With the NYPL closed and not being a fan of e-books, I have been more tempted to purchase used books. One book purchased is the 20th anniversary edition of Sarah Weddington's book on her Roe v. Wade journey. It turns out to be a signed copy so that is a plus. The various intricacies of abortion led me to be interested in it from high school though from a more academic platform than many people. (It is surely still has personal relevance to women I know all the same.) This was shown on this blog.
(Mary Ziegler, a professor also on Twitter and so forth, recently published her third book on the history of abortion as well.)
Weddington's personal journey here started in earnest in the 1960s, including her own abortion. Again, the two women lawyers involved in the case having a Southern Christian religious background including Weddington's dad being a minister and Linda Coffee's grandfather a deacon. They are but two of many stories (I read a book, e.g., from the point of view of ministers for choice) in the road to Roe v. Wade. The opinion itself lists around twenty lower court opinions, each with many people involved. SW is somewhat the face of abortion rights (her co-counsel did argue in the three judge court but was just at the counsel table at the Supreme Court), including because she was both a legislator and speaker up to recent years. "Roe" has died, after joining the anti-choice movement. Linda Coffee (who eventually met a female partner via the classifieds -- one more success story!) went into obscurity and in later years her life had a tough turn.
Sarah Weddington continues on including having opinions about the Kavanaugh nomination. One thing that has somewhat stayed the same is the contrast between male and female advocates in front of the Supreme Court (three of four of the advocates in the two original abortion cases were women, one a repeat player). For instance, Kimberly Robinson (Bloomberg) noted that though the lead two counsel in the May arguments are women, only one more of the 23 total in the ten cases are. And, one of the three is the somewhat tainted Kavanaugh supporter Lisa Blatt.* Again, the women in the two cases here did much better than the men.
I only skimmed over the book, so I might have more to say, but one thing that is notable is that as with the preliminary contraceptives cases (later cases had a free speech element and now we have yet another ACA dispute over the contraceptive mandate coming up involving religious liberty issues), the First Amendment issues were tossed aside. This was particularly important because this was a basic reason why the lower court did not provide injunctive relief, which was particularly provided for 1A purposes. It was seen as an intrusive interference into ongoing state disputes though as Sarah Weddington explained to the justices, the alternative was basically a sort of limbo since state courts did not provide relief because the criminal law was not targeted at women as such.
But, the judges shunted aside the matter in oral argument and gave it a conclusionary handwave in the opinion. As Weddington notes, the argument was that the law interfered with doctors counseling their patients. Justice Douglas in Poe v. Ullman had a section on just this matter and in Doe v. Bolton spoke of the zone of privacy involved. And, the basic core of the abortion right was a women making a decision with her physician, which has both a free speech and association interest. But, the lower court here did not see a real threat to free expression though the very text of the law speaks of "medical advice" and so forth.
As with Griswold, there seems to be a general understanding here that what is really involved in conduct (see Justice Black's dissent; the majority opinion was written by Justice Douglas, but as noted recently, he ignores what he spent a significant portion of his own dissent in the last case talking about). The speech aspect did arise in various later cases including directly including in Rust v. Sullivan and the crisis pregnancy case, the first time the majority directly relied on the First Amendment to support a litigant (from an anti-abortion angle that time). This is true up to a point but also ignores First Amendment interests all the same.
I originally recently had a post on the lower court opinion of Doe v. Bolton as well. One thing I noted was that it was in some ways fairly thinly argued though it did raise the "potential life" concept that showed up in the Supreme Court:
[The quote above is from the law itself.]
It is to be remembered that this was a lower court opinion, one of a range of opinions they had to write. The importance of the matter was unclear and it was just the opening salvo at that. The cases (and this bothered Justice White in particular) were class actions that broadly attacked the laws, laws that had a lot of specific applications. Such specifics could be dealt with in later cases, the broad nature of Roe v. Wade in hindsight probably to some degree misguided as compared to the much more limited reach of Griswold. As Weddington noted, e.g., the advocates didn't suggest some sort of trimester scheme, be it somewhat logical as a doctrinal matter. The reach of the Texas law (with only a life exception) allowed it to be struck down without the court doing much more than treating possible interests (including some time limit) using a broad brush.
The specifics continues to interest me and others, including those with less academic interests in the whole matter.
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* After Neal Katyal did not only endorse Gorsuch but introduced him to the Senate, Lisa Blatt wrote an "I'm a liberal feminist lawyer, I support Kavanaugh" op-ed. Strict Scrutiny Podcast has praised Blatt (three members are law professors though Leah Litman at least repeatedly works on litigation; Jaime Santos is an appellate advocate), including flagging this contretemps between Blatt and Katyal (whose name isn't referenced).
Litman was sexually harassed as a law clerk and Santos was an advocate for women in such cases. So, I understand them being concerned about some sexism there, but perhaps remind that Kavanaugh (whose confirmation made Litman particularly pissed) was endorsed by Lisa Blatt. The article was flagged by a Slate legal reporter on Twitter and Leah Litman noted the podcast discussion. A reply referenced the Gorsuch endorsement, which I am not over either. But, Lisa Blatt's endorsement of Kavanaugh was not referenced by multiple comments when I looked.
OTOH, separately, another law professor given Blatt's upcoming argument did flag the ethics of Kavanugh taking part in arguments with his supporter advocating. I appreciate the flag, Nancy Leong, though as I myself said when retweeting, of special importance here is the front and center role Lisa Blatt played. She wasn't just someone who endorsed him or something. And, I again flagged the repeat player who endorsed Gorsuch in an if anything more bold type sort of way. A pair of Trump enablers.
(Mary Ziegler, a professor also on Twitter and so forth, recently published her third book on the history of abortion as well.)
Weddington's personal journey here started in earnest in the 1960s, including her own abortion. Again, the two women lawyers involved in the case having a Southern Christian religious background including Weddington's dad being a minister and Linda Coffee's grandfather a deacon. They are but two of many stories (I read a book, e.g., from the point of view of ministers for choice) in the road to Roe v. Wade. The opinion itself lists around twenty lower court opinions, each with many people involved. SW is somewhat the face of abortion rights (her co-counsel did argue in the three judge court but was just at the counsel table at the Supreme Court), including because she was both a legislator and speaker up to recent years. "Roe" has died, after joining the anti-choice movement. Linda Coffee (who eventually met a female partner via the classifieds -- one more success story!) went into obscurity and in later years her life had a tough turn.
Sarah Weddington continues on including having opinions about the Kavanaugh nomination. One thing that has somewhat stayed the same is the contrast between male and female advocates in front of the Supreme Court (three of four of the advocates in the two original abortion cases were women, one a repeat player). For instance, Kimberly Robinson (Bloomberg) noted that though the lead two counsel in the May arguments are women, only one more of the 23 total in the ten cases are. And, one of the three is the somewhat tainted Kavanaugh supporter Lisa Blatt.* Again, the women in the two cases here did much better than the men.
I only skimmed over the book, so I might have more to say, but one thing that is notable is that as with the preliminary contraceptives cases (later cases had a free speech element and now we have yet another ACA dispute over the contraceptive mandate coming up involving religious liberty issues), the First Amendment issues were tossed aside. This was particularly important because this was a basic reason why the lower court did not provide injunctive relief, which was particularly provided for 1A purposes. It was seen as an intrusive interference into ongoing state disputes though as Sarah Weddington explained to the justices, the alternative was basically a sort of limbo since state courts did not provide relief because the criminal law was not targeted at women as such.
But, the judges shunted aside the matter in oral argument and gave it a conclusionary handwave in the opinion. As Weddington notes, the argument was that the law interfered with doctors counseling their patients. Justice Douglas in Poe v. Ullman had a section on just this matter and in Doe v. Bolton spoke of the zone of privacy involved. And, the basic core of the abortion right was a women making a decision with her physician, which has both a free speech and association interest. But, the lower court here did not see a real threat to free expression though the very text of the law speaks of "medical advice" and so forth.
As with Griswold, there seems to be a general understanding here that what is really involved in conduct (see Justice Black's dissent; the majority opinion was written by Justice Douglas, but as noted recently, he ignores what he spent a significant portion of his own dissent in the last case talking about). The speech aspect did arise in various later cases including directly including in Rust v. Sullivan and the crisis pregnancy case, the first time the majority directly relied on the First Amendment to support a litigant (from an anti-abortion angle that time). This is true up to a point but also ignores First Amendment interests all the same.
I originally recently had a post on the lower court opinion of Doe v. Bolton as well. One thing I noted was that it was in some ways fairly thinly argued though it did raise the "potential life" concept that showed up in the Supreme Court:
A potential human life together with the traditional interests in the health, welfare and morals of its citizenry under the police power grant to the state a legitimate area of control short of an invasion of the personal right of initial decision.But, as with Roe v. Wade, though at least there we have discussion on the use of "person" in the Constitution and how the broad usage of "health" in the D.C. abortion law was a mark against fetal personhood, the matter isn't really pressed:
Without positing the existence of a new being with its own identity and federal constitutional rights, we hold that once the embryo has formed, the decision to abort its development cannot be considered a purely private one affecting only husband and wife, man and woman.The Texas law also spoke of an "embryo," which is notable since that would suggest that something like an IUD was not an abortifacient by the terms of the law. This was one of those wrinkles that didn't come out in argument though "personhood" measures these days overlap with "life at conception" arguments. Compare the Georgia law which speaks of "terminating a pregnancy." And, yes, this clashing with IUDs was brought up at the time. Anyway, why is it not "purely private" to abort once the embryo forms? Also, the opinion not only suggests some role of the husband which clashed with later SCOTUS precedent but noted:
For example, the legislature might require any number of conditions such as consultation with a licensed minister or secular guidance counselor as well as the concurrence of two licensed physicians or any system of approval related to the quality and soundness of the decision in all its aspects.And, to the degree such things burden poor women, it is not problematic. Again, the Supreme Court went beyond protecting the decision to abortion beyond the limited categories in the "reform law" (rape, health, fetal abnormality), but held the specific state requirements that were early TRAP laws were unconstitutional as well. The lower court also ignored the provision against out of state patients that the Supreme Court deemed a violation of the Privileges and Immunities Clause. [There was a reference to transient "abortion mills."]
A licensed physician is justified in terminating a pregnancy if he believes there is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother or that the child would be born with grave physical or mental defect, or that the pregnancy resulted from rape, incest, or other felonious intercourse.Finally, the specific concern for potential life and decision-making on the whole makes it somewhat curious that the lower court argued that the "whole thrust" of the Georgia law was medical. This surely wasn't the argument of the state in court. Abortion is a medical procedure but the law was clearly a balancing of interests, a standard reform approach as compared to a few states (including New York) that broadly repealed the restrictive laws. Abortion was allowed for particular purposes that might be broadly seen as health related but also there was a balance involved generally. Incest or rape was a special case as was some fetal abnormality.
[The quote above is from the law itself.]
It is to be remembered that this was a lower court opinion, one of a range of opinions they had to write. The importance of the matter was unclear and it was just the opening salvo at that. The cases (and this bothered Justice White in particular) were class actions that broadly attacked the laws, laws that had a lot of specific applications. Such specifics could be dealt with in later cases, the broad nature of Roe v. Wade in hindsight probably to some degree misguided as compared to the much more limited reach of Griswold. As Weddington noted, e.g., the advocates didn't suggest some sort of trimester scheme, be it somewhat logical as a doctrinal matter. The reach of the Texas law (with only a life exception) allowed it to be struck down without the court doing much more than treating possible interests (including some time limit) using a broad brush.
The specifics continues to interest me and others, including those with less academic interests in the whole matter.
---
* After Neal Katyal did not only endorse Gorsuch but introduced him to the Senate, Lisa Blatt wrote an "I'm a liberal feminist lawyer, I support Kavanaugh" op-ed. Strict Scrutiny Podcast has praised Blatt (three members are law professors though Leah Litman at least repeatedly works on litigation; Jaime Santos is an appellate advocate), including flagging this contretemps between Blatt and Katyal (whose name isn't referenced).
Litman was sexually harassed as a law clerk and Santos was an advocate for women in such cases. So, I understand them being concerned about some sexism there, but perhaps remind that Kavanaugh (whose confirmation made Litman particularly pissed) was endorsed by Lisa Blatt. The article was flagged by a Slate legal reporter on Twitter and Leah Litman noted the podcast discussion. A reply referenced the Gorsuch endorsement, which I am not over either. But, Lisa Blatt's endorsement of Kavanaugh was not referenced by multiple comments when I looked.
OTOH, separately, another law professor given Blatt's upcoming argument did flag the ethics of Kavanugh taking part in arguments with his supporter advocating. I appreciate the flag, Nancy Leong, though as I myself said when retweeting, of special importance here is the front and center role Lisa Blatt played. She wasn't just someone who endorsed him or something. And, I again flagged the repeat player who endorsed Gorsuch in an if anything more bold type sort of way. A pair of Trump enablers.
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