YOU DON'T understand Cassidy "until you understand him as a crusading 1960s liberal," says Princeton University professor Robert P. George, a prominent conservative who has worked with Cassidy on anti-abortion efforts. Born in 1945, Cassidy grew up Catholic in rural Monmouth County, New Jersey. His parents were Democrats, his mother a cofounder of the local Democratic club. Theirs "was really the kind of view that Democrats stood up for the little guy, which was very appealing—still is appealing," Cassidy told me. Growing up in the 1950s and '60s, he learned to "believe in inclusiveness for everybody," regardless of nationality, race, or gender. "When we go to high school and we learn that there was a time when women couldn't vote, it's a shocking thing," he says. "And then you go to law school and you learn there was a time when women couldn't own property and you say, 'How could that possibly be?' And as a male it's embarrassing—because it was men who did this."
Cassidy was drawn first to the law, then to engineering, and finally to the priesthood, spending a year in seminary before recognizing that it wasn't meant to be. "It was me calling me," he recalls, with characteristic humility. The law called him back, and he earned his degree in 1975 from
St. John's University, studying under former New York governor Mario Cuomo. He and his wife Randee married in 1971 and had four children; the couple was politically involved, raising money for and supporting Democratic candidates throughout the 1980s.
Then the birth mothers started calling him late at night. He began to view biological motherhood as something in dire need of defense.
From the start, Cassidy set out to defend the underdog. He was part of a team that worked to free Rubin "Hurricane" Carter, a black boxer convicted of murder in 1967 and released nearly 20 years later. But his attention began shifting to issues of motherhood in 1981, when he received a call from a woman who was part of a network of birth mothers trying to reunite with children they'd given up for adoption years earlier. Other women followed. They invited him to their support groups and called him late at night. These were "really hard phone calls," Cassidy says quietly. "People who know me as this abrasive guy are always surprised to learn how much these women really treasured talking to me in very dark moments." He adds: "I guarantee you, no one in those days thought for one second about the birth mother. It was like she didn't exist."
It was around that time that he began to view biological motherhood as something in dire need of defense. "You can't go through these experiences that I went through without having a very profound respect for the bond between mother and child," Cassidy says. "And we're talking about the bond during pregnancy and shortly after birth."
In 1986, he agreed to represent Mary Beth Whitehead, a working-class surrogate fighting to keep the child she bore for an affluent couple, William and Betsy Stern, from her own egg and his sperm. The Baby M case made global headlines. Feminists were divided; some said women should be free to serve as surrogates and get paid for it if they so chose. Others, including psychologist and radical feminist Phyllis Chesler, sided with Whitehead. With protests and press conferences, they argued that paid surrogacy was a form of coercion, yet another way society encouraged poor women to sell their bodies. Chesler recalls being instantly taken with Cassidy. "He had a priestlike character," she says. "He was self-sacrificing, he was devoted to the principles, he had sympathy—almost like the sympathy of the confessional—to both these mothers."
The case went to the New Jersey Supreme Court, which gave custody to the father but also acted to outlaw paid surrogacy. When the ruling came down, Chesler arrived at a courthouse press conference with roses for Cassidy. But the opinion (PDF), which called paid surrogacy "potentially degrading to women," was a victory for Cassidy in ways feminists did not anticipate: It put the moral value of motherhood in the spotlight and created an image of a grieving mother that Cassidy would evoke over the next two decades.
IN HINDSIGHT, it's not hard to see how Cassidy's adoration of motherhood would take him from adoption and surrogacy to abortion, but for years he didn't view it that way. "This may sound very thoughtless," Cassidy told me when I first met him four years ago, "but there was a point in time when I didn't think at all about abortion or what abortion did to women." He paused, and then confessed. "And so I was all for it."
That began to change in 1990, when a couple came to him after their child was born with Down syndrome. The doctor had not done an amniocentesis, which might have diagnosed the condition, and they wanted to sue for "wrongful birth"—claiming they would have aborted had they known. Cassidy declined the case. "In this particular instance I was thinking, 'What would it be like for me and for this little girl if I stood in the well of a courtroom and argued to a jury that they had to give lots of money to her mom and dad because they didn't get a chance to kill her?'" he says. "That case forced me to ask the question, how did the law get this cruel?...It all led back to Roe v. Wade."
He also started paying attention to the legal discrepancies between adoption and abortion. What impressed him, he told me, was that a woman thinking about giving away her baby can only terminate the mother-child relationship after the state helps ensure she's making the right decision: In many states, she must wait until after birth to relinquish the child and must be offered counseling. "Those [maternal] rights are treated with the most profound respect," Cassidy says, but "in the context of abortion, there is no respect.... My first question that I had for everybody—I'm talking about the courts, about people going into the courts claiming they represent the rights of women, about the pro-life community, the churches who like to talk about this issue—where is their discussion and defense of the mother, the real rights of the mother?"
He began reaching out, speaking with women about their abortion experiences and visiting crisis pregnancy centers, which were opening around the country to advise women to carry their pregnancies to term. "It was just me, wanting to be educated," Cassidy says.
One of his first parries in the abortion wars came in an early-'90s case called Loce v. New Jersey, in which a man sued the state for failing to stop his girlfriend from having an abortion. Cassidy contributed a brief containing themes that would come to dominate his later work: "A mother's relationship with her child during pregnancy is the most intimate, most unique, most important, and one most worthy of protection," he wrote. "Preservation of the benefits, beauty, and joy of that relationship is one of the greatest interests a woman possesses in all of life." Never mind that the would-be mother wanted no part of that relationship. "It was awkward," Cassidy acknowledges. "It wasn't the right case for it, but it was something I had passion for."
The New Jersey Supreme Court ruled against the boyfriend. Around that time, however, a US Supreme Court decision in a case called Planned Parenthood v. Casey opened the door to widespread abortion regulations—invigorating the pro-life movement and its efforts to chip away at Roe.
Cassidy assembled a team of scientists and doctors to establish a new "fact": that abortion harms women by destroying their relationships with their unborn children.
By 1997, Donna Santa Marie—a not-so-subtle pseudonym for the 16-year-old who was allegedly coerced by her parents—came along. Cassidy and his allies launched a group called the National Foundation for Life to support the Santa Marie litigation, originally a class action involving three women who sought wrongful death payments, claiming that their abortions were not fully informed or voluntary. The case was the first step of the group's Global Project—a strategy, according to promotional pamphlets Cassidy disseminated, "that will compel the Supreme Court to hear the case, and convince the Court that Roe can no longer be upheld in light of the new scientific facts and the legal conclusions which follow." Cassidy assembled a team of scientists and doctors to establish these "new facts": first, echoing a Loce companion case (PDF), that "the child is a completely separate, unique, and irreplaceable human being from the moment of conception," and second, that abortion harms women by destroying their relationships with their unborn children. Cassidy also aimed to show that the kind of coercion Donna experienced was widespread, that an "entire generation" of women was "losing their children to doctors who literally have been given license to kill."
The evidence, Cassidy's circulars noted, would come from "hundreds of thousands of people who will enroll as 'Friends of the Court.'" He teamed up with a fellow lawyer named Allan Parker—president of the conservative Texas-based Justice Foundation—to create Operation Outcry, a project that has solicited some 2,000 court-admissible declarations to date from women describing how abortion has destroyed their lives. The effort also received help from Norma McCorvey and Sandra Cano, lead plaintiffs in the two Supreme Court cases—Roe v. Wade and Doe v. Bolton—that led to legalized abortion. The women filed briefs in Santa Marie arguing that legalizing abortion has harmed women, and urging that their own cases be overturned.
Despite Cassidy's efforts, Santa Marie lost first in district court and again in 2002 before the Third US Circuit Court of Appeals. Because New Jersey law does not recognize a fetus as a person, the women could not collect wrongful-death damages. It seemed there were limits on how far Cassidy could advance his agenda in court.