Our History

Gertner Defeats 1979 Massachusetts Anti-Choice Law

Sunday, February 12, 2012

A former U.S. federal judge, Nancy Gertner took on many civil rights cases, starting in the 1970s, as a lawyer. In this excerpt from her memoir, "In Defense of Women," she recounts helping to defeat an anti-choice law in Massachusetts.

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Abortion and the ERA

At a cocktail party, before we filed our briefs, Reinstein and I heard that Eleanor Smeal, then the president of the National Organization for Women, was very anxious to talk with us. She was adamantly opposed to linking abortion to the Massachusetts Equal Rights Amendment. The federal ERA had garnered the support of women who were anti-choice, who believed that reproductive rights were one thing, discrimination another. Linking the two, she insisted, would endanger the federal movement.

No, we said, two local lawyers talking to a national woman's rights figure. We had clients to represent here. Women were suffering. Having taken the case, we had to use all the tools at our disposal. Besides, if the ERA did not cover the right to choose, if it did not link gender discrimination and reproductive rights, it was not worth it. We had no intention of abandoning what we believed to be a significant theory of the case.

The lawsuit was successful beyond our wildest expectations. In February 1981, in a landmark 6–1 decision written by one of its most conservative justices, the Massachusetts Supreme Judicial Court held that there was a right to choose abortion under the Massachusetts constitution, and it described this right in sweeping terms.

There was no trimester limitation, no tripartite system, no woman vs. fetus dichotomy. The right at stake was the right to be free from "nonconsensual invasion of bodily integrity." And while the Supreme Judicial Court did not expressly call the state's regulation an example of gender discrimination, it came close.

Reinstein and I were flooded with cards, letter, phone calls, even flowers, praising the victory. This was not just about one client's life; it was about all of us. And along with the Women's Bar Association members who had helped, we celebrated for days.


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Nancy Gertner was appointed a Federal District judge by President Bill Clinton in 1993 and served on the bench for the District of Massachusetts until her retirement in 2011. Before her appointment, Judge Gertner was a defense and civil rights lawyer in Boston. She is currently a professor of practice at Harvard Law School.

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Buy the Book, "In Defense of Women: Memoirs of an Unrepentant Advocate":

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