Thursday, June 2, 2022
Emily Bazelon, America Almost Took a Different Path Toward Abortion Rights
For three days in January 1970, they filled the 13th floor of the federal courthouse in Manhattan, women of all ages crowded into a conference room, sitting on the floor, spilling into the hallway. Some brought friends or husbands. One nursed a baby. Another was a painter who also taught elementary school. A third had gone to Catholic school. They’d come to give testimony in the case of Abramowicz v. Lefkowitz, the first in the country to challenge a state’s strict abortion law on behalf of women.
The witnesses in the courthouse were among 314 people, primarily women, brought together by a small team of lawyers, led by Florynce Kennedy and Nancy Stearns, to set up a legal argument no one had made before: that a woman’s right to an abortion was rooted in the Constitution’s promises of liberty and equal protection. New York permitted abortion only to save a woman’s life. Kennedy and Stearns wanted the court to understand how risking an illegal procedure or carrying a forced pregnancy could constrict women’s lives in ways that men did not experience.***
Those objectives started with forcing the courts to confront the impact of a near ban on abortion on women’s lives. “When we couldn’t control when we had a baby, we weren’t free and we weren’t equal,” Nancy Stearns, the lead writer of the briefs in the case, explained to me recently over the phone. “That was our fundamental argument,” she said of putting gender equality at the center of the case. “It was clearly even stronger for low-income women.”
At the time, Stearns’s framing was unheard-of as a legal theory. It wasn’t just that the Supreme Court hadn’t decided a case about abortion. The court “had never found a single law to violate the equal-protection clause because it discriminated on the grounds of sex,” Reva B. Siegel, a Yale Law professor, explained in The Boston University Law Review in 2010.