by David Gespass, NLG Past President
In 2019, a wave of anti-choice bills swept through state legislatures as anti-abortion politicians moved to restrict access to abortion across the country. After passing an organizational resolution opposing the criminalization of people’s reproductive lives in 2019, Guild members have organized to write and submit amicus briefs in states where these bills are under consideration.
The Trump administration’s appointment of historic numbers of federal judges and two Supreme Court justices has sparked the passage of laws in at least nine states designed to challenge and overrule Roe v. Wade (1973), the decision that protected a woman’s right to a safe and legal abortion. With Catholic reactionary ideologue and Federalist Society stalwart Leonard Leo selecting Trump’s judicial picks, there is good reason to think that Roe is doomed, whether in one fell swoop or by a thousand cuts.
With the rash of Federalist Society judges now deciding important issues of privacy and personal liberty, it is clear that reliance on precedents like Roe, which emphasize individual rights, will be less and less persuasive to the emerging federal bench. To that end, law professor and NLG Review editor Brendan Beery wrote an article titled, “How to Argue Liberty Cases in a Post-Kennedy World: It’s Not About Individual Rights, But State Power and the Social Compact.” Beery’s argument is that challenges should focus on intrusive and overreaching government laws and regulations, rather than on the privacy rights of individuals.
With the passage of ever more restrictive laws limiting abortion rights came the dubious opportunity to test this thesis. Professor Beery and two of his students drafted a template based on his article, and over a dozen NLG law students volunteered to draft amicus briefs based on that thesis and tailored to each of the various state laws. Guild students are currently working under the supervision of Guild attorneys on briefs to submit in Alabama, Arkansas, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Ohio, and Utah.
There remains a danger that judges will find that fetuses are “persons” under the Fourteenth Amendment and therefore entitled to “life, liberty or property.” For strict constructionists who look to the intent of the written word, one would think that would not be an issue, since the Amendment protects “persons born . . . in the United States.” On its face, that would seem to preclude the unborn or preborn but originalists’ capacity for sophistry is not to be underestimated. To that end, I added a section to the briefs arguing that fetuses are not persons contemplated by the Fourteenth Amendment, a position endorsed even by Antonin Scalia.
The cases have moved fairly quickly through the district courts, as the statutes were intentionally written to be unconstitutional under current law. Only judges willing to defy the law (an oxymoron, but one that cannot be discounted in the present environment, viz. Roy Moore) would do anything but strike the statutes down and allow their decisions to be appealed. The Guild anticipates filing amici in the circuit courts and, when one or more reaches the Supreme Court, to file them there as well. The intent is to give the judges the choice between adhering to the originalist principles they claim to espouse or exposing those supposed principles as smokescreens for decisions dictated by the desired outcome and not by any adherence to law or precedent. We hope for the former, but fear the latter.
This piece was originally posted to the NLG Blog on 11/25/19 at www.nlg.org/nlg-students-stand-up-for-reproductive-justice/ ■