A Landmark Day

The crowd was already loud and dense at 8am in front of the U.S. Supreme Court last Wednesday, a sea of purple signs whipping in the bone-chilling wind: Stop the Sham, The Burden Is Undue, Protect Abortion Access.

Police patrolled the sidewalks as more buses arrived and the rally swelled. A giant quilt was unfurled bearing stitched tally marks representing the 5.4 million Texas women whose access to essential reproductive health care is threatened by HB2, the state law that the Court is reviewing. It is the most important abortion case to be heard in almost a quarter of a century.

Twelve-year-old Rebecca stomped her feet in the cold. She, her parents, and her brothers had come to the rally from Charlottesville, Virginia. They held good-natured handmade signs: Pro-Cat, Pro-Choice, Notorious RBG Does Not Approve.

Rebecca is having her bat mitzvah soon. As part of her mitzvah project, she volunteers at the corporate headquarters of reproductive health care provider, Whole Woman’s Health, one of the plaintiffs in the case before the Court. Whole Woman’s Health’s Texas clinics will be shuttered if the new regulations are allowed to take effect.

“It’s really cool to be here, but it’s also kind of ridiculous. It doesn’t make sense,” Rebecca said. “My mom was here doing the same thing in 1973.”

The sense of absurd déjà vu was palpable in the crowd. A number of older participants wore buttons from the Roe v. Wade days. While the current case, Whole Women’s Health v. Hellerstedt, does not directly question the legality of abortion as established by Roe, it probes whether state-imposed, medically unwarranted regulations that shut down abortion clinics violate established constitutional precedent. Such regulations render abortion inaccessible in practice, if not in theory.

“This is a good day, but I thought we already won this fight,” said Belle, a rally attendee from Ohio. “What does it mean to have a constitutional right if you can’t exercise it? It’s beyond, beyond, beyond time for this to stop.”

Although she couldn’t hear the noise of the rally inside the courtroom, Center for Reproductive Rights lead attorney Stephanie Toti had walked through the cheering crowd on her way into the Court for her oral argument on behalf of Whole Women’s Health.

“It was incredible to see everyone out there. I have felt so bolstered by the outpouring of support I have received—it’s made a huge difference. It is incredibly powerful to understand how meaningful this case is to so many women,” Toti later said.

This is the first Supreme Court case for 37-year-old Toti, who has been with the Center for a decade. In the past week, she has become a bit of a women’s rights icon herself, with celebrities and activists across the country tweeting and posting messages of encouragement and support, many with the hashtag #StephanieHasAPosse.

Toti reflected on why she and this case have captured the public’s interest: “Because there are so few female lawyers in the Supreme Court bar, I think it surprises people that the lawyer arguing this case is a relatively young woman. I’m with a nonprofit organization—not a corporate law firm—and I am a woman of reproductive age arguing a case about reproductive rights. I think people identify with that, and it reminds them of the power each of us has in the everyday work that we do.”

During oral arguments, Toti was met with a torrent of questions about the concrete effect the law has had on clinics.

“I was not really surprised at how hot the bench was,” Toti said of the whirlwind hour and a half of arguments. “We had been preparing intensely for this for months, expecting as much. We did more than a half dozen moot courts to get ready, and with each one I could feel the progress. Practicing with so many different people gave the legal team the opportunity to capture the universe of possible questions, and in the end the Court didn’t ask anything we hadn’t anticipated.”

Toti was not the only one to face rigorous questioning. Her opponent, Texas Solicitor General Scott Keller, was barraged with questions about the real purpose of HB2.

“According to you, the slightest health improvement is enough to impose on hundreds of thousands of women. Even assuming I accept your argument, which I don’t, necessarily, because it’s being challenged, but the slightest benefit is enough to burden the lives of a million women. That’s your point?” asked Justice Sotomayor.

And Justice Breyer: “What is the benefit to the woman of a procedure that is going to cure a problem of which there is not one single instance in the nation—though perhaps there is one, but not in Texas.”

Back outside, the atmosphere was just as charged. The crowd grew to 3,000 people—the overwhelming majority of them pro-choice—in one of the largest rallies at the Court in recent memory. In both Spanish and English, speakers led chants and described the devastating effects of this law on the women of Texas and all around the country. Abortion providers, women’s rights advocates, faith leaders, and senators Richard Blumenthal and Patti Murray spoke. Several women—including actress Amy Brenneman—took to the podium to share the stories of their own abortions.

“I’m really here to hear these stories,” said LaVita, a woman bundled in an ankle-length bright purple down coat as she handed out copies of a newspaper from her local NAACP chapter. She had come to DC from Cleveland on a bus. “I think it is essential that people hear how normal and important abortion is. After the murders at the clinic in Colorado, I can’t stop thinking about the victims, the women who need this care and have to risk their lives.”

Madeleine, a clinic escort from Pittsburgh, echoed: “I was moved to get involved after the Planned Parenthood shooting. I realized misinformation is leading to death.”

On the fringes of the crowd was Doug, a quiet, redheaded man in a plaid wool coat holding a well-loved coffee thermos instead of a sign.

“I am a longtime supporter of abortion rights. When I was young, my own rights were not respected—I was raised by an alcoholic, oppressive father. So it’s not a big reach to understand why I have always identified with the fight for women’s rights,” he said with a half smile. “I don’t like bullies.”

As the oral arguments finished and the rally wound down, participants began the trip back to their home states where many are fighting similar abortion restrictions. The justices prepared to conference for a preliminary vote. A decision in the case is not expected until June.