more dangerous dilation and evacuation. Around the time of the 2000 case, intact dilation and extraction counted for less than .2% of all abortions performed, and was often used when the other procedure was riskier, the fetus had died in the womb, or would not live long past birth. But the purpose of the right wing’s campaign against the procedure was to paint women seeking abortions as irresponsible and uncompassionate.

And one convert that the right wing won over with its "partial-birth" abortion brouhaha was Justice Anthony Kennedy, who raised the hackles of pro-choice activists with his passionate dissent from that 2000 decision.

2007: Gonzales Cements the  Backslide

So when a similar case arrived at the court six years later and the crucial centrist O’Connor was replaced with the hard-liner Samuel Alito, Kennedy helped enable the decision to essentially be reversed. The court OK’d the first ever abortion ban without a health exception for the mother, Gonzales v. Carhart.

The wording of the ban specifically targets any procedure which includes an "overt act" that will "kill the partially delivered living fetus." It does not specify a timeline for the pregnancy (in other words, it is not just a late-term abortion ban). Because the ban carries a prison sentence, some clinics have resorted to injecting lethal drugs into the fetus before any of several abortion procedures, which increases the risk to the mother but protects the medical personnel from legal action.

Greenhouse wrote about the troubling precedent Kennedy was setting in his majority opinion on the 2006 case: "But never until Wednesday had the court held that an abortion procedure could be prohibited because the procedure itself, not the pregnancy, threatened a woman’s health – mental health, in this case, and moral health as well. In his majority opinion, Justice Anthony M. Kennedy suggested that a pregnant woman who chooses abortion falls away from true womanhood."

This alarming turn of events had led Greenhouse to explicitly state her concerns at a speech earlier that year at Harvard, saying she saw in Bush-era America a "sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism." This has helped fuel the fire against Greenhouse from the right wing, already kindled because of her elite status at the supposedly liberal Times.

An Uncertain Future for Roe

Perhaps it’s appropriate that as the judicial climate turns so sour for reproductive rights, Greenhouse has moved on. Her final thoughts on the court, published in the Times last week, are fairly gentle. But she makes an interesting point about the humanity behind the court decisions, noting that the Supreme Court’s strike-down of anti-sodomy laws (2003’s "Lawrence v. Texas") might have had much to do with the justices’ personal interactions with gay and lesbian friends. Perhaps, this implies, if the justices knew more women who genuinely struggled trying to access abortion or had medical complications that necessitated the procedure, the callous paternalism of Kennedy’s decision would not exist.

Picking up where Greenhouse will be leaving out are legal reporters like Slate’s Dahlia Lithwick, who has vigorously defended and openly expressed her admiration for her colleague. Like Sandra Day O’Connor did on the Supreme Court, Greenhouse’s career has helped blaze a trail for younger women reporters who will, through their prose and presence, remind the reading public that court cases writing law upon women’s bodies are not an abstract legal wrangling–but each one carries a potential threat to the safety and freedom of their friends, neighbors, and colleagues.

Roundups Politics

Campaign Week in Review: ‘If You Don’t Vote … You Are Trifling’

Ally Boguhn

The chair of the Democratic National Convention (DNC) this week blasted those who sit out on Election Day, and mothers who lost children to gun violence were given a platform at the party's convention.

The chair of the Democratic National Convention (DNC) this week blasted those who sit out on Election Day, and mothers who lost children to gun violence were given a platform at the party’s convention.

DNC Chair Marcia Fudge: “If You Don’t Vote, You Are Ungrateful, You Are Lazy, and You Are Trifling”

The chair of the 2016 Democratic National Convention, Rep. Marcia Fudge (D-OH), criticized those who choose to sit out the election while speaking on the final day of the convention.

“If you want a decent education for your children, you had better vote,” Fudge told the party’s women’s caucus, which had convened to discuss what is at stake for women and reproductive health and rights this election season.

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“If you want to make sure that hungry children are fed, you had better vote,” said Fudge. “If you want to be sure that all the women who survive solely on Social Security will not go into poverty immediately, you had better vote.”

“And if you don’t vote, let me tell you something, there is no excuse for you. If you don’t vote, you don’t count,” she said.

“So as I leave, I’m just going to say this to you. You tell them I said it, and I’m not hesitant about it. If you don’t vote, you are ungrateful, you are lazy, and you are trifling.”

The congresswoman’s website notes that she represents a state where some legislators have “attempted to suppress voting by certain populations” by pushing voting restrictions that “hit vulnerable communities the hardest.”

Ohio has recently made headlines for enacting changes that would make it harder to vote, including rolling back the state’s early voting period and purging its voter rolls of those who have not voted for six years.

Fudge, however, has worked to expand access to voting by co-sponsoring the federal Voting Rights Amendment Act, which would restore the protections of the Voting Rights Act that were stripped by the Supreme Court in Shelby County v. Holder.

“Mothers of the Movement” Take the National Spotlight

In July 2015, the Waller County Sheriff’s Office released a statement that 28-year-old Sandra Bland had been found dead in her jail cell that morning due to “what appears to be self-asphyxiation.” Though police attempted to paint the death a suicide, Bland’s family has denied that she would have ended her own life given that she had just secured a new job and had not displayed any suicidal tendencies.

Bland’s death sparked national outcry from activists who demanded an investigation, and inspired the hashtag #SayHerName to draw attention to the deaths of Black women who died at the hands of police.

Tuesday night at the DNC, Bland’s mother, Geneva Reed-Veal, and a group of other Black women who have lost children to gun violence, in police custody, or at the hands of police—the “Mothers of the Movement”—told the country why the deaths of their children should matter to voters. They offered their support to Democratic nominee Hillary Clinton during a speech at the convention.

“One year ago yesterday, I lived the worst nightmare anyone could imagine. I watched as my daughter was lowered into the ground in a coffin,” said Geneva Reed-Veal.

“Six other women have died in custody that same month: Kindra Chapman, Alexis McGovern, Sarah Lee Circle Bear, Raynette Turner, Ralkina Jones, and Joyce Curnell. So many of our children are gone, but they are not forgotten,” she continued. 

“You don’t stop being a mom when your child dies,” said Lucia McBath, the mother of Jordan Davis. “His life ended the day that he was shot and killed for playing loud music. But my job as his mother didn’t.” 

McBath said that though she had lost her son, she continued to work to protect his legacy. “We’re going to keep telling our children’s stories and we’re urging you to say their names,” she said. “And we’re also going to keep using our voices and our votes to support leaders, like Hillary Clinton, who will help us protect one another so that this club of heartbroken mothers stops growing.” 

Sybrina Fulton, the mother of Trayvon Martin, called herself “an unwilling participant in this movement,” noting that she “would not have signed up for this, [nor would] any other mother that’s standing here with me today.” 

“But I am here today for my son, Trayvon Martin, who is in heaven, and … his brother, Jahvaris Fulton, who is still here on Earth,” Fulton said. “I did not want this spotlight. But I will do everything I can to focus some of this light on the pain of a path out of the darkness.”

What Else We’re Reading

Renee Bracey Sherman explained in Glamour why Democratic vice presidential nominee Tim Kaine’s position on abortion scares her.

NARAL’s Ilyse Hogue told Cosmopolitan why she shared her abortion story on stage at the DNC.

Lilly Workneh, the Huffington Post’s Black Voices senior editor, explained how the DNC was “powered by a bevy of remarkable black women.”

Rebecca Traister wrote about how Clinton’s historic nomination puts the Democratic nominee “one step closer to making the impossible possible.”

Rewire attended a Democrats for Life of America event while in Philadelphia for the convention and fact-checked the group’s executive director.

A woman may have finally clinched the nomination for a major political party, but Judith Warner in Politico Magazine took on whether the “glass ceiling” has really been cracked for women in politics.

With Clinton’s nomination, “Dozens of other women across the country, in interviews at their offices or alongside their children, also said they felt on the cusp of a major, collective step forward,” reported Jodi Kantor for the New York Times.

According to, Philadelphia’s Maternity Care Coalition staffed “eight curtained breast-feeding stalls on site [at the DNC], complete with comfy chairs, side tables, and electrical outlets.” Republicans reportedly offered similar accommodations at their convention the week before.

Analysis Law and Policy

After ‘Whole Woman’s Health’ Decision, Advocates Should Fight Ultrasound Laws With Science

Imani Gandy

A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’s Health, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.

So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.

With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

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In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.

The ultra-conservative Fifth Circuit Court of Appeals upheld the law in 2012, in Texas Medical Providers v. Lakey.

And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.

Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.

There’s a reason why abortion advocates began decrying these laws as “rape by the state.”

If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.

They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.

But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.

After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.

But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?

What if the information often provided by states in connection with their “informed consent” protocol does not actually lead to consent that is more informed, either because the information offered is outdated, biased, false, or flatly unnecessary given a particular pregnant person’s circumstance? Texas’ latest edition of its “Woman’s Right to Know” pamphlet, for example, contains even more false information than prior versions, including the medically disproven claim that fetuses can feel pain at 20 weeks gestation.

What if studies show—as they have since the American Psychological Association first conducted one to that effect in 1989—that abortion doesn’t increase the risk of mental health issues?

If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.

And that’s exactly what research has shown.

Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.

It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”

But what about forced ultrasound laws, specifically?

Science has its part to play in dismantling those, too.

If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.

Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.

Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.

And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.

There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.

The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.

Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v. Carhart, when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.

Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.