Supreme Court briefs tend to be the driest of documents, stuffed with citations to precedent and recitations of lower- court proceedings. Not one filed this month in an abortion case now before the justices. This friend-of-the-court brief mentions precisely three cases, one statute (the Texas abortion law being challenged) and zero law review articles.
Instead, it tells stories — not about law but about lawyers. Specifically, about lawyers who have had abortions. Their point is to explain to the justices how exercising this constitutional right allowed them to proceed with the practice of law and with their lives. Their point is to let the justices know that, even if they do not realize it, they almost certainly know women who have had abortions, women whose biographies are not so different from theirs.
“It’s the justices’ community — it’s their colleagues and people who have argued before them and former law school classmates and co-clerks,” one of the brief’s authors, Alexia Korberg of the law firm Paul Weiss, told me.
Indeed, the most powerful part of the brief is a 10-page appendix listing the 113 signatories: corporate lawyers, partners at major law firms, retired judges, law professors and law students who each took the brave step of going public with her decision to have an abortion.
Their testimonies were collected in a two-week sprint over the winter holidays, a deluge that surprised the lead author, Allan Arffa. “I thought it was a hard ask,” he said.
Lawyers are notoriously cautious, fearful of offending partners or clients. So Arffa worried that only retired lawyers, or those working for liberal-leaning groups, would go public. Instead, he said, “We were just overwhelmed, not just by the number but by the breadth. They’re from all portions of the legal profession.”
The brief notes that 1 in 3 American women will have an abortion in her lifetime. Yet the decision to terminate a pregnancy is so private — it remains so stigmatized — that few are comfortable discussing it.
That disconnect between private reality and public discourse has real-world consequences inside the Supreme Court chamber. Justices instinctively hostile to abortion rights reinforce their legal conclusions with the paternalistic supposition that they are shielding women from shattering consequences.
Thus, Justice Anthony Kennedy, in a 2007 partial-birth abortion case: “It seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”
Kennedy, likely to cast the deciding vote in the Texas case, cited an amicus brief filed in the name of Sandra Cano, the former Mary Doe of a 1973 abortion ruling, featuring affidavits from women who described how they were “psychologically devastated” by the decision to have an abortion.
Now comes the female lawyers’ brief. The experiences they relate are not of regret but of relief and even liberation. Those words no doubt jar those who believe that abortion is the taking of a human life, but they express the reality experienced by many women who have chosen to terminate pregnancies.
“I am the daughter of a teenage mother who is the daughter of a teenage mother,” the brief quotes one woman, a public defender who had an abortion at 16. “Access to a safe, legal abortion broke the familial cycle of teenage parenthood and allowed me . . . to graduate from an elite college, work for one of the nation’s most storied civil rights organizations, and go on to graduate from the University of Michigan Law School.”
An in-house counsel to a major university recalled becoming accidentally pregnant just before starting law school. “I was heading to New England and I didn’t even own a winter coat,” she recalled. “How could I have a child? . . . Had I not had an abortion, it is entirely possible that I would not have been able to finish law school — I might not have even been able to manage starting law school.”
Although the women are listed in the appendix, they are not identified by name in the body of the brief. The lawyers said this was to underscore the universality of their stories; to my mind, it would have been even more powerful to attach names to individual narratives.
Morrison & Foerster partner Janie Schulman, one of the lead signers, had a late-term abortion after an ultrasound revealed a fatal heart defect. “It’s very important for the public and the court to see that the people who have relied on this access . . . are not a group of irresponsible people who have an abortion without a thought,” she told me.
Justice Kennedy, read this brief, please. You have the power to say what the law is, but don’t rule based on assumptions about what is best for women. Your colleagues at the bar — like the rest of us — can judge that for themselves.
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