Meaningful choices


Judge Gertner's biography comes out in April, 2011. Can't wait.

Ms. JD published a great article about Judge Nancy Gertner (one of my personal heroes) earlier this month. (I’ve actually had the privilege to meet Judge Gertner twice- very briefly in July of 2008 when she received the Thurgood Marshall Award of the American Bar Association, and then for a longer individual interview with her in December of that year. She was incredibly gracious and supportive. I was a little terrified.)

She is a federal judge in Massachusetts, much of her well-deserved reputation arises from her out-spoken support for equality of choice.

Here’s why she is fabulous:

Immediately after Roe v. Wade was passed in 1973, the right to choose to terminate a pregnancy was supported, financially, by Medicaid. Three years later the Hyde Amendment was passed, restricting use of federal funds for abortions to cases resulting from rape or incest, or those endangering the life of the mother, implicitly positioning a desired abortion not arising from a horrific event as a convenience available only to the financially secure. The federal restrictions were extreme… but state governments often made the restrictions even more severe.

The governor of Massachusetts in the early 80’s was unapologetically anti-choice. In 1979 he signed into law the Doyle-Flynn bill, which prohibited the use of state or any other public funding to terminate any pregnancy other than those that were necessary to prevent the death of the mother. (Terminology around funding restrictions all centered around 1) result of rape or incest, or 2) preventing the death of the mother. In eliminating even the caveat which would allow help to the victim of rape or incest, this bill, and so many others like it, eliminated the possibility of federal financial help to those who were, arguably, most in need of it.)

Judge Gertner successfully argued that these restrictions represented gender discrimination before the Massachusetts Supreme Judicial Court in the case Moe v. Secretary. Massachusetts had previously ratified the Equal Rights Amendment in 1976; Gertner used that platform to argue that financially privileging one completely legal option above another was unconstitutional and was, essentially, gender discrimination.

In a 5 to 1 ruling, the Massachusetts Supreme Court agreed, stating that “a statutory restriction on the funding of abortions which limited such funding to cases in which the procedure was necessary to prevent a woman’s death impermissibly burdened a woman’s right to decide whether or not to terminate a pregnancy” (Moe v. Secretary).

Gertner addressed the issue of equality of choice in a speech in 2003. She said that “while Roe v. Wade announced that everyone had a right to an abortion, unless the government paid for and supported the right, it was for many women, an empty shell. It was like the old adage from Anatole France: ‘The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to bed in the streets, and to steal bread.’”

“Choice, in short, was not everything unless it was a meaningful choice.”–Gertner

I think she’s amazing for all that she has done for the progress of women’s rights. But more than just a history lesson, a Who’s Who of the Fabulous, if you will (but that would be such a fun book to write… or maybe a weekly blog topic?), the debate about funding for basic women’s health is incredibly important right now.

Nobody wants to have an abortion. I realize that in any universal statement there is an automatic negation implicit. Let me rephrase: I, me, myself, left-wing, Democrat, fighting-feminist, adamant-right-to-choice-supporter, hand-firmly-placed-on-my-still-pajama-clad-chest, I don’t want to have an abortion. I have the right, yes. If I have the need, well, that’s a decision I’ll have to make. I’ve still got grad school to get through, so who knows. I know it would be a difficult decision. But I believe to my fingertips that the decision would be mine.

Believing in the right to a choice about a pregnancy doesn’t trivialize how difficult of a decision that would be. No one is proposing that abortion should become the fall-back position, that we should all just skip the birth control and take care of any situation that might arise after it occurs. It’s an option. And the only way to avoid needing that option is to use preventative birth control. It isn’t rocket science. It’s pretty basic biology.

My right to make that decision is under attack… but even more incredibly, those who vehemently oppose abortion are also attacking institutions that provide contraceptive options. The only logical conclusion is that the Religious Right, the Republicans, the conservative heartland of America…whatever unholy (ha) group is pushing these cuts either doesn’t understand what behaviors lead to the need for contraception (Speaker of the House Nancy Pelosi joked that opponents of Planned Parenthood might need a lesson in the birds and the bees) or truly believes women, or all women who can’t afford to make private arrangements, should be procreating during the entirety of their child-bearing years.

The progress women have made in the past fifty years in America has been, in a large part, because they have been able to plan the stages in their lives: to choose whether to finish college, or high school, or to start having babies at sixteen. That is the choice.

In the interests of time (or rather, my complete lack of it) have a listen to what Representative Gwen Moore had to say about the proposed Pence Amendment.

Scathing, terrifying, and true. And even if it’s not true for you, if your lovely insurance plan gives you access to a doctor who happily prescribes whatever you need, what about the rest of us?


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