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The Man Who Loved Women Too Much

Meet the lawyer who's crusading to advance women's rights—by restricting access to abortion.

IN 2003, HOWEVER, Cassidy received a call that would put his theories on the national map in a more significant way. It came from the Thomas More Law Center in Ann Arbor, Michigan, which was looking for someone to help South Dakota legislator Matt McCaulley draft a total abortion ban. This was controversial, even within the pro-life community; many abortion foes, recognizing that they didn't have a Supreme Court majority, favored more incremental steps.

The following February, Cassidy arrived in Pierre for a committee hearing on the proposed ban. The room was stifling and standing-room only. He showed up early, according to one witness, armed with boxes of written materials to place on lawmakers' chairs. Unlike most pro-lifers, who tended to focus on preserving unborn life, Cassidy was arguing for the preservation of women's sanity. He had arranged for dramatic testimony from some of the women whose stories he'd been collecting. There was the rape victim who said she'd had an abortion at the urging of family and friends, and who now felt that the procedure was like a second rape, far worse than the first. Another woman spoke of attempting suicide because she felt guilty about her abortion. (Cassidy recalls her leaning over the table to show legislators the scars where she'd sliced her arms—one lawmaker had to leave the room to compose himself.) He also brought in fetal development experts and pro-life mental-health researchers to attest to abortion's psychological hazards and the status of the fertilized egg as a complete human being. When Cassidy took the floor, he spoke of the women who had sought his assistance with adoption cases, and about returning the babies to their biological mothers. He spoke of the other women, too, explaining that "I can't get the babies back for them because the people who violated their rights killed the babies."

In South Dakota, a rape victim told lawmakers she felt like the abortion was like a second rape. Another woman spoke of attempting suicide. One legislator had to leave the room to compose himself.

The message was no different from the one he'd been delivering for more than a decade, but unlike the judges who'd rejected his arguments, the legislators were moved. The next morning, they "hoghoused" the proposed ban—a South Dakota term for ditching a bill's text in favor of a new version. The new text was focused more on the mother—and Cassidy's fingerprints were evident throughout: "The state has a duty to protect the pregnant mother's fundamental interest in her relationship with her unborn child," it stated, adding that abortion creates a "significant risk" of severe depression, suicide, and post-traumatic stress disorders. It was the most prominent platform the "abortion hurts women" argument, and Cassidy, had ever had.

The bill, the first of a series of unsuccessful attempts by South Dakota legislators to ban abortion, was vetoed by the governor. (Two subsequent attempts were shot down at the ballot box.) But pro-life legislators were impressed by the gut-wrenching testimony Cassidy had arranged. In 2005, they created a task force to study abortion's harmful effects. Cassidy was again called in to help, and the task force published a lengthy report citing the stories of his witnesses and recommending that abortion be banned. It was a huge moment for Cassidy and his allies: For the first time, sketchy findings about abortion's emotional harm to women had a state's official imprimatur.

The same year, the legislators passed South Dakota's informed-consent law, which requires doctors to tell their patients "that the abortion will terminate the life of a whole, separate, unique, living human being"—language nearly identical to that which Cassidy used in Santa Marie. In 2011, the law faces a challenge in a case called Planned Parenthood v. Rounds. Arguing in its defense before the Eighth US Circuit Court of Appeals will be South Dakota's attorney general—and Cassidy himself.

 

THE ULTIMATE goal of all anti-abortion efforts is a sympathetic hearing from the Supreme Court, and in 2007 that body gave Cassidy's arguments an unexpected and unprecedented boost. In the majority opinon in Gonzales v. Carhart, which addressed Congress' so-called partial-birth abortion ban, Justice Anthony Kennedy wrote that banning the late-term procedure could be justified by the state's "profound respect for the life within the woman." Kennedy acknowledged that there is "no reliable data" on whether abortion affects women's mental health, but he nonetheless found it "unexceptionable" to conclude that some women who have abortions will suffer "severe depression" and other ills—and that they would suffer further if they underwent a "partial-birth" abortion and only later learned about the procedure's gruesome details. In support of his position, Kennedy cited not a scientific study but rather a brief submitted by Cassidy's allies on behalf of Sandra Cano and 180 other women. (Among other things, their brief argued that the partial-birth ban needn't contain an exception for the woman's health.)

In a blistering dissent, Justice Ruth Bader Ginsburg chastised the court for invoking "an antiabortion shibboleth for which it concededly has no reliable evidence...This way of thinking reflects ancient notions about women's place in the family and under the Constitution—ideas that have long since been discredited."

The New York Times' Linda Greenhouse called the ruling "a major departure from how the court has framed the abortion issue for the past 34 years." The pro-life focus on abortion's harm to women, she added, had "remained largely under the radar until it emerged full-blown in Justice Kennedy's opinion," and South Dakota's law "would be unlikely to raise alarms at the Supreme Court, based on the majority opinion."

"The chill Carhart sends down my spine," says Roger Evans, a senior attorney for Planned Parenthood, "is that it really sets the stage for the upholding of any of these ridiculous 'abortion hurts women' measures."

Cassidy, though, views Carhart as the vindication for a not-always-popular strategy. We were back at his wooden table for one last interview and I'd asked him to respond to criticism from some of his pro-life peers.

During one session, he told me about running into one of the "wrongful birth" parents whose daughter has Down syndrome.

Throughout our meetings, he had always found a way to wrap up his stories with redemption: the birth mother reunited with her child; the outlawing of paid surrogacy; the unaborted child, happy and grown. During one session, he told me about running into one of the "wrongful birth" parents whose daughter has Down syndrome. Cassidy had ordered an ice cream on a New Jersey boardwalk one day, and the vendor refused his money. It was the girl's father; Cassidy's words, the man explained, had led him and his wife to abandon their case. "A day doesn't go by," Cassidy recalled him expressing, "that they don't thank God for this little girl," and "they thank me and thought about me all the time."

But now Cassidy seemed tired, beleaguered, fed up with the naysayers. Chief among his concerns were critiques from prominent pro-lifers who thought that he had wasted resources by pushing the women-protection argument into legislation—and had pushed too hard for a ban in South Dakota. One of those critics was James Bopp, longtime general counsel to the National Right to Life Committee. "The court is not at all prepared to overturn Roe v. Wade," Bopp told me. Cassidy's effort, he added, "is not only futile, it's also counterproductive."

In his defense, Cassidy cited Kennedy's opinion in Carhart. "I felt that the decision was far better than anybody could have possibly predicted. It changed the rules of engagement in abortion litigation," he said. "If they think that it's not effective, they're just wrong." He paused, and when he resumed speaking, his voice was particularly heavy. "But that's okay. I mean, this is what happens. When Galileo said that the Earth revolves around the sun, he was castigated for it."

Harold Cassidy responds to this article (PDF).

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