This year, for the first time in nearly a decade, the Supreme Court will hear a case on abortion. Whole Women’s Health v. Hellerstedt* takes up restrictions on clinics and physicians who provide abortions in Texas, which were passed in 2013. The Court will decide whether these restrictions place an “undue burden” on women in the state.
Earlier this week, a wave of new briefs were filed in support of either side of the case. Among them was a brief representing “113 women in the legal profession who have exercised their constitutional right to an abortion.”
This document is remarkable for a number of reasons. It represents the perspectives of people who are trained in the law, but who are also personally familiar with what it means to get an abortion. It rejects the idea that women should feel shame about having an abortion; these stories are serious, straightforward, and unapologetic. And it shortens the sense of distance between those who will decide the legal merits of the case and those whose lives will be affected—this brief isn’t well-educated experts advocating on behalf of women in need, it’s well-educated women advocating on behalf of themselves. As one of the women wrote, “To the world, I am an attorney who had an abortion, and, to myself, I am an attorney because I had an abortion.”
(So, if you’re willing to share: What is your personal story of abortion, either in choosing to have one or not, or perhaps anticipating that decision? We’ll keep stories anonymous by default, although if you’re willing to use your name, let us know: firstname.lastname@example.org.)
But the document also highlights the complexity of abortion as an ethical and legal issue. Court cases necessarily consider questions of justice in the abstract, but deciding whether or not to terminate a pregnancy is one of the most intimate choices a woman can make. This fact has defined the political fight over abortion. As Slate’s Mark Joseph Stern smartly put it:
Unlike same-sex marriage, a constitutionally related right whose appeal derived largely from real-world stories, abortion is typically defended as an abstract, theoretical decision. That gives antiabortion advocates a distinct advantage: They can point to the small group of women who now regret their abortions while abortion rights groups struggle to put a compelling human face on the importance of abortion access.
To Stern’s point, this may be part of why public opinion on abortion has remained surprisingly steady since Roe vs. Wade—the messages and tactics of both pro- and anti-abortion groups don’t necessarily speak to the experiences of all women and families.
This difficult toggle—between abstract notions of justice and personal ethical questions—also might explain why the language used to talk about abortion often seems so awkward. For example: At least two of the women attorneys who shared their stories in this Supreme Court brief referred to the fetuses they terminated as “my child.”
One professor related that:
[T]he decisive factor in having an abortion was not subjecting my child to the dysfunction, and likely abuse, that it would endure in its father’s home…
One Amicus, a law professor, explained how obtaining an abortion allowed her to leave her abusive partner and complete her graduate studies:
My abortion provided me with the geographic freedom I needed, saved my child from having an abusive father, and allowed me to use my education for the social good.
There’s some degree of cognitive dissonance in these phrasings: “My child” is a way of talking about a person, an entity that can think and has a moral identity. But that’s the opposite of the argument that this brief is making—it’s not a moral issue, these women are saying. It’s a health issue, and a lifestyle issue, and a career issue. The vocabulary seems to fall short of that.
*Since this note was written, the case name was changed from Whole Women’s Health v. Cole.