The Right Not to Choose

The Right Not to Choose TAP talks to prominent anti-abortion lawyer Harold Cassidy. In 1987, Harold Cassidy was the lawyer for Mary Beth Whitehead, a surrogate mother who had contracted to give up a child for adoption and then changed her mind. This was the famous "Baby M case." Years later, he is a prominent lawyer in the anti-abortion movement, and says he is again fighting for the rights of mothers -- but this time he is working on behalf of women who say they were harmed by abortion. He has cases pending in New Jersey, South Dakota, and Illinois, all based on the notion that a woman is so ill informed about what an abortion is, and so pressured by outside forces to abort, that she needs special protections from Harold Cassidy and from the state.

Essentially, Cassidy is trying to craft a right to not have an abortion. It is instructive to follow his words, taken from a 2006 exclusive interview with TAP, which explain just how the newest anti-abortion arguments portray women as weak and poor decision-makers, and reframe the constitutional right to choose an abortion as a disservice to women.

Sarah Blustain: Can you talk to me briefly about how you got from Baby M to your work on abortion?

Harold Cassidy: [With adoption,] the law has always recognized that there is a strong need to protect against undue influence, to ensure that the very, very sacred right of the mother was actively protected, to ensure that it wasn't involuntary, that it was done in the most informed way, that ... all other avenues and options were explored. You don't want to see women leave their children just because they need help. That would be a terrible reason for a woman to give up a child. From time to time women would come to me and say, 'Someone violated my rights, they forced me to give up my baby.' So that was my orientation with this. And what really impressed me about it was how, for some women, it stayed with them. They worried about whether the child understood that their act was an act of love, not abandonment. It was something that impressed me as a very special kind of profound pain, a mother being separated from her child, and it never went away.

So when the first women started coming to me, telling me that someone had violated their rights, they wanted the baby back, but the person who had violated their rights had killed the baby, and I was absolutely helpless in trying to rectify what they perceived to be an injustice to them. To make it concrete, just look at South Dakota. If a woman in South Dakota finds that she's two months pregnant and she's in a situation where she feels she just can't raise the child, she says I think I'm going to give my rights up and she walks into an adoption agency, the adoption agency is forbidden by law to accept any relinquishment. A counselor [advises her] about all the options, how to keep the baby, about how to take care of the baby. [A]fter the baby is born, she gets to hold the baby, to see exactly what she is giving up. If then she wants to terminate her rights, she has to file a petition in a court of law, not with some abortion doctor who flies in from Minnesota. She has to set out why she feels she can't take care of the child, and the counseling process, often done by a third party, there's a certification in that process that reports to the court that she understood all her options, the rights she's giving up, and then there's a hearing in court, and there's a judge, and the judge has to make a finding of fact that the decision was voluntary and informed. When he enters the judgment terminating her right -- and the termination can only be by court order -- if the record does not support that finding that the decision was not voluntary and informed, it can be vacated and the child returned to her.

Compare that to modern practices in the abortion clinic. What happens in Sioux Falls, South Dakota is that if a woman calls Planned Parenthood, a clerk, a desk clerk, schedules the surgery. And the assumption is, if she's calling, even if she just wants to talk about what abortion is ... they're going to schedule surgery.

I'm going to say something that may be controversial: There is crisis thinking. I don't care how smart a woman is, I don't care how responsible she is, how in control of her life, there's something about that particular circumstance. The decision has got to be one she can live with for her entire life, and the woman in that position is very vulnerable. It may not be popular to say that, but it is the reality. And part of the problem of abortion is that it is more about what we would like a woman to do than what she is really wired and capable of doing. To have a policy built on a premise that a woman can kill her own child and that it's okay is terrible.

SB: Women started coming to you wanting to make claims against the abortion provider. Where were they getting the idea? Were they thinking of it themselves? Were they going to post-abortion counseling?

HC: I think that today there are more women coming out and talking about it because they hear other women talking about, that they're not crazy people, that there are a lot of other women having the same experience. And they're discussing it a little more, but it is only the tip of the iceberg. For some reason, rightly or wrongly, earned or unearned, women over the years have sensed that I was a person that they could talk to. There are no lawyers who do this, no lawyers want to think about these things, no lawyers want to help these women, no lawyers want to take calls at midnight from women who are having a difficult problem. So people were more than happy, if women came to them to talk about these problems, to refer them to me.

SB: So you're saying these women had this idea themselves to sue an abortion provider for not giving them enough information?

HC: Not precisely the way you are expressing it.

SB: What did they know when they came to you? What was it that they were coming to you that they wanted to address?

HC: It varied widely. There's a whole range. but the most common denominator is that the women feel they were lied to, they were induced into doing something that in retrospect they wouldn't have done if they had known the truth. To put it in a nutshell, that was the single common denominator.

SB: Did they want to also take action against their parent, boyfriend, whoever, who pushed them into the abortion?

HC: It's a complicated issue. The answer is no... but even in cases where I've seen that there was boyfriend who was demanding it, almost dragging the woman, they didn't want to sue them. The anger is toward the professional.

SB: Going back to South Dakota, the language you helped to craft has now become part of the fabric of what's on the mind of legislators in South Dakota, and as a result of it being on the minds of legislators in South Dakota, it is on the minds of legislators in other states, and I imagine we'll see more of that going forward.

HC: One of the things that I think is helpful to you, to your readers, is that there were women's groups like Feminists for Life and Women Exploited By Abortion that for years talked about this stuff. They didn't articulate it in terms of a constitutional right, they talked about the facts, they understood the impact on a woman's life: They had this baby, and they lost the baby, and what that did to the mother, and the nature of the loss. In place of the joy and the benefit of the child, there was a black hole in their heart. They talked about those things.

It wasn't until 2004, as far as the legislature was concerned, and in court cases that I was involved in, that that wealth of information that all those organizations had was articulated in terms of the rights that were involved, which are well established, but never discussed. One of the tragedies of all these abortion cases, in 1989 in Webster, in 1992 in Casey, is that no one stood up for the woman. You had the states talking about the state's interest in potential life, and you had Planned Parenthood talking about what they want to talk about, and no one was talking about the real rights of the woman -- no one. What happened in South Dakota was the wealth of information and the experiences of the women, and the knowledge that the pregnancy care centers had, was brought to the legislature, and I believe it began in a little bit of an informal way, outside of the hearings, long before any statute was ever drafted. So that the statute only began to articulate what they were all talking about.

SB: What do you think is the biggest risk to women around abortion, and what I'm asking is this: A lot of the work you do is involving abortion providers, some of the language in the [South Dakota] task force report [on abortion] also deals with coercion by family members, and some of it that the decision to have the abortion can never be voluntary because you can't know until you have the baby, and then there's the natural relationship with the child. I'm just trying to understand this cluster of risks, and where the biggest risks are.

HC: It's never been my position that abortion cannot be involuntary. I think there are women who can make voluntary decisions. Let's think in these terms. The woman is making two decisions, one is a decision for herself -- will I or will I not continue my relationship with my child? That was a decision in a different context that brought me to this work earlier, and that was in the context of adoption. The protections afforded her should reflect the magnitude of what she's giving up. Efforts in the adoption context have been made to try to reflect the magnitude of what she's losing; in the abortion context they never have. The second decision is for the child, she is making a decision for a second human being, she is making a decision, literally, of whether the child will live or die.

The question for the state of South Dakota or any other state is, given the magnitude of what the mother is giving up, given the need to provide protections commensurate with the magnitude of the right, given the magnitude of the consequence to the second patient that she is making the decision for. The question is twofold: Is the evidence sufficient to conclude that there are too many women whose decisions are uninformed or involuntary; is the evidence sufficient to conclude that it is almost impossible in many cases at the time of the abortion to detect that this is involuntary and uninformed. I think in many cases it can be detected, in some ways it can't be detected.

SB: You could see some of those outcomes, and the woman would say, "I knew what I was doing." Not every person who even feels suicidal after having an abortion, because she had an abortion, may have gone into it without having had the information she needed to make that decision.

HC: I like this question, I think this is the crux of this discussion. You've struck a point that needs to be discussed.

Let's talk about the woman who has given her baby up to adoption. The woman who gives up the baby, turns the baby over, signs the relinquishment document, and then goes home to sleep, and can't sleep. The woman makes the decision, and what she doesn't know is what it feels like after she's given up the baby, and then she goes home and she finds out she can't sleep, and it was a mistake and she loves the baby, and her heart is breaking, and she thinks the baby will hate her, and it's not good for the baby, and the baby should be with her mother, etc. etc. etc. But she at least has the protection of the law that says she can go back and say, ‘You know what, I changed my mind.'

What if that same phenomenon is present in abortion. There are women who think they are informed, and later find out that they are not informed. And that phenomenon comes in many degrees. There can be women, and there are some, surely, who make a decision that is informed, and it is voluntary, and even they will find out later that it's not. They're not liberated by it; they're enslaved by the experience. In fact, in many ways they were enslaved by the experience before they made this so-called free and informed decision, because there is a culture and society and sexual partners who have come to expect her to be able to perform or to act in a certain way, and those expectations have enslaved her. Not only have they enslaved her in terms of her ability to get an abortion, but also to behave in ways that lead to the pregnancy in the first place.

SB: Are you working with legislators in any other states?

HC: I am, but don't feel free to discuss that.

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