October 2021 | Volume 13, Issue 3

Read the full article on USA Today.

According to the article, more than 500 current and former female athletes recently urged the United States Supreme Court to reject a Mississippi law that would prohibit abortions after 15 weeks of pregnancy.

In an amicus brief filed recently, the athletes cite the importance of "bodily integrity and decisional autonomy" to their individual careers and women's sports as a whole. The list of signatories includes 26 Olympians, 73 professional athletes, 276 college athletes and some of the biggest names in women's sports – from U.S. soccer star Megan Rapinoe to WNBA veterans Sue Bird, Breanna Stewart and Diana Taurasi.

Players' unions for the WNBA and NWSL also signed the brief.

"I am honored to stand with the hundreds of athletes who have signed onto this Supreme Court brief to help champion not only our constitutional rights, but also those of future generations of athletes," Rapinoe said in a statement.

"Physically, we push ourselves to the absolute limit, so to have forces within this country trying to deny us control over our own bodies is infuriating and un-American and will be met with fierce resistance."

The athletes filed their amicus brief in the case of Dobbs v. Jackson Women's Health Organization, in which the Supreme Court is set to consider the constitutionality of a Mississippi law banning abortions after 15 weeks of pregnancy. Oral arguments have been scheduled for December 1st.

The case will serve as the first direct test of Roe v. Wade under the Supreme Court's new conservative majority. The landmark 1973 case legalized abortion across the country, while a separate decision in 1992 (Planned Parenthood v. Casey) guaranteed women's right to an abortion before a fetus can survive outside the womb, which is often set at around 24 weeks.

In their amicus brief, the athletes argue that additional abortion restrictions – like those outlined in the Mississippi law – would have wide-ranging consequences on women's sports and "undermine athletes' fundamental rights."

In one of several first-person statements in the brief, former Team USA swimmer and Olympic gold medalist Crissy Perham reveals that she had an abortion after accidentally becoming pregnant in college, despite being on birth control. She went on to win a national title that summer, qualify for the 1992 Summer Games in Barcelona and win three Olympic medals, including two golds.

"My life would be drastically different if I had been pregnant and forced to sit that (national championship) race out, because that race changed the course of my life," Perham wrote.

"I made the choice that was right for me and my future, and I stand by my decision. That choice ultimately led me to being an Olympian, a college graduate, and a proud mother today."

The athletes also argue that infringements on abortion care have broader Title IX implications, citing a direct connection between reproductive rights and gender equality.

"If the State compelled women athletes to carry pregnancies to term and give birth, it could derail women’s athletic careers, academic futures, and economic livelihoods at a large scale," they write in the brief.

"Such a fundamental restriction on bodily integrity and human autonomy would never be imposed on a male athlete, though he would be equally responsible for a pregnancy."

Joanna Wright, the lead attorney for the women, said that the stakes in the Mississippi case "could not be higher."

If the Supreme Court's ruling weakens or overturns the Roe v. Wade decision, she said, it could enable more than a dozen other states to pursue similar restrictions. She described that possibility as "a dire situation for all women," athletes among them.

"For many women, sports and their athletic prowess is the ticket to a college education – and, for the elite athletes, access to building livelihood, whether that is through athletic sponsorships or advertising opportunities," Wright said.

"I think athletes in particular, and the 500 plus amici who have signed on, understand the huge importance of having decisional autonomy over their own body. They use it as a tool of their own craft."

Discussion Questions

  1. How does the right to choose (i.e., the right to have an abortion) arguably relate to the United States Constitution?

    In its landmark 1973 Roe v. Wade decision, the United States Supreme Court acknowledged that the right to choose (i.e., the right to have an abortion) is not specifically and expressly addressed in the U.S. Constitution. The Supreme Court, however, looked to the Fourth Amendment to the Constitution (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”) and implied a constitutional right to privacy. The Court then extended the implied right to privacy to a woman’s right to choose, with specific restrictions to that right particularly imposed in the woman’s second and third trimesters of pregnancy.

    Opponents of the right to choose argue that extra-constitutional machinations of the Court in Roe v. Wade amounted to “legislating from the bench,” while supporters of the right to choose argue that the Court’s decision represented a necessary and appropriate application of the “living document” view of the Constitution; i.e., that the Constitution must be interpreted (and reinterpreted) as time, our people, and our country change.
  2. Explain the right(s) established by both the Roe v. Wade and the Planned Parenthood v. Casey U.S. Supreme Court decisions. How would upholding the Texas and/or Mississippi laws impact prevailing legal precedent regarding a women’s right to choose (i.e., right to have an abortion?)

    As indicated in response to Video 1, Discussion Question Number 2 above, the Roe v. Wade decision established a woman’s right to choose to have an abortion. As indicated in the article, the Planned Parenthood v. Casey decision guaranteed women's right to an abortion before a fetus can survive outside the womb, which is often set at around 24 weeks. Upholding the Texas and/or Mississippi laws would largely eliminate women’s right to choose as established in both Roe v. Wade and Planned Parenthood v. Casey.
  3. What is an amicus brief? From a legal and practical standpoint, does an amicus brief really matter?

    An amicus curiae is a person who is not a party to a case. They assist an appellate court by offering additional, relevant information or arguments the court may want to consider before making their ruling. The phrase, amicus curiae, is Latin for “friend of the court.”

    Amicus briefs – shorthand for the formal term “amicus curiae briefs,” are legal briefs filed in appellate courts by amicus curiae. They are submitted in a specific case under review. They essentially show the court that its final decision will impact people other than the parties.

    Amicus briefs are filed by people who typically take the position of one side in a case, in the process supporting a cause that has some bearing on the issues in the case. The groups most likely to file amicus briefs are businesses, academics, government entities, non-profits and trade associations.

    In terms of whether an amicus brief really “matters,” reasonable minds may differ, but in your author’s opinion, an amicus brief may persuade the court to decide the case in a way it would not have had the brief not been filed. Persuasion matters!