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.