Polsky-Claudia Late one mid-December evening, freshly installed in an academic law post and scrambling to get home in time for dinner with my teen daughters, I saw an email fly in from an unaccustomed source. It said: “Would you like to tell your new colleagues and Dean, the world at large, and a majority-male U.S. Supreme Court, about the until-now-private medical decision you made to have a legal abortion half your lifetime ago?” Well, perhaps it was not phrased exactly like that … but this was the question's logical cascade of implication. It took me but a second to reply “yes.”

In blurring personal and professional lines to join an amicus brief on behalf of women lawyers who had lawful post-Roe abortions, I officially entered the cyclone of strategy, emotion and anxiety swirling around the Supreme Court's grant of review in Whole Woman's Health v. Cole. The case concerns two pretextual restrictions the state of Texas has recently imposed on abortion clinics, one pertaining to the physical facilities at clinics, the other to their physicians' hospital privileges. Neither is intended nor expected to increase patient safety, but both are absolutely intended—and certain—to shutter scores of clinics, due to the cost or difficulty of compliance. The case outcome will likely advance or limit abortion-restriction measures nationwide, defining reproductive options for my daughters' generation. How, under the circumstances, could I say “no”?

The primary strategy of what has come to be called the “women lawyers' brief” is narrow. It aims to correct (presumed swing-vote) Justice Anthony Kennedy's suggestion in a prior abortion rights case that because “some women come to regret their choice to abort” (Gonzales v. Carhart, (2007)), the state has a legitimate interest in dissuading women from the procedure. As a threshold matter, I confess puzzlement over the logic of the “regret” narrative, whereby an individual woman's remorse over having chosen abortion suggests that the state may legitimately deprive all women of the option. This seems a non sequitur. Should the state choose our spouses for us, since a 40 percent U.S. divorce rate signals that millions of Americans will come to “regret” their own uncoerced mate selection? The analogy is not so far-fetched: Marriage, like procreation, implicates our ability to choose the composition of our own families. It is hard to imagine a privacy and liberty right more fundamental, as both a moral and constitutional matter.

Still, if the “regret” narrative is not only qualitatively strange but quantitatively unfounded—because the data show that the vast majority of women in fact feel relief rather than regret if able to terminate an unwanted pregnancy—then correcting the factual record is a worthy amicus role. And if obtaining release from a too young/too poor/too unhealthy/rape-induced or for-other-reasons-unwanted pregnancy is what enabled 113 women to become lawyers and participate fully in the “economic and social life of the Nation” (Planned Parenthood v. Casey, (1992)), that story is most compellingly told through real voices of real women, not abstract legal argument.

The secondary strategy of the women lawyers' brief is much broader. It is a movement-building strategy, designed to find and amplify the voices that are pro-choice through lived experience, but muted through powerful stigma. The persistent social taboo surrounding discussion of abortion—a procedure chosen by one in three American women, across 40-plus years of legality—is simply staggering. When I offered to help the Paul Weiss firm's drafting team recruit California signatories, I expected that my broadcast email to lawyer-friends might arouse controversy. What I did not expect was the deafening silence in most quarters to which it was sent. Except for replies from the few who ultimately joined, my in-box was notable for its extremely low traffic in the days that followed.

If the reception to the idea of the brief was discouraging, however, the impact of the brief itself was a shock in the opposite direction. Once it landed in the world, the women lawyers' brief drew immediate attention and support in mainstream media. It was lauded as “an extraordinary brief” in a crowded field (The National Law Journal, Jan. 5, 2016); a powerful and “unusually personal move” (The Sacramento Bee, Jan. 6, 2016); and an amicus contribution that “towers above the rest” (Slate, Jan. 7, 2016). Overnight, requests came for interviews and quotations (including the request for this Viewpoint), as did emails, voicemails and Facebook tags from friends and colleagues.

In parallel, notes of gratitude arrived from brief signatories: “Thanks for doing this; it is very important”; “[T]his is really a huge deal. Someone at work 'congratulated' me yesterday”; “It would have changed my whole life if abortion was not available.” Additional notes came from would-be signers who heard about the brief only post-filing: “Bravo for putting yourself out there!! I'm just sorry I wasn't on it”; “The brief brought me to tears remembering my own decision to terminate a pregnancy in law school, and thinking of all the women whose access to options today is severely limited.” A college classmate wrote that she discussed the brief with her 77-year-old mother and teenage son—their first-ever “three-generation conversation about reproductive rights.”

Even journalists who opened with the dispassion that marks their profession—“Might you be willing to talk to be about your decision to join this brief?”—would, in the course of conversation, break the fourth wall: “It reminded me of my own experience and that of my friends … almost every woman I know has had an abortion.”

In my favorite among his stanzas describing ways to look at a blackbird (albeit 13 rather than 113), Wallace Stevens wrote:

I do not know which to prefer,

The beauty of inflections

Or the beauty of innuendoes,

The blackbird whistling

Or just after.

Just as only noise can make us fully experience silence, the inflection of the women lawyers' brief landing in the world has revealed, by innuendo, the hush that surrounds the one million lawful abortions women obtain each year in America.

Whatever my initial motivation for joining the amicus brief, seeing its immediate effects has made me understand, in a profound way, the transformative power of uncorking long-bottled stories. These stories have been suppressed for reasons having little to do with assumed narratives of guilt, shame or regret. They have mostly gone untold because, quite simply, it has not been socially acceptable to tell them.

This month, I realized that in the frenzy of brief-related activity and media follow-up and holiday gift-giving, I had forgotten the key audience: my daughters. And so I finally told them my own story—a story about how access to a legal abortion as a single and broke graduate student at 22 enabled me to have the spouse, children, stable life and legal career I so value at 50. A story about a tough but correct personal decision, made autonomously, implemented lawfully and safely, without regret. A story about wanting to pay it forward, preserving the same option for them should they ever need it.

My daughters beamed. They told me they were “immediately proud”; “so glad that this can now be an open conversation in our household”; “grateful that abortion is an option for my friends and me if we need it”; and appreciative of the gift of advocacy on their behalf.

That night, they couldn't remember anything unreceived from their holiday wish lists.

Claudia Polsky is an assistant clinical professor of law at UC-Berkeley School of Law, and director of its Environmental Law Clinic.

The Recorder welcomes submissions to Viewpoint. Contact Laurel Newby at lnewby@alm.com.

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Getting Noisy About Abortion: Why I Joined the Women Lawyers' Brief

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