When it comes to reproductive rights in the United States, it is hard to imagine a more striking juxtaposition of retirements than last week's concurrent announcements by Associate Justice of the U.S. Supreme Court John Paul Stevens and Congressman Bart Stupak. Both men have left indelible marks upon women's rights in America. Fortunately, Justice Stevens' career was the more influential and spanned several decades, while Congressman Stupak will likely go down in history for his 15 minutes of fame, which featured his ultimately unsuccessful attempt to hold up the entire health care reform bill trying to jam his proposed ban on private health insurance coverage for abortion into the final legislation.
Justice Stevens' understanding of women's interest in both liberty and equality was broad and deep. Upon examining Justice Stevens' writings during his 35 years on the U.S. Supreme Court, one has to reach the inescapable conclusion that he was a most wise and unusual man who could see beyond the bounds of his own gender.
All the more remarkable, Stevens was a Republican appointed by a Republican president. Stevens was nominated by President Gerald Ford and joined the court in 1975, just two years after Roe was decided, but just in time for all of the abortion battles that have ensued. In virtually all respects, he has been reliably on the side of staunchly protecting the rights articulated in Roe.
In 1992, when the Supreme Court simultaneously affirmed the right to choice announced in Roe while cutting back on the strength of that constitutional protection in Planned Parenthood v. Casey, Justice Stevens wrote a separate opinion endorsing a stronger view of the protections afforded to women, than the view of the court's controlling opinion:
"Roe is an integral part of a correct understanding of both the concept of liberty and the basic equality of men and women."
Stevens went on to quote Justice Thurgood Marshall: "'Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds,'" and concluded, "The same holds true for the power to control women's bodies.... [A] woman's decision to terminate her pregnancy is nothing less than a matter of conscience."
In 1993, in Bray v. Alexandria Women's Clinic, when the court refused to allow a federal civil rights statute to be used to quell violent abortion protests, Stevens wrote in dissent:
"[The demonstrators] are not mere opponents of abortion; they are defiant lawbreakers who have engaged in massive concerted conduct that is designed to prevent all women from making up their own minds about not only the issue of abortion in general, but also whether they should (or will) exercise a right that all women-and only women-possess.... "
"I have always believed that rules that place special burdens on pregnant women discriminate on the basis of sex, for the capacity to become pregnant is the inherited and immutable characteristic that 'primarily differentiates the female from the male.'"
And, 10 years ago, in Carhart v. Stenberg (2000), when the court narrowly struck down a state statute banning a safe method of abortion, Stevens eloquently wrote:
"[D]uring the past 27 years, the central holding of [Roe] has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holding -- that the word 'liberty' in the Fourteenth Amendment includes a woman's right to make this difficult and extremely personal decision -- makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty."
Reading his writings must remind us that this country has moved significantly to the right on issues of individual freedom, privacy, and women's rights. But his writings also make a forceful and eloquent case for reproductive rights, and that's why we'll miss him but promise to fight to defend and build upon his and our legacy.