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Analysis

What Happens When the Law Fails Those Who Are Learning to Protect It?

When rights are stripped away, it is a unique and profound loss for law students, who are also experiencing an attack on their nascent professional identities.

November 9, 2021
View the entire Abortion Rights Are Essential to Democracy series

On Septem­ber 2, 2021, I received an email from a student at South­west­ern Law School in Los Angeles, where I spent 13 years as a consti­tu­tional law professor before join­ing the Bren­nan Center to fight for elec­tion reform—and for the prin­ciples of demo­cracy and equal­ity I’d taught for more than a decade. The subject line of the email simply said “Invit­a­tion.”

I’ve known the student as a friend since before she even began law school, but she wasn’t reach­ing out to social­ize. It was an urgent request to address the news of the moment: the Supreme Court’s refusal to provide emer­gency relief from an uncon­sti­tu­tional Texas law that prohib­its abor­tions approx­im­ately two weeks after a missed period. She explained that they were hoping for a real-time discus­sion of the law, the Court’s decision and its consequences—largely because of how distress­ing it was to so many students.

Ever since I began teach­ing law school, I would get these kinds of invit­a­tion­s—to help a small or large group of students work through their distress, intel­lec­tu­ally, over an event pertain­ing to consti­tu­tional law and long­stand­ing civil rights protec­tions. Some­times it was a case that struck these protec­tions down, like portions of the Voting Rights Act. Other times it was a case that left civil rights laws in place, but made it nearly impossible for regu­lar people to bring lawsuit­s—­for example, to vindic­ate their right to be paid equally at work. 

I’m a popu­lar choice for these combin­a­tion study group/support group sessions because as a woman, and a woman of color in partic­u­lar, profess­ors like me are under­rep­res­en­ted in law faculty ranks. Women and women of color are likely even more severely under­rep­res­en­ted among tenured consti­tu­tional law profess­ors: As of 2006, only 17.3 percent of the tenured faculty surveyed who taught consti­tu­tional law were women, and just 2.6 percent were women of color, accord­ing to research­ers at the Amer­ican Bar Found­a­tion’s After Tenure project.

When rights, espe­cially those that sustain our equal citizen­ship, are stripped away, it is inev­it­ably deeply upset­ting to all those who believe in and rely on those rights. But it is a unique and profound loss for law students, who are also exper­i­en­cing an attack on their nascent profes­sional iden­tit­ies. They are rely­ing on those rights to fulfill their dreams.  

Without repro­duct­ive autonomy, a law student might miss out on becom­ing a lawyer, a certain kind of lawyer, or a lawyer who is also a parent—as hundreds of lawyers attested in “friend of the court” briefs filed in the last two Supreme Court abor­tion cases. (I signed on to one of those briefs at the time, as did several Bren­nan Center colleagues and board members.) The dream that brought them to law school in the first place, using the law to help their clients, might be comprom­ised, and it could be the legal system itself that lets it happen. 

Right after former Pres­id­ent Trump was elec­ted, many of my students wanted to know: Could he really do all the things he prom­ised during the campaign? Legally? Consti­tu­tion­ally? We used that as the fodder for our lesson, and I reminded them that they had the tools to do the legal analysis.  

We had covered the treaty clause in the Consti­tu­tion. We had analyzed cases on the pres­id­ent’s inher­ent powers and limits on those powers. They applied what they’d learned to their ques­tions, and I walked them through it, scrawl­ing case names and doctrinal elements on the board, form­ing them into an outline that would help them assess their own ques­tions. It was a good cath­arsis for me as a professor: At the very least, I could help my students become the thought­ful, savvy future lawyers who would assume the fight for justice.  

And then, in the middle of our discus­sion, a student raised his hand and posed a sincere—and devast­at­ing—ques­tion: Would he be able to prac­tice law if he got put on a list, sent to a concen­tra­tion camp, or depor­ted because he is Muslim?  

As a mom myself, I could­n’t help imagin­ing how anguished his parents would have been if they’d been in the room. Here was their child, a soon-to-be lawyer, using the educa­tion, work ethic, self­less­ness and respect for the rule of law that they likely helped instill in him. And he was afraid that the law would fail him, and he would lose it all. 

Nor was his fear unfoun­ded. Pres­id­ent Trump never put Muslims in a camp, but he did enact a travel ban, and in the end, some of the best lawyers in the coun­try could­n’t stop the Supreme Court from turn­ing a blind eye to the reli­gious animus that drove it.

Which brings us back to law school and the abor­tion fight today. Students at South­west­ern Law reside in Cali­for­nia, where their right to an abor­tion remains secure for now. But they hail from all over the coun­try, more than half (53 percent) are women, and just about half (49 percent) are people of color. Many have loved ones who live in places where their repro­duct­ive autonomy is in grave danger, and they rightly worry about parts of Cali­for­nia where abor­tion remains diffi­cult to access. My charge is to help them put their empathy and skills to work in whatever fights they choose to wage—in­clud­ing this one.  

Bear­ing witness to students through these moments is noth­ing short of heart­break­ing. But at the same time, I’m reminded that they get how truly import­ant equal justice is. And that when someone like me can support them as they navig­ate these setbacks, it can help inspire them to do the hard work to forge a better future. As much as they believe they need the law—I know that what the law really needs is them.