//  5/15/19  //  In-Depth Analysis

Take Care is pleased to host a symposium on Reproductive Rights and Justice Storiesan important new book edited by Professors Melissa Murray, Katherine Shaw, and Reva B. Siegel. Contributors will relate themes, stories, and case histories in the book to recent developments in American life and law. 

One of the great American political puzzles is why abortion access continues to be so legally and politically fraught. Indeed, it is hard to think of another issue with as many decades of sustained conflict in courts, legislatures and public discourse, particularly given that a majority of adults say that abortion should be legal in all or most cases. 

Since 1973, states have enacted more than a thousand restrictions on abortion, scores of lawsuits have followed, and there is no truce in sight.  To the contrary, the number of bills introduced to limit women’s access has jumped exponentially in recent years, even as courts have struck down many of them.  This includes the U.S. Supreme Court, which in 2016 rejected multiple regulations targeting clinics and doctors, holding that they “vastly increase[d] the obstacles confronting women seeking abortions in Texas without providing any benefit to women's health capable of withstanding any meaningful scrutiny.”  

In the past few weeks, we see legislators and states pushing the limits even further, restricting abortion to the moment a fetal heartbeat can be perceived and introducing the death penalty for women who obtain abortions.  A reporter recently asked me whether legal advocates who seek to protect access to abortion can keep up with this legislative rush, and I confirmed my confidence in both the energy and capacity of these colleagues to litigate effectively and to win their cases wherever possible. 

At the same time, it is our national reality that access to abortion has shrunk dramatically in many states, especially in recent years.  This prompts a question about what might shift this landscape so that, by Roe’s fiftieth anniversary, we are having a different conversation from the one we’re having today.  To be sure, there is important progress worth recognizing, especially in states that have expanded access to abortion in recent years as part of broader efforts to strengthen reproductive healthcare.  But it is also true that momentum in the other direction is relentless.

This is where multidimensional advocacy comes in (and #MeToo, in a moment).  In essence, multidimensional advocacy joins two ideas: first, that societal transformation is often what enables change to occur in settings where rights and resources are allocated, and second, that advocates have an important role to play in making this happen. As George Washington put the point, in an admittedly different context, “the People must feel before they will see or act.”  When advocates engender feelings receptive to their claims in the environment that surrounds courts and legislatures, they enhance the likelihood that decisionmakers in those places will similarly feel—and see—their way to the desired outcome. 

The #MeToo movement makes this point in a striking way.  While case law in the 1980s and 90s markedly expanded protection from the harms of sexual harassment and assault, relatively little changed on the ground. Rape cases were prosecuted infrequently and often reluctantly, and workplace harassment was tolerated and sometimes celebrated.  Many advocates, activists and others were working hard to destabilize the entrenched view that “this is just how it is.”  But, as we know from history, social science and life experience, large-scale change can be hard to imagine and even harder to accomplish.

Change has come, however, thanks to a mass mobilization that no one could have anticipated pre-twitter – building on Tarana Burke’s framing of “me too” to help women and girls of color who had also survived sexual violence.  MeToo was – and is – a way to create empowerment through empathy and community-based action – to show the world how widespread and pervasive sexual violence is and to let others know they are not alone.  Its popularization through social media has shifted things in ways that were unimaginable even a few years ago.

The point here is not that the work is done; there is clearly a long way to go both in public discourse and the law.  Instead, the point is that the changed landscape in which legal, political and social debates take place has shaken complacency.  New terms of discussion have opened many people’s eyes to the real harms that women and others endure as a result of inadequate efforts to prevent and respond to sexual misconduct and sexual violence.

This brings me to Reproductive Rights and Justice Stories.  The rock-the-world power of #MeToo shows us that, at the end of the day, while it is important to have judges and elected officials hear them, the primary audience – and the key to change – are families, friends and neighbors throughout the country. Story-sharing about sexual harassment and violence through #MeToo began almost organically in those settings, causing many who saw these issues as irrelevant to their lives to rethink what was going on around them, often suddenly and powerfully.

To be sure, there are important differences between sharing experiences of sexual violence and of having an abortion, and many people make the point that women choose abortions but do not choose sexual violence.  But it’s worth keeping in mind that the rhetoric of “choice” and the stigma it can reinforce are often deployed to divert attention from systemic problems.  In the area of sexual violence, for example, women have long been blamed for making choices that resulted in sexual assault – think about the many claims that women drank too much, dressed too seductively, stayed in bad relationships or walked home alone.

Turning back to abortion and the choices women make, there is no research showing that women have sex so they can become pregnant and have an abortion.  In this light, the argument often made to support abortion restrictions – that “women make poor choices and must deal with the consequences” – sounds uncomfortably close to “blame the victim” commentary regarding sexual violence. 

The reproductive justice framework reminds us, too, that it is our responsibility to focus not only on the choice to have an abortion but also on the closely related questions of when, why and how women become pregnant – and the risks faced by women and their families if abortion is not a meaningful part of reproductive healthcare.  In response to these questions, there is plenty of evidence showing that women’s health and the well-being of families are not well served by many of the restrictions in today’s news.  The Guttmacher Institute and the University of California-San Francisco’s Advancing New Standards in Reproductive Health are among the leading resources for those interested in learning more.

Still, it is the lesson of #MeToo and of the reproductive rights and justice stories in this important new book that data, while important, is not enough.  The ultimate power to secure enduring protection for reproductive healthcare that includes abortion lies not only in the corridors of formal power but also, and perhaps especially, in those whose voices and stories can reshape the public debate. 

Versus Trump: Blurring Public and Private Conduct

9/17/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Who Decides the Future of the Equal Rights Amendment?

7/6/20  //  In-Depth Analysis

Congress should decide what happens to the Equal Rights Amendment, not the courts or the Executive Branch.

Take Care

June Medical As The New Casey

6/29/20  //  Quick Reactions

As in prior abortion cases, the Chief Justice gave abortion supporters a victory while at the same time laying the groundwork for much weaker protections for abortion rights.

Leah Litman

Michigan Law School