August 31, 2011

Ideas for protecting the civil & human rights of pregnant & parenting women

Lynn Paltrow, founder and leader of National Advocates for Pregnant Women, has contributed an important and thoughtful essay to New York University’s Review of Law & Social Change. Entitled Missed Opportunities in McCorvey v. Hill: The Limits of Pro-Choice Lawyering, it deserves a wide audience among provoice activists and all people interested in the human rights of women.

The article uses the McCorvey v. Hill case to illustrate how the pro-choice movement and traditional lawyering approaches have missed critical opportunities to use attacks on Roe and other anti-abortion cases as a way to build alliances across the range of issues and movements necessary to protect the right to choose abortion, and more fundamentally the personhood of pregnant women. It not only describes the history of the McCorvey case but also outlines what can be done to more effectively counter abortion-re-criminalization efforts and to truly advance Reproductive Justice.

You will note that Lynn refers to "b.a.d. science": this, NeuroCooking readers, stands for "biased, agenda-driven" science.

Here are some excerpts, all emphasis is mine:

…National Advocates for Pregnant Women (NAPW) [is] 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.

...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,[1] sought to overturn the decision in Roe by filing a Rule 60(b) motion for relief from the judgment in federal court.[2] 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 curiae briefs were filed in support of Ms. McCorvey’s appeal to the Fifth Circuit.[3] An additional eleven briefs were filed on her behalf in support of her petition to the Supreme 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.

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.

… Although McCorvey could have been an opportunity for pro-choice lawyers to gather stories about the personal and public health value of legal abortion or to develop new, passionate, funny, or creative responses to the argument that women are actually hurt by abortion, the mainstream pro-choice movement let the courts handle it.

… McCorvey’s arguments did not succeed in getting Roe overturned, but they did deflect attention from Texas’s appalling record on child and family health. They reinforced the idea that abortion, more than any other issue, poses the greatest threat to families in the United States today. They motivated a conservative circuit court judge to write and publish an unchallenged concurring opinion legitimizing junk science and the idea that women who have abortions are killing their children. They mobilized hundreds of anti-choice activists. And they reinforced and spread anti-abortion propaganda that could eventually become the “truth” if silence is the primary response.

If we defend the right to choose abortion only through narrow legal tools, and if we focus on defending abortion rather than on defending the women who have abortions, we will not only lose the right to choose abortion but also any hope of achieving a true culture of life, one that values and includes the women who give that life.

… Finally, they missed the opportunity to explore what follows from the affidavits’ repeated claim that abortion is murder. Because most women who have abortions are or will be mothers, if abortion is murder, these affidavits are actually arguing that many of the women who are giving birth to and raising America’s children are, in fact, murderers. In addition, the crime of murder carries significantly longer sentences than the crime of illegal abortion, and the crime of murder is equally applicable to the doctors who perform abortions and the women who have them.[4]

Moreover, the pro-choice community missed the opportunity to build cross-issue and cross-movement alliances. A wide range of organizations—whether or not they have positions on abortion and even if many of their members oppose abortion—could have been invited and encouraged to file amicus briefs exposing the extent to which organizations that seek to re-criminalize abortion mislead, mischaracterize, and dehumanize pregnant women and fail to support the children they claim to protect.

Pro-choice groups could have worked with birthing rights groups, including midwives and doulas, to make clear that, while abortion is one aspect of pregnant women’s lives, all aspects of pregnancy have the potential for significant personal and emotional impact. Together they could have filed amicus briefs addressing the feelings of anger, sorrow, loss, and trauma that women report feeling when they have been pressured into having unnecessary cesarean surgery and other procedures[5] and when they have been denied the opportunity to make informed and voluntary decisions during labor and delivery.[6]

Women’s rights, mental health advocacy, and mothers’ advocacy groups could have brought to light the extensive evidence that some women who go to term and give birth suffer from post partum depression.[7] In contrast to the medically unsubstantiated “post-abortion” syndrome, post-partum depression is well established but under-researched.[8] National and local stillbirth organizations could have filed briefs addressing the women who experience miscarriages and stillbirth. These women often experience significant emotional pain yet overwhelmingly fail to get needed support from any of their health care providers.[9]

Groups that address child welfare issues[10] could have filed an amicus brief exploring McCorvey’s suggestion that mother’s need not worry about any children they give birth to because they could be left with the state and provided for by that state. They could have discussed how the child-welfare system often punishes, rather than supports, parents who in fact “suffer” from the stresses of parenting.[11] The National Safe Haven Alliance could have been encouraged to file an amicus brief addressing the real purpose and serious limitations of the “Baby Moses” laws. Groups that address adoption issues could have discussed the ways in which women who have given up children for adoption sometimes experience extreme feelings of loss, sadness, and guilt.[12]

Public health groups could have addressed legalized abortion’s benefits to all Texans and Americans. International human rights groups could have educated the courts about the experiences of women today in countries that continue to criminalize pregnant women who have abortions. Reproductive, social, and economic justice groups could have been engaged to challenge the suggestion in the brief that poverty’s only negative consequence is to put pressure on low-income women to have abortions. Organizations such as the National Academy of Sciences and the National Center for Science Education could have been approached to see if they would address the danger of judicial decision-making based on junk science and the extent to which junk science and b.a.d. science is influencing public policy.[13]

Religious organizations and institutions that support pregnant women’s reproductive, constitutional and human rights,[14] as well as organizations committed to the separation of church and state,[15] could have been enlisted to address the role that religion played in the litigation and the extent to which political, medical, and scientific issues should not be confused with religious beliefs.

Pro-choice organizations could also have collected the stories of pregnant women who had abortions and who were denied access to abortions. Better yet, they could have organized an amicus brief and speak-outs about pregnancy in general,[16] making it clear that women who have abortions also have miscarriages and stillbirths and give birth under conditions that should raise significant concerns about women’s dignity and health.[17] As many of us have since learned from the organization Exhale[18] and their “Pro-Voice” movement,[19] to the extent women have had bad, disappointing, or upsetting experiences with abortion since legalization, those who support full civil and human rights for pregnant women can be the ones to give them voice, acknowledge their pain, show them respect, and explore ways to support them. Even with limited time and resources, these groups could, at a minimum, have requested to re-file past women’s voices amicus briefs with motions explaining how they related to this litigation.

You can learn more about National Advocates for Pregnant Women at their web site. And I encourage you to read this terrific article in The Guardian, detailing much of their current work in protecting the human rights of pregnant and parenting women.

[1].Roe v. Wade, 410 U.S. 113 (1973).

[2]. McCorvey v. Hill, 385 F.3d 846, 847 (5th Cir. 2004).

[3].Brief for Ester Ripplinger as Amicus Curiae Supporting Appellant, McCorvey v. Hill, 385 F.3d 846 (2004) (No. 03-10711), 2003 WL 24016582; Brief for Texas Black Americans for Life and the Life Education and Resource Network as Amici Curae in Support of Appellant, McCorvey v. Hill, 385 F.3d 846 (2004) (No. 03-10711), 2003 WL 24016584.

[4].See Lynn M. Paltrow, A Post-Roe World With Criminal Penalties Our Mothers Could Not Have Imagined, Huffington Post (Jan. 27, 2006), (describing how changes in criminal justice system would impact the criminalization of abortion if Roe were overturned); Anna Quindlen, How Much Jail Time, Newsweek, Aug. 6, 2007, at 68 (“If abortion is made a crime, then the woman who has one is a criminal.”).

[5].Cf. Carol Sakala & Maureen P. Corry, Evidence Based Maternity Care: What it is and What We Can Achieve 1 (2008), (discussing current high rates of interventions and procedures in pregnant women and arguing that evidence based maternity care can decrease the number of interventions while improving maternal outcomes).

[6].See The Business of Being Born (Barranca Productions 2008) (exploring the overuse of unnecessary medical interventions on a growing number of pregnant women in the United States today).

[7].See Ctrs. for Disease Control and Prevention, Dep’t of Health & Human Servs., Morbidity and Mortality Weekly Report: Prevalence of Self-Reported Postpartum Depressive Symptoms—17 States, 20042005 361 (2008) (finding that ten to fifteen percent of women experience post-partum depression within one year of giving birth). See generally Julia S. Seng, Lisa Kane Low, Mickey Sperlich, David L. Ronis & Israel Liberzon, Prevalence, Trauma History, and Risk for Posttraumatic Stress Disorder Among Nulliparous Women in Maternity Care, 114 Obstetrics & Gynecology 839 (2009) (discussing prevalence and causes of post traumatic stress disorder in pregnant women).

[8]. See Donna E. Stewart, Emma Robertson, Cindy-Lee Dennis & Sherry Grace, An Evidence-Based Approach to Post-Partum Depression, 3 World Psychiatry 97, 97–98 (2004) (stating that post-partum depression is a significant health problem that affects approximately thirteen percent of women but noting the dearth of evidence-based literature on the illness).

[9].See Linda Layne, Motherhood Lost: A Feminist Account of Pregnancy Loss in America 190–234 (2003); Amber Cleveland, Motherhood Lost, Rensselaer (2006), See generally Parenthood Lost: Healing the Pain After Miscarriage, Stillbirth, and Infant Death (Michael R. Berman, ed. 2001) for a variety of perspectives on the pain and loss associated with miscarriage and stillbirth.

[10].The National Coalition for Child Protection Reform ( is one such group.

[11].See generally Chris Gottlieb, Reflections on Judging Motherhood, 39 U. Balt. L. Rev. 371 (2010) (discussing how the child welfare system judges mothers).

[12].For examples of women who experienced negative feelings as a result of giving up their children for adoption, see generally Eric Blau, Stories of Adoption: Loss and Reunion (Family & Childcare) (1993); Evelyn Burns Robinson, Adoption and Loss: The Hidden Grief (rev. ed. 2003); Joe Soll & Karen Wilson Buterbaugh, Adoption Healing . . . A Path to Recovery for Mothers Who Lost Children to Adoption (2003). See also Birthmothers: Grief, Loss, Shame & Guilt,, (last visited Apr. 26, 2011) (addressing apparently common feelings of grief, loss, shame, and guilt by some parents who have given up children for adoption). My point here is not to compare or create a hierarchy of pain among abortion, miscarriage, stillbirth, adoption, birth, and parenting, but rather to note that many women feel pain and experience hurt with regard to all possible aspects of pregnancy and its outcome. In doing so, I hope to call into question the suggestion that abortion is unique in “causing” women to feel badly in some way.

[13].See, e.g., Chamberlain, supra note 96.

[14].Such organizations could have included the Religious Coalition for Reproductive Choice ( and Faith Aloud (

[15].Americans United for Separation of Church and State is one such organization (

[16].See, e.g., Our Stories, Nat’l Advocates for Pregnant Women, (last visited Apr. 26, 2010) (suggesting a prototype for this kind of pregnancy-comprehensive story-telling and speaking out).

[17].See Real Reason, Tone, Visibility, and Scope in Pro-Choice Advocacy Conceptions of Pregnancy and Abortion, Part II: Strategic Roadmap, Prepared for the Reproductive Health Technologies Project 28 (2010) (“Re-integrating abortion with other common pregnancy outcomes will benefit everyone involved, not only advocates for abortion rights.”).

[18].See History, Exhale, (last visited Feb. 24, 2010).

[19].The “Pro-Voice” framework seeks to ensure that each person’s unique experience with abortion is respected, supported, and free from stigma. See generally Aspen Baker & Carolina De Robertis, Pro-Voice: A Framework for Communicating Personal Experiences with Abortion (2005),; Eyal Rabinovitch, Exhale. Can Listening to Women Who Have Had Abortions Bring Peace to the Abortion Wars (2010), paperbyerabinovitch5-3-10.pdf.

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