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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.