SSRN has a new article The Civic Underpinnings of Legal Change: Gay Rights, Abortion, and Gun Control. Written by Professor Palma Joy Strand (Creighton), her thesis is that legal change occurs when individuals seeking change share their stories of how the failure to change harms them. These stories facilitate the crafting of a group identity, which in turn facilitates group political activity advancing change. She points to the success of the gay rights movements, and seeks to identify how it differs from the abortion-rights and gun-control movements.
Her analysis of the abortion-rights movement and her proposal for the crafting of a group identity is deeply flawed by her failure to candidly explore the evidence of how women experience abortion, including some of the most public supporters of the legal right.
One striking example of this is the section entitled “The Silencing of Jane Roe (and Others).” The author writes, “The plaintiff in Roe did not disclose even her name until a decade after the decision” and the only detail provided about Ms. McCorvey is a one-sentence footnote, “Norma McCorvey did not reveal her name until 1984.” There is no acknowledgement that Ms. McCorvey is now opposed to the holding of Roe v. Wade, regrets her role as Plaintiff in the case, and even went so far as to file a lawsuit seeking to have the courts reconsider the Roe opinion. In a statement before a Congressional committee, Ms. McCorvey said:
“I was seeking an abortion for myself, but my lawyers wanted to eliminate the right of society to protect women and children from abortionists. My lawyers were looking for a young white woman to be a guinea pig for a new social experiment.
I wanted an abortion at the time, but my lawyers did not tell me that I would be killing a human being. I was living on the streets. I was confused and conflicted about the case for many years, and while I was once an advocate for abortion, I would later come to deeply regret that I was partially responsible for the killing of between 40 and 50 million human beings.
Do you have any idea how much emotional grief I have experienced? It was like a living hell knowing that you have had a part to play, though in some sense I was just a pawn of the legal system. But I have had to accept my role in the death of millions of babies and the destruction of many women’s lives.”
Sandra Cano, the real name of the the woman who was Jane Doe in Roe’s companion case, Doe v. Bolton, has said the she never wanted an abortion and that her lawyer in the case tried to force her to obtain one. At the same Congression hearing where Norma McCorvey testified, Sandra Cano testified:
“I only sought legal assistance to get a divorce from my husband and to get my children from foster care. I was very vulnerable, poor and pregnant with my fourth child, but abortion never crossed my mind, although it apparently was utmost in the mind of the attorney from whom I sought help. At one point during the legal proceedings, it was necessary for me to flee to Oklahoma to avoid the pressure being applied to have the abortion scheduled for me by this same attorney.
Please understand, even though I have lived what many would consider an unstable life and overcome many devastating circumstances, at no time did I ever have an abortion. I did not seek an abortion, nor do I believe in abortion. Yet, my name and life are now forever linked with the slaughter of 40 to 50 million babies.
I have tried to understand how it all happened. How did my divorce and child custody case become the basis for bloody murders done on infants thriving in the wombs of their mothers? How can cunning, wicked lawyers use an uneducated, defenseless pregnant woman to twist the American court system in such a fraudulent way?
Doe has been a nightmare. Over the last 32 years, I have become a prisoner of this case. It took me until 1988 to get my records unsealed in order for me to try and find the answers to those questions and to join in the movement to stop abortion in America. When pro-abortion advocates found out about my efforts, my car was vandalized on one occasion, and at another time someone shot at me when I was on my front porch holding my grandbaby.”
Had Professor Strand more carefully studied the evidence of women’s experience of abortions, she would find a very mixed record. Some women affirm their experiences and characterize their response as one of “relief” that they are no longer pregnant. Some of these same women (and others) also report sadness, grief, and guilt. As Justice Kennedy wrote for the majority in Gonzales v. Carhart, “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. . . . Severe depression and loss of esteem can follow.”
I am skeptical that many women will respond to the professor’s call that they make public the stories of their abortion, and those who do will have as much to say about the pain and grief related to abortion.