Several UC Berkeley School of Law scholars were involved in the submissions of amicus curiae briefs for an upcoming Supreme Court case that could have significant repercussions on abortion and women’s reproductive rights nationwide.
Amicus curiae, or “friend of the court” briefs, are legal documents submitted to the court by third parties, urging judges to weigh the case in light of certain information. The Berkeley Law scholars contributed to several of 45 briefs submitted to the Supreme Court for the upcoming case, Whole Woman’s Health v. Cole. They urged the court to strike down a Texas law that imposes significant restrictions to abortion access in the state.
The Texas law, called House Bill 2, compels abortion facilities to upgrade to hospital-like standards of operation, among other requirements, which could impose such significant costs on the facilities that many may have to shut down, making access to abortion in the state more difficult.
The Texas restrictions may contradict previous Supreme Court rulings on abortion, which assert that states’ restrictions may not impose an “undue burden” on citizens seeking abortions, according to Melissa Murray, a Berkeley Law professor and faculty director of Berkeley’s Center on Reproductive Rights and Justice. Precisely what counts as undue burden has been debated for decades and may be discussed in the upcoming case.
“I feel like millions of women are in peril of losing rights that we’ve taken for granted for a few decades,” said Claudia Polsky, a Berkeley Law assistant professor and director of Berkeley’s Environmental Law Clinic. Polsky was one of 113 women in the legal profession to sign an amicus curiae brief in which they detailed their experiences with abortion.
Janie Schulman, a partner at the Morrison & Foerster law firm who also signed the brief, discussed the importance of destigmatizing abortion.
“By telling personal stories, we want everyone to see, including the court, that this is a fundamental right to control our destiny in the way that men get to control their destinies,” Schulman said.
According to Polsky, the brief’s strategy of normalizing the issue at hand is modeled on that of gay marriage advocates, who were able to win a major Supreme Court victory last year in part by showing the normalcy of gay marriage.
In another amicus curiae brief, Murray and other law professors discussed the recent gay rights case, Obergefell v. Hodges.
They argue that in that case, the court affirmed the rights of individuals to make deeply personal decisions. They go on to claim that the Texas provisions strip these individual rights from women seeking abortions.
“Laws that unduly target access to reproductive health services compromise the dignity of women and impair their ability to participate in society as equal citizens,” Murray said in an email.
The case could be complicated by the recent death of justice Antonin Scalia, which could affect the impact of the final decision on both Texas and the nation as a whole.
The court will hear oral arguments for the case March 2.
Maxwell Jenkins-Goetz covers higher education. Contact him at [email protected].