Elizabeth Kirk is a research associate and lecturer at the Catholic University of America, where she also serves as the director of the Center for Law and the Human Person. Her scholarly interests are in the area of law and the family, and in particular the intersection between law and the Catholic intellectual tradition.
Catholic News Agency: The amicus brief you signed lays out an argument that contrary to the Supreme Court’s rulings, abortion has not facilitated women’s advancement, and in reality, has hurt women. Can you walk me through the brief’s argument and evidence?
EK: There are 80 briefs in support of the State of Mississippi in the Dobbs case, each one articulating a different relevant argument. The focus of this particular amicus brief relates to the claim made in Planned Parenthood v. Casey (1992) to justify upholding Roe: “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
The authors rebut this claim, summarizing the empirical evidence relating to women’s historical achievements and their participation in society in the last half-century, and demonstrate convincingly that the Casey premise is false, i.e., that there is no causal link between the availability of abortion and women’s participation in society.
Furthermore, the authors point out that the data actually suggest some correlation between abortion and negative consequences for women, such as the feminization of poverty and declining levels of happiness.
Finally, the authors make the point that the argument that women need abortion to participate necessarily takes the male reproductive experience as the model for economic and social participation, and that this lopsided view has prevented meaningful accommodation of women, including their experience of pregnancy and motherhood, in the workplace and other spheres of society.
CNA: How did it come about that you signed the amicus brief in this case? Have you signed amicus briefs in similar cases in the past?
The amicus brief drafted by Teresa Collett, Helen Alvare and Erika Bachiochi was written on behalf of professional women and women scholars who hold doctorate degrees, as well as prolife feminist organizations. Any woman who fit that description and supported the brief’s argument was welcome to join. I know the drafters personally and was honored to sign.
I have testified in state legislatures on matters related to abortion, but this is the first amicus brief I have signed on the topic. I joined previous amicus briefs in Fulton v. City of Philadelphia [a significant case related to religious freedom] and Harris Funeral Homes v. EEOC, a companion case to Bostock [a 2020 decision that a federal ban on sex discrimination also protects sexual orientation and gender identity].
CNA: Many are saying the Dobbs case has a chance of overturning Roe v. Wade. Do you agree?
EK: Certainly. This case presents this question to the Court: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” Under the governing precedents of Roe and Casey, there is a constitutionally protected right to abortion and states may not place an “undue burden” on it before viability. So, the question presented goes to the heart of the matter.
Of course, there are a number of ways the Court could handle this case short of overturning Roe and Casey. For example, it may affirm the constitutional right itself, but articulate a different test than the current “undue burden” test, or it may reconsider the role of viability in evaluating laws restricting abortion….
The above comes from an Oct. 5 story on the site of Catholic News Agency.
A judge just granted the Biden Administration’s request to block the Texas “Heartbeat” law. An appeal was immediately filed by the State of Texas. It is estimated that since the law went into effect on Sept. 1st, over 3,000 babies’ lives have been saved. A big struggle lies ahead.
Speaking of lawsuits– several groups of parents are suing the State of Calif., stating that the Calif. Dept.of Education’s new Ethnic Studies program is unconstitutional, and violates Religious Freedom. One of the worst violations is having schoolchildren learn all about Aztec deities, and learn to chant prayers honoring them, including the Aztec god of human sacrifice. Hope all of these groups win their lawsuits. Hope this terrible program is deleted completely from the State Dept. of Education.
The minor but importatn fallacious flaw in the (paraphrased) “women are less happy and worse off because of abortion” is that it presumes to know the opposite – that the women interviewed that stated their opinion could determine with certainty how much better their life would have been had they not sought abortion, that carrying and either keeping or relinquishing the child would most certainly equate to a better life. Can one with reasonable certainty state that keeping a child will not carry other burdens (financial, emotional, etc.) as well as societal stigma (let’s admit it – for some in this very blog, if they discovered that I was born out of wedlock their ire would certainly be very aimed at my biological mother). My main point: to state categorically that one’s life would be so much better because they decided NOT to get an abortion is not supported by non-biased evidence and peer review.