This piece is published in collaboration with Echoing Ida, a Forward Together project.
In 1970, Emily Jane Goodman was a young attorney who got pulled into a landmark case challenging New York’s abortion ban.
The case, Abramowicz v. Lefkowitz, had an unusual legal team for the time (all women, many of them with only a few years of lawyering under their belts) and a radical premise: that the most important testimony came from women who experienced illegal abortions, lack of contraceptive access, and painful experiences with adoption or forced motherhood. Those attorneys, including Goodman, and those women telling their truths became the foremothers of the contemporary abortion story-sharing trend.
Now, more than 45 years later, Goodman is once again participating in a legal instance of abortion storytelling. Earlier this month, she was one of more than 100 women lawyers who filed an amicus (friend of the court) brief for an upcoming U.S. Supreme Court abortion case. The brief’s summary begins: “To the world, I am an attorney who had an abortion, and to myself, I am an attorney because I had an abortion.”
Sex. Abortion. Parenthood. Power.
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That brief is one of a number in Whole Woman’s Health v. Cole using women’s words to build the argument that access to abortion is a matter of public health, and essential to women’s futures and gender equality.
The women sharing their abortion stories in these briefs owe much to those women lawyers who filed the New York case, including constitutional scholar Nancy Stearns and the late Carol Lefcourt. That case influenced the state’s passage of the nation’s most liberal abortion law before Roe v. Wade. What made the case so extraordinary was how it brought about change: The attorneys interviewed scores of women, some of whose stories became public record.
Lawyer Diane Schulder also was part of the legal team and later recounted the events in a book co-written with Florynce “Flo” Kennedy, Abortion Rap. Kennedy had a diverse clientele that included Black Panthers and Billie Holiday; played a critical role in the New York chapter of the National Organization for Women; and showed through her legal advocacy how feminism and Black freedom struggles could cross-pollinate one another.
Schulder recalled in an interview with Rewire that there was increasing momentum to challenge New York state’s law. Indeed, a group of radical feminists including Shulamith Firestone of the Redstockings, had recently held an abortion speak-out. A hearing about reforming the law was disrupted by feminists, who insisted that they were just as qualified—if not more qualified—to talk about women’s reproductive lives than the one woman scheduled to speak, a nun.
“Flo and I both went to Columbia, and I clerked for a federal judge,” said Schulder. “He maintained you’ve got to get the facts right. Facts, facts, facts. We thought that women needed to tell their stories, get the facts on the ground, and the law would go from that. It did pave the way for abortion reform” in New York and elsewhere, though the case was declared moot after the state’s assembly changed the law.
To prepare for their case, the lawyers began interviewing women who would be witnesses in the case. Most of them came to Flo Kennedy’s 48th Street apartment, which doubled as her office. Ideally, the legal team was looking for “10 or 12 of the several dozen willing witnesses, anxious to testify to the oppressiveness of the New York State abortion laws and how they were personally affected by them,” according to Abortion Rap.
There was the woman journalist who drank copious amounts of gin, ingested nutmeg, and soaked in countless mustard baths—all because of rumors that these efforts would cause an abortion. The woman who was shipped away to a Chicago home for unwed mothers, where she did the back-breaking work of scouring floors and windows right up until delivery. Or the white woman who noticed that an adoption service encouraged white girls to relinquish their children but Black girls to keep their babies because “there was no market for Black babies.”
And there was the anthropology student who went to her college library and found ideas for home abortion methods in folk medicine books that were usually locked up in a cage like rare volumes. That same woman broke out in a rash from the concoction she mixed and swallowed—a serendipitous eruption, because she was able to pass it off as a case of German measles, which could cause fetal abnormalities and therefore allowed her to get an abortion.
Finding the women to testify wasn’t hard; after all, abortion was a common, if illegal, feature of women’s lives at the time.
But the road that Abramowicz paved wasn’t easy. When the women came to the federal courthouse in Manhattan to testify in early January 1970, the male lawyers for the state raised objection after objection. Flo Kennedy, whose speaking and litigating style Gloria Steinem once called “verbal karate,” was dedicated to making sure that the proceedings wouldn’t be impersonal recitations from doctors.
Kennedy continually pushed the limits of courtroom behavior to make points about social and cultural stigma surrounding women’s roles, sexuality, and abortion. Early in the case, Kennedy requested a panel of three women judges to hear the case—when she knew perfectly well that there weren’t three female judges to be found in New York’s male-dominated legal circuit. When she was in front of the judges, she continually peppered the court with questions about how religious attitudes taught women to be ashamed of their bodies and fed anti-choice opposition.
When the all-male team of lawyers for New York said that depositions about abortions that took place in Louisiana or Alabama weren’t relevant to the New York law, Kennedy and the testifying women rebutted those assertions, saying that the lack of reproductive health care in New York made women travel to seek services elsewhere.
After opposing attorney Joel Lewittes argued that the experiences of unwed mothers were not relevant, Kennedy let loose.
As quoted in Abortion Rap, Kennedy said: “If you [succeed in the motion to strike such testimony], of course, we will not prevail. That does not for a moment stop us from building our case and stating our position and finding out how completely irrelevant these courts think women’s experiences, ordeals, feelings are. And we will be very much better informed about the nature of our proceedings and our courts, once this matter has been ruled on, and we shall not be surprised to learn that you are right and that there is no regard for women’s ordeals and feelings.”
Women were the experts of their own lives, Kennedy asserted time and time again—a point that’s the core of today’s abortion story-sharing trend. Without Flo Kennedy and her colleagues fiercely arguing that women’s lives mattered, there would likely be no briefs from women lawyers who courageously talk about the abortions that have made possible their careers, health, and aspirations.
Even so, using the actual words of clients is not standard in legal storytelling. Lawyers are still interpreters who must cleave to the narrow demands of legal evidence and construct a narrative that’s understandable through the law.
Abbey Marr, a lawyer who co-wrote the Advocates for Youth brief for the Whole Woman’s Health case (which also used women’s stories taken from more than 900 testimonials it’s collected over three years) said in a phone interview: “There always will be a tension between the speaking to the court and being true to the story and having the client take agency. The answer in law school was always client-centered lawyering—talk to your clients, explain everything to them. I wish that was as easy as it sounds. How do you do that when you want to win a case?”
But it’s clear that stories do sometimes matter—even if those stories must be accompanied by legal and other advocacy strategies. They’ve mattered in abortion-related cases since Abramowicz, including those before the nation’s highest court. Women’s abortion experiences figured prominently in a NARAL brief filed in 1985’s Thornburgh v. American College of Obstetricians and Gynecologists. In the 2007 case Gonzales v. Carhart, the stories of women who claimed harm as a result of abortion influenced Justice Anthony Kennedy’s majority opinion.
“While we find no reliable data to measure the phenomenon [of abortion regret],” reads the majority opinion, “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Then, it cited an anti-choice amicus brief recounting women’s stories of negative post-abortion feelings or consequences.
Today, advocates say that women must be able to talk about their abortions because such stories are deeply powerful. They may, as in legal cases, form compelling arguments for policy change. They may serve to normalize abortion, which is, after all, an essential and legal health-care service.
For Emily Goodman, the women lawyers’ brief is both an opportunity to come full circle and a marker of how much work is left for abortion advocates. Now a retired New York Supreme Court judge, she signed the brief as a woman lawyer who had an abortion.
“This and other briefs show the Supreme Court what everybody else already knows: that women of every class, occupation, background, education, can be full participants in society only if they have control of their bodies and reproductive role,” Goodman told Rewire. “It is imperative that I and others show them who we are, how productive we are, and let them know that we are powerful and unwilling to go backward. I am joining with other women reiterating that we will not be controlled by women-haters, personal religions that have no place in courts, cruel politicians, or judges.”