Reasoning from experience, on abortion and beyond

Last week, 113 attorneys signed an amicus brief in support of the plaintiffs challenging Texas’s draconian abortion restrictions in an upcoming Supreme Court case, Whole Women’s Health v. Cole. The signatories are public defenders and corporate lawyers and anti-discrimination advocates and retired judges. The one thing they all have in common? Each has had an abortion, and attributes her professional success to access. As one movingly wrote, “To the world, I am an attorney who had an abortion, and, to myself, I am an attorney because I had an abortion.”

As others have noted, the strategy, spearheaded by the Center for Reproductive Rights and the law firm Paul Weiss, is pretty brilliant. The likely swing vote, Justice Kennedy, has written previously about his great concern for women who regret abortions–despite evidence that there is no “post-abortion syndrome,” and that most patients experience a great sense of relief. The amicus signatories push back on Kennedy’s misconception from a powerful position: within his own professional community. These are Kennedy’s people.

To hear directly from these attorneys is a big deal for abortion care. But it’s also a big deal for the law, period, to see a group of women arguing from personal experience, not despite personal experience.

Let me explain, true to form, with a personal story. I’ve written before about a formative experience my first week of law school: when a house party conversation about rape law (I’m super fun, guys) became heated, two new male classmates implored me to calm down because, they explained, the debate “wasn’t personal.” That’s a story about men–a story so familiar it’s barely worth repeating–but it’s also a story about the law. The conversation stuck with me because it was such a perfect introduction to the legal profession, which treats personal insight and experience as a weakness.

Consider: This summer, a friend of mine attended a talk at a law firm. There, she was instructed that the highest form of lawyering was dispassionate puzzle-solving, pure intellectual challenge.

Consider: in 2011, conservative advocates attempted to undermine a California federal judge’s ruling against Prop 8 because the judge was gay. He was too personally invested, the (ultimately unsuccessful) activists argued, to be trusted to reason–even though the judge in question had never suggested he in fact wanted to marry his partner. Criticism written during the controversy and the final opinion opposing the activists’ motion pointed to a long, ugly history of litigants trying to recuse judges for being women, for being black, for being Jewish, for being former civil rights attorneys. In one case, a prestigious law firm was sued by female employees by gender discrimination; the firm’s representation then tried to boot the black woman judge assigned to the case because, they said, she would be biased because of her own identity.

Judges, of course, can sometimes run into genuine conflicts of interest, like a financial stake in the outcome of the case, and must recuse themselves in those cases. But, again and again, judges have been distrusted when they are assumed, correctly or not, to have personal insight into the matter of hand based on their experiences as a marginalized person moving through the world.

(Of course, there’s a whole conversation to be had here about neutrality. Why is sexuality “personal” to a gay judge but not a straight judge, whose marriage–these activists were so sure–would be undone by marriage equality? Why would a black woman judge be biased in favor of women employees when a white male judge isn’t presumed to be biased in favor of a company accused of discrimination? In short form, for now, that just goes to show us how thin the veil is between concerns about distance and distrust of the marginalized. The wealthy straight white cis man–the paragon of rationality!–has no “experience.”)

Consider:  The disdain for experience even structures the strange hierarchies of the legal profession. Generally speaking, appellate attorneys–those who argue appeals of cases–are considered fancier than trial attorneys, those who bring the case in the first place. The same rule applies for trial and appellate judges, as well as their clerks. To oversimplify only a bit, an appellate lawyer, the fancy one, makes arguments based on the records developed at the trial; the client won’t testify at the appeal. An appellate attorney, then, may meet with the client only once. The appellate judges and appellate clerks will likely never hear a word from the real people whose real conflict has lead to the case. Remove from the realities that give birth to law suits, then, are the marker of a lawyer’s prestige.

Consider: There are two basic categories of law, statutory law and common law. The former, like it sounds, is law based on statutes. The latter is “judge-made” law, based on precedent and tradition and common practice without a clear statutory root. For many years, common law was understood to be the same as natural law–law given by God, law outside of history, law outside of people, floating above us.

Let’s get back to the amicus brief. By speaking simultaneously as lawyers and as women who have had abortions, the 113 signatories defy the rules of the game. They are urging the Court to rule for the clinics because they know the law and because they know abortion. Personal experience doesn’t disqualify them from speaking: it positions them perfectly to protest. Their personal knowledge strengths their legal knowledge. Of course it does.

Legal reasoning will always require a degree of remove. My argument is not–let me repeat, in anticipation of the trolls, is not–to toss out the rule of law for the rule of feeling, or something like that. I think the Texas law in question is unconstitutional, first and foremost, because it imposes an undue burden on people seeking to exercise a fundamental right, see, e.g., Planned Parenthood v. Casey. I think the law is on our side here.

But good law can’t divorce formal logic from real experience. There’s a great line in the dissent to a 2000 case, called Greenville Women’s Clinic v. Bryant, heard by the 4th Circuit Court of Appeals. The majority decided that the financial cost of an abortion, including transportation to far away clinics, shouldn’t be considered an obstacle to abortion care because a pregnant person could still, in a nonsensical technical manner, “choose” to abort. One judge dissented. “While traveling 70 miles on secondary roads may be inconsequential to my brethren in the majority who live in the urban sprawl of Baltimore,” he wrote, “such is not to be so casually addressed and treated with cavil when considering the plight and effect on a woman residing in rural Beaufort County, South Carolina.”

What that judge recognized is that we cannot reason about the law without an understanding of the reality as it is experienced–and so judges, who are overwhelmingly wealth, white, and male, must look beyond a problem as it is imagined in their minds and listen to the people who come before them. They must, if not walk in another’s shoes, try driving down another’s shoddy rural roads.

That’s an important lesson for Justice Kennedy to learn. The Court’s decision in Whole Women’s Health must rely on the reality of how the clinic restrictions are actually experienced by people in Texas, and how abortion care actually affects patients’ lives, not how he imagines it might.

But I hope that lesson makes its way not only to Justice Kennedy, and not only to other judges tasked with deciding abortion challenges, but to the legal profession as a whole. So long as our prestige economies privilege remove over experience, we will continue to trivialize and discourage attorneys from marginalized communities. We will continue to broadcast to law students that their intimate knowledge of injustice disqualifies them from correcting the same. Most importantly, most dangerously, we will continue to fail the most vulnerable clients by perpetuating a legal regime that erases their real lives from their court cases. We will build up the high walls to a game played amongst well-manned men who forget the stakes. Who forget who they are fighting for.

One-hundred and thirteen women lawyers dare us to discount them at our collective peril.