By Adam Liptak, Feb. 29, 2016
WASHINGTON — Amy Brenneman, an actress, wants Justice Anthony M. Kennedy to know about the abortion she had when she was a 21-year-old college junior.
Taking a page from the movement for same-sex marriage, Ms. Brenneman and more than 100 other women have filed several supporting briefs in a major Supreme Court abortion case to be argued on Wednesday. The briefs tell the stories of women who say their abortions allowed them to control their bodies, plan for the future and welcome children into their lives when their careers were established and their personal lives were on solid ground.
The briefs are aimed largely at Justice Kennedy, who holds the crucial vote in abortion cases. They use language and concepts from his four major gay rights decisions, notably his invocation of “equal dignity” in June’s ruling establishing a constitutional right to same-sex marriage.
“Why has marriage equality gained so much ground, and reproductive justice seems to be losing so much ground?” Ms. Brenneman, known for her roles on “NYPD Blue” and “Judging Amy,” said in an interview. Partly, she said, because gay couples have come out of the shadows but many women still believe abortions to be shameful secrets.
The briefs seek to counter that, as well as what some people saw as a streak of uninformed paternalism in a 2007 majority opinion in which Justice Kennedy said many women regretted their decisions to have abortions and experienced depression and plunging self-esteem
But Allan E. Parker Jr., a lawyer with the anti-abortion group the Justice Foundation, said the women’s briefs may only alienate Justice Kennedy.
“The abortion industry is trying to make it sound like abortion is a joyful experience,” he said. “But even women who say it was necessary say it was not joyful. It is a grief and a blackness, and it changes you.”
Mr. Parker filed a brief on behalf of more than 3,000 women, many identified by their first names or initials, who say they suffered psychological or physical harm from their abortions.
“Because abortion is such a difficult and painful decision,” the brief said, “the initial reaction may be relief because the trauma of the actual event is over and the decision making process is over, but that may sow the seeds of trauma and emotional injury that lasts for decades.”
Helen J. Knowles, the author of “The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty,” said she had her doubts about appealing to Justice Kennedy by using personal stories.
“I suspect that taking that approach is not going to get much traction with Justice Kennedy,” she said. “I’m just not convinced that this is the right way to come at him in this case.”
The better approach, one taken in many other briefs, she said, is to focus on the obstacles created by the Texas law rather than on general conceptions of motherhood.
Wednesday’s case, Whole Woman’s Health v. Hellerstedt, No. 15-274, concerns a challenge to a restrictive Texas law brought by several abortion clinics in the state. They say the law could reduce the number of clinics in Texas to about 10 from roughly 40 by requiring doctors who perform abortions to obtain admitting privileges at nearby hospitals and requiring clinics to meet the standards of ambulatory surgical centers.
The court’s balance of power has shifted with the death of Justice Antonin Scalia, but abortion rights advocates will almost certainly still have to secure Justice Kennedy’s vote to win the case. A 4-to-4 tie would automatically affirm an appeals court decision that sustained the restrictions with minor exceptions.
Justice Kennedy’s abortion jurisprudence is muddled.
In 1992, in Planned Parenthood v. Casey, he joined Justices Sandra Day O’Connor and David H. Souter in a joint opinion that reaffirmed the core of Roe v. Wade, the 1973 decision that established a constitutional right to abortion.
“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” the joint opinion said, in a passage that only Justice Kennedy could have drafted.
But Justice Kennedy’s reputation as an abortion rights champion is undeserved, said David S. Cohen, a law professor at Drexel University. “He has only once found an abortion restriction unconstitutional in his 28 years on the Supreme Court,” Professor Cohen said, while allowing 20 other restrictions to go into effect.
In 2007, Justice Kennedy wrote the majority opinion upholding the federal Partial-Birth Abortion Ban Act, supplementing his legal analysis with observations about motherhood.
“Respect for human life finds an ultimate expression in the bond of love the mother has for her child,” he wrote, adding: “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.”
Janice Mac Avoy, a lawyer with Fried, Frank, Harris, Shriver & Jacobson, said the passage troubled her. “It was incredibly paternalistic,” she said.
She told her story in a brief signed by 113 female lawyers who said they did not regret their abortions.
“I was 18 years old, in high school, outside of St. Louis,” Ms. Mac Avoy said in an interview. “I was about to be the first person in my family to graduate from high school. And I had a scholarship to college, and I knew that I wanted to go to law school. And I knew that being a mother was not compatible with any of those things at that time in my life.”
Ms. Brenneman also said Justice Kennedy’s musings about regret were misguided.
“It is patronizing,” she said. “It is saying that women are not capable of knowing their own mental health. And 95 percent of women do not regret it, so this is an opportunity to set the math straight.”
In her own case, Ms. Brenneman said she was a 21-year-old junior at Harvard when her birth control failed and she had an abortion. “It allowed me to choose when to become a mother,” she said. “As a mother now, I know I was correct at 21.”
“I didn’t have a college degree,” she said. “I didn’t have an income. I didn’t have a marriage. I didn’t have anything a child needs. And I didn’t want it.”
Professor Cohen, who has filed a brief supporting the Texas clinics, said the women’s briefs were unusual in focusing on real-life narratives.
“They are not addressing any legal principle but are trying to get inside Justice Kennedy’s head that women are moral agents who make decisions and that regret is not something that should be part of his thinking,” Professor Cohen said. “It was clearly part of his thinking in 2007.”
Michael J. Dell, a lawyer with Kramer Levin Naftalis & Frankel who represents Ms. Brenneman and other women, said it was worth reminding the justices that abortions are common.
“There shouldn’t be a stigma,” he said. “A third of women have abortions. Many of the people that Supreme Court justices know and socialize with, and their children and friends, have had abortions, and they’re probably totally unaware of it.”
Alexia D. Korberg, a lawyer with Paul, Weiss, Rifkind, Wharton & Garrison who represents the female lawyers, said her work on a major gay rights case had informed the legal strategy in the abortion case.
“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,” Ms. Korberg said.
However effective such an approach may be, much of the attention at the Supreme Court on Wednesday will be focused on Justice Kennedy, as often happens and for good reason. “One man’s perception of abortion is what matters the most here,” Professor Cohen said.