Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Sunday, December 5, 2021

The Lawyer Arguing Against Roe

From the Seattle Times:

Soon after the U.S. Supreme Court agreed to consider Mississippi’s 15-week abortion ban, Attorney General Lynn Fitch took a meeting with her communications team. As Mississippi’s top lawyer, she would be the face of the law that could bring down Roe v. Wade, responsible for crafting and publicizing arguments on behalf of the state. That day in July, they’d gathered to discuss their promotion strategy.

Presented with several slogans designed to capture their approach to the case, the attorney general immediately selected a winner.

“Empower Women. Promote Life.”

The motto got right to the crux of Fitch’s argument, while alluding to a belief that has shaped her 12-year political career: Empower women, and they will help themselves.

In the opening brief she submitted in July, Fitch asked the Supreme Court to use Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade. She argued that abortion prevents women from reaching their full potential. When Roe was decided in 1973, she wrote, the justices maintained that an unwanted pregnancy would doom women to “a distressful life and future.” But nearly 50 years later, Fitch claims “sweeping policy advances” now allow women to fully pursue motherhood and a career, stamping out the need for abortion.

To come up with this argument, which underpins the most important abortion case in decades, Fitch said she drew inspiration from her own life. After she and her husband divorced in 2004, she raised three kids as a single mother while ascending to the highest ranks of state government, becoming the state’s first female attorney general and the first Republican attorney general since 1878. The juggling act wasn’t easy, Fitch said — but with hard work and a color-coded calendar, she pulled it off. Now, she said, abortion bans like the one in Mississippi can help other women “have it all.”

Critics immediately descended on Fitch. Abortion activists called her a hypocrite, highlighting her privilege, while a consortium of 154 economists scrutinized her argument in their own amicus brief to the Supreme Court. They pointed out that the United States is one of the only countries without a national paid family leave policy and the average price of child care, adjusted for inflation, has increased by almost 50% in the past three decades.


Fitch has always relied on her community for help, she said, especially after her divorce. When her kids were young, she benefited from a tightknit network of six other moms, who would swoop in for school drop-offs and football practice pickups when she couldn’t leave her desk. Fitch believes those are the kinds of support every mother needs.

“I always tell people as young people you should make as many friends along the way because you reap the greatest rewards when you do that,” Fitch said.

She said she also paid for day care and a nanny.

One of the economists who countered Fitch’s argument in the amicus brief points out that most U.S. mothers don’t have access to that kind of child care. “People from privilege experience a social safety net they imagine everyone else experiences,” said Kelly Jones, a professor of economics at American University who focuses on gender equality and welfare. When high-income people get pregnant unexpectedly, they can turn to family members or other members of their community, she said — or they can fly out of state to get an abortion. But many pregnant people have no one to fall back on and no money to pay for child care.

Read more here.

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