From Page to Practice: How Thinking Like Pro-Choice Lawyers Can Win the Battle and Lose the War
I founded National Advocates for Pregnant Women (NAPW) in order to do cross–issue work. Having had the privilege of working in many of the main-stream pro-choice organizations and having worked extensively with the founders and leaders of the Reproductive Justice Movement, I came to the conclusion that women’s reproductive rights and health would never be secure if the focus of our legal work remained on the defense of abortion rather than on the women who have them. Women’s lives are not just influenced by whether or not they can end a pregnancy, but also by all of the political, economic, and social conditions that enhance or limit their ability to be full and equal participants in society. I also became clear to me that the mainstream pro-choice movement was missing an extraordinary number of opportunities to build alliances and strength across issues.
As a result, NAPW has worked to build bridges between reproductive rights and drug policy reform advocates, identifying shared interests and the strong relationship between the war on abortion and the war on drugs. NAPW has also taken the lead in building bridges between those who defend the right to choose abortion and those who defend the rights of pregnant women at all stages of pregnancy, including during labor and delivery. NAPW believes that “Birth Justice” must be fully part of the definition and agenda of the Reproductive Justice Movement. In this post, however, I want to focus on one case and one example of how failure to do cross-issue, multi-strategy work undermines the effort to defend Roe v. Wade, and more importantly, the women who become pregnant and sometimes have abortions.
On January 14th, 2003, more than thirty years after the Supreme Court decided Roe v. Wade,[1] Norma McCorvey, previously known only as Jane Roe, filed an application with the Supreme Court to overturn Roe. Claiming that the factual and legal landscape had changed significantly over the past thirty years, Ms. McCorvey argued that the Roe decision is no longer “just” or “equitable,” and that in fact legal abortion is harmful to women.
At least thirteen amicus curiae briefs were filed in support of Ms. McCorvey’s motion to overturn Roe.[2] Not a single amicus brief was filed in favor of retaining Roe v. Wade. In fact, it appears that that no one filed any kind of brief in opposition to McCorvey’s motion. The party being sued, the Dallas County District Attorney declined to challenge the motion. In the end, the action was dismissed as moot by the United States District Court for the Northern District of Texas, and by the United States Court of Appeals for the Fifth Circuit.[3] The U.S. Supreme Court denied cert.[4]
This post addresses the fact that not one mainstream pro-choice organization defended Roe and the millions of women who have benefited from it. This stunning non-response reflects two things that I think are relevant to this Page to Practice Symposium: 1) that thinking narrowly – like lawyers – blinds us to a wide variety of advocacy tools that are as important as – if not more important than legal arguments, and 2) that thinking like pro-choice lawyers blinds us to the larger political issues at stake in the ongoing effort to overturn Roe v. Wade and deny to women their civil and human rights.
When I asked colleagues at mainstream pro-choice organizations why they had not organized or filed any kind of amicus opposition to the McCorvey case, their answer was straightforward and pragmatic. They said they did not think the courts would take the motion seriously, that they expected the motion to be dismissed as moot, and that they did not want to waste resources responding to crazy legal arguments that were going to lose anyway. From a narrow legal perspective these lawyers were absolutely right. The case was dismissed as moot.
From a larger political and cultural perspective, however, I would argue that they were very, very wrong. The pro-choice movement failed to recognize how anti-choice activists successfully use cases like these to: 1) organize and build momentum, 2) perpetuate lies about science and history and 3) to distract attention from fundamental political issues around which there might be significant agreement across “pro-life” and “pro-choice” lines. In other words, the groups supporting Ms. McCorvey were not just making legal arguments about abortion, they were making political arguments about the status of women, the role of science, and, most importantly, the role government plays in the lives of ordinary citizens.
We fail to respond to those arguments at our own peril.
The main arguments in the case help clarify this. The formal legal argument was that the legal and factual circumstances around abortion had so dramatically changed since 1973, that Roe no longer had any valid basis. The three main changes were these: (1) new scientific knowledge unavailable to the Supreme Court in 1973 now established that fetal personhood exists from the moment of fertilization; (2) experience with legal abortion since 1973 now revealed that abortion harms women; and (3) today, as a result of changes in the social, medical and legal context, no woman suffers “the burden of unwanted motherhood.”
The claim that there is new science regarding fetal development is a core argument in current and ongoing efforts to overturn Roe. Indeed, it is a central argument made by PersonhoodUSA, an organization that seeks to pass laws in every state recognizing the unborn as full persons from the moment of fertilization. Focusing on “new science” serves numerous strategic purposes: 1) it keeps the discussion centered on the fetus, not the pregnant woman; 2) it offers the appearance of scientific and medical legitimacy to the argument that once a woman becomes pregnant, the state can control the woman to protect the “person” inside her; and 3) it distorts history, ignoring the fact that the Roe Court was presented with extensive evidence (including 10 pages of photographs graphically depicting actual fetal development) regarding modern science and the “humanity” of the “unborn” child. As this new Youtube video, Roe v. Wade, “New” Science & the Old Geography of Pregnancy, documents, the claim that the Court would have decided differently if it had access to new scientific evidence is simply not true.
Failure to respond to the “new” science argument leaves our side vulnerable on many levels. For example, the claim that there is new science to support the argument that fetal rights should trump women’s human rights seems to be a successful strategy for bringing in new young anti-choice activists who have only heard one side of the story. Young and new activists will continue to hear only one side of the story if the pro-choice movement does not respond.
Moreover, “new” science claims regarding fetal development are persuasive to some federal court judges. Fifth Circuit Judge Edith H. Jones wrote a concurring opinion in the McCorvey case agreeing that it was moot, but specifically legitimizing the argument that new scientific information could provide a basis for some day overturning Roe. See 385 F.3d 846, 852 (2004) (Jones, J., concurring).
The second argument in support of McCorvey’s motion is that abortion actually hurts women. The McCorvey briefs were supported by affidavits from 1,000 women who each filed an affidavit that consisted of brief responses to four standardized questions about their experiences with abortion. In each affidavit, the woman described negative emotional and/or physical consequences they claimed were caused by having had an abortion.[5]
Instead of organizing compelling, passionate responses to these assertions of post-abortion trauma and distress, the pro-choice side let the anti-choice movement appropriate the truth-telling, speak-outs that once had been one of our side’s most effective strategies. Indeed, few remember that early radical feminist lawyers used speak outs by women who had illegal abortions as extremely effective tools in the effort to overturn anti-abortion laws. (See, e.g., Diane Schulder & Florence Kennedy, Abortion Rap (1971) describing how feminist lawyers, including Nancy Stearns, insisted that depositions of women who had illegal abortions be public, transforming a formal legal mechanism for gathering evidence into public speak-outs). In fact, “Silent No More,” Ms. McCorvey’s anti-abortion ministry, was the name of a 1985, post-Roe, NARAL campaign that organized men and women to speak out about why they or someone they knew had had an abortion.[6]
While Ms. McCorvey’s effort to overturn Roe failed, those supporting her turned the effort into an effective movement-building experience, winning loyalty and commitment from the women who signed the affidavits. Indeed, many of the same 1,000 women who signed those affidavits were mobilized to action – going next to South Dakota where they testified in support of the 2006 law in that state banning virtually all women from having abortions. In contrast, our side did nothing in response. Rather than transform the attack into an opportunity to gather real stories on our side or to develop new, passionate, funny, creative or any other kind of response, we let the courts handle it.
Yes, we won the mootness argument, but the faux science of post-abortion trauma was repeated and then legitimized in Circuit Judge Jones’s concurring opinion in the McCorvey case. Indeed, that argument can no longer be dismissed as one that can’t possibly be taken seriously by our courts. Not only did Circuit Judge Jones take it seriously, Justice Kennedy took it seriously in his majority opinion in Gonzales v. Carhart.[7] That is the Supreme Court opinion that upheld, for the first time, a federal law banning women from having certain kinds of abortion procedures even if that procedure is necessary to preserve the woman’s health. One basis for this ruling was his suggestion that having such abortions would cause women to suffer emotional harm:
Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.[8]
The third argument in the McCorvey briefs is the one that most clearly exposes the need to move beyond single issues and a narrow defense of abortion. According to the briefs, Roe should be overturned because there is no longer a burden of unwanted motherhood. This is because, forty-six states, Texas among them, have passed “Safe Haven” laws.[9]
This argument isn’t just some crazy excuse to overturn Roe and outlaw abortion; it is a key part of a much larger political agenda.[13] What is the larger agenda beyond abortion? It is one that seeks to distract attention from real threats to human life, and to create the illusion of government care where none, or very little exists. Focusing on the evils of abortion directs the anger people have about the condition of their lives to the people who have and support abortion and away from the government that is failing them.
The claim that there is no longer a burden of unwanted motherhood serves as a brilliant distraction from the fact that America is one of only two industrialized nations that does not require any paid parental leave; that millions of pregnant women, especially those who work part time or for small companies lack legal protection from workplace discrimination based on pregnancy; and that millions of Americans – including mothers and children – have no health insurance. Lots of people, whether they consider themselves pro-life or pro-choice, suffer because they do not have access to health care and might be persuaded that health care reform is a good idea. But the abortion debate is used to divide and distract people from the shared threats to their wellbeing and from the concrete actions, such as health care reform, that could make a difference.
And as for Texas – the state that will raise your child for you – it ranks in the bottom third of states (34th of 50) on child wellbeing. According to the national 2009 KIDS COUNT Data Book:
[C]ompared to 2000, in 2007 more Texas children lived in economically insecure families and key indicators of infant health worsened. These data are particularly troubling because, while they represent most updated information available, they were gathered prior to the current economic recession—meaning these indicators of child well-being will likely continue to worsen as the data catches up with our recent harsh economic realities.
McCorvey’s arguments did not succeed in getting Roe overturned. But her arguments did distract attention from Texas’s appalling record on child and family health. Her arguments did not overturn Roe, but they did reinforce the idea that abortion – not the lack of health care or any other government policy – is what poses the greatest threat to families in America today. McCorvey’s arguments did not overturn Roe, but they motivated a conservative Circuit Court Judge to write and publish an unchallenged concurring opinion that legitimized junk science and idea that women who have abortions are killing their children. McCorvey’s arguments did not overturn Roe but they did mobilize hundreds of anti-choice activists. McCorvey’s arguments did not overturn Roe but they did reinforce and spread anti-abortion propaganda that will eventually become the “truth” if silence is the primary response.
In sum, if we defend the right to choose abortion only through narrow legal tools, and we focus on defending abortion rather than the women who have them, we will not only lose the right to choose abortion, but any hope of achieving a true culture of life, one that values and includes the women who give that life.
Lynn M. Paltrow, J.D.
Executive Director
National Advocates for Pregnant Women
The author/poster would like to thank Laura Trice, 2010 NYU Hays Fellow, and NAPW staff and legal interns for their help in preparing this post.
[1] 410
[2] At least two amicus briefs were filed in support of McCorvey’s appeal to the Fifth Circuit, and at least eleven were filed in support of her petition to the Supreme Court.
[3] McCorvey v. Hill, No. Civ.A. 303CV1340N, 2003 WL 21448388 (N.D. Tex. Jun. 19, 2003), aff’d, 385 F.3d 846 (5th Cir. 2004).
[4] McCorvey v. Hill, 543
[5] The affidavits also try to show a link between breast cancer and abortion, a link that has been shown to be false by the American Cancer Society, among other organizations. Of the thirty-nine affidavits available on their website, not one of the women reported having breast cancer.
[6] http://www.prochoiceamerica.org/about-us/learn-about-us/history.html; See also, Lynn M. Paltrow, National Abortion Rights Action League, Amicus Brief Richard Thornburgh v. American College of Obstetricians and Gynecologists (with introduction by Rosalind Pollack Petechesky) 9 Women’s Rts. L. Rep. 3 (1986).
[7] 550
[8] Gonzales, 550
[9]
[10] Tex. Fam. Code § 262.301-09 (Vernon 2009).
[11] McCorvey v. Hill, No. 03-10711, on Appeal from the Untid States District Court for the Northern District of Texas, Brief of Appellant Norma McCorvey,at 40.
[13] See, e.g., Frank Schaeffer, Crazy for God: How I Grew Up as One of the Elect, Helped Found the Religious Right, and Lived to Take All (or Almost All) of It Back (2007).