No.

15-274

IN THE

Supreme Court of the United States

————
WHOLE WOMAN’S HEALTH, et al.,
Petitioners,
v.
KIRK COLE, M.D., COMMISSIONER OF THE TEXAS
DEPARTMENT OF STATE HEALTH SERVICES, et al.,
Respondents.
————
On Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit
————
BRIEF OF JANICE MACAVOY,
JANIE SCHULMAN, AND
OVER 110 OTHER WOMEN IN THE
LEGAL PROFESSION WHO HAVE EXERCISED
THEIR CONSTITUTIONAL RIGHT TO AN
ABORTION AS AMICI CURIAE
IN SUPPORT OF PETITIONERS
————
ALLAN J. ARFFA
Counsel of Record
ALEXIA D. KORBERG
BRIAN K. STEINWASCHER
REBECCA L. OREL
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, New York 10019
(212) 373-3000
[email protected]
Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

 i
TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF AMICI ............................................... 1

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT ............................................................... 5

I. Meaningful, Safe, and Legal Access to

Abortion Is a Fundamental,
Constitutionally Protected Right ........................ 5

II. Amici’s Reflections on the Effects of Their

Abortions on Their Careers and Lives ............... 8

A. Abortion Access Directly Affects

Educational Access ...................................... 9

B. Safe and Legal Access to Abortion Is

Critical to Professional Freedom and
Advancement for Women Lawyers ........... 17

C. Safe and Unrestricted Access to

Abortion Plays a Critical Role in the
Lives of Women Lawyers ........................... 21

CONCLUSION ......................................................... 33
 ii

TABLE OF AUTHORITIES

Page(s)

Cases

Michael M. v. Superior
Court of Sonoma Cty.,
450 U.S. 464 (1981) ................................................ 9

Planned Parenthood v. Casey,

505 U.S. 833 (1992) .......................................passim

Roe v. Wade,
410 U.S. 113 (1973) .......................................passim

Statute

Texas House Bill 2, 83rd Leg., 2nd

Called Sess. (Tex. 2013) ............................. 5, 24, 33

Other Authorities

Advancing New Standards in

Reproductive Health, About the
Turnaway Study ................................................... 22

American Bar Association, A Current

Glance at Women in the Law
(July 2014) ............................................................ 13

Guttmacher Institute, Fact Sheet:

Induced Abortion in the United
States (July 2014) ............................................... 2, 3
 iii
Susan E. Martin and Nancy C. Jurik,
Doing Justice, Doing Gender: Women
in Legal and Criminal Justice
Occupations (2d ed. 2007) .................................... 13

Amalia R. Miller, The Effects of

Motherhood Timing on Career Path,
24 (3) J. Population Econ. 1071
(2011) .................................................................... 17

Ushma D. Upadhyay, et al., The Effect of

Abortion on Having and Achieving
Aspirational One-Year Plans, 15 (1)
BMC Women’s Health 102 (2015) ........................ 22
 INTEREST OF AMICI1

Amici are lawyers2 who have obtained

abortions and who have participated in a wide
variety of different aspects of the legal profession,

1 Pursuant to Supreme Court Rule 37.3, Amici Curiae certify

that counsel of record of all parties received timely notice of
the intent to file this brief in accordance with this Rule, and
such counsel have consented to the filing of this brief.
Pursuant to Rule 37.6, Amici also certify that no counsel for
a party authored this brief in whole or in part and that no
person or entity, other than Amici or their counsel, has
made a monetary contribution to its preparation or
submission. A complete list of Amici is included as
Appendix A. Although Amicus Janie F. Schulman is a
Partner at Morrison & Foerster LLP, co-counsel for
Petitioners, Ms. Schulman joins this brief solely in her
personal capacity and does not represent or advise
Petitioners in any matter; nor has she been involved in this
case apart from joining this brief as Amicus Curiae.
2 The terms “women in the legal profession,” “lawyers,” and
“attorneys” are used broadly in this brief to refer to women
who are or were participants in the field of law,
including lawyers currently or formerly at firms or
otherwise in private practice, current or former in-house
lawyers, current or former government lawyers, current or
former public defenders, current or former public interest
lawyers, current or former law professors, retired attorneys
who are no longer active members of the bar, professors who
graduated from law school but were not admitted to practice
law, and current or former law students. While the majority
of signers are law school graduates (107 of the 113 Amici),
six current law students have joined this brief to reflect the
continuing importance of the constitutional right to abortion
access to the rising generation of lawyers.
 2

including at private law firms, corporations,

multinational governmental organizations, nonprofit
organizations, and law schools.3 Amici care deeply
about the reproductive rights this Court has
recognized—in Roe v. Wade, 410 U.S. 113 (1973),
Planned Parenthood v. Casey, 505 U.S. 833 (1992),
and elsewhere—as constitutional entitlements. And
Amici believe that, like themselves, the next
generation of lawyers should have the ability to
control their reproductive lives and thus the
opportunity to fully participate in the “economic and
social life of the Nation,” as promised in Casey. 505
U.S. at 856.

Amici obtained their abortions at different

ages and life stages, under a variety of
circumstances, and for a range of reasons both
medical and personal, but they are united in their
strongly-held belief that they would not have been
able to achieve the personal or professional successes
they have achieved were it not for their ability to
obtain safe and legal abortions. They are 113
individual women but they represent many more of
the past, present, and future members of the
profession who have, like one in three American
women, terminated a pregnancy in their lifetimes.
Guttmacher Institute, Fact Sheet: Induced Abortion

3 Amici submit this brief only in their capacities as private

citizens. To the extent an Amicus’s employer is named, it is
solely for descriptive purposes and does not constitute the
employer’s endorsement of the brief or any portion of its
content.
 3

in the United States (July 2014), http://www.guttma

cher.org/pubs/fb_induced_abortion.html (last visited
Jan. 3, 2016).

SUMMARY OF ARGUMENT

“To the world, I am an attorney who had an

abortion, and, to myself, I am an attorney because I
had an abortion.”

Email received from an Amicus, an appellate

court attorney, December 18, 2015.

In reaffirming a woman’s right to safe and

legal abortion access in Casey, this Court observed
that “[t]he ability of women to participate equally in
the economic and social life of the Nation has been
facilitated by their ability to control their
reproductive lives.” 505 U.S. at 856. The statutory
provisions at issue in this case would dramatically
restrict women’s ability to exercise their right to safe
and legal abortions—and thus their ability to
participate equally in the life of the nation—not only
in Texas, but in any other state that has or will adopt
similar laws. The right to terminate a pregnancy, to
autonomy in decision-making and bodily integrity,
should be a right in fact and not just in theory.

This brief is intended to inform the Court of

the impact of the right this Court has recognized in
Roe, Casey, and elsewhere on the lives of women
attorneys, and, by extension, on this nation. As this
Court held in Casey, a woman’s right to terminate a
 4

pregnancy necessarily follows from her “dignity and

autonomy,” which are “central to the liberty protected
by the Fourteenth Amendment.” Casey, 505 U.S. at
851.

Amici live and practice across the country,

including in Texas, and hail from diverse
backgrounds. Amici are partners, counsel, and
associates at private law firms; they are government
attorneys, a former state legislator, and public
defenders; they are members of legal service
organizations and law school professors; they are
counsel to corporations, universities, and
foundations; and they include several attorneys who
have argued before this Court or authored briefs
submitted to it. Many Amici are former federal and
state judicial clerks, and two Amici were judges
themselves. Amici have achieved considerable
professional success; among them are a MacArthur
Fellow, published authors, former editors-in-chief of
leading law journals, and former academic deans.
Many are mothers, and some are grandmothers.

For all Amici, meaningful access to

reproductive choice allowed them to become, remain,
or thrive as lawyers.

Amici write respectfully to urge the Court to

overturn the Fifth Circuit’s decision at issue here.
That decision, if affirmed, would have the very real
effect of preventing numerous women, including
many current and future attorneys, from effectively
planning their family and professional lives. The
 5

legacy of this Court’s decisions, in Roe, Casey, and

others—specifically, women’s full participation in
economic and social life—has enriched not just
individuals like Amici, but this esteemed profession,
and our nation itself.

ARGUMENT

I. MEANINGFUL, SAFE, AND LEGAL

ACCESS TO ABORTION IS A
FUNDAMENTAL, CONSTITUTIONALLY
PROTECTED RIGHT

The decision whether or not to give birth to a

child is “central to the liberty protected by the
Fourteenth Amendment” and one of “the most
intimate and personal choices a person may make in
a lifetime.” Casey, at 851. “[I]mplicit in the meaning
of [this] liberty” is a woman’s right to “retain the
ultimate control over her destiny and her body.” Id.
at 869 (plurality opinion). Consistent with these
holdings, the Court has repeatedly recognized and
reaffirmed women’s competence and authority to
decide whether to obtain an abortion, and by
extension to “define one’s own concept of existence, of
meaning, of the universe, and of the mystery of
human life.” Id. at 851 (majority opinion). By
drastically reducing (and threatening to eliminate)
the number of abortion providers in Texas, and
offering a model for other states to do the same, the
provisions of Texas House Bill 2 (“HB2”), 83rd Leg.,
2nd Called Sess. (Tex. 2013), at issue here are a
direct affront to a fundamental liberty and to a
 6

woman’s right to control her destiny. They should

therefore be invalidated for that reason alone.

Further, and of particular concern to Amici, by

limiting women’s “ability to control their reproductive
lives,” the challenged provisions necessarily
undermine “[t]he ability of women to participate
equally in the economic and social life of the Nation.”
Casey, 505 U.S. at 856. Amici’s experiences
underscore the Court’s critical observations
concerning the centrality of reproductive choice to
gender equality, both within the legal profession and
more broadly within the nation.

The Constitution’s recognition and this Court’s

repeated reaffirmation of the right to an abortion are
explicitly linked to the longstanding “rejection” of
legislation premised on the notion of “‘woman . . . as
the center of home and family life,’ with attendant
‘special responsibilities’ that precluded full and
independent legal status under the Constitution.” Id.
at 897 (majority opinion) (quoting Hoyt v. Florida,
368 U.S. 57, 62 (1961)). Consistent with that
understanding, undue restrictions on abortion access
like those at issue in this case implicate a woman’s
autonomy to determine her life’s course, and thus her
“personal dignity” and even her equal citizenship.
See, e.g., Casey, 505 U.S. at 928 (Blackmun, J.,
concurring in part and dissenting in part) (“A State’s
restrictions on a woman’s right to terminate her
pregnancy also implicate constitutional guarantees of
gender equality. . . . This assumption—that women
can simply be forced to accept the ‘natural’ status and
 7

incidents of motherhood—appears to rest upon a

conception of women’s role that has triggered the
protection of the Equal Protection Clause.”).

As Justice Stevens has explained, the right to

an abortion “is an integral part of a correct
understanding of . . . the basic equality of men and
women.” Casey, 505 U.S. at 912 (Stevens, J.,
concurring in part and dissenting in part). This
observation is borne out by Amici’s professional
successes, which merely a few generations ago could
have been enjoyed only by men.

The Court in Casey recognized the simple fact

that “for two [now four] decades of economic and
social developments, people have organized intimate
relationships and made choices that define their
views of themselves and their places in society, in
reliance on the availability of abortion in the event
that contraception should fail.” Id. at 856 (majority
opinion). This remains the case. Following Roe, two
“generation[s] ha[ve] come of age free to assume [the]
concept of liberty in defining the capacity of women to
act in society, and to make reproductive decisions.”
Id. at 860.

In sum, this Court has squarely and repeatedly

held that the right to terminate a pregnancy is
grounded in the “liberty” protected by the Fourteenth
Amendment. Further, the Court has recognized in so
holding that women have now come to rely on that
right as a means of participating to an equal extent
as men in the “economic and social life” of the
 8

Nation.” Casey, 505 U.S. at 856. The Amici whose

experiences are set forth below represent just a
portion of the women who have come to rely on the
Constitution’s promise of reproductive freedom and
autonomy to determine the paths of their lives and
careers. Their reliance, and their participation in the
nation’s economic and social life, weigh strongly in
favor of invalidating the provisions of the Texas law
at issue here.

II. AMICI’S REFLECTIONS ON THE

EFFECTS OF THEIR ABORTIONS ON
THEIR CAREERS AND LIVES

While Amici come from different regional,

religious, racial, and socio-economic backgrounds,
and had their abortions for a variety of medical and
personal reasons, certain themes repeat throughout
their experiences, among them: that they would not
have been able to graduate from high school, college,
or law school but for their abortions; that abortions
provided them with the freedom to escape unhealthy
or abusive situations and relationships; and that
abortions allowed Amici to delay childbearing until
they could be good parents. Most of all, Amici share
a common recognition of the critical importance to
their careers and their lives of safe access to abortion
and the dangers of laws that complicate that path.

Justice Blackmun observed that “[b]ecause

motherhood has a dramatic impact on a woman’s
educational prospects, employment opportunities,
and self-determination, restrictive abortion laws
 9

deprive her of basic control over her life.” Casey, 505

U.S. at 928 (Blackmun, J., concurring in part and
dissenting in part). Amici’s experiences bear this out.

A. Abortion Access Directly Affects

Educational Access

To begin with, many Amici reported that they

would not have been able to graduate from high
school, college, or law school, let alone excel as
attorneys, without safe and unrestricted access to
abortion.

Breaking the Cycle of Teenage Pregnancy

Several Amici described how their abortions

allowed them to break a recurring family cycle of
teenage pregnancy—a condition this Court has held a
state has a “strong interest in preventing,” Michael
M. v. Superior Court of Sonoma Cty., 450 U.S. 464,
470 (1981). Instead, their abortions enabled them to
finish high school and go on to higher education and
law school.

One Amicus, a public defender, recounted:

I am the daughter of a teenage mother who

is the daughter of a teenage mother. I had
an abortion when I was 16 years old and
living in rural Oregon. I believe that access
to a safe, legal abortion broke the familial
cycle of teenage parenthood and allowed me
to not only escape a very unhealthy,
 10

emotional[ly] abusive teenage relationship

but to graduate from an elite college, work
for one of the nation’s most storied civil
rights organizations, and go on to graduate
from the University of Michigan Law
School . . . I often tell people—and I believe
it to be true—that access to a safe, legal
abortion saved my life. If I had not had an
abortion, I would have never been able to
graduate high school, go to college, [or]
escape my high-poverty rural county in
Oregon. I would never have been able to
fully participate in the civil and social life of
the country. I have seen the effects of
teenage motherhood for women in my
family, my friends, and loved ones. I have
seen all the dreams deferred, the plans
derailed, the poverty endured.

Email received December 17, 2015.

Another Amicus, a litigation partner at a large

law firm, described her experience:

[A]t the age of 18, I knew that I wanted to

be a lawyer and did not want to follow in
the footsteps of my mother, my
grandmother and my great-grandmother in
becoming a mother by the age of 18.
Taking control of my reproductive freedom
gave me the ability to be the first person in
my family to graduate from high school, the
 11

first person to graduate from college, and

the first person to achieve a post-graduate
degree. I do not believe that any of those
accomplishments would have been possible
if I had not had the ability to take control
over my destiny and my body through
access to safe and legal abortion.

Email received December 14, 2015.

Another Amicus, a senior attorney for a major

legal non-profit organization, explained:

As a young African-American woman,

growing up in the Bronx, New York—one of
the poorest counties in our country—the
ability to decide for myself whether I would
become a teenage mother was very
empowering. It is at least in part because
of that decision that I was able to complete
high school and college and fulfill my
childhood goal of becoming a lawyer.
America cannot be the land of equality and
opportunity for all if we simultaneously
place unreasonable limits on a person’s
ability to choose how they achieve their
version of those ideals.

Email received December 23, 2015.

 12

Another Amicus, a former law clerk to a

federal judge and now a prominent human rights
attorney, related:

I had not considered an abortion until one

day I stepped back and took an honest look
at my very grim reality: I had just quit my
job at a fast food restaurant where I was
earning minimum wage, I took a leave of
absence from school, I had no source of
income to support myself and no
healthcare, I had already missed a
semester of eleventh grade and was behind
in my studies, I was living in a three-
bedroom house with nine people in an
economically struggling area of town and I
had no child care options available, besides
dropping out of school . . . However, once I
had my abortion, I was registered back in
school three weeks later and went on to
earn the highest grade-point average (GPA)
in my high school, earning the opportunity
to speak at graduation. I attended a public
university for free on a merits-based
scholarship because of my grades and
became a student leader active in diverse
aspects of student life on campus. Later, I
obtained a master’s degree and a law
degree . . . My ability to have access to a
low-cost abortion fundamentally altered the
course of my life and my ability to fully
 13

participate not only in society, but in my

life.

Email received December 17, 2015.

Achieving Higher Education

In the 43 years since this Court decided Roe v.

Wade, in 1973, women’s educational and professional
participation in the law has increased manyfold. In
1970, only 8.5% of law students enrolled at ABA-
approved law schools were women. By 1980, that
number had risen dramatically, to 33.6%.4 Today,
women make up nearly half of all law students:
according to the ABA, women accounted for 47.3% of
the law degrees awarded during the 2010–2011
academic year.5 In 2013, women accounted for over
one third of practicing attorneys.6

These numbers are reflected in Amici’s

experiences. Many Amici obtained abortions during
or immediately before college or law school, and

4 See Susan E. Martin and Nancy C. Jurik, Doing Justice,

Doing Gender: Women in Legal and Criminal Justice
Occupations 112–113 (2d ed. 2007).
5 American Bar Association, A Current Glance at Women in
the Law 4 (July 2014), available at http://www.american
bar.org/content/dam/aba/marketing/women/current_glance_
statistics_july2014.authcheckdam.pdf.
6 Id. at 2 (figured based on the 59% of the legal profession
that reported gender with respect to employment).
 14

directly credit their access to reproductive choice for

their ability ultimately to earn their law degrees.

One Amicus, a current law student, described

how she could not have remained in college had she
been required to carry her pregnancy to term:

I found out I was pregnant just a few weeks

after moving away from home to start
college. When I told my resident advisor,
she told me that pregnant students were
not allowed to live in the university’s
dormitories out of a concern for increased
liability. I was on full financial aid and
could not afford a place to live off-campus
on top of tuition, books and food. My
decision to have an abortion was essential
to the freedom that allowed me to finish
college while working more than one job; to
move across the country two weeks after
graduation to take my dream job; and to
attend law school and . . . to continue to
pursue my dreams.

Email received December 17, 2015.

One Amicus, in-house counsel to a major

university, described obtaining an abortion just
before starting law school:

I was staying with my mother and readying

myself for the new challenging adventure
 15

that would be law school when I learned I

was unintentionally pregnant. The other
participant in this pregnancy was many
thousands of miles away and we had no
plans for aligning our lives. Financing law
school was entirely up to me. I had few
possessions (warm weather clothing and I
think a camera). I was heading to New
England and I didn’t even own a winter
coat. How could I have a child? . . . Had I
not had an abortion, it is entirely possible
that I would not have been able to finish
law school—I might not have even been
able to manage starting law school. I likely
would have lived with my mother for a time
and found a way to support my unexpected
family. And then—I have no idea. What
did happen was law school, law firm, two
excellent in house counsel jobs, two
children, marriage, three step-children, six
grandchildren . . .

Email received December 18, 2015.

Another Amicus, a former clerk to a federal

court of appeals judge, now a constitutional litigator,
described obtaining her abortion while studying for
the LSAT:

I had an abortion when I was 22. I was

three weeks pregnant after a contraception
failure, single, waiting tables for a living,
 16

and studying to apply to law school. At the

time, I did not have the mental, emotional,
or perhaps most importantly, economic
resources to have a child. Living in New
York, I was fortunate to have easy access to
the services I needed. However, because of
the arbitrary limitations Pennsylvania put
on abortion coverage in health insurance
plans, my Pennsylvania-based health
insurance did not cover my abortion and I
had to pay for it on credit. The following
spring I was admitted to Yale Law School. .
. After graduation, I served as a law clerk
to [a Judge on the federal Court of Appeals
for the Ninth Circuit] . . . and worked as a
Skadden Fellow at a legal aid office in Los
Angeles representing . . . victims of wage
theft. During that time, I collected
hundreds of thousands of stolen wages for
individuals workers and worked with
litigation teams that collected millions
more for low-wage workers and victims of
human trafficking. Both NPR and the L.A.
Times chronicled my clients’ stories. I have
been published in the Yale Law Journal
and the University of Pennsylvania Journal
of Constitutional Law. . . The foregoing is
not meant to congratulate myself for my
achievements but only to highlight all that
would have been impossible if I became a
mother before I was ready. I cannot
 17

imagine that I would have gone to law

school in that circumstance. I now look
forward to the opportunity to have a family
and encourage my children to follow their
own dreams and work for the public good. I
can lead by example. I am thankful every
day for that opportunity.

Email received December 16, 2015.

B. Safe and Legal Access to Abortion Is

Critical to Professional Freedom and
Advancement for Women Lawyers

Research shows that the ability to control

reproductive decisions, to engage in family planning
and to delay childbirth has a long term impact on
women’s career paths, leading to increased earnings
and career success.7 Amici’s experiences reflect that
without the ability to control reproductive decisions—
to choose when, how, and whether to have children—
many women lawyers would not have been able to
remain in the legal profession or to practice the kind
of law they have chosen to practice.

7 See, e.g., Amalia R. Miller, The Effects of Motherhood

Timing on Career Path, 24 (3) J. Population Econ. 1071,
1071 (2011) (finding that “[m]otherhood delay leads to a
substantial increase in career earnings of 9% per year of
delay”).
 18

One former general counsel described

obtaining her abortion while serving as a federal
district court law clerk:

I had an abortion when I was a young

lawyer, just out of law school and clerking
for one of the best known and busiest
federal trial judges in the country . . . .
Everything was before me, and I had made
that happen; I didn’t come from a family
with a lot of money, or a long history of
higher education, much less professional
education for women. I was inventing
myself and learning to control—to the
perhaps limited, but still real, extent any of
us can—my own destiny. . . . I found myself
pregnant in the middle of my clerkship,
while in a dysfunctional long distance
relationship with the man in question. Had
I not had the choice to exercise control over
my reproductive destiny by choosing an
abortion, there is no doubt in my mind that
I would not have been able to move from
the clerkship to the amazing fellowship I
had at the American Civil Liberties Union,
which played such a significant role in
forming my life in the law and my
understanding of our Constitution.

Email received December 17, 2015.

 19

One Amicus, a law professor, explained how

obtaining an abortion allowed her to leave her
abusive partner and complete her graduate studies:

I became pregnant the spring of my final

year of graduate school. I had obtained my
law degree two years prior, and spent the
following year working on my PhD. My
goal was to be a professor of law or legal
studies. The postdoc was the next step, and
my plan was to go on the job market in the
fall. . . . I was in disbelief when I found out
I was pregnant. I had the Paraguard IUD, a
99% effective form of contraception. . . . [My
partner at the time] said that were I to
keep the child, I would not be able to go to
[my post-doctoral fellowship], nor would he
consider following me for my career or
[would he] let me raise the child away from
him. I realized I was in a desperate
situation. . . . My abortion provided me with
the geographic freedom I needed, saved my
child from having an abusive father, and
allowed me to use my education for the
social good.

Email received December 9, 2015.

One senior public defender wrote:

I took 6 months off of work when my son

was born. I came back to work with a
 20

promotion to senior staff attorney and a

specialist position. Six months after my
return to work, while I was still
breastfeeding, I became pregnant again,
despite the fact that I had an IUD in place.
My abortion made it possible for me to
reinhabit my body as an individual. After
nine months of pregnancy and a year of
breastfeeding, regaining whole possession
of my body was essential to my autonomy
and mental health. . . . My abortion also
made it possible for me to continue to build
my career as a public defender. The trials
in the type of complex litigation that I
began to specialize in after I came back
from maternity leave can take months to
complete, so going out on a second
maternity leave so quickly after beginning
my specialty would have meant giving up
all of my new cases to other attorneys and
probably giving up my specialty altogether.

Email received December 19, 2015.

And another Amicus, counsel at a large law

firm, explained:

I love being a mother and I love being a

lawyer. Though balancing those two roles
is challenging, I am able to do both in part
because my husband and I chose when to
have our children. Knowing now what is
 21

involved in being a parent, if I had not been

able to have an abortion in 1993, I doubt
that I would have been able to attend law
school or [hold] the positions that followed.

Email received December 9, 2015.

C. Safe and Unrestricted Access to

Abortion Plays a Critical Role in the
Lives of Women Lawyers

The Court has long recognized the many

“detriment[s] that the state would impose upon” a
woman denied access to an abortion, among them:

Specific and direct harm medically

diagnosable even in early pregnancy may
be involved. Maternity, or additional
offspring, may force upon the woman a
distressful life and future. Psychological
harm may be imminent. Mental and
physical health may be taxed by child care.
There is also the distress, for all concerned,
associated with the unwanted child, and
there is the problem of bringing a child into
a family already unable, psychologically
and otherwise, to care for it. In other cases,
as in this one, the additional difficulties
and continuing stigma of unwed
motherhood may be involved.

Roe v. Wade, 410 U.S. 113, 153 (1973).

 22

Research fully supports the Court’s findings.

A recently published report, based on data from the
Turnaway Study,8 a longitudinal study from the
University of California, San Francisco that aims to
“describe the mental health, physical health, and
socioeconomic consequences of receiving an abortion
compared to carrying an unwanted pregnancy to
term,” compared the one-year plans to the outcomes
of women who had abortions. 9 The study found that
“ensuring women can have a wanted abortion enables
them to maintain a positive future outlook and
achieve their aspirational life plans.” 10

Negative Impact of Restrictions on Abortion

Access

Amici’s experiences illustrate the crucial role

that safe and unrestricted access to abortions has
played in their lives and their careers, as well as in
the lives and wellbeing of their families. In
particular, many of Amici’s experiences demonstrate
the devastating practical effects of laws that place
restrictions on abortion access.

8 See Advancing New Standards in Reproductive Health,

About the Turnaway Study, http://www.ansirh.org/research/
turnaway.php (last visited Jan. 3, 2016).
9 Ushma D. Upadhyay, et al., The Effect of Abortion on
Having and Achieving Aspirational One-Year Plans, 15 (1)
BMC Women’s Health 102, 102 (2015).
10 Id.
 23

One Amicus, a law professor, recounted:

When I was seventeen years old, I was

pregnant and scared. And then, I was
pregnant and desperate: Tennessee, where
I lived, had enacted a parental consent law,
and my mother had always told me that if I
got pregnant, I would be expected to keep
the baby . . . [W]ith my state’s law in
essence forcing me to give birth against my
will, the two options my frightened teenage
mind kept coming back to were self-
abortion by clotheshanger . . . and suicide.
A decision by the Supreme Court saved my
life, just in the nick of time. The Court’s
Webster decision, issued around the same
time I was seriously considering suicide
rather than being forced to give birth
against my will, saved my life. The Court’s
holding that parental consent laws must
have a judicial bypass provision ended up
invalidating the Tennessee parental
consent law, allowing me to have a safe and
legal abortion well within the first
trimester of my pregnancy. Were it not for
my ability to have a safe and legal abortion
that day, I could have ended up dead. If not
dead, I certainly would not have been able
to continue down the life path that I have
taken so very seriously, a career journey of
 24

working hard to succeed in life and help

others succeed along with me.

Email received December 20, 2015.

Another Amicus, a senior attorney at a non-

profit organization, described obtaining her abortion
at a Texas clinic that has subsequently closed as a
result of the provisions of HB2 that are at issue in
the pending case:

Within days of accepting a full fellowship to

law school, where I aspired to study
women’s human rights law, I discovered I
was pregnant. My plan at the time was to
move from Texas to New York, where my
then-fiancé and I would pursue graduate
programs. A pregnancy would have made
that impossible. It is overwhelming to
consider the advantages I had at the time
that would be unavailable to others today. .
. . I was able to secure an appointment at
my local Whole Woman’s Health clinic
within days. There was nobody at the clinic
to harass me the day I went in for the
procedure. That clinic has since closed
because of the law being challenged in this
suit . . . even then, the restrictions in place
and a provider shortage made the
experience more painful and frightening
than it should have been. But the clinic
staff did their best to ensure that the
 25

procedure was safe, compassionate, and

dignified. . . . I know that my having had
access to a safe, early abortion has not only
permitted me to become the first person in
my family to practice law, it has had a
direct impact on individual women and on
women’s equality through my work. My
story is just one of many that shows that
when women have the power to decide
when they are ready to parent, they have
the power to achieve their goals, and even
change the world.

Email received December 21, 2015.

Escaping Abuse

Some Amici explained that their abortions

allowed them to escape abusive environments, which
they would have brought a child into had they not
obtained an abortion.

One professor related that:

[T]he decisive factor in having an abortion

was not subjecting my child to the
dysfunction, and likely abuse, that it would
endure in its father’s home. Moreover,
another child would have exacerbated an
already dysfunctional situation for his
children, not just for me and him.

Email received December 11, 2015.

 26

Another Amicus, a former clerk to a federal

district court judge, now a law professor and
practicing attorney, recounted:

I became pregnant at age 18, during my

first year of college, due to a contraceptive
failure. College was a means of escape from
a family plagued with violence and alcohol
and drug addiction. I had nowhere to turn
for the significant financial or emotional
support that raising a child would require.
Going “home” was simply not an option for
me, as it was there I was subjected to
physical abuse by my older brother. The
legality and availability of abortion allowed
me to terminate my pregnancy, stay in
school and continue on to law school. I am
convinced that it is only education that
allowed me to break the horrific cycle of
generational dysfunction that [I] can now
only truly appreciate as a well-adjusted
adult. I also had the good fortune to be [in]
New Jersey, where I had access to a
number of clinics with no waiting period to
increase the cost of the procedure . . .
Abortion access was critical in allowing me
to determine my life path, gain freedom
from an abusive household, become a
lawyer and fight for the right of others to
make the same reproductive choices I did.

Email received December 18, 2015.

 27

Another Amicus, general counsel of a large

international consulting firm, explained:

I had an abortion at age 35, when I had an

unplanned pregnancy with a man who had
become emotionally abusive. Being able to
choose the father of my children and
knowing how important a safe and loving
home is to children, I chose to have an
abortion. I was firm in my belief that my
happiness and that of any family I would
start begins with the stability of my
relationship with a partner. I also knew
that the best chance a woman has to keep a
successful career and to be a mother is to
have an amazing partner. I eventually
found that man and married him at age 42.
We are blessed with two amazing sons. I
went on to become general counsel of an
international energy consulting firm, where
I still work today, and know that my family
and career would not have been as joyful
and successful had I not had the option to
choose when to start a family.

Email received December 25, 2015.

Medical Necessity

Some Amici obtained abortions due to

certainty or likelihood of severe birth defects or
medical danger posed to themselves, and described
 28

how critical their abortions were to their entire

families’ wellbeing.

One partner at a major law firm explained:

In April 2000, I was happily married with a

three-year-old daughter whom I conceived
without any difficulty. My husband and I
wanted more children and were able to
provide for them. After the birth of my
daughter, however, I had three first
trimester miscarriages. My husband and I
were delighted when I again became
pregnant in December 1999 and safely
made it past the “danger zone” of the first
trimester, passing an amnio with flying
colors. . . . Five weeks later, on April 24,
2000, when I was heading into the sixth
month of my pregnancy, I returned to the
doctor for a routine ultrasound. . . . The
doctor immediately detected a problem. He
suspected a heart defect and sent my
husband and me off to a pediatric
cardiologist. . . . After our visit to that
cardiologist—as well as to two other
cardiologists and my own visit to the UCLA
Medical School library—the prognosis was
clear. Our baby had a very rare but well
known heart defect (truncus arteriosus
with a stenotic valve). It was so severe that
he was already in congestive heart failure.
Under the best case scenario, he had less
 29

than a 10 percent chance of making it to

term, and, if he were born alive, he would
have less than a one percent chance of
seeing his first birthday. That year,
moreover, held no prospect of any
reasonable quality of life. I asked each of
the cardiologists what he or she would do if
it was her pregnancy or that of a spouse.
Without hesitation, each said “terminate
the pregnancy”. From the looks in their
eyes, I understood that these doctors had
seen a degree of suffering in their tiny
patients and their patients’ families that I
could not comprehend. . . . Knowing that
the baby had virtually no chance of
surviving, my husband and I finally decided
that to continue the pregnancy would be
selfish, and in early May 2000, I had a late
term abortion. . . . I was also fortunate that
a year after my abortion, I gave birth to a
son who is now a thriving high school
freshman. . . . As a woman, a mother and a
lawyer, I know I did the right thing. I have
shared my story with my children, and hope
that should my daughter ever find herself
in a position similar to mine, she will enjoy
the same rights that were available to me.

Email received December 18, 2015.

One former partner at a large law firm

described:
 30

I had an abortion in 1995. At the time, I

was a litigation partner at a leading law
firm in charge of the defense of a major
consumer class-action suit, which required
that I travel regularly from our home to the
client in Texas. My husband, a litigation
partner at another firm, also had similar
professional responsibilities and time
constraints. Moreover, we had three
children ranging in age from four to 10
years. On a more personal level, our
middle child had been diagnosed with
major learning deficits and was attending a
special school that addressed those issues.
The school was a 45-minute drive from our
home and did not offer transportation to or
from the campus. At that point in our lives,
we were pulled as tight as we could be, both
personally and professionally. We were
determined to provide all three children
with the family life and educations they
deserved . . . [and] it was a challenge to
keep all the balls in the air every day. In
November of 1995, my father suffered a
major setback in his battle against ALS
while he was visiting us. The details are
not important other than to note that while
I sat with him in the ICU, a nurse came to
administer a portable x-ray. She confirmed
that I was not pregnant—there was no
doubt in my mind, given the birth control
 31

we were using—and then permitted me to

remain in the room without any protection
as they took the x-ray. A month later, I
discovered that my birth control had failed,
that I was pregnant, and that I had, in fact,
been pregnant the day I sat with my father
in the ICU. At the time, medical experts
believed that exposure to x-rays early in the
pregnancy could significantly increase the
risk of birth defects, many of which could
not be determined by the available prenatal
testing. I was fortunate in 1995 to be able
to make this decision without interference
from the outside world. . . . I was allowed to
control my future and my body, and to
choose what I thought was the best path for
our family, rather than have someone else’s
ideology imposed on me. . . . [T]his decision
was critical to our family. . . . I now have
three wonderful adult children, each of
whom was raised in a loving home and
given all the attention they needed and
deserved while their father and I pursued .
. . rewarding careers. After a number of
years in that special school, our middle
child transitioned to a traditional school,
attended college and graduate school, and
is now a pursuing his own career.

Email received December 22, 2015.

 32

One appellate litigator, who has argued

multiple cases before this Court, recounted:

I have often wondered how my life might

have changed if . . . my doctors had delayed
treatment [of two dangerous pregnancies]
because of restrictive laws, and my
reproductive capacity had been destroyed
as a result. The Court’s decisions
protecting my right to choose have been
indispensable to all of the opportunities I’ve
been able to pursue, both in my professional
career as an attorney and in my personal
life as a wife and mother.

Email received December 21, 2015.

* * *
Amici’s experiences demonstrate the real world
effects of abortion access on the lives and careers of
women attorneys, and underscore the truth of the
Court’s observation in Casey that reproductive choice
facilitates women’s ability “to participate in the
economic and social life of the Nation.” 505 U.S. at
856.

Amici are credits to the legal profession. They

are public interest attorneys, lawyers for the
government, professors of law, partners at major
firms, and counsel to corporations and institutions.
They are the classmates, co-clerks, and colleagues of
the Justices and clerks of this Court. They firmly
 33

believe that they could not have been the attorneys

they have been or done the fine work that they have,
were it not for their access to reproductive choice.

Amici write as attorneys who care deeply

about the Constitution and its protections, as women
who have exercised their rights—recognized and
reaffirmed by this Court—to liberty, dignity, and
autonomy over their bodies and destinies, and on
behalf of future generations of women lawyers, whose
meaningful access to reproductive choice are in
jeopardy if the provisions of HB2 at issue here are
allowed to stand.

CONCLUSION
For all of the foregoing reasons, the Fifth
Circuit’s decision should be reversed.

Respectfully submitted,
Allan J. Arffa
COUNSEL OF RECORD
Alexia D. Korberg
Brian K. Steinwascher
Rebecca L. Orel
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, New York 10019
(212) 373-3000
[email protected]
January 4, 2016
APPENDIX
 1a
APPENDIX
LIST OF 113 AMICI CURIAE1 WOMEN IN THE
LEGAL PROFESSION WHO HAVE EXERCISED
THEIR CONSTITUTIONAL RIGHT TO AN
ABORTION

Janice MacAvoy Janie F. Schulman

Partner, Fried, Frank, Co-Chair, Employment
Harris, Shriver & and Labor Group,
Jacobson LLP Morrison & Foerster LLP

Grace Adamson Elizabeth Arndorfer

Medical Student (former Consultant
criminal defense
attorney) Kris Ashman
Assistant General
Emma C. Alpert Counsel, BakerCorp
Senior Staff Attorney,
Brooklyn Defender Natasha Lycia Ora
Services’ Family Defense Bannan
Practice President, National
Lawyers’ Guild
Judith Appel
Executive Director, Our Patricia Bauman
Family Coalition President, Bauman
Trustee, Berkeley Unified Foundation
School District Board of
Education

1 Amici submit this brief only in their capacities as private

citizens. To the extent an Amicus’s employer is named, it is
solely for descriptive purposes and does not constitute the
employer’s endorsement of the brief or any portion of its
content.
 2a
Flor Bermudez Emily Camin
Managing Attorney and Volunteer Attorney,
Detention Project Committee for Public
Director, Transgender Counsel Services of
Law Center Massachusetts, Mental
Health Litigation Unit
Kathryn Boulton
Center for Health and Cynthia Carr
Gender Equity Deputy General Counsel,
Yale University
Nina Brodsky
Senior Associate Counsel, Monica A. Ciolfi
Mount Sinai Health Director of Policy and
System Advocacy, Fedcap
Rehabilitative Services,
Jennifer L. Brown Inc.
Attorney-in-Charge,
Federal Defenders of Lorraine A. Clasquin
New York Co-founder and
Southern District of President, The KLE
New York Foundation, Austin,
Texas
Rhonda Brownstein
Legal Director, Tracy Cole
Southern Poverty Law Partner, BakerHostetler
Center
Brenda H. Collier
Heather Busby CollierLaw,
Executive Director, Austin, Texas
NARAL Pro-Choice Texas
 3a
Jennifer R. Cowan Jamie Fellner
Pro Bono Counsel and Senior Advisor, U.S.
Litigation Counsel, Program, Human Rights
Debevoise & Plimpton Watch
LLP
Tiffany M. Femiano
Sarah Deer Staff Attorney, Housing
Professor of Law, Rights Project, Queens
Mitchell Hamline School Legal Services
of Law
Jean S. Fraser
Andrea Diaz Independent Consultant
J.D. Candidate, Former Chief, San Mateo
University of California, County Health System
Irvine School of Law
Elise C. Funke
Farah Diaz-Tello J.D. Candidate,
Senior Staff Attorney, Columbia University
National Advocates for School of Law
Pregnant Women
Catherine (Katusha)
Victoria L. Eastus Galitzine
Title IX Coordinator, Office of Diversity and
New York Law School Pluralism, Michigan
State University
Jenny Egan
Assistant Public Amanda Gallegos
Defender, Maryland Law Office of Amanda
Office of the Public Gallegos,
Defender Dallas, Texas
 4a
Kelly Garcia Julie Hamos
Law Clerk, Not Yet President, Hamos
Admitted, Paul, Weiss, Consulting
Rifkind, Wharton & Illinois House of
Garrison LLP Representatives (1999-
2010)
DeNora M. Getachew
Campaign Manager and Alicia Handy
Legislative Counsel, Latham & Watkins LLP
Brennan Center for
Justice, NYU School of Lori Jo Hansel
Law Sole Practitioner

Emily Jane Goodman Eileen Hershenov

Justice, New York State Former Vice President
Supreme Court (ret) and General Counsel,
Law Offices of Emily Consumer Reports
Jane Goodman
Susan Katz Hoffman
Hayley Gorenberg Shareholder, Littler
Deputy Legal Director, Mendelson, P.C.
Lambda Legal Defense
and Education Fund Sarah Marie Honig
Senior Associate,
Sharlyn Grace Burkett & Sanderson,
Executive Vice President, Inc.
National Lawyers Guild
Priscilla Huang
Shailey Gupta- Independent consultant
Brietzke Former Senior Director of
Attorney at Law, Impact Strategies, Asian
Houston, Texas & Pacific Islander
American Health Forum
 5a
Deena R. Hurwitz Danielle M. Lang
Visiting Professor of Law Campaign Legal Center
and Director,
International Human Sylvia A. Law
Rights Law Clinic, Elizabeth K. Dollard
American University Professor of Law,
Washington College of Medicine, and
Law Psychiatry, NYU Law
School
Andrea L. Irwin
Executive Director, Mabel Dorchen A. Leidholdt
Wadsworth Women’s Director, Sanctuary for
Health Center Families, Center for
Battered Women’s Legal
Stephanie Johnson Services
Partner,
Hunter & Johnson, PLLC Judith Liben
Attorney
Terry Horwitz Kass
Board of Directors, Amy Judd Lieberman
Highland Park- J.D. Candidate,
Highwood Legal Aid University of California,
Clinic Irvine School of Law

Margaret Klaw Star Lightner

Partner, Berner Klaw & Senior Counsel, Miller
Watson LLP Starr Regalia

Karen Kramer Michele R. Lindsey

Legal Consultant, Attorney
Change Lab Solutions
 6a
Virginia S. Longmuir Michele Coleman
Executive Vice President, Mayes
Business & Legal Affairs, Vice President, General
RatPac Entertainment Counsel & Secretary,
The New York Public
Gail Lopez-Henriquez, Library
Shareholder, Freedman
and Lorry, P.C. Lisa A. Mazzie
Professor of Legal
Julie G. Lowenberg Writing
Retired from private Marquette University
practice Law School
Dallas, Texas
Ann Elise McCaffrey
Robin Marable Staff attorney at a
Public interest attorney New York City public
defender office
Nancy Marcus
Assistant Professor of Amelia J. Meier
Law, Indiana Tech Law Public interest attorney,
School Los Angeles, California

Chris Ann Maxwell Three Merians

Independent consultant In House Legal Counsel,
and entertainment lawyer Fifth Group Restaurants,
Previously Senior Vice- Atlanta, Georgia
President, Legal Affairs
at 20th Century Fox, Fox
Searchlight Pictures
 7a
Carlin Meyer Tracy L. Norton
Professor Emeritus, Associate Professor,
New York Law School Touro Law Center

Amy E. Millard Shirim Nothenberg

Partner, Clayman & Senior Appellate
Rosenberg LLP Attorney,
Lawyers for Children
Kate Morris
J.D. Candidate, Jennifer L. Nye
Columbia University Lecturer in Law and
School of Law Social Justice,
Department of History
Kathleen S. Morris and Commonwealth
Associate Professor of Honors College,
Law, University of
Golden Gate University Massachusetts Amherst
School of Law
Amy Oppenheimer
Jill Morrison Law Offices of Amy
Executive Director, Oppenheimer
Women’s Law & Public Retired Administrative
Policy Fellowship Law Judge, State of
Program and Visiting California
Professor of Law,
Georgetown University Susan Orlansky
Law Center Of Counsel to Reeves
Amodio LLC
Michelle Movahed
Senior Staff Attorney, Laura Paley
Special Litigation Unit, New York State Court
New York Legal Attorney
Assistance Group
 8a
Erin Panichkul Deborah Forhan
Recent law graduate Rimmler
Senior Vice President and
Bonnie Pastor General Counsel, Nexant,
Attorney and Counselor Inc.
at Law, Law Firm of
Bonnie Pastor Karen Robson
Partner, Pryor Cashman
Jodi Peikoff LLP
Partner, Peikoff Mahan
P.C. Alice Rosenthal
Staff Attorney, Medical-
Jacqueline Pierluisi Legal Partnership
Staff Attorney, Brooklyn Project,
Defender Services Center for Children’s
Advocacy
Claudia Polsky
Assistant Clinical Jamie Rebecca Rowen
Professor of Law and Assistant Professor of
Director, Environmental Legal Studies and
Law Clinic, UC Berkeley Political Science,
School of Law University of
Massachusetts Amherst
Gowri Ramachandran
Professor of Law, Laure Ruth
Southwestern Law School Legal Director,
The Women’s Law Center
Carmen Maria Rey of Maryland, Inc.
Deputy Director,
Immigration Intervention Kelsey Ryland,
Project, Sanctuary for Policy Manager, URGE:
Families Unite for Reproductive &
Gender Equity
 9a
Alyson R. Schwartz Allyson W. Sonenshine
Appellate Court Attorney, Founding Project
New York State Supreme Director, Orange County
Court Women's Health Project

Bianca V. Scott Jane Sovern

UT LAW Public Service Deputy General Counsel,
Legal Fellow The City University of
New York
Chasity Simpson
District Public Defender, Molly Stark
Maryland Office of the Assistant General
Public Defender Counsel, Rainforest
Alliance, Inc.
Elise E. Singer
Of Counsel at Fine Robin Steinberg
Kaplan and Black, R.P.C Executive Director, The
Bronx Defenders
Dipti Singh
National Health Law Nomi Maya
Program Stolzenberg
Professor of Law, USC
Courtney Smith Gould School of Law
Board of Directors,
Planned Parenthood of Alison Tanner
New York City J.D. Candidate,
Georgetown University
Susan L. Sommer Law Center
Director of Constitutional National Board Member,
Litigation, Law Students for
Lambda Legal Defense Reproductive Justice
and Education Fund
 10a
Denise Waxman Heidi A. Wendel
Retired, formerly of the Attorney
New York State
Department of Public Brenda Wright
Service Vice President, Policy &
Legal Strategies, Demos
Jennifer Weiss-Wolf
Brennan Center for Anna Zaret
Justice at NYU School of J.D. Candidate,
Law University of California,
Hastings College of the
Law