Anthony Kennedy's (And Right-Wing Media's) Favorite Abortion Myth Debunked In New Briefs To Supreme Court

Pro-Choice Briefs In Whole Woman's Health v. Cole Push Back At Discredited Conclusion That Abortions Cause Depression And Regret

››› ››› SHARON KANN

The first set of amicus briefs for Whole Woman's Health v. Cole, a Supreme Court case that will determine the constitutionality of a Texas anti-choice law that severely limits women's access to abortion and broader medical care, has recently been filed. Many of these briefs respond to Justice Anthony Kennedy's past invocation of "post-abortion regret" and the "severe depression" that supposedly follows, an "antiabortion shibboleth" repeated in right-wing media's long-standing effort to stigmatize women who have had abortions.

Supreme Court Sets Date For Hearing On Texas' Dangerous Abortion Restriction Law

Supreme Court Will Hear Challenge To Texas Abortion Restriction Law On March 2, 2016.The Supreme Court will hear oral arguments for Whole Woman's Health v. Cole on March 2, 2016. Called the "highest-stakes abortion case in a generation," the Texas law places requirements on abortion providers deemed "medically unnecessary" by both the American Medical Association and the American College of Obstetricians and Gynecologists that will likely force the closure of "more than 75 percent of Texas abortion facilities and deter new ones from opening." [MSNBC, 12/13/16]

The Los Angeles Times: Texas Challenge Has Wide-Reaching Implications On Roe v. Wade. According to The Los Angeles Times, the decision made by the Supreme Court in Whole Woman's Health v. Cole could impact the "larger question about the nature of abortion rights set out in the Roe vs.Wade decision." In particular, the article noted the Court may have to resolve the question of whether abortion is still a constitutional right. [The Los Angeles Times, 12/29/15]

In Previous Abortion Cases, Justice Kennedy Has Suggested Women Suffer "Severe Depression" And "Regret" Following An Abortion

Slate: Kennedy's Previous Abortion Decisions Use "Language Straight Out Of The Anti-Abortion Movement's Talking Points." In an analysis of Justice Kennedy's rationale in previous abortion decisions, Slate pointed out a troubling pattern of "blistering" rhetoric from the man commonly considered as a swing vote on the Supreme Court. Slate noted that in several of these cases, Kennedy "uses language straight out of the anti-abortion movement's talking points," including the blanket conclusion that women "regret" their choice to have an abortion--a discredited "antiabortion shibboleth" Justice Ruth Bader Ginsburg has condemned. From Slate (emphasis added):

In 2000 he dissented from the court's decision that a Nebraska restriction on second-trimester abortions was unconstitutional. Kennedy's dissent uses language straight out of the antiabortion movement's talking points. He calls the doctor an "abortionist." He calls the fetus "unborn" life. He calls the abortion procedure at issue one that "many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life." He was arguably even worse in 2007 when he wrote the opinion for the court upholding a federal version of the Nebraska law. In that case, he likened the procedure to "infanticide" and paternalistically talked about the importance of preventing women from having "regret" about their decisions. In dissent, Ginsburg was so angered by Kennedy's language that she accused him of having "hostility" toward the right to abortion and invoking an "antiabortion shibboleth" in defense of his position. [Slate, 11/22/13]

Mother Jones: Post-Abortion Regret Is "At The Forefront Of The Pro-Life Movement's Biggest Rebranding In Recent Memory." In a January 2011 article for Mother Jones, Sarah Blustain examined the legal strategy that adopted the idea of post-abortion regret as a way to push and defend anti-choice legislation, which culminated in Kennedy's Gonzales conclusion that abortion restrictions could be justified because of this so-called syndrome. Quoted by Mother Jones, Roger Evans, a senior attorney for Planned Parenthood said, "[t]he chill Carhart sends down my spine, is that is really sets the stage for upholding any of these ridiculous 'abortion hurts women' measures." [Mother Jones, January 2011]

In Gonzales v. Carhart, Kennedy Relied On Anti-Choice Brief Detailing Stories Of Women Who Exhibited "Post-Abortion Syndrome." As explained by Linda Greenhouse, former Supreme Court reporter, in the 2007 Gonzales opinion that restricted abortion rights, Kennedy uncritically "accepted as fact" the idea of "post-abortion regret"--"a claim for which there was no valid basis." Justice Kennedy cited the amicus brief of an anti-choice group called "180 Women Injured By Abortion" to generalize that following an abortion women experienced "grief more anguished and sorrow more profound." [The New York Times, 9/4/13]

Supreme Court Amicus Briefs Aim To Rebut Kennedy's Invocation Of Blanket Post-Abortion Regret

MSNBC: Briefs About Women's Experiences "Are Making Sure [Kennedy] Hears From Women Who Say Ending Their Pregnancies Was The Best Choice For Them." In a January 5 article, MSNBC noted that the personal stories in many of the amicus briefs were meant to combat the generalization that women systemically regret their choice of abortion and suffer "severe depression." Beyond influencing Kennedy, the article also said that the briefs challenged the stigma and backlash surrounding abortion that "persist in society and in state legislatures. As MSNBC wrote: "[g]iven the relative silence that cloaks abortion, such stories may be even more important in this case":

"While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained," Kennedy wrote in his 2007 majority opinion for Gonzales v. Carhart, citing an amicus brief, or friend-of-the-court brief, from anti-abortion women. "Severe depression and loss of esteem can follow."

In fact, a task force by the American Psychological Association reviewing the actual research found that adult women who have abortions are at no greater risk of mental health problems than if they chose to give birth. That reasoning, used by Kennedy to uphold the federal Partial-Birth Abortion Ban, infuriated women's health advocates, including Ruth Bader Ginsburg, who in her dissent accused Kennedy of relying on sexist and outdated notions of women.

Several amicus briefs filed in support of the clinics challenging Texas's abortion restrictions this week seem aimed at showing Kennedy that women have all kinds of feelings about abortion. Technically, women's feelings about abortion have little to do with the stated rationale of the law in question. Texas says it wants abortions to only happen in massive ambulatory surgical centers by doctors who have admitting privileges at hospitals within 30 miles of them because it wants to protect women's physical health. But such a rationale neatly builds on the broader idea that women need to be protected from abortion providers for their own good.

That's why supporters of abortion rights have recruited women of all walks of life to tell their stories in amicus briefs. [MSNBC, 1/5/16]

The Houston Press: Significance Of Stories Is "Unprecedented," And "Counter The Stigma Surrounding Abortion." The Houston Press reported that in the "groundbreaking series of filings," women came forward to testify that they "wouldn't be where they are today" if it wasn't for safe and legal access to abortion. They conclude that the sheer volume of women who came forward represents an "effort to counter the stigma surrounding abortion" the persistence of which is puzzling given that "one in three U.S. women will have the procedure at some point in her lifetime." [The Houston Press, 1/6/16]

Women's Stories Necessary To Shed Light On "Voices Of Actual Women" That Are "Forgotten In The High Level Case." In a January 5 article, Think Progress wrote that the briefs were necessary to highlight the "voices of actual women" that is often "forgotten in the high-level case." Think Progress wrote that according to the president of Advocates for Youth, that the voices were integral to shedding light on the "reality" that abortion is a highly-common procedure, and the law would have "real effects" for many women across the country. [Think Progress, 1/5/16]

"Higher-Than-Average" Number Of Briefs Represent Commonality Of Abortion And Rebuke Stigma That Forces Women To "Bear The Stories Of Their Abortions In Silence." Reporting on the "higher-than-average" number of briefs filed in response to Whole Woman's Health v. Cole, The Miami Herald noted the "unusually personal move" made by women to share their experiences. Focusing on a particular brief filed by high-ranking professional women, the article highlighted that although abortion is a common procedure, stigma and the "violent debate over abortion" often forces women to "bear the stories of their abortions in silence." [The Miami Herald, 1/6/16]

The Guardian: Amicus Briefs Fight Stigma About Abortion, Help Prove It's An "Absolutely Normal Experience." Guardian columnist Luica Graves characterized the amicus briefs as a response to anti-choice groups' perpetuation of stigmas surrounding abortion. Graves wrote "[n]ow along with the occasional story of regret," the article said, "the justices will have to scroll through" numerous accounts from the majority of women who have benefit from access to abortion. Graves emphasized that briefs were important for many reasons, yet chief among them was their ability to break down stigma and help others realize that abortion "is absolutely a normal experience":

Now, as the US supreme court prepares to hear a major abortion case (Whole Woman's Health v Cole) challenging the 2013 Texas law that restricts the procedure, abortion rights advocates - and powerful women who've benefitted from the right to exercise reproductive choice - want to make sure everyone's story gets told.

More than 100 women lawyers from all around the country sought to change that ratio in a brief filed to the US supreme court ahead of its 2 March argument, laying out the profound ways that their lives as successful lawyers have been made possible by safe access to abortion.

There are so many reasons telling these stories matters: it's about making women feel heard, feel less alone and about normalizing what is absolutely a normal experience. But it's also about our country's current and future laws that might or might not allow other women to make the same decisions. [The Guardian, 1/7/16]

"Post-Abortion Syndrome" Is The Work Of "Discredited" Researcher Vincent Rue

Concept Of Systemic Post-Abortion Regret Stems From Work Of "Discredited" Researcher Vincent Rue. RH Reality Check's senior legal analyst Jessica Mason Pieklo wrote that the term "post-abortion syndrome" was coined by Vincent Rue to "link abortion to various mental health issues like depression." As explained by Pieklo, arguments in favor of medically unnecessary restrictions on abortion providers championed by right-wing media outlets often rely in part on Rue's "biased junk science" to support the argument that women regret their abortion choices. RH Reality Check noted Rue is not only "discredited," but had earned a "well-deserved reputation for biased testimony" after his remarks were rejected from consideration during Planned Parenthood v. Casey. [RH Reality Check, 6/11/14]

Post-Abortion Regret Is One Of The Myths Pushed By Right-Wing Media To Stigmatize Abortion

Fox Guest Championed Discredited "Post-Abortion Syndrome" Behind GOP's Push For Mandated Counseling. Appearing on the March 19 edition of Fox News' Hannity, frequent Fox guest and conservative blogger Star Parker discussed efforts to strengthen gun legislation with mental health checks and alluded to the discredited "post-abortion syndrome," the idea that choosing to have an abortion causes subsequent mental illness, a claim used by Republicans to push for mandated counseling laws. Parker argued "according to studies" women who have had abortions "have a tendency to have mental challenges later on." [Fox News, Hannity, 3/19/13]

Fox Hosts Attack Woman Who Had An Abortion As "Deeply Disturbed," In Need Of "Psychological Exam." On May 6, the hosts of Fox News' The Five lobbed a series of attacks against Emily Letts, a woman who filmed her own abortion and wrote about her experience in Cosmopolitan. Greg Gutfeld said Letts "clearly needs help" while Andrea Tantaros described Letts as "deeply disturbed" and asked if her employer had considered giving her a "psychological exam." Eric Bolling took it a step further, likening her abortion to having committed "some sort of genocide." [Fox News, The Five, 5/6/14]

National Review Online: "Substantial Body Of Academic Research" Proves Link Between Abortion And Mental Health Issues. A frequent contributor to National Review Online, Michael New, has similarly argued that there is a "substantial body of academic research which has linked abortion to a variety of mental-health problems, including depression, anxiety, sleep disturbances, substance abuse, and suicide." Criticizing studies disproving the supposed causality between abortion and mental health problems, the contributor also warned that "there's an impressive body of research indicating that abortion increases the risk of premature births. Additionally, a number of peer-reviewed studies have found that abortion increases the risk of breast cancer." [National Review Online, 6/17/13]

Live Action News: "Post-Abortion Syndrome Is Real" And Experienced By Many Women. Live Action News, the media branch of the anti-choice group Live Action, alleged that feelings of "guilt and regret" were entirely common for many women following an abortion, in addition to their increased risk for a variety of mental health issues. Live Action News concluded that "[p]ost-abortion syndrome is real" and that "women who have abortions are at higher risk for many mental health issues including anxiety, depression, drug and alcohol abuse, and suicidal behavior." [Live Action News, 1/2/16]

Medical Experts' Consensus: There Is No Evidence Of "Post-Abortion Syndrome"

APA: "No Credible Evidence" That Abortion Procedures Are Harmful Or "Cause Mental Health Problems." The American Psychological Association (APA) formed the Task Force on Mental Health and Abortion in 2008 to examine the variety of studies addressing mental health factors associated with abortion. According to its analysis, attempts to prove causality between women's mental health and abortion are unfounded. After a "thorough review of all the empirical studies...in peer-reviewed journals since 1989," the APA task force concluded that there is "no evidence that having a single abortion causes mental health problems":

The Task Force concluded that there is no credible evidence that a single elective abortion of an unwanted pregnancy in and of itself causes mental health problems for adult women. The research consistently found that the backgrounds and circumstances of the women who seek abortions vary. The Task Force found some studies that indicate that some women do experience sadness, grief and feelings of loss following an abortion and some experience "clinically significant disorders, including depression and anxiety." The evidence regarding the relative mental health risks associated with multiple abortions is more uncertain. [American Psychological Association, Accessed January 2016]

Johns Hopkins' Study Finds "Best Research Does Not Support The Existence Of" So-Called "Post-Abortion Syndrome." According to Reuters, a review of "high-quality studies" by Johns Hopkins University found there was no link between abortion and women's "long-term mental health." The article quoted the lead doctor on the study, Dr. Robert Blum, who explained that the "best research does not support the existence of" a so-called "'post-abortion syndrome' similar to post-traumatic stress disorder." He concluded that only "studies with the most flawed methodology" found evidence of "post-abortion syndrome." [Reuters, 12/4/08]

NAF: Experts Conclude So-Called "Post-Abortion Syndrome" Is An Unfounded Myth. Citing a number of medical experts, the National Abortion Federation's (NAF) fact sheet on abortion myths demonstrates the unfounded nature of so-called "post-abortion syndrome." They argued that in spite of right-wing media representations of women's abortion experiences, "mainstream medical opinions...agree there is no such thing as 'post-abortion syndrome.'" They cited the research of several prominent medical experts to further support the scientific consensus supporting safe and legal access to abortion. [National Abortion Federation, Accessed January 2016]

Guttmacher Institute: Recent Studies Disprove Blanket Abortion Regret, Find Majority Of Women Receiving Abortions "Felt It Was The Right Decision." In a September 2013 issue of Perspectives on Sexual and Reproductive Health, the Guttmacher institute included a study entitled "Women's Emotions One Week After Receiving or Being Denied an Abortion in the United States." In this study, researchers interviewed "843 women seeking abortions at 30 U.S. facilities between 2008 and 2010" about their feelings upon receiving or being denied an abortion. The study found that "[m]ost (95%) women who had obtained the abortion felt it was the right decision, as did 89% of those who expressed regret." [Guttmacher Institute, September 2013]

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