American Women Will Write Abortion Law
With the Supreme Court set to hear arguments in a landmark abortion case Wednesday, the familiar machinery is creaking into gear: protesters outside the court, talking heads on cable TV, and oral arguments carefully aimed at the court’s perceived swing voter, Justice Anthony Kennedy. Amid the noise, it’s important not to lose sight of what, or more accurately who, the fuss is all about.
In an unusual move, more than 100 women who have had abortions have filed briefs with the court, relating their personal stories. For a court that deals mostly in principles and abstractions -- as it should -- the narratives are a bracing reminder of the human impact of its jurisprudence.
The case before the court concerns the legality of a Texas law that makes clinics conform to strict standards, such as requiring that abortion providers have admitting privileges at nearby hospitals. Its supporters say the law is merely an effort to protect women’s health.
It’s a dubious claim, not least because there was precious little evidence of a health crisis to begin with, and supporters of such laws are animated more by their opposition to abortion. Their activism is having an effect: Since 2011, at least 162 abortion providers in the U.S. have shut down or stopped providing the procedure. Only 21 have opened.
Yet the numbers, as is so often the case, cannot tell the whole story. Only people can do that.
Sometimes their stories follow familiar outlines, such as the one about the college freshman who ended her accidental pregnancy so she could continue her education, embark on a teaching career and have children when she and her husband were ready. Sometimes they don’t, such as the one about the computer scientist who never wanted children but got pregnant as a result of "a casual sexual encounter while traveling in Europe." She had an abortion and continued pursuing her career.
The value of this testimony, from a legal standpoint, is not that it demonstrates how the decision to have an abortion is complicated legally, morally, politically and personally. (Presumably the justices already know that.) Its value is in illustrating another point: If the right to have an abortion has any meaning, then there can be no hierarchy, no legal distinction between who is more or less deserving.
Personal histories are not legal arguments. At the same time, legal decisions -- especially on this issue -- have a personal impact. And despite four decades of effort, abortion opponents have consistently failed to convince a majority of fellow citizens to shed their ambivalent support for it. Americans continue, more and less, to support the right of women to choose abortion. The court’s own precedents assert that undue burdens may not be imposed on that right.
The result is that the court may not impose an ending on the varied and unique stories of American women. The women will continue to write their own.
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