Editor’s Note: Janice Mac Avoy is a lawyer in private practice in New York. The views expressed in this commentary are solely those of the author.
Janice Mac Avoy: Women must challenge ingrained stigma, silence about abortion
She says women need clear answers on access to abortion and the rule of law
For a long time I didn’t talk about my abortion. I wasn’t ashamed of it, but it wasn’t something that was discussed in polite company – late at night with your girlfriends, but not over cocktails with your acquaintances.
Despite the fact that one-third of all American women will have an abortion at some point in their lives, the anti-abortion movement has created an atmosphere of embarrassment and shame that prevents women from talking about the fact that they have had an abortion. But whether women are talking about it or not, everyone knows someone, works with someone, cares about someone, who has had an abortion.
Within the last year, however, all of that has changed for me. I’ve talked about my abortion in every venue conceivable – before the US Supreme Court, the American public, at cocktail parties and conferences, and – as of last week – the US Senate Committee on the Judiciary, which is holding hearings to vet Judge Neil Gorsuch on his fitness for the high court.
I didn’t come forward alone, but as part of a group of more than 100 other women lawyers, spearheaded by the Center for Reproductive Rights and the law firm Paul, Weiss, who shared deeply personal stories of how the right to choose has mattered in their lives as part of a historic friend-of-the-court brief submitted last year to the Supreme Court.
At the time, the court was hearing Whole Woman’s Health v. Hellerstedt, a case about Texas state laws custom-built to punish women and restrict our fundamental rights.
The June decision, which found that the Texas law placed an undue burden on women’s access to abortion, was a resounding affirmation of a woman’s right to choose and established clear, strong protections for that right.
But every one of my co-signers understands, with firsthand experience behind us, that all the legal victories in the world mean nothing if we aren’t also doing the hard work to challenge decades of ingrained stigma and break down the culture of silence that has distorted the truth of how essential and how common abortion is in this country.
That change, begun by those who came before us, continues with telling our stories aloud, and speaking that truth to those in power.
That’s why more than 70 of my co-signers from the Whole Woman’s Health brief joined together to submit an open letter to the Senate Judiciary Committee expressing our grave concerns about Gorsuch’s nomination to the Supreme Court.
As Congress continues the hearings with outside witnesses Thursday, we are urging the committee to consider whether Gorsuch is truly willing to uphold four decades of settled law protecting a woman’s right to choose. This question is particularly urgent in light of President Donald Trump’s promise that his Supreme Court nominee would “automatically overturn” Roe v. Wade. Two leading Democrats, Senate Minority Leader Chuck Schumer and Sen. Bob Casey, have said they will vote no and Schumer has made clear Gorsuch will face a filibuster.
As lawyers, we’re also profoundly concerned about what the President’s dangerous promise would mean to the rule of law.
The overturning of Roe v. Wade would be catastrophic for American women. If Roe were overturned tomorrow, as many as 33 states would likely pass abortion bans that would put more than 37 million women at risk.
Gorsuch has said he understands the importance of precedent: At the press conference announcing his nomination, he noted that a “judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands.” And in the midst of his hearings, in response to a question from Sen. Dick Durbin, Gorsuch said of Roe: “That’s the law of the land.”
This is a promising indicator but doesn’t change Trump’s attitude about abortion – or, for that matter, judges or the rule of law. There’s a reason the Supreme Court is reluctant to overturn established precedents such as Roe. Stability and consistency are essential for safeguarding the rule of law from the shifting winds of political power. Indeed, the wheels of justice turn slowly because law is built up through a process of cautious and gradual accumulation.
Whatever their personal beliefs, lawyers who rise to the highest level of the profession tend to have a deep respect for this process. When lawyers become judges, they know they must be stewards of a system of laws that will long outlive them.
In the context of Roe, what the law demands is respect for established precedent and for the individual liberty, personal autonomy and fundamental dignity that are the constitutional foundation of a woman’s right to choose.
It was no easy decision to go public with my abortion story, nor for any of the colleagues who joined me. Wherever we practice – at private law firms, corporations, multinational governmental organizations, nonprofit organizations and law schools – we have taken personal and professional risks to tell these stories in public.
All we ask of Gorsuch is that he prove himself worthy of a lifetime appointment to the nation’s highest court by showing the same courage of his convictions.
We cannot tolerate obfuscation and avoidance. Access to abortion is too important for too many women. The time for litmus tests and artful dodges has passed.
Women need clear answers to these essential questions, and if Gorsuch tries to keep us in the dark, it is up to Congress to shine a light.