Commentary Law and Policy

Abigail Fisher: The Aggrieved White Woman Who Could Destroy Affirmative Action

Imani Gandy

On Wednesday, the U.S Supreme Court will hear oral arguments in round two of Fisher v. University of Texas, a case that is practically an allegory for white entitlement.

On Wednesday, the U.S. Supreme Court will hear oral arguments in round two of Fisher v. University of Texas, a case that is practically an allegory for white entitlement.

At the center of the case is Abigail Fisher, the latest in a line of white women who have filed lawsuits seeking to destroy affirmative action policies because they felt entitled to attend the school of their choosing, oblivious to the fact that destroying these policies will put everyone but white men at a disadvantage.

It’s hard not to draw the conclusion that Fisher’s lawsuit is a product of her entitlement. She’s noted that all of her friends and family went to the University of Texas at Austin, and so she felt like she was entitled to go too, never mind the fact that she didn’t have the grades to get in. And if getting her way means destroying a policy that has been proven to benefit white women the most, then that’s what Fisher evidently intends to do.

Abigail Fisher applied to UT for admission into the undergraduate class of 2012. When UT rejected her application, she sued the university, alleging that it discriminated against her because she is white.

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The competition to get into UT the year Fisher applied was stiffer than at Harvard University. But rather than accept that she simply wasn’t a strong enough candidate to gain admission that year, she decided to blame her failure on people of color whom she thought had lower grades and fewer extracurricular activities.

“There were people in my class with lower grades who weren’t in all the activities I was in, who were being accepted into UT, and the only other difference between us was the color of our skin,” she explained in a video published by the Project for Fair Representation, the legal defense fund litigating Fisher’s case.

That Fisher’s application was average is not in dispute: Abigail Fisher did not graduate in the top 10 percent of her class. If she had, she would have gained automatic admission into the University of Texas thanks to the “Top Ten Percent Law” that, essentially, guarantees an acceptance to every Texas resident who graduates in the top ten percent of his or her high school class.

In 2008, the year that Fisher applied, 80 percent of entering freshmen were selected through the Top Ten Percent Law, according to UT court filings. Since Fisher didn’t make the 10 percent cut-off, her application—along with all the other applicants in that category—was tossed in a pile. After a holistic review of her application, which considered a number of factors, including race and gender, UT rejected it.

The holistic review process, as described by UT in court filings, is “intended to identify and reward students whose merit as applicants was not adequately reflected by their class rank and test scores.” UT reviews a candidate’s race and gender along with leadership, extracurricular activities, languages spoken at home, socio-economic status, and other factors.

While it’s true that UT admitted dozens of candidates that were either equal to or “less qualified” than Fisher—strictly in terms of test scores and grades—only five of those “less qualified” candidates were Black or Latino. Forty-two were white.

But that didn’t matter to Fisher. She was convinced that her skin color was the reason that her application was rejected.

Thus far, no court has agreed with her. In 2009, the district court ruled that UT’s admissions policy was constitutional under the 14th Amendment. The Fifth Circuit Court of Appeals agreed with the district court in 2011.

In 2013, the U.S. Supreme Court agreed to hear the case for the first time. The Court concluded that the Fifth Circuit had been too deferential when analyzing UT’s admissions policy. “Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice, yet that is what the District Court and Fifth Circuit did here,” wrote Anthony Kennedy for the majority.

The Court kicked the case back down to the Fifth Circuit with instructions to examine UT’s admissions policy more carefully. Under the strict scrutiny rubric, the Fifth Circuit was required to ensure that the policy was “narrowly tailored to serve a compelling interest.”

Fisher has been quibbling with the “narrowly tailored” prong of the strict scrutiny fork.

She has conceded that diversity is a ”compelling interest,” thus satisfying the first prong, but argues that UT’s admissions policy is not narrowly tailored. The Top Ten Percent Law has done enough to increase minority enrollment, according to Fisher, and there is no need for UT to do anything further by holistically reviewing applications.

The Fifth Circuit disagreed. The court found that UT might be able to achieve a diverse student population through the Ten Percent plan alone, but that didn’t mean UT couldn’t do more.

In addition, the Fifth Circuit found that UT’s decision not to rely solely on the Top Ten Percent Law was correct, since the only reason the plan works to promote diversity is because of statewide segregation. Since most Black and Latino students attend primarily Black and Latino high schools, skimming the top 10 percent of students from those segregated high schools necessarily increases minority enrollment at UT. The court said that relying solely on the Top Ten Percent Law would be perverse, since it would put into place precisely the sort of racial quota that UT was trying to avoid. The Top Ten Percent Law alone did not allow for the sort of holistic review that might lead to, for example, the admission of a white student who fell just outside the 10 percent cut-off because she attended a better-funded, higher-performing high school than another less-qualified white student who made the 10 percent cut-off because her high school overall is low-performing.

Ultimately, the Fifth Circuit concluded that UT’s admissions policy was perfectly constitutional. Again.

Fisher appealed to the Supreme Court. Again.

And now the Supreme Court is poised to undo 30 years of affirmative action jurisprudence because yet another aggrieved white woman seems unable to come to grips with the fact that she simply wasn’t good enough to be admitted into the school of her choice.

The Supreme Court first sanctioned affirmative action in a 1978 case, Regents of the University of California v. Bakke. In Bakke, the Court held that UC Davis medical school’s admissions policy of reserving some slots with different admissions standards for minority applicants was unconstitutional, but also ruled that colleges and universities could consider race and ethnicity in applications as long as that consideration did not lead to racial quotas. 

The Supreme Court did not consider another affirmative action case until nearly 25 years later, when, in separate lawsuits, a couple of white women, Jennifer Gratz and Barbara Grutter, challenged the admissions policies at the University of Michigan at Ann Arbor and the University of Michigan School of Law, respectively.

In 2003, the Supreme Court sided with Gratz, and ruled that University of Michigan had violated the Constitution by using an undergraduate admissions system in which underrepresented minority applicants received points on the basis of their ethnic or racial background. On the same day, in Grutter’s case, the Supreme Court ruled that the University of Michigan School of Law had not violated the Constitution when it considered applicants’ race and ethnicity because it did so through a holistic review of the candidate, and did not simply award points based on race and ethnicity.

Fisher differs substantially from both Gratz and Grutter. Jennifer Gratz and Barbara Grutter brought their lawsuits on behalf of not just themselves, but also on behalf of future white applicants. They sought a determination that the admissions policies at the University of Michigan and its law school were unconstitutional and could no longer be used.

Abigail Fisher, however, sued for herself and herself alone. (Fisher originally filed suit with another 2008 UT applicant, Rachel Michalewicz, who has since dropped out of the lawsuit.) She sought an injunction blocking UT from using race as a factor in determining admissions and a declaration that using race as a factor in determining admissions violated the Equal Protection Clause and was therefore unconstitutional. She wanted the court to force UT to reevaluate her application using race-neutral criteria, and to admit her if she qualified under those race-neutral criteria. She didn’t seem to care much about future white applicants, or else she would have sued on behalf of a class of prospective applicants.

Eventually, Fisher also threw in a request for reimbursement of her $50 application fee and $50 non-refundable housing deposit, for a total of $100. But the thrust of her case was never about money. It wasn’t even about undoing UT’s affirmative action program for the supposed benefit of a class of people who had been previously oppressed by UT’s admissions policy.

Fisher’s case was about Fisher getting into UT. And now that she’s already graduated from another university, the only relief that is still available to Ms. Fisher is a $100 refund. If the Court rules that the University of Texas acted unconstitutionally with respect to her admissions, however, UT would still be forced to decimate its admissions policy.

And that’s where the fate of affirmative action now lies: In the hands of a white woman who would almost certainly not have been admitted to UT even if UT ignored race as one of multiple factors in UT’s holistic review process. It is hard not to feel bitter at the prospect of the wasted opportunities for thousands of people of color.

Ironically, should Fisher be successful in upending affirmative action, she will be destroying a program that has benefited people like her—white women—more than any other group.

Kwanzaa Imani highlighted this in an article she wrote for For Harriet, poignantly titled, “Abigail Fisher, Please Stop Blaming People of Color for Your Mediocrity.” Imani wrote, “We already know that white women have benefitted the most from affirmative action laws for decades. And now that they’ve benefitted from these laws socioeconomically, Fisher v. The University of Texas and cases made by other white women show us that they can now afford to attack what propped them up in the first place.”

The explosion of women in higher education is a recent phenomenon. As Michele Goodwin wrote for the Chronicle of Higher Education, it was only 30 years ago that this country’s most vaunted institutions graduated only a handful of women students. Before affirmative action policies gave women a leg up, law schools in this country refused to admit women applicants at all, presumably because they believed that women just aren’t cut out to be lawyers.

Goodwin pointed out that women did not magically become smarter in the 1970s, ’80s, and ’90s. Rather, federal law prevented universities that receive federal funding, like the University of Texas at Austin, from discriminating against women and people of color. That’s the reason that women, white women in particular, have been able to succeed in higher education, small business loans, government contracts, and the like. Not because white women are magic.

As Sally Kohn wrote in an article for TIME last year, “The successes of white women make a case not for abandoning affirmative action but for continuing it.”

“As the numbers in the Senate and the Fortune 500 show, women still face barriers to equal participation in leadership roles,” Kohn continued. “Of course, the case for continuing affirmative action for people of color is even greater.”

Indeed, it is greater.

Since UT implemented its current admissions policy, the number of students of color at UT exploded. The result has been a balanced and diverse student body at a school that one magazine dedicated to diversity in higher education ranked “sixth in the nation in producing undergraduate degrees for minority groups,” according to court filings.

As I wrote three years ago in an article about what this case means for women of color in Texas, UT’s holistic approach, which closely tracks the University of Michigan plan that the Supreme Court said was constitutional in Grutter, benefits not just students of color, but white ones as well. A deviation from that plan will almost surely result in another dramatic decline in minority enrollment and applicants. If the Court strikes down the plan and reverses its decision in Grutter, the repercussions will spread to other universities. They will be forced to drop considerations of race in admissions or else face lawsuits by aggrieved white women like Abigail Fisher, Jennifer Gratz, and Barbara Grutter.

The decimation of affirmative action won’t benefit anyone but white men. It certainly won’t benefit people of color. Nor will it benefit the white women who, for the past 30 years, have made out like bandits as a result of affirmative action policies.

Analysis Law and Policy

Do Counselors-in-Training Have the Right to Discriminate Against LGBTQ People?

Greg Lipper

Doctors can't treat their patients with leeches; counselors can't impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Whether they’re bakers, florists, or government clerks, those claiming the right to discriminate against LGBTQ people have repeatedly sought to transform professional services into constitutionally protected religious speech. They have grabbed headlines for refusing, for example, to grant marriage licenses to same-sex couples or to make cakes for same-sex couples’ weddings-all in the name of “religious freedom.”

A bit more quietly, however, a handful of counseling students at public universities have challenged their schools’ nondiscrimination and treatment requirements governing clinical placements. In some cases, they have sought a constitutional right to withhold treatment from LGBTQ clients; in others, they have argued for the right to directly impose their religious and anti-gay views on their clients.

There has been some state legislative maneuvering on this front: Tennessee, for instance, recently enacted a thinly veiled anti-LGBTQ measure that would allow counselors to deny service on account of their “sincerely held principles.” But when it comes to the federal Constitution, providing medical treatment—whether bypass surgery, root canal, or mental-health counseling—isn’t advocacy (religious or otherwise) protected by the First Amendment. Counselors are medical professionals; they are hired to help their clients, no matter their race, religion, or sexual orientation, and no matter the counselors’ beliefs. The government, moreover, may lawfully prevent counselors from harming their clients, and universities in particular have an interest, recognized by the U.S. Supreme Court, in preventing discrimination in school activities and in training their students to work with diverse populations.

The plaintiffs in these cases have nonetheless argued that their schools are unfairly and unconstitutionally targeting them for their religious beliefs. But these students are not being targeted, any more than are business owners who must comply with civil rights laws. Instead, their universities, informed by the rules of the American Counseling Association (ACA)—the leading organization of American professional counselors—merely ask that all students learn to treat diverse populations and to do so in accordance with the standard of care. These plaintiffs, as a result, have yet to win a constitutional right to discriminate against or impose anti-LGBTQ views on actual or prospective clients. But cases persist, and the possibility of conflicting court decisions looms.

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Keeton v. Anderson-Wiley

The first major challenge to university counseling requirements came from Jennifer Keeton, who hoped to receive a master’s degree in school counseling from Augusta State University. As detailed in the 2011 11th Circuit Court of Appeals decision considering her case, Keeton entered her professional training believing that (1) “sexual behavior is the result of personal choice for which individuals are accountable, not inevitable deterministic forces”; (2) “gender is fixed and binary (i.e., male or female), not a social construct or personal choice subject to individual change”; and “homosexuality is a ‘lifestyle,’ not a ‘state of being.'”

It wasn’t those views alone, however, that sunk her educational plans. The problem, rather, was that Keeton wanted to impose her views on her patients. Keeton had told both her classmates and professors about her clinical approach at a university-run clinic, and it wasn’t pretty:

  • She would try to change the sexual orientation of gay clients;
  • If she were counseling a sophomore student in crisis questioning his sexual orientation, she would respond by telling the student that it was not OK to be gay.
  • If a client disclosed that he was gay, she would tell him that his behavior was wrong and try to change it; if she were unsuccessful, she would refer the client to someone who practices “conversion therapy.”

Unsurprisingly, Keeton also told school officials that it would be difficult for her to work with LGBTQ clients.

Keeton’s approach to counseling not only would have flouted the university’s curricular guidelines, but also would have violated the ACA’s Code of Ethics.

Her conduct would have harmed her patients as well. As a school counselor, Keeton would inevitably have to counsel LGBTQ clients: 57 percent of LGBTQ students have sought help from a school professional and 42 percent have sought help from a school counselor. Suicide is the leading cause of death for LGBTQ adolescents; that’s twice or three times the suicide rate afflicting their heterosexual counterparts. And Keeton’s preferred approach to counseling LGBTQ students would harm them: LGBTQ students rejected by trusted authority figures are even more likely to attempt suicide, and anti-gay “conversion therapy” at best doesn’t work and at worst harms patients too.

Seeking to protect the university’s clinical patients and train her to be a licensed mental health professional, university officials asked Keeton to complete a remediation plan before she counseled students in her required clinical practicum. She refused; the university expelled her. In response, the Christian legal group Alliance Defending Freedom sued on her behalf, claiming that the university violated her First Amendment rights to freedom of speech and the free exercise of religion.

The courts disagreed. The trial court ruled against Keeton, and a panel of the U.S. Court of Appeals for the 11th Circuit unanimously upheld the trial court’s ruling. The 11th Circuit explained that Keeton was expelled not because of her religious beliefs, but rather because of her “own statements that she intended to impose her personal religious beliefs on clients and refer clients to conversion therapy, and her own admissions that it would be difficult for her to work with the GLBTQ population and separate her own views from those of the client.” It was Keeton, not the university, who could not separate her personal beliefs from the professional counseling that she provided: “[F]ar from compelling Keeton to profess a belief or change her own beliefs about the morality of homosexuality, [the university] instructs her not to express her personal beliefs regarding the client’s moral values.”

Keeton, in other words, crossed the line between beliefs and conduct. She may believe whatever she likes, but she may not ignore academic and professional requirements designed to protect her clients—especially when serving clients at a university-run clinic.

As the court explained, the First Amendment would not prohibit a medical school from requiring students to perform blood transfusions in their clinical placements, nor would it prohibit a law school from requiring extra ethics training for a student who “expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state bar’s rules.” Doctors can’t treat their patients with leeches; counselors can’t impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Ward v. Polite

The Alliance Defending Freedom’s follow-up case, Ward v. Polite, sought to give counseling students the right to withhold service from LGBTQ patients and also to practice anti-gay “conversion therapy” on those patients. The case’s facts were a bit murkier, and this led the appeals court to send it to trial; as a result, the student ultimately extracted only a modest settlement from the university. But as in Keeton’s case, the court rejected in a 2012 decision the attempt to give counseling students the right to impose their religious views on their clients.

Julea Ward studied counseling at Eastern Michigan University; like Keeton, she was training to be a school counselor. When she reviewed the file for her third client in the required clinical practicum, she realized that he was seeking counseling about a romantic relationship with someone of the same sex. As the Court of Appeals recounted, Ward did not want to counsel the client about this topic, and asked her faculty supervisor “(1) whether she should meet with the client and refer him [to a different counselor] only if it became necessary—only if the counseling session required Ward to affirm the client’s same-sex relationship—or (2) whether the school should reassign the client from the outset.” Although her supervisor reassigned the client, it was the first time in 20 years that one of her students had made such a request. So Ward’s supervisor scheduled a meeting with her.

Then things went off the rails. Ward, explained the court, “reiterated her religious objection to affirming same-sex relationships.” She told university officials that while she had “no problem counseling gay and lesbian clients,” she would counsel them only if “the university did not require her to affirm their sexual orientation.” She also refused to counsel “heterosexual clients about extra-marital sex and adultery in a values-affirming way.” As for the professional rules governing counselors, Ward said, “who’s the [American Counseling Association] to tell me what to do. I answer to a higher power and I’m not selling out God.”

All this led the university to expel Ward, and she sued. She claimed that the university violated her free speech and free exercise rights, and that she had a constitutional right to withhold affirming therapy relating to any same-sex relationships or different-sex relationships outside of marriage. Like Keeton, Ward also argued that the First Amendment prohibited the university from requiring “gay-affirmative therapy” while prohibiting “reparative therapy.” After factual discovery, the trial court dismissed her case.

On appeal before the U.S. Court of Appeals for the Sixth Circuit, Ward eked out a narrow and temporary win: The court held that the case should go to a jury. Because the university did not have a written policy prohibiting referrals, and based on a few troubling faculty statements during Ward’s review, the court ruled that a reasonable jury could potentially find that the university invoked a no-referrals policy “as a pretext for punishing Ward’s religious views and speech.” At the same time, the court recognized that a jury could view the facts less favorably to Ward and rule for the university.

And although the decision appeared to sympathize with Ward’s desire to withhold service from certain types of clients, the court flatly rejected Ward’s sweeping arguments that she had the right to stray from the school curriculum, refuse to counsel LGBTQ clients, or practice anti-gay “conversion therapy.” For one, it said, “Curriculum choices are a form of school speech, giving schools considerable flexibility in designing courses and policies and in enforcing them so long as they amount to reasonable means of furthering legitimate educational ends.” Thus, the problem was “not the adoption of this anti-discrimination policy, the existence of the practicum class or even the values-affirming message the school wants students to understand and practice.” On the contrary, the court emphasized “the [legal] latitude educational institutions—at any level—must have to further legitimate curricular objectives.”

Indeed, the university had good reason to require counseling students—especially those studying to be school counselors—to treat diverse populations. A school counselor who refuses to counsel anyone with regard to nonmarital, nonheterosexual relationships will struggle to find clients: Nearly four in five Americans have had sex by age 21; more than half have done so by the time they turn 18, while only 6 percent of women and 2 percent of men are married by that age.

In any event, withholding service from entire classes of people violates professional ethical rules even for nonschool counselors. Although the ACA permits client referrals in certain circumstances, the agency’s brief in Ward’s case emphasized that counselors may not refuse to treat entire groups. Ward, in sum, “violated the ACA Code of Ethics by refusing to counsel clients who may wish to discuss homosexual relationships, as well as others who fail to comport with her religious teachings, e.g., persons who engage in ‘fornication.'”

But Ward’s approach would have been unethical even if, in theory, she were permitted to withhold service from each and every client seeking counseling related to nonmarital sex (or even marital sex by same-sex couples). Because in many cases, the need for referral would arise well into the counseling relationship. And as the trial court explained, “a client may seek counseling for depression, or issues with their parents, and end up discussing a homosexual relationship.” No matter what the reason, mid-counseling referrals harm clients, and such referrals are even more harmful if they happen because the counselor disapproves of the client.

Fortunately, Ward did not win the sweeping right to harm her clients or otherwise upend professional counseling standards. Rather, the court explained that “the even-handed enforcement of a neutral policy”—such as the ACA’s ethical rules—”is likely to steer clear of the First Amendment’s free-speech and free-exercise protections.” (Full disclosure: I worked on an amicus brief in support of the university when at Americans United.)

Ward’s lawyers pretended that she won the case, but she ended up settling it for relatively little. She received only $75,000; and although the expulsion was removed from her record, she was not reinstated. Without a graduate counseling degree, she cannot become a licensed counselor.

Cash v. Hofherr

The latest anti-gay counseling salvo comes from Andrew Cash, whose April 2016 lawsuit against Missouri State University attempts to rely on yet murkier facts and could wind up, on appeal, in front of the more conservative U.S. Court of Appeals for the Eighth Circuit. In addition to his range of constitutional claims (freedom of speech, free exercise of religion, equal protection of law), he has added a claim under the Missouri Religious Freedom Restoration Act.

The complaint describes Cash as “a Christian with sincerely-held beliefs”—as opposed to insincere ones, apparently—”on issues of morality.” Cash started his graduate counseling program at Missouri State University in September 2007. The program requires a clinical internship, which includes 240 hours of in-person client contact. Cash decided to do his clinical internship at Springfield Marriage and Family Institute, which appeared on the counseling department’s list of approved sites. Far from holding anti-Christian bias, Cash’s instructor agreed that his proposed class presentation on “Christian counseling and its unique approach and value to the Counseling profession” was an “excellent” idea.

But the presentation itself revealed that Cash intended to discriminate against LGBTQ patients. In response to a question during the presentation, the head of the Marriage and Family Institute stated that “he would counsel gay persons as individuals, but not as couples, because of his religious beliefs,” and that he would “refer the couple for counseling to other counselors he knew who did not share his religious views.” Because discrimination on the basis of sexual orientation violates ACA guidelines, the university determined that Cash should not continue counseling at the Marriage and Family Institute and that it would be removed from the approved list of placements. Cash suggested, however, that he should be able to withhold treatment from same-sex couples.

All this took place in 2011. The complaint (both the original and amended versions) evades precisely what happened between 2012 and 2014, when Cash was finally expelled. You get the sense that Cash’s lawyers at the Thomas More Society are trying to yadda-yadda-yadda the most important facts of the case.

In any event, the complaint does acknowledge that when Cash applied for a new internship, he both ignored the university’s instructions that the previous hours were not supposed to count toward his requirement, and appeared to be “still very much defend[ing] his previous internship stating that there was nothing wrong with it”—thus suggesting that he would continue to refuse to counsel same-sex couples. He continued to defend his position in later meetings with school officials; by November 2014, the university removed him from the program.

Yet in challenging this expulsion, Cash’s complaint says that he was merely “expressing his Christian worldview regarding a hypothetical situation concerning whether he would provide counseling services to a gay/homosexual couple.”

That’s more than just a worldview, though. It also reflects his intent to discriminate against a class of people—in a manner that violates his program’s requirements and the ACA guidelines. Whether hypothetically or otherwise, Cash stated and reiterated that he would withhold treatment from same-sex couples. A law student who stated, as part of his clinic, that he would refuse to represent Christian clients would be announcing his intent to violate the rules of professional responsibility, and the law school could and would remove him from the school’s legal clinic. And they could and would do so even if a Christian client had yet to walk in the door.

But maybe this was just a big misunderstanding, and Cash would, in practice, be willing and able to counsel same-sex couples? Not so, said Cash’s lawyer from the Thomas More Society, speaking about the case to Christian news outlet WORLD: “I think Christians have to go on the offensive, or it’s going to be a situation like Sodom and Gomorrah in the Bible, where you aren’t safe to have a guest in your home, with the demands of the gay mob.” Yikes.

Although Cash seems to want a maximalist decision allowing counselors and counseling students to withhold service from LGBTQ couples, it remains to be seen how the case will turn out. The complaint appears to elide two years’ worth of key facts in order to present Cash’s claims as sympathetically as possible; even if the trial court were to rule in favor of the university after more factual development, Cash would have the opportunity to appeal to the U.S. Court of Appeals for the Eighth Circuit, one of the country’s most conservative federal appeals courts.

More generally, we’re still early in the legal battles over attempts to use religious freedom rights as grounds to discriminate; only a few courts across the country have weighed in. So no matter how extreme Cash or his lawyers may seem, it’s too early to count them out.

* * *

The cases brought by Keeton, Ward, and Cash not only attempt to undermine anti-discrimination policies. They also seek to change the nature of the counselor-client relationship. Current norms provide that a counselor is a professional who provides a service to a client. But the plaintiffs in these cases seem to think that counseling a patient is no different than lecturing a passerby in the town square, in that counseling a patient necessarily involves expressing the counselor’s personal and religious beliefs. Courts have thus far rejected these attempts to redefine the counselor-patient relationship, just as they have turned away attempts to challenge bans on “reparative therapy.”

The principles underlying the courts’ decisions protect more than just LGBTQ clients. As the 11th Circuit explained in Keeton, the university trains students to “be competent to work with all populations, and that all students not impose their personal religious values on their clients, whether, for instance, they believe that persons ought to be Christians rather than Muslims, Jews or atheists, or that homosexuality is moral or immoral.” Licensed professionals are supposed to help their clients, not treat them as prospective converts.

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.

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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.