Jurisprudence

Women Are Being Written Out of Abortion Jurisprudence

This week’s decision shows how much this has turned into a process debate.

WASHINGTON, DC - JUNE 30: A general view of the U.S. Supreme Court on June 30, 2020, at an angle, with leaves in front.
Stefani Reynolds/Getty Images

It was hard not to miss that there were six separate opinions filed in June Medical Services v. Russo, the major abortion litigation of this year’s Supreme Court term, and that every one of those six separate opinions was penned by a man. When Roe v. Wade was written in 1973, the majority opinion also came from the pen of a man, Justice Harry Blackmun, who was at pains to protect and shield the intimate and vital relationship between a doctor (“he”) and the pregnant women. Of course, there were no women on the Supreme Court in 1973, so one could hardly have expected a woman to write the decision, or even for a man to write it with the experience of women at front of mind. Oddly, almost half a century later, none of the three women on the high court wrote a word in June Medical.

In the interest of being perfectly clear, I herein lay my cards on the table: I’m not a huge fan of this kind of essentializing and almost four years ago to the day I did a little touchdown dance when the opinion in Whole Woman’s Health v. Hellerstedt, the Texas abortion ruling with facts virtually identical to those from this year’s, was assigned to Justice Stephen Breyer. At the time I found myself moved by the fact that, as I wrote then, there was “something about Breyer, the court’s sometimes underappreciated fourth feminist, reading patiently from his opinion about the eye-glazing standards that Texas would have required in constructing an ‘ambulatory surgical center,’ that makes the announcement of Whole Woman’s Health just fractionally more perfect. This isn’t just a women’s case about women’s rights and women’s health. It’s a case about pretextual laws that could have caused untold damage and about the constitutionally protected right to choose, which has been bolstered by a majority of the Supreme Court that includes two men.” I was grateful that Breyer’s opinion in the case was dry and dispassionate and wonky. I knew that Ruth Bader Ginsburg could have penned a feminist barnstormer (in lieu of a brief concurrence), but I also appreciated that a man had made Ginsburg’s work part of his own portfolio.

And while I am grateful for Breyer’s methodical and technical opinion in June Medical, and glad his tireless work keeps clinics in Texas and Louisiana open, it remains the case that women, real women and poor women and women of color and pregnant women in Louisiana, who would have been left with a single abortion clinic in that state, in the midst of a global pandemic, are almost totally absent from Breyer’s plurality opinion. And it doesn’t feel entirely seemly, somehow, in a week in which women are being told that caring for their children can cost them their job, even as many women continue to pull two and three shifts in the COVID times, that we are having a whole lot of very abstract discussions about what has happened to reproductive rights in the chief justice’s quixotic sole concurrence.

Conversations have focused mostly on whether John Roberts has arrogated unto himself alone the authority to decide whether there will be “undue burdens” upon women’s reproductive freedoms when the next state (or the one after that) seeks to enact a slightly different TRAP law (that would be a “targeted regulation of abortion providers”) in the future. As my friend Linda Greenhouse ably demonstrates, the chief justice did what was right and proper to resolve a legitimacy crisis and a challenge to the basic tenets of stare decisis—but he also wrote out of future abortion doctrine any need for courts to assess whether the lack of any real medical benefits can figure into the undue burden analysis. And while all of this is shaping up to be a kind of high-level uterus-off, with the nation’s finest constitutional thinkers debating about whether the chief justice has in fact bolstered or diminished reproductive freedom (a debate that is largely as oddly gendered as is the moment itself), I continue to be struck by the reality that simmers beneath the abstraction of the scaffolding of Roe/Casey and Whole Woman’s Health/June Medical itself.

There are no women in the plurality opinion in June Medical. There are a lot of physicians (mostly male) seeking admitting privileges at hospitals, and there are a lot of judges (mostly male) substituting their own judgment for the women who desire to terminate a pregnancy. And now there are a whole lot of Supreme Court justices, every last one of them male, substituting their judgment for doctors who tried to get admitting privileges and for the judgment of the other men who have myriad and complicated feelings about women who seek to terminate a pregnancy. While the dissenters are voluble about bits of fetal tissue (Justice Neil Gorsuch) and concern for women as victims of greedy abortionists (Justice Samuel Alito), their complete and utter silence about actual women and their actual choices and their lived lives and their hardship is impossible to escape. All these years later, they are being read out of a theoretical dialogue about which kind of balancing tests the men prefer to administer. It is into this woman-shaped silence that Ginsburg has poured out her own life experience, in cases about wage discrimination, contraception, and harassment, in so many other cases over her career. But it is into this woman-shaped silence that we will now fight the next abortion battles, over a constitutional right—as laid out in Roe, reaffirmed in Casey, strengthened in Whole Woman’s Health—which now comes down to a sort of elaborate agency review of whether clinics and physicians acted “in good faith” to comply with laws whose efficacy doesn’t much matter. And one cannot escape the feeling that we have not come a very long way from Blackmun’s deep regard for the wisdom of the male physicians in Roe, and  Justice Anthony Kennedy’s deep regard for the wisdom of male Supreme Court justices in 2007’s Gonzales v. Carhart, as we limp toward a celebration of Roberts’ deep regard for precedent and process. The regard for a woman’s right to choose itself? That doesn’t even register as material.

One might like to believe that almost half a century after the constitutional right for women to act as—at minimum—partners in the decision about whether and when to become mothers has been confirmed, their stories would no longer be almost eerily invisible in arguments over the contours of those rights. In a time when women sit on the federal bench, and in law firms, and represent 33 percent of the Supreme Court, here we are, in 2020, with dissenting justices protecting women from sinister doctors, and the chief justice choosing between a balancing test or an undue burden rule for new clinic regulations. Here we sit, debating the finer points of which men are best situated to substitute their judgment for those mothers, and speculating about whether one man—the chief justice of the United States—will break one way or another when the next case comes along. It’s a strange thing, and a sad thing, that whatever else freedom means in 2020, for women, it means we are really just free to hope that powerful men will make really good choices on our behalf.