Missed Opportunities in McCorvey v. Hill: The Limits of Pro-Choice Lawyering


I was invited to participate in this symposium as a practitioner. I am the founder of National Advocates for Pregnant Women (NAPW), an organization that was incorporated in 2001 to ensure, among other things, that women do not lose their civil or human rights upon becoming pregnant. In the course of my career, I have had the privilege of working in many of the mainstream pro-choice organizations. I have also been fortunate to work closely with the founders and leaders of theReproductive Justice Movement. As a result of this work, I came to believe that approaching cases like lawyers may blind us to a wide variety of advocacy tools that are as important, if not more important, than legal arguments, and that thinking like pro-choice lawyers may blind us to the larger political issues at stake in the ongoing effort to overturn Roe v.Wade.

I believe that too often attacks on Roe v. Wade are treated as if they are just attacks on the right to choose abortion. However, because the vast majority of women who have abortions have previously, or one day, will give birth, the arguments made to overturn Roe and re-criminalize abortion have implications far beyond the issue of abortion. They also affect women who become pregnant and carry a child to term. Sixty-one percent of women who have abortions are already mothers who have previously given birth. By the age of forty-four, eighty-five percent of all women in the United States bring life into the world. By nearly the same age, approximately one third of women, most of them mothers, will have had an abortion. If “pro-choice” advocates keep responding to efforts to re-criminalize abortion only by arguing for the legality of abortion, then we accept a narrow image of women as “people who have abortions”rather than as people who sometimes have abortions and far more often have children and take responsibility for raising them and caring for them and the homes they live in.

By recognizing that Roe and the debate around it also affects mothers,”pro-choice” activists can more effectively challenge the existing framework that falsely suggests that there are two kinds of women: those who have abortions and those who have babies. If pro-choice advocates acknowledge that the vast majority of women who have abortions are the same women who have babies, they have the opportunity to reframe the debate. They will also find many more potential allies to work with to ensure not only the right to choose abortion, but also to advocate for the social and economic conditions necessary to enable pregnant women to make real choices.Arguments challenging Roe also have implications for a wide range of public health, public policy, and social justice issues, including health care, family leave, and child welfare. As discussed below, the arguments againstRoe raise core issues about whether public policy should be judged based on false claims about science and history, misinformation about the extent to which current laws protect people from discrimination, and misleading information about the government services available to support pregnant women, mothers, children, and families. By recognizing that Roe and the arguments against it implicate a wide range of vital public health, economic, and social justice policy issues beyond abortion, “pro-choice”advocates again can find more allies to join them in defending Roe and the pregnant women and mothers who sometimes have abortions.One case, McCorvey v. Hill, illustrates how the pro-choice movement missed critical opportunities to build alliances across the range of issues and movements necessary to protect the rights and dignity of all pregnant women. In 2003, Norma McCorvey, the original “Jane Roe” in Roe v.Wade, sought to overturn the decision in Roe by filing a Rule 60(b)motion for relief from the judgment in federal court. Yet not a single pro-choice group filed an amicus brief defending Roe. By contrast, the anti-choice community rallied around the case: Two amicus briefs were filed in support of Ms. McCorvey’s appeal to the Fifth Circuit. An additional eleven briefs were filed on her behalf in support of her petition to theSupreme Court.

As I discuss in this article, from a narrow institutional and legal perspective, my colleagues and lawyers from the leading pro-choice legal and political organizations were absolutely right in their decision not to oppose McCorvey. From a larger political and cultural perspective, however, I believe that ignoring this case was a mistake. The pro-choice movement failed to appreciate how serious and strategic anti-choice activists are when they bring cases unlikely to win in the short term. As discussed below, the efforts of anti-choice activists keep public debate focused on abortion rather than other important issues of our day. Their false claims about science and history, if repeated often enough and left unchallenged, become more likely to be believed and relied upon by judges and policy makers. Furthermore, the more we permit anti-choice activists to frame the issue as a question of abortion’s legality and morality, rather than as a question of the rights and dignity of pregnant women and mothers, the more dominant this frame becomes in the public debate. The pro-choice movement’s stunning non-response reflects two concepts that are relevant to this Page to Practice Symposium. First, thinking like lawyers blinds us to a wide variety of advocacy tools that are as important as, if not more important than, legal arguments. Second, thinking like pro-choice lawyers blinds us to the larger political issues at stake in the ongoing effort to overturn Roe v. Wade and deny women their civil and human rights.

Part II of this article describes the history of the McCorvey case. InPart III, I deconstruct some of the plaintiffs major arguments inMcCorvey to show that cases like McCorvey, regardless of their outcome, are used to organize and build momentum for the abortion re-criminalization movement; to create the appearance of new science and scientific evidence that undermines the legitimacy of the decision in Roe v.Wade; and to distract attention from political issues around which there might be significant agreement across “pro-life” and “pro-choice” lines.”Part IV describes the opportunities that pro-choice groups missed when they chose not to file amicus briefs or otherwise challenge the case in the court system. I conclude by arguing that the failure to do cross-issue, multi-strategy work undermines the effort to defend Roe v. Wade, and more fundamentally, those women who become pregnant and sometimes have abortions.

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