THE BLOG

Protecting Women's Right to Choose -- and Their Health

07/02/2014 02:01 pm ET | Updated Sep 01, 2014

There are many women and girls in my family: my late wife, my sister, sisters in law, daughters, daughter in law and granddaughters. They outnumber the men in my family by more than 2 to 1; my daughters and granddaughters by 3 to 1. Some of the adult women have had abortions; I presume all have used birth control. Most of the adults had multiple live births.

Each decision to end a pregnancy was made after careful thought. None of the decisions was ever considered by the women to be birth control of last resort; none of the decisions was an easy or obvious one, even when made to protect the woman's health or because the fetus was not viable; none of the decisions was without regret or consequences, particularly from a moral or ethical or religious standpoint, but each was the woman's free choice, the consequences of which she (and her partner) would always live with and even question.

Why do I -- a man -- recite this bit of my family's history? The results of a recent study of the pro-gender equality decisions of federal judges demonstrate that male judges (including late Chief Justice William Rehnquist) who have daughters are much more prone to issue pro-women's rights decisions than male judges who have sons only. Perhaps I speak out now because I have so many daughters and granddaughters that I need to speak out on the subject. Even so, it is fair to ask whether I have the right to do so. I do not, but for the permission I got from the women in my family.

I lived through the era in which the sale of birth control devices (even condoms) was unlawful, and women had to resort to backstreet abortions or charades to fit an abortion within the narrow exceptions to laws prohibiting abortions (such as the health of the mother).

There was only one birth control clinic in entire state of Connecticut where I grew up. It operated illegally until the Supreme Court struck down Connecticut's antediluvian prohibition of birth control in 1965 in a case in which the clinic's Executive Director and physician Medical Director were convicted as accessories for giving married persons information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife's use. Some of the women in my family had to drive across Connecticut to get birth control counseling before 1965.

I remember the great divide between what women of means could do and what poor women could not do. The rich always could get safe and effective birth control information and means. They also could get safe abortions, even if it meant going to another country; the poor could not. Their abortions often were backstreet procedures, sometimes featuring wire clothes hangers and often realized risks of death or serious illness due to septicemia or blood loss.

I still own a pro-choice icon featuring a crossed-out wire hanger decal. Recently, I found and again display that icon because of the Supreme Court's recent decisions, two in the last few days, that bite at the edge of women's right to choose and have safe birth control and abortions.

All my life I have been a First Amendment absolutist. So, I can hardly fault the Supreme Court's unanimous decision striking down Massachusetts' abortion clinic buffer zone statute that prohibited right to life advocates from coming closer than 35 feet to an abortion clinic. Proponents of choice and municipalities will have to suck that one up and develop strategies that protect patients and providers.

I am also an avid proponent of freedom of religion and the separation of church and state. Even so, the Supreme Court's decision 5 to 4 decision on religious freedom grounds that the Patient Protection and Affordable Care Act of 2010 (Obamacare) cannot be used to compel closely held for-profit corporations, including mega-corporations, to cover a full range of their employees' contraception choices is particularly worrisome. (This five man majority decision goes against the findings of the recent study of federal judges' decisions in cases involving women's rights. Chief Justice Roberts and Associate Justices Kennedy, Scalia and Alito have daughters; Justice Thomas does not.) The majority's decision piles on with other recent court decisions and congressional and state laws limiting women's right to choose and their doctors' rights to practice safe medicine.

I cannot fault the owners of the closely held for-profit corporations and their lawyers for pressing their claims. That is the owners' right and their lawyers' duty. I can fault the five members of the Supreme Court who issued the decision.

Inappropriately, some progressives rail that the five male Roman Catholic Supreme Court justices in the majority simply voted their religious values to limit Obamacare's mandate that employers provide their employees with healthcare insurance providing a full range of contraceptive choices. While no judge or decision maker can completely unmoor himself from his moral or religious values, this complaint smacks of the anti-Papist nonsense that periodically inflicts our politics, such as during the campaign leading to John F. Kennedy's election in 1960, that may have helped elect Grover Cleveland in 1884 and that sank any possibility that Alfred Smith could be elected in 1928. Note please that each of these candidates was a Democrat.

No, the Supreme Court's latest affront to women's health and choice lies not in misogyny but in the political, economic and constitutional conservatism of the five member majority of the Roberts Supreme Court. It is rooted in the majority's intent to treat for-profit corporations as though they are the same as flesh and blood persons when it comes to affording "persons" constitutional protections.

Women's choice and their health this time are collateral damage to this much bigger agenda, namely to return to the pre-FDR era's constitutional law that featured protection of business interests by limiting the scope of Congress' power to regulate interstate commerce, affording businesses "economic due process" and "liberty of contract" protections from both federal and state regulation.

It is not at all comforting that women's health and choice are collateral damage to this broader agenda. Decades ago, when abortions were illegal in many, if not all states, I helped facilitate some legally sketchy but medically safe abortions. I hope never to have to do that again. My coat hanger icon is out prominently displayed again, where it will remain.