Texas, Self-Induced Abortion, and an Ode to Justice Powell

Flickr/Creative Commons—Edson Chilundo

Flickr/Creative Commons—Edson Chilundo

By Gregory M. Lipper

With the Supreme Court ready to review the constitutionality of restrictions on abortion providers in Texas, new research from the Texas Policy Evaluation Project suggests that between 100,000–240,000 Texas women ages 18 to 49 have attempted to terminate a pregnancy on their own (that is, without help from a licensed medical professional). According to the authors, “the populations we found to be most familiar with abortion self-induction are among those that have been most directly affected by the closure of abortion clinics in the state.” As a result, the study predicts, “abortion self-induction will increase as clinic-based care becomes more difficult to access.”

This data reinforces that efforts to ban, restrict, or otherwise interfere with efforts to obtain legal abortion don’t stop abortion—they often push women to obtain abortion by other means that are far more dangerous.

Those consequences, as it turns out, are what led one conservative Supreme Court Justice, Lewis Powell, to support abortion rights. Justice Powell was no right-to-privacy diehard; he infamously cast the deciding vote upholding the Georgia sodomy ban in Bowers v. Hardwick. But when it came to reproductive freedom, Justice Powell joined the majority opinion in Roe v. Wade and continued to support abortion rights while sitting on the Court.

According to Justice Powell’s biographer, an incident from earlier in his career reinforced that if women lacked access to legal abortion, the result would be unsafe, off-the-books procedures:

In his book, “Justice Lewis F. Powell Jr.,” published in 1993, Professor Jeffries recounted a dramatic incident from Powell’s years as a senior partner at a Richmond law firm. A distraught 19-year-old office helper called him at home in the middle of the night and asked to meet him at the office. The young man’s girlfriend had become pregnant. He had tried to help her abort herself, but the procedure went terribly wrong and she had bled to death.

Powell went to see the local prosecutor, with the result that no charges were ever filed. “This incident convinced Powell that women would seek abortions whether they were legal or not and that driving the practice underground led to danger and death,” Professor Jeffries wrote.

We’ll see whether Justice Powell’s replacement, Justice Kennedy, is equally moved by these risks. If the Court were to uphold the Texas restrictions, only 10 abortion clinics would remain in a state with over 5 million women of childbearing age, and other states would have a clear path to impose similar restrictions to equally devastating effect. The number of dangerous, self-induced abortions would inevitably increase.

As a footnote: The jurisprudence of Justices Powell and Kennedy highlights the way that a single Justice’s life experience can shape developments in constitutional law. Although Justice Kennedy’s record on abortion rights has been much more mixed than that of Justice Powell, Justice Kennedy has been much more supportive of LGBT rights than Justice Powell was. While Justice Powell joined the majority in Bowers, Justice Kennedy wrote the majority opinion in Lawrence v. Texas, which overturned Bowers, well as the majority opinions in the other landmark cases of Romer v. Evans, United States v. Windsor, and Obergefell v. Hodges.

What might explains those jurisprudential differences?

By contrast to his familiarity with racial issues and with abortion, Justice Powell, who was 79 when Bowers v. Hardwick reached the court, had no personal experience with gay rights and found the issues raised by the case confusing and somewhat threatening. “I don’t believe I’ve ever met a homosexual,” he told one of his law clerks while the case was pending. As Professor Jeffries recounted the incident, the law clerk, who in fact was gay, told the justice, “Certainly you have, but you just don’t know that they are.”

Justice Kennedy, on the other hand, was a close friend and protege of a gay law-school dean, and his support and votes for gay rights are widely believed to have been influenced by that aspect of his background.

These apparent links between biography and judicial voting can be sobering for us litigators who like to think that we win or lose our cases based on the power of our arguments alone…

(h/t @G_Pop2013)

Greg Lipper is Senior Litigation Counsel at Americans United for Separation of Church and State. You can follow him on Twitter at @theglipper.