Professors File Briefs For Case On Abortion

As hundreds of Harvard students prepare for Sunday's march on Washington to rally for women's legal right to abortion, law professors and historians around the country are supporting briefs attempting asking the Supreme Court not to repeal Roe v. Wade, which legalized abortion in 1973.

Later this month, the Court will hear Webster v. Reproductive Health Services--the first case threatening Roe since the appointments of Antonin Scalia and Anthony Kennedy tipped the Court's ideological balance to the right.

The Court will review a lower court's decision to overturn a Missouri law restricting the use of public facilities and funds for abortion and abortion counseling.

Not all Americans are convinced that the rightto have an abortion is protected under theConstitution, despite the 1973 decision. Andpro-choicers are still concerned that the legalityof the procedure is in jeopardy.

Yet in every relevant case that it hasreviewed, the Supreme Court has upheld Roe.The rallies, boycotts and bombings of the last 16years, however, have proved that the issue is farfrom decided.

"While the Court's decision represents the mostserious threat since 1973 to the right for womento choose an abortion," says President of theAmerican Civil Liberties Union (ACLU) NormanDorsen, "the reaction from religious,professional, medical and public serviceorganizations, as well as... academia,demonstrates a strong public sentiment to preservethe constitutional principles established in theoriginal Roe decision."

Thirty-one pro-choice and many anti-abortiongroups have submitted briefs, reviving argumentsfrom as long ago as the 19th century.

The brief topped by the most signatures is astatement on behalf of 2887 women who have hadabortions and 627 friends of women who have hadabortions. "I chose an abortion," reads thebrief. "I was able to get a safe legal abortion,unlike my maternal great-grandmother who abortedherself with a knitting needle....My motherwhispered the story to me late one night, stillafraid..."

At issue is whether knitting needles andwhispered conversations will return if the courtoverturns the Roe decision.

According to Jan Carroll, a legislativedirector of the National Right to Life Committee,the Court could uphold the provisions of theMissouri statute without overturning Roe."But we do think it's a likely place for the Courtto begin the erosion of Roe v. Wade," sheadds.

"And if it upholds the law, it will be a signalto other states that similar provisionsrestricting abortion could pass," Carroll says.

The variety of labels used to describe abortionrun the gamut from "reproductive freedom" to"murder." And the terms reflect the intensity ofemotions underlying the debate over legalabortion. Partisans of both sides have invoked andinterpreted the civil liberty and human rightsaspects of the issue, and both use the FirstAmendment in amici curiae, or "friends ofthe court" briefs on both sides.

Professor of Law Charles Fried, solicitorgeneral during the Reagan administration, willpresent the Court with President Bush's stance.Fried has already submitted a brief recommendingthat the Court use Webster as a test caseand review Roe.

Fried argues that history and tradition in thiscountry have never supported the practice ofabortion. But some of the evidence on which herelies comes from the other side.

Fried refers to a book by University ofMaryland professor James Moore as an example ofhow abortion has always been an unsavory topic inthe United States.

"The solicitor general refers to Moore's book[Abortion in America] in the context thatabortion has always been regarded with distaste,"says New York University professor Sylvia Law, whoco-authored a pro-choice brief signed by 281historians. "But what's ironic is that Mooredoesn't say anything like that."

In fact, Moore is one of the signers of thehistorians' brief, which espouses that antithesisof the administration's opinion.

The historians' brief was submitted partly tocombat the "misuse of historical scholarship,"says Judith R. Walkowitz, a professor at RutgersUniversity.

"It is important for the Court to know thedepth of historical scholarship, rather thanmerely assume what social, cultural and legaldebates have meant," says Professor of the Historyof Science and Medicine Allan M. Brandt, the onlyHarvard professor to sign the brief. "Thesolicitor general's brief wasn't really based onhistorical context."

The historians' brief contends that"nineteenth-century abortion restrictions soughtto promote objectives that are today plainlyeither inapplicable or constitutionallyimpermissible."

Rationales used at that time were "based ondiscriminatory and sexist interests that the Courtwould no longer recognize," says Brandt. Thedevelopment of safe techniques and licensing lawshave rendered invalid such concerns about women'ssafety and the legitimacy of practitionersperforming the procedure.

Scholars say the courts today would dismissarguments against abortion that rely on thedeclining fertility of the white, Anglo-Saxonmiddle class as "nativism." And many also believethe idea of a government decision that sex is aprocreative act would be an infringement onwomen's freedom.

The brief also notes that the illegality ofabortion in the 19th century had "differentialimpacts on different races, classes andethnicities of women," says Walkowitz. "Whilemiddle-class women seeking abortions were able toafford a safe and relatively hygienic procedure,poorer women were forced to resort to `back-streetabortions.'"

And the argument is the same today, accordingto many pro-choice adherents. Pro-choicers alsosay that briefs submitted by anti-abortionistsrely on religious and philosophical arguments,rather than legal and historical ones.

"They try and promote respect for the fetus asa human being and traditional family values," saysLaw, adding that the briefs "develop the samethemes over and over again."

Many of the pro-choice briefs--includingopinions filed by the American MedicalAssociation, the American PsychologicalAssociation and other health care groups--addressscience and politics. Massachusetts AttorneyGeneral James Shannon submitted a brief on behalfof the attorneys general of California, Colorado,New York, Texas and Vermont.

Pro-choicers contend, however, that theantiabortion briefs have neither the backing northe evidence in their briefs because of thereligious focus.

But Carroll says that although several of thebriefs use religious arguments, most are based onlegal and scientific ones.

And religious groups are found on both sides ofthe issue. One pro-choice brief was filed by theNational Coalition of American Nuns, Catholics fora Free Choice and 51 prominent practicingCatholics. The statement argues that the contextfor the restriction of abortion has no basis inCatholicism.

"Catholic tradition has always held that thequestion of personhood is spiritual, notscientific," according to the brief.

One of the few religiously oriented briefs wassubmitted on behalf of Catholic Bishop AustinVaughn of New York. The first half of the documenttraces the first 1400 years of Christianity andthe Catholic Church's position on abortion, saysattorney Robert L. Sassone, its author. "Thesecond half contains other religious arguments,"he adds.

The attachment of a moral value to the fetusbecame a central argument against the legalizationof abortion in the 1960s and 1970s. "The notion ofwhat a fetus is...is a variable concept,"Walkowitz says.

The historians' brief argues that "a statecannot constitutionally justify the imposition of[burdens on the equality and liberty of women] byadopting one, highly-contested, metaphysicalconcept of the value of fetal life."

The turnout and diversity of the pro-choicebriefs is unusual, says Walkowitz. "There are anumber of groups not traditionally interested whohave taken an interest and come forward on thepro-choice issue."

The record number of signatures on thehistorians' brief has astounded many onlookers.

"There have been instances where historianshave tried to help the Court," says Law. "Butnothing on this scale."

Walkowitz says there has never been anamicus brief signed by so many historians,"even in Civil Rights cases."

The brief elicited financial as well asprofessional support from historians, most of whomare associated with universities and historicalassociations around the country.

The American Civil Liberties Union and thePlanned Parenthood Federation of Americacoordinated and funded 31 pro-choice briefs, buthistorians supplied donations so that "ouramicus brief just about covered its owncosts," says Walkowitz.

Sixteen professors from both Michigan andPrinceton, and 12 from Columbia, signed thestatement. Law attributed the relative lack ofsupport from Harvard professors to "short notice"and the absence of a contact at the University. "Iwas a little disappointed in Harvard," she said.

Another brief, formulated by lawyers, arguesthat women's right to abortion is key to the"liberty, privacy and equality historicallyaffirmed" by the Court. Professor of Law Frank I.Michelman co-authored the brief, signed by 15percent of the nation's law professors.

While that brief argues that the democraticprocess is compromised by restricting abortionbecause it violates women's Civil Rights,anti-abortionists say legalization is also aninfringement.

"The people have had no access to being able torestrict abortion," says Carroll. "The Court hasusurped all power in this area. It's time to turnthe issue back to the people."This brief is one of many sent to advise theSupreme Court in reviewing Webster.