The Thread: On Justice
I can’t speak, but I can scream. On May 21, 2019, I went with five thousand other Portlanders to a downtown park, and I yelled and wept and raged against the abortion bans. I listened to speakers from NARAL, Planned Parenthood, and the ACLU talking about the fight for reproductive rights. It was my first pro-choice protest, largely because I have taken these rights for granted.
Before I went to law school, I never considered the Supreme Court as an institution. I knew who Sandra Day O’Connor and Ruth Bader Ginsburg were; the rest were a sea of indistinguishable old white men, and Clarence Thomas, whose name I only knew because of Anita Hill.
On one of the cars my mother drove during my childhood, next to her “I Believe Anita Hill” sticker, was another bumper sticker that said, “If you don’t like abortion, don’t have one.” I knew what an abortion was, and in my mind, this sticker implied that a bunch of women who didn’t like abortions were sadly lining up to have them. I thought this phrase meant have babies if, and only if, you want to. It occurred to me years later that it also meant: Make the decision that’s best for you; I’ll make the decision that’s best for me. In eight words, on a sticker the size of my forearm, was the radical proposition that women were people capable of making their own medical decisions, the very definition of pro-choice.
But the choice I took for granted hadn’t always belonged to women. I knew this because my mother told me, and also because of the scene in Dirty Dancing where Penny almost dies after getting an illegal abortion. The choice had been granted to women less than a decade before I was born, by the Supreme Court. I knew this, but I didn’t read Roe v. Wade until I was a twenty-four-year-old first-year law student studying constitutional law.
Law school is designed to break its students down, in order to rebuild us into better law students. They broke our writing and taught us legal writing. They broke our idealism and taught us critical thinking. And perhaps most cultishly, they convinced us that there was such a thing as judicial neutrality. My professors seemed sure that the Justices of the Supreme Court were superhuman. I believed that these great arbiters of the law were more than just individuals with biases; they were in fact the most objective minds of their generation. I believed there was such a thing as objectivity.
By the end of law school, I was arrogant with knowledge about how the courts worked, how case law built upon itself. Roe v. Wade will never be overturned, I thought. There was no reason to protest. Even the most conservative judges were temperate jurists. In fact, I worked for two judges, one thought to be fairly conservative and the other thought to be fairly liberal. I saw how their political ideologies were opaque, nearly absent from their work on the bench. I admired their rational, well-reasoned decisions and I thought at one point that I could stay there, working for the court, forever.
The courts are the only lifetime appointment branch of the federal government. They are the balance against rapidly changing social norms and mores. Their whole function is to review laws made by Congress and state legislatures (who represent their electorates) and to settle national legal disagreements. However, these review powers are limited. First, the Supreme Court only takes a small handful of cases each year. No matter how much the seething conservatives in Alabama want the Supreme Court to hear a case, they have no right to bring their case to the court at all. Everyone has the right to an appeal, just not a Supreme Court appeal. If the Supreme Court doesn’t hear your case, the decision of the appellate court is final. The Supreme Court usually takes cases when multiple courts across the nation are coming down on different sides of a legal issue. There is also the matter of needing an actual controversy to decide, and the principle of stare decisis, meaning precedent decides.
Actual controversy means that the Supreme Court doesn’t deal in hypothetical situations. You can’t just ask the Supreme Court to tell you if abortion is a constitutional right; you have to bring a case which requires at least two parties in conflict, an initial case, and an appeal. The parties have to have a real conflict; if they resolve it or if the issue is otherwise mooted, the case is thrown out.
Stare decisis (sounds like: starry decISIS) is Latin for “the decision stands.” It’s a judicial principle that says when there is a prior ruling on a similar issue, the court should try to be consistent and follow its prior logic. It is a big deal for a court to reverse itself, but it’s happened plenty of times. Stare decisis is not a law; it’s an unbinding ideology. There are many ways around stare decisis that are not outright reversal, including distinguishing cases by their facts and refining the legal landscape while still, in theory, upholding the original decision. However, without following the principle, court opinions would be seen as hither-thither, deciding things one way today, and another way tomorrow. Stare decisis gives the court a lot of its prestige, so it is in a court’s best interest to follow previous precedent, stacking decisions on themselves like a wall.
Roe v. Wade was the landmark Supreme Court case that recognized a woman’s right to make private medical decisions without state interference before fetal viability. After discussing the history of abortion and its regulation, beginning with the ancient Greeks and continuing through English common law and American statutory law, the Roe court explained that even though “the right to privacy” isn’t a named constitutional right, it exists in the penumbra of implied rights in the Constitution. If that sounds like dubious footing, it is. The court then held that a woman’s right of “personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.” Adopting pregnancy’s three-trimester framework, the Court held that the state had a compelling interest in the health of both the mother and the fetus, and that these interests were distinct. Prior to the end of the first trimester, the court said an abortion decision must be left to the medical judgment of the pregnant woman’s attending physician. In the second trimester, the state was permitted to regulate abortion in ways “reasonably related to maternal health.” In the third trimester, the state could regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
Roe v. Wade remains one of the most controversial opinions in Supreme Court history. Immediately, socially conservative states began crafting laws to challenge and define the contours of Roe, in hopes that the rights recognized in the decision could be culled. One such law came before the Supreme Court in Webster v. Reproductive Health Services in 1989. A Missouri law claimed that life began at conception, and that public health facilities and their workers were banned from providing abortions unless the life of the mother was at risk. The court upheld this restriction, saying that the right established in Roe did not include a right to government assistance in obtaining an abortion. In a blistering dissent, Justice Blackmun (the author of the Roe opinion) took Justices Rehnquist, White, and Kennedy to task for attempting to overturn Roe by what he claimed were stealth tactics; he described their opinion as “filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly.”
Justice Blackmun, you might be realizing, was onto something.
Twenty years after Roe, in Planned Parenthood v. Casey, the Supreme Court again considered women’s right to seek an abortion. This time, Justice Sandra Day O’Connor wrote the majority opinion, throwing out Roe’s three-trimester framework and the strict scrutiny test for a new legal standard: the undue burden test. This test said abortion regulations were permissible under the constitution unless they imposed an undue burden on a woman’s right to terminate her pregnancy.
Casey involved a challenge to a wide-ranging Pennsylvania abortion law that included requirements such as informed-consent, a twenty-four-hour waiting period for women seeking abortions, the consent of at least one parent or guardian for a minor seeking abortion, and the informed consent of spouses. In the cases of both the parental/guardian and spousal requirements, various waivers were available for extenuating circumstances.
Casey was thought to accommodate both sides in the abortion debate. By discarding the three-trimester framework and issuing a less rigorous undue burden standard, states had far greater latitude to regulate abortion before the point of fetal viability. The Casey court applied the less rigorous undue burden standard to the Pennsylvania laws and, with the exception of the spousal-consent requirement, found all to be constitutional.
But abortion opponents wanted the Casey court to overturn Roe. By affirming it, the court solidified Roe’s legal precedent, which gave it greater protection from future challenges. Each time that the court builds upon a case, it affirms the principle of stare decisis and makes it harder to argue for reversal.
In the early 2000s, the Supreme Court considered the propagandically named “partial-birth” abortion ban. There is no medical procedure called a partial-birth abortion; there is, however, a late-term abortion (usually performed between twenty and twenty-four weeks) called a dilation and extraction, or D&X. These incredibly rare procedures are often given under tragic circumstances, such as extreme fetal abnormalities or risks to the life of the mother.
Jennifer Gunter, a California OB-GYN, explained on her blog:
A good example is a woman at 26 weeks who needs to be delivered for her blood pressure—that is the cure, delivery. However, because of her high-blood pressure fetal development has been affected and her fetus is estimated to weigh 300 g, which means it can not live after delivery. She will be offered an abortion if there is a skilled provider. This is safer for her and her uterus than a delivery.
In Stenberg v. Carhart, the court ruled that a Nebraska statute banning “partial-birth abortions” without an exception for the health or life of the mother placed an undue burden on a woman’s constitutional privacy rights and struck it down. Two years later, in Gonzales v. Carhart, the court upheld the “federal partial-birth abortion ban” passed in 2003 and signed into law by President George W. Bush. The Gonzales decision was significant because the court found the federal law constitutional even though it, too, did not contain an exception for the life and health of the mother. The court’s position on these bans changed in the two years because Justice O’Connor retired, Justice Alito was confirmed, and Justice Kennedy became the “swing” vote. Kennedy was much more easily convinced that these procedures were “too close to infanticide.”
Since 2010, socially conservative states with Republican legislatures have been passing TRAP laws (targeted regulation of abortion providers). These are the laws that require abortion providers to have admitting privileges at hospitals, hallways wide enough for two gurneys, and other regulatory requirements which are meant to make providing abortion as expensive and difficult as possible. TRAP law states have fewer and fewer providers, and women seeking legal abortions have to travel great lengths or go without them, depending on their particular circumstances. The most famous TRAP laws came out of Texas, and were challenged in 2016 in Whole Women’s Health v. Hellerstedt. The court struck down the laws as unconstitutional, but this was before the Kavanaugh and Gorsuch appointments (we had an eight-Justice court at the time).
TRAP laws, the “partial-birth” abortion ban, and the Casey decision are all part of the long strategy of eroding Roe v. Wade. We started out with a woman’s constitutional right to make private medical decisions, and strict scrutiny for laws that impinged on the right pre-fetal-viability. We don’t have that anymore. We have Casey’s “undue burden” standard, a much slipperier and more subjective measure. The question is not as clear as it once was in terms of pre and post-viability, and states’ interests in maternal health or fetal health. The question becomes whether or not a regulation imposes an undue burden on a woman’s right to make her medical decisions. What a team of rich and predominantly white men think is an undue burden differs greatly from what the diverse people who actually want and need access to abortion care think is an undue burden.
Waiting periods, transvaginal ultrasounds, lectures about fetal development and adoption, and parental notification have all been allowed under the undue burden standard. But ask anyone who has had to seek abortion care in these states: waiting periods mean costly travel and overnight expenses; transvaginal ultrasounds are pointless, burdensome, and violating; lectures about adoption and fetal development are patronizing; parental notification is incredibly intimidating for many minors, especially in cases of abuse and/or incest. These are all very onerous (and completely legal) requirements that keep people from getting abortions when they need them. But these requirements are nothing compared to the complete ban Alabama passed last month, which is not only unfair, it’s outrageous.
Here’s what will probably happen: these draconian bans will be ruled unconstitutional by the lower courts and the Supreme Court will decline to hear the challenge to these cases. Which means abortion rights will stay exactly as they are in states that have passed these laws. The real concern is what erosion these legislatures will come up with next, and how many people will be unable or unwilling to overcome them to get their rightful medical care.
Intimidation is emotional terrorism, is abuse. Constantly threatening or pretending you’re going to hit someone in the face (even if you never actually hit them) is terrorism, is abuse. These abortion laws terrorize women and people with uteruses, which is what they are designed to do. They don’t have to be constitutional to do that. They still have the impact of reminding us that our bodies do not belong to us, that our autonomy lasts only as far as the grace of our state legislatures, and that all of this could be taken away on a whim.
Inside, I struggle between the screaming rage that I feel, and the reasoned, levelheaded rationality that I have been trained to express. I understand perfectly well why pundits, congressmen, and journalists have been smugly certain for years that abortion rights would never truly go away. I also feel the terror of these legislators constantly swinging a baseball bat at my body. It’s a win-win for the anti-woman, anti-autonomy, religious zealots who run the state legislatures. If their horrible laws do make it in front of the Supreme Court, they can pray for a reconsideration of Roe. They might even get it, given the current makeup of the Court. But even without that stamp, even if their laws are stopped in their tracks by injunctions and existing Supreme Court precedent, they have already succeeded in reminding us that we are reproductive commodities in their eyes. That we are less than human. That our lives, hopes, wishes, and pain are less important than their make-believe magic fetuses.
Ten years after law school, I don’t hold the Supreme Court in nearly the esteem that I used to. Mix one stonewalled Merrick Garland nomination and one himpathetic Brett Kavanaugh confirmation. Add in the tears of Dr. Blasey-Ford, the vulnerability of the Stanford rape victims’ letter, and the victim statements of the gymnasts assaulted by Larry Nassar. Multiply by my rage at the sentencing of Brock Turner, and of Shane Piche, the upstate New York schoolbus driver who raped “only one” 14 year-old girl. I don’t believe in the courts, including the Supreme Court, the way I used to. Certainly not the way I did in law school or right after, when I trusted that these Justices were, at the very least, informed, measured, and thoughtful.
It’s not just law students and lawyers who have bought into the Supreme Court’s image. It’s the way our whole culture is built. We see these nine people as intellectually superior; capable of reasoning beyond the average person’s grasp. We believe that they’re merciful, judicious, ethical. We have to. Each time a judicial nominee has a hearing, they get asked about their position on stare decisis. And each time, no matter who they are, they say they respect the principle. That’s what they have to say, and they know it.
That’s what they have to appear to do if they want the public to go along with their decisions instead of rioting in the streets. But perhaps, if there is a silver lining to these abortion bans, it is this: those who have been complacent, who have allowed the governments in “other states” to have their way, who have laughed and believed that Roe was never seriously in jeopardy are starting to wake up. I am starting to wake up. It’s a terrible realization, but a necessary one. If we want our rights as full autonomous human beings, we are going to have to go get them, and never stop defending them.
Rumpus original logo and art by Aubrey Nolan.
The Thread is a monthly literary conversation, developed for The Rumpus and edited by Julie Greicius. Send us what you’re reading that you can’t stop thinking or talking about to [email protected], or reach out to Marissa on Twitter or Facebook, and she just might pull the threads of it apart for you in a future column.