Remember the People’s Brief? Last year around this time, the Human Rights Campaign teamed up with Paul Weiss litigation partner Roberta Kaplan, inviting regular schmoes like you and me to sign on as amici curiae in support of same-sex marriage.
I was enthusiastic about the idea and wrote that “it’s a novel way of demonstrating just what the public’s interest is, and the more signatories it attracts, the stronger it’ll be.” Some readers disagreed, calling the effort “definitely dumb” and claiming “that’s not what the court is for.”
Nevertheless, the brief was filed — with some 207,000 signatures appended to it — and its position won the day.
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Did the brief help? Did it hurt? Even the justices themselves might not be able to say conclusively whether the popular support evidenced by the People’s Brief swayed them (and if so which way). But I still believe what I wrote back then: “When the strategy is executed well — as I think The People’s Brief has been — it will let advocates offer the Court a window, however narrow, from its cloister of deep privilege out onto some of the lives that its decisions will affect. And that’s a good thing.”
Now it looks like some other people share that belief.
The New York Times ran a piece yesterday describing an effort similar to the People’s Brief in Whole Women’s Health v. Hellerstedt, a case asking the Supreme Court to strike down a raft of restrictions Texas has placed on women’s access to abortion. Here’s the Times:
Taking a page from the movement for same-sex marriage, Ms. [Amy] Brenneman and more than 100 other women have filed several supporting briefs in a major Supreme Court abortion case to be argued on Wednesday. The briefs tell the stories of women who say their abortions allowed them to control their bodies, plan for the future and welcome children into their lives when their careers were established and their personal lives were on solid ground.
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While the effort is a few orders of magnitude less inclusive than the People’s Brief, it still does effectively the same thing: offer the Court a window out onto some of the lives that its decisions will affect. And, as the Times also points out, these women’s accounts of their positive experiences with abortion are specifically intended to offer a window into the sorts of lives that the Court has failed to acknowledge in the past. Take Justice Kennedy’s reasoning in Gonzales v. Carhart: “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.”
It is indeed unexceptionable to conclude that some women regret abortions. But it is likewise unexceptionable to conclude that many don’t. And the amicus briefs referenced by the Times answer Justice Kennedy’s abstract musings with concrete details: not only do they share the stories of the women who don’t have regrets, but they also offer the Court the reliable data the Court claimed was missing (which, by the way, show that 95% of women who have abortions believe they made the right decision).
Also, it turns out that one of these briefs — filed on behalf of over a hundred women lawyers — seems to have been directly inspired by the People’s Brief: the Times reports that Paul Weiss lawyer Alexia Korberg had worked on “a major gay rights case” and came away with the following conclusion: “We had seen just how powerful humanizing issues that can seem abstract can be, not just for the justices but for everyone, and how powerful empathy can be.”
The Times also notes that a conservative group is using a similar strategy in Whole Women’s Health, gathering signatures of women who do regret their abortions for an amicus brief supporting the Texas restrictions. (Remember: you told me this would happen, and I said I didn’t care. I still don’t.)
Anyway, by now the briefs have all been filed and oral arguments will be happening tomorrow. That means it’s up to public interest lawyer Stephanie Toti (of the Center for Reproductive Rights) to carry the banner into court and try to get a win for women’s reproductive freedom.
Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at [email protected].