Friday, January 15, 2016

Whole Woman's Health v. Cole: The Face of "Human Dignity"

The first phase of briefing in Whole Woman's Health v. Cole was completed last week.  The petitioners' briefs and the 45 amicus submissions make clear how much is at stake for women, and what women will lose if the Supreme Court stands aside as the right to have an abortion is further compromised and eroded. 

Given the Supreme Court's recent decisions grounded in concepts of human dignity, particularly the line of marriage equality cases, it is no surprise that human dignity has important place in a number of the briefs, including the briefs on behalf of Advocates for Youth and the National Women's Law Center

However, only one of the amicus briefs brings to bear the human rights law invoked by such references to human dignity.  The brief of the Latina Institute for Reproductive Health, represented by Counsel of Record Cynthia Soohoo (a Human Rights at Home blog contributor), argues that the U.S. Supreme Court should take special note of the international decisions concerning reproductive rights.  Here is a relevant excerpt from the brief's Summary of Argument: 

"The reasoning of international bodies when considering whether a state can erect barriers to access
lawful abortion services provides a useful perspective for the Court to consider. In particular, the European
Court of Human Rights (“ECHR”) has repeatedly held that once a country recognizes that women have a right
to abortion, it cannot adopt a legal framework that limits a woman’s ability to obtain one."

Finally, one amicus brief that has received considerable attention is the brief filed by 113 women lawyers and law students describing the circumstances of their own abortions.   Unlike the pseudonymous Roes and Does and Moes that dominate reproductive rights case law, these women are sufficiently well-established and powerful (and indeed, also brave) to put their own names before the Court.  Their names matter, since many of these women have reached the highest echelons of the legal profession -- pinnacles that they reached because, they state, they were able to control their own reproductive choices.  These women lawyers offer their peers on the Court some insight into real world challenges facing not just low income "other" women, but the very women who argue Before the justices, who work as their clerks, who write the law review articles that they cite, and who are the first line readers and interpreters of the Court's decisions.   It remains to be seen if Justice Kennedy will be moved by their stories.  But by coming forward, these 113 women may have given women's human dignity a face that the Court will finally recognize.

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