More than 100 women shared their personal stories of abortion with Justice Anthony M. Kennedy ahead of Whole Women’s Health v. Hellerstedt, the biggest abortion case to go to the Supreme Court in almost a decade. These women, according to a brief signed by over 110 lawyers who have had abortions they do not regret, “are united in their strongly-held belief that they would not have been able to achieve the personal or professional successes that they achieved were it not for their ability to obtain safe and legal abortions.”
In July 2013, former Texas Gov. Rick Perry signed HB 2, which put into law more stringent requirements for abortion clinics. This includes requiring physicians performing abortions to have admitting rights at a hospital within 30 miles of the clinic and requiring clinics to meet standards equal to those of surgical centers in hospitals — even clinics that only perform non-surgical and early stage abortions.
According to state lawmakers, the requirements are to ensure the safety of women seeking abortions. But the women filing the briefs — as well as prominent medical groups such as the American Medical Association — argue that the law simply aims to restrict women’s access to abortion clinics. Of the state’s 41 clinics, more than half have already been closed, and if the law is upheld the number would dwindle down to about 10.
Now the case is returning to court with oral arguments beginning Wednesday morning. The sudden death of Justice Antonin Scalia may have potentially shifted the court’s dynamic. But in the event of Justice Kennedy voting in favor of the law and the court seeing a 4-4 tie, the Fifth Circuit’s ruling would stand in the state of Texas (this would not set a national precedent, and a rehearing could take place after a ninth judge is appointed).
A large group of women have therefore chosen to appeal to him with their personal stories in order to humanize their experiences and argue they have no regret regarding their decision. The women, referred to as “Amici curiae,” echoed verbiage the justice used in his argument for same-gender marriage in June, such as “equal dignity.”
Justice Kennedy is largely seen as the swing vote because he has not committed to one side of the issue in the past. For instance, in the 1992 Planned Parenthood v. Casey case, he ruled in favor of the 1973 Roe v. Wade case that granted women the right to have an abortion. However, in 2007, he wrote his opinion in support of the Partial-Birth Abortion Ban Act, which prohibits physicians from performing certain late-term abortions that require a fetus to be delivered vaginally and when the fetus is living when it is delivered.
In his opinion, Justice Kennedy wrote of the morality and potential emotional trauma that comes along with an abortion, rather than factual data. He also posed the argument that some physicians may not provide women with all the information of just how the abortion is performed and that these women will later come to regret their decision.
“Respect for human life finds an ultimate expression in the bond of love the mother has for her child,” he wrote. “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.”
Nearly 30 percent of American women had or will have abortions, according to another brief. The women remind Justice Kennedy that women who choose to get abortions “are our loved ones, our mothers, our daughters, our co-workers, our neighbors and our friends from all walks of life.”
“Amici have never regretted their decisions to have an abortion,” the brief reads. “To the contrary, they strongly believe that the right to access an abortion was and is crucial to their and every woman’s ability to define her own existence, determine her future, achieve her dreams and aspirations, and be an equal participant in our society. It is a key component of the constitutional right to liberty, and central to a woman’s autonomy, dignity, and decisions concerning her family.”
Amy Brenneman chose to share with Justice Kennedy her story of having an abortion at 21 years old. She called his assumption that all women come to regret their abortion “patronizing.”
“It is saying that women are not capable of knowing their own mental health,” Brenneman said. “And 95 percent of women do not regret it, so this is an opportunity to set the math straight.”
Janice MacAvoy, a lawyer with Fried, Frank, Harris, Shriver & Jacobson who signed the brief with the other lawyers, said Justice Kennedy’s passages in his 2007 opinion concerned her because they were “incredibly paternalistic.”
One lawyer who shared her story said that having the right to choose “was very empowering.”
“America cannot be the land of equality and opportunity for all if we simultaneously place unreasonable limits on a person’s ability to choose how they achieve their version of those ideals,” the woman wrote.
Opinions are mixed on whether or not such a personal approach will be successful.
Helen J. Knowles, author of “The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty,” said she does not believe the strategy will be successful. “I suspect that taking this approach is not going to get much traction with Justice Kennedy,” she said, and rather advocated for one that would highlight the obstacles the law puts in place for women who want abortions.
Alexia D. Korberg, a lawyer who is representing Mac Avoy and the other lawyers who signed the brief, compared this case to a case she worked on regarding gay rights that saw success with a personal strategy.
“We had seen just how powerful humanizing issues that can seem abstract can be, not just for the justices but for everyone, and how powerful empathy can be,” she said.