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The Supreme Court will hear its most consequential abortion rights case in 25 years this March with Whole Woman's Health v. Cole, which challenges two major abortion restrictions in Texas.
If the court upholds these restrictions, all but about 10 Texas abortion clinics could be forced to close, 900,000 Texas women would have to travel more than 150 miles to the nearest abortion clinic, and other states would be free to pass similar laws causing even more clinics to close.
It's a huge case with huge implications, and it's inspiring a diverse array of groups, experts, and individuals to weigh in with the court. Opponents of the Texas restrictions submitted a whopping 45 amicus briefs this week representing major medical organizations, faith leaders, lawmakers, advocates for women of color, health economists, social scientists, and the Obama administration. All of them say that the new restrictions harm women and society by closing abortion clinics for no medical reason.
But in this long list of experts and stakeholders, one group stands out: real women who have had abortions.
The briefs include abortion stories from lawyers, lawmakers, and women from other walks of life
For the first time, women are sharing their abortion stories with the Supreme Court using their real names rather than anonymously. And these stories could have a real impact on how the judges rule.
Four women lawmakers shared their stories in one brief — including former Texas state Sen. Wendy Davis, who famously filibustered HB2, the omnibus 2013 Texas anti-abortion bill that includes the two restrictions at issue in Whole Woman's Health v. Cole. Those restrictions require doctors to have admitting privileges with a local hospital in order to perform abortions, and require abortion clinics to essentially become mini hospitals.
The other lawmakers who contributed to the brief are Ohio Rep. Teresa Fedor, former Nevada State Assembly member Lucy Flores, and former Seattle City Council member Judy Nicastro. All four have publicly shared their abortion stories before in order to push back against anti-abortion laws.
Davis and Nicastro both shared stories of aborting a wanted pregnancy after 20 weeks when they discovered their unborn children had devastating, likely fatal anomalies. (Texas's HB2 included a ban on abortions after 20 weeks without exceptions for these kinds of anomalies, although that's not the part being challenged in this Supreme Court case.)
Both women were heartbroken at the news, the brief says, but both decided that abortion was the most compassionate choice for their children and for their families. Davis also had to have an ectopic pregnancy removed — there's no medical choice but to end the pregnancy in those cases, yet Texas still classifies them as abortion.
Fedor had an abortion after becoming pregnant from a rape during her military service. She spontaneously spoke out about her experience on the Ohio state House floor after she lost patience with the debate over a bill to ban abortion, with no exceptions for rape or incest, after a fetal heartbeat is detected (which can be as early as six weeks and often before a woman knows she's pregnant).
Flores came forward with her story during a debate over sex education curriculum, revealing she had an abortion as a teenager because she didn't want to end up like her sisters who had become teen mothers. Flores says that choice helped her achieve the success she has had in life, and helped a former teen gang member become a current candidate for the US House of Representatives.
Another brief represents more than 110 women who are or have been lawyers, law professors, and judges — professions the Supreme Court justices are very familiar with. These women say that without access to safe and legal abortion, they likely wouldn't have the careers they have today. They might not have graduated high school or college, let alone become successful attorneys, and they might not have been able to escape abusive relationships or wait until they were ready to become parents.
The brief argues that if the Texas restrictions are upheld, it "would have the very real effect of preventing numerous women, including many current and future attorneys, from effectively planning their family and professional lives."
Another brief tells the stories of women in other professions and walks of life, including an actress, an Episcopal priest, and a computer science professor. Many of these women went on to get married and have children, and say they don't regret their abortion and believe it was the best decision for them in their lives at the time.
Why these kinds of stories could matter to the case
One key question in Whole Woman's Health v. Cole is whether the new restrictions constitute an "undue burden" on women seeking an abortion. The Fifth Circuit Court ruling that the Supreme Court is revisiting didn't consider it an undue burden on women to close clinics and thereby force women to travel hundreds of miles to get an abortion.
The Fifth Circuit ruling treated women and their need to access abortion as an abstraction, reproductive rights advocates argue. In the past, swing-vote justice Anthony Kennedy has been persuaded by dubious evidence of "post-abortion syndrome," which major mental health organizations don't consider a valid diagnosis, and that led him to justify restricting abortion out of concern for women. Anti-abortion advocates say that laws like HB2 protect women's health, despite evidence to the contrary.
Abortion rights supporters say they need to remind all the justices, including Kennedy, of what reality actually looks like for the roughly one in three American women who will choose an abortion in her lifetime.
"Bringing stories to the brief is critical, because real women are suffering the real harms of this law," Jessica González-Rojas, executive director of the National Latina Institute for Reproductive Health, told reporters on a press call this week. She said that the clinic closures forced by HB2 represent a "de facto ban on abortion" for Latina women in particular, who make up 40 percent of Texas women and are twice as likely to experience unintended pregnancies as non-Latina white women.
Many struggle to make multiple state-mandated appointments when they have jobs without paid leave, children to arrange care for, and sometimes an undocumented immigration status that makes traveling long distances and potentially crossing checkpoints incredibly risky.
The other key word in this case could be "dignity," which is repeatedly mentioned in the briefs. The concept of "equal dignity in the eyes of the law" was key to Justice Kennedy's decision to help legalize same-sex marriage this past summer, as was the idea that outdated sex and gender stereotypes shouldn't be used to restrict that dignity.
Advocates are hitting these ideas hard in the new briefs, writes legal analyst Jessica Mason Pieklo at RH Reality Check:
They address the dignity harm HB 2 creates by significantly restricting access to abortion providers, thus subjecting women to substandard health care. They address the dignity harm imposed by the economic hardship that follows denying women reproductive health care when they need it. They address the dignity harm to the family members of the women who are already mothers, who either can’t obtain an abortion or must go through great lengths to get one, even in the cases of fetuses that are not compatible with life.
The pro-choice movement is increasingly turning to abortion storytelling to fight stigma
Another brief comes from Advocates for Youth and features samples of stories the group has collected from about 900 women. Advocates for Youth runs a campaign called "1 in 3," which is designed to fight abortion stigma by collecting and sharing stories of the one in three women who have had abortions.
This isn't a new idea. "Abortion speakouts" date back to the 1969 Redstockings Abortion Speakout, which sparked a wave of similar events where women spoke out about their then-illegal abortions to show the harms of abortion bans to real women. But after Roe legalized abortion, this kind of activism faded away. Meanwhile, the pro-choice movement has been slowly losing ground in the decades since Roe, culminating in an unprecedented number of state-level abortion restrictions passed in just the past five years.
Reproductive rights advocates say the moral and legal justifications for new anti-abortion laws are based in a fundamental ignorance of women's lives and medical needs, of how common abortion really is, and of the reasons women need abortion access to participate equally in social life. One of the best ways to combat this ignorance, they say, is personal storytelling.
Abortion storytelling has exploded as a pro-choice activism tactic in just the past few years, from the "1 in 3" campaign to viral hashtags like #ShoutYourAbortion. Women are talking about how abortion has benefited their lives and goals, including the goal of starting a family once they're ready to. They're saying that they don't regret the decision, and that they're tired of being silenced and shamed for it.
"Women are beginning to step forward in their own names," said Nancy Northup, president of the Center for Reproductive Rights. "To say, 'Enough is enough. You're talking about us.'"
