113 Stories and the Law of Feelz

An amicus brief submitted to the Supreme Court, in Whole Women’s Health Care v. Cole, on behalf of the Center for Reproductive Rights does what, well, no one has done before.

The avalanche of amicus briefs is impressive—but one brief towers above the rest. Aided by the Center for Reproductive Rights, the powerhouse firm Paul, Weiss put together an astonishing document, signed by 113 female attorneys, detailing the importance of abortion rights in their own lives. “To the world, I am an attorney who had an abortion, and, to myself, I am an attorney because I had an abortion,” the brief begins. What follows is a series of gripping narratives about how abortion access helped women escape from poverty and abuse and rise to the heights of the legal profession.

Amicus briefs proffer arguments, whether legal or policy, in an effort to persuade the Court.  Are “gripping narratives” going to impact Supreme Court Justices?  And what, exactly, does this mean?

To the world, I am an attorney who had an abortion, and, to myself, I am an attorney because I had an abortion.

This may not be what Slate writer Mark Joseph Stern wants to hear, but the world doesn’t know these lawyers exist, and, frankly couldn’t care less.  They had abortions?  A million women get abortions every year. The justice are well aware of this. That 113 happen to be lawyers really doesn’t bring much to the table.  Their feelings about themselves might make for a good gender studies seminar, but not a CLE.

I firmly support the right to an abortion. It’s not grounded in clear constitutional law, but in policy.  There should be choice. It’s not because there are not strong policy arguments against abortion, and abortion is nothing to make light of, but that’s my position and I don’t give a damn if you disagree.

That said, Roe v. Wade was a horrible decision.

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights,Griswold v. Connecticut, 381 U.S. at 484-485; in the Ninth Amendment, id. at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

Justice Blackmun pulled this out of his butt. But he mustered a majority of the Supreme Court, and so it held that there is a fundamental individual right, within certain constraints, to an abortion.  As a matter of stare decisis and policy, there is no going back to back alley abortions.  Despite sound arguments to the contrary, there is no societally viable return to the bad old days when abortion was a crime.

But that doesn’t give rise to flights of absurdity.

Once again, dozens of advocacy groups and law firms are scrambling to explain why abortion is a fundamental liberty that helps real women secure their constitutionally protected right to equal dignity.

There is no constitutionally protected right to equal dignity. There is no legally cognizable meaning to the phrase, “equal dignity.” It’s a lie that social justice poseurs tell themselves, argue to their choir, want so desperately to believe that they repeat it as much as possible in the desperate hope of making it so.  Justice Kennedy is largely responsible for perpetuating this notion.

The oral arguments at the Supreme Court on Tuesday [in Obergefell v. Hodges] made clear that Justice Anthony Kennedy’s biggest contribution to the gay-marriage debate is his expansion of constitutional protections for the right to dignity. Justice Kennedy invoked the word “dignity” five times in the oral arguments; and other lawyers invoked it 16 times. It was central to the opening statements of Solicitor General Don Verrilli. “The opportunity to marry is integral to human dignity,” he began.

Like Justice Blackmun before him, Justice Kennedy pulled this out of his butt.

Kennedy first drew a clear connection between “personal dignity and autonomy” and laws regulating personal relationships such as marriage in the 1992 Casey decision, which upheld the core of Roe v. Wade:

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education … These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Justice Scalia ridiculed this as the “famed sweet-mystery-of-life passage,”  As with abortion, I am similarly certain that gay marriage is the correct policy choice, but also as with abortion, this is legal gibberish. And what scares the crap out of me is that it can be used to justify any outcome under the rubric of “dignity.”  Much as I may agree with the outcomes of Roe v. Wade and Obergefell v. Hodges, what can be said when this same manufactured rubric of human dignity, this vagary to be wrapped around whatever inexplicable feelings are next before the Court, is used to justify the evisceration of due process or free speech. You think that can’t happen?

So 113 women lawyers have submitted a brief in a case where Justice Kennedy is likely the swing vote, putting a human face on abortion, telling their stories, appealing not to reason or logic, but to their feelings.  I want the petitioner, Whole Women’s Health, to prevail. Just not because of this. If 113 stories of women lawyers influence the Supreme Court’s decision under the guise of dignity, then there is no constitutional right that’s safe.

30 comments on “113 Stories and the Law of Feelz

  1. Kathleen Casey

    My impulse was to skim the briefs for a good laugh at anyone I may know, now or in the past. I stopped myself. My time has value. Personal dignity has its place.

    Besides, shouldn’t some things be private? The amici are not thinking with their brains.

    No one forces the justices to fritter away their time, either. Maybe they’ll give this the big freeze.

    1. SHG Post author

      I never considered reading the “gripping” anecdotes. I fully accept the premise that their stories are deeply empathetic. No one ever tells anecdotes they think are otherwise, no matter what flavor of “human dignity” they prefer.

  2. Kathleen Casey

    I agree. Emoting has its place but it is almost always second to thinking. I think their anecdotes are grist for private conversation. Your mileage may vary.

  3. Richard G. Kopf

    SHG,

    As a judge with more than passing experience on the subject (e.g., the Carhart cases), this post is the most penetrating and intellectually honest discussion of the Supreme Court’s abortion and gay marriage jurisprudence that I have ever read. Only a real lawyer with extensive experience fighting in the trenches for the rights of real people could have written this amazing piece. You are a treasure.

    Snark all you want about this praise. I don’t give a shit. It is true. And, at least, give me credit for not calling you a public intellectual!

    All the best.

    RGK

  4. Patrick Maupin

    [T]he world doesn’t know these lawyers exist, and, frankly couldn’t care less.

    Hence the brief. The cheapest way to claim to the world that you were “instrumental” in a Supreme Court decision.

    If 113 stories of women lawyers influence the Supreme Court’s decision under the guise of dignity, then there is no constitutional right that’s safe.

    The best outcome would be for the brief to remain unmentioned. But it’s probably going to have some stories that are just too juicy for Scalia to resist.

    1. SHG Post author

      Hence the brief.

      You missed the “couldn’t care less” part? That Stern did his SJW duty to gush about the gripping emotions, this brief has already had an impact even if it serves no other purpose. Just as there are stories written about revenge porn gals, despite their having accomplished absolutely nothing, the only thing that matters is the creation of an appearance of significance, regardless of belies reality. That seems to be all that’s needed to succeed these days.

      1. Patrick Maupin

        You missed the “couldn’t care less” part?

        Not at all.

        [T]his brief has already had an impact even if it serves no other purpose.

        Yes, it’s all part of a reality show, and not the kind where the participants are cognizant of the joke, but rather the kind where really bad things happen, because it’s probably a safe assumption that at least a few of those amici have living, breathing clients depending on them to think logically.

    2. Kathleen Casey

      That would be a thing to read. As the father of a lot of kids, he may be sympathetic, but may also mention “Adoption was an option. You did not give your kids a chance.”

  5. Andrew Case

    I love this analysis, but it leaves me puzzled after reading your post on DeShaney last week. Wouldn’t some future decision finding that the government has an affirmative constitutional obligation to send ambulances and police be based on feelings of justice, and policy, and not constitutionally derived? Isn’t the best way to address DeShaney to get state legislatures to pass laws requiring municipalities to protect their citizens, rather than imagining it is a constitutional right, just as the right way to secure gay marriage (as we were well on the way to doing) was to have legislatures affirm it?

    1. SHG Post author

      You’ve made a monumental intellectual leap off a blind cliff. What part of my DeShaney post makes you imagine that my basis is “feelings of justice”? Did I say that? That may have been the undertone of Linda Greenhouse’s rationale, but what does that have to do with me?

      Government is given police power, and having assumed that power, there is a constitutional right to expect the government to fulfill those duties it undertakes in a reasonably competent fashion. This doesn’t make it mutually exclusive, or pre-empt states from imposing their own duty of performance. But “feelings of justice”? Are you nuts?

      [Ed. Note: Andrew wrote a subsequent comment which was trashed because it was completely off-topic and used as a pedantic soapbox for his tangential concerns. This is a warning.]

  6. Richard

    I agree with your conclusions about the irrelevance of the amicus brief, equal dignity, the legal butt-pulling in Roe and Obergefell, and your policy conclusions about both gay marriage and abortion. Justice Ginsburg has said the same thing, albeit a bit more decorously. But then are there any legal arguments left which can solidly root both of these rights in a constitutional framework? Are we left with only Casey’s “undue burden,” a truck-sized loophole allowing the states to do anything short of banning abortion altogether? And then why can’t the states ban gay marriage? And even if we allow “equal dignity” to trump solid constitutional reasoning in these cases, how are due process or freedom of speech truly at risk?

    1. SHG Post author

      As to a sound constitutional framework, I leave that to smarter people than me. It seems that gay marriage is more easily grounded in equal protection, but abortion is a struggle. Maybe you have an idea that doesn’t involve creating non-existent rights out of thin air?

      As to “equal dignity” trumping due process and free speech, it’s already happening. Have you seen what’s going on with rape and sexual assault on campus? Have you seen speech codes banning hate speech? And need I mention anti-bullying laws, anti=revenge porn laws, anti-harassment laws? We are knee deep in it already.

      1. Richard

        Yes, I agree completely with your last point, and would also applaud your earlier comments about lawyers who would ignore their obligations to their clients and complain about their feelings instead. But I also think that constitutional analysis has always been political and policy-based. Your hope for a neutral framework in which these rights can be established seems to me a chimera. Pace Jackson, the constitution may not be a suicide pact, but if everyone other than a bunch of principled lawyers decides to ignore it, it’s dead and gone anyway. So either one reluctantly accepts the illogic of Roe and Oberefell, and supports abortion rights and same-sex marriage as constitutionally based, or else one perforce concedes that the states can take them away at will.

        1. SHG Post author

          One doesn’t have to accept the illogic of the rationales behind Roe and Obergefel, but merely accept the holding. It’s not the only poorly reasoned law out there, and most of it goes against what I would prefer. I’m happier to have a bad decision with a good outcome than not.

          That said, can we get back to the point of the post, the amicus brief? We gone a little too orthogonal already.

  7. Richard

    I looked at the amicus brief, and I know professionally a few of the women who signed on to it. I have two reactions: [Ed. Note: Balance deleted.]

    1. SHG Post author

      I apologize if I was unclear. I wasn’t asking what you thought of the amicus brief. When I said the “point of this post,” I was referring to my post. Comments are about the post, not your random unrelated reactions. If you want to do so, start your own blog.

      1. Sgt. Schultz

        Hi Richard. How cool that you had reactions to the amicus brief that you feel are so valuable that you want to tell SJ readers! Except no one gives a shit about your reactions. Have a nice day. Don’t let the computer screen hit you on the way out.

        1. SHG Post author

          Richard is new to the blawgosphere, and I don’t think Richard understood what this is about or how it works. This is why it’s necessary to keep writing the “how to comment” posts, but since there’s a n00b every day, they never suffice.

  8. Keith

    signed by 113 female attorneys, detailing the importance of abortion rights in their own lives.

    Not that words haven’t lost all meaning as far as feelz are concerned, but the brief says “OVER 110 OTHER WOMEN IN THE LEGAL PROFESSION” for a reason.

    See footnote 2: “The terms “women in the legal profession,” “lawyers,” and “attorneys” are used broadly in this brief”.

    Because What kind of message would they be sending without a half dozen law students.

    1. SHG Post author

      Isn’t it bad enough without nitpicking the fact that they played a little fast and loose before the Supreme Court?

      1. Keith

        Fine. It’s not like yours is a profession where words mean the difference between life and death.

  9. losingtrader

    “…,Griswold v. Connecticut, 381 U.S. at 484-485..”

    That’s the case where Clark Griswold took his family to Wally World , right?

  10. chris

    Sorry for the stupid question, but what’s a CLE? All google has, when whittled to legal context, is Continuing Legal Education, which doesn’t make sense here.

  11. Bill

    Roe isn’t current law–Planned Parenthood v. Casey is. The 14th Amendment right to Liberty includes the rights to make decisions about family and the right to bodily integrity:

    It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood, see Carey v. Population Services International, supra; Moore v. East Cleveland, 431 U.S. 494 (1977); Eisenstadt v. Baird, supra; Loving v. Virginia, supra; Griswold v. Connecticut, supra; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra, as well as bodily integrity. See, e. g., Washington v. Harper, 494 U.S. 210, 221-222 (1990); Winston v. Lee, 470 U.S. 753 (1985); Rochin v. California, 342 U.S. 165 (1952).

    Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

    1. SHG Post author

      Casey doesn’t make Roe v. Wade “not current law,” but is a further refinement. Unfortunately, it adds nothing to the underlying basis for the right whatsoever, but merely relies on Roe v. Wade with the facile “settled” language. Ain’t nothing.

  12. Ken

    Replace “dignity” with “liberty” makes more sense. Ownership of self is the fundamental definition of liberty.

    1. SHG Post author

      The problem is that law defines the unenumerated liberty interests as a right conferred on the individual by the due process clause (there’s a lot more, but the point is that we don’t get to call anything we want liberty under the law). Since this is law, we kinda have to use the legal definition. On the other hand, there is no legal definition of a right to dignity, as there is no such thing.

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