A Conversation with Stephanie Toti

Stephanie Toti is an advocate for sexual and reproductive rights within her own community, in society and the judicial system. She is a member of the board of directors of Whole Woman’s Health Alliance and is senior counsel and project director for the Lawyering Project, an organization she founded in 2017 aimed at improving access to reproductive healthcare in the US through litigation that advances an intersectional framework. Over the course of her career, Stephanie has litigated cases in federal and state courts throughout the country to improve access to reproductive healthcare and strengthen legal norms concerning liberty and equality. In 2016, she successfully argued Whole Woman’s Health v. Hellerstedt to the US Supreme Court. In a historic decision clarifying the scope of constitutional protection for abortion rights, the Court struck down a pair of Texas laws that threatened to shutter abortion clinics across the state. Here, she
talks to Conscience about equity, liberty and her Catholic faith’s call to protect and defend human rights for all.

Conscience: It has only been four years since you successfully argued Whole Woman’s Health v. Hellerstedt at the Supreme Court, but they were an eventful four years indeed. How has the landscape changed since that decision?

Stephanie Toti: The landscape has changed significantly since 2016. The Trump administration has made a concerted effort to undermine civil rights—including reproductive rights—erode the rule of law, pack the federal courts with a record number of judges deemed unqualified by the American Bar Association and attack immigrants, communities of color and gender minorities. Both the public and the judiciary are increasingly polarized, leading to significant gains for abortion access in progressive jurisdictions and significant setbacks in conservative ones.

Conscience: How does your Catholic faith impact the work you do in defending reproductive rights?

Stephanie Toti: Because of my Catholic faith, I approach my work with a sense of humility and a commitment to respecting all people, including my adversaries. I also believe there’s a moral imperative to work on behalf of those who are most vulnerable.

I think that reproductive rights are inextricably intertwined with religious liberty. They enable each of us to make decisions about important and deeply personal matters like sex, pregnancy, family and healthcare based on our own beliefs and values. These are ultimately conscientious decisions, and therefore, an expression of one’s religious beliefs or moral convictions. Reproductive rights are also human rights. They are central to our liberty, dignity and ability to participate equally in society.

By working to protect reproductive rights and eliminate disparities in access to healthcare, I’m practicing my own faith while also promoting religious liberty and human rights. I feel incredibly lucky to be able to do this work.

Conscience: Do you feel an increasing influence of institutional Catholicism, given the current religious makeup of the Supreme Court, and does this influence how you and others frame legal arguments around reproductive rights and religious liberty issues?

Stephanie Toti: I’m aware that several of the justices are conservative Catholics and that they are sensitive to perceived attacks on their faith.

There’s a pretty common misconception that people who support reproductive rights—and abortion rights in particular—are hostile to religion. But as you well know, many people who seek and provide abortion care or otherwise support abortion rights are people of faith, and others are motivated by strong moral convictions. I think it’s really important to highlight this fact.

My colleagues and I have been working hard to ensure that we present our arguments in ways that are respectful of religious difference and that resist the current trend of polarization. Often, it’s a matter of tone more than substance. Additionally, the Lawyering Project strives to include faith-based perspectives in our litigation. For example, a Unitarian congregation is one of the plaintiffs in a case we recently filed to challenge restrictive abortion laws in Minnesota. And we’ve been working with faith leaders to provide evidence in our other cases.

It’s my hope that, if we’re able to demonstrate to the justices that we’re respectful of their religious beliefs and motivated ourselves by religious or moral convictions, they’ll be more receptive to our legal arguments than if they view us as opponents in a culture war.

Conscience: As you survey the current landscape, what opportunities do you see for the future of reproductive rights in the United States? Is there room for optimism? Who are the important voices in the movement?

Stephanie Toti: There’s always room for optimism. Although commentators have been predicting the demise of Roe v. Wade on and off for decades, it hasn’t happened yet and (knock on wood) doesn’t appear likely to happen this term.

Despite being a litigator, I think some of the greatest opportunities lie outside the courtroom. Grassroots organizing to promote reproductive rights and reproductive justice has been gaining incredible momentum, leading both to increased solidarity with other progressive movements and legislation in some states to improve access to reproductive healthcare. I’m hopeful this trend will continue.

The most important voices in the movement right now are those demanding reproductive justice (RJ). I am tremendously grateful for the work that RJ leaders have done to center the needs of those with the least amount of power and privilege and move the focus of our collective efforts from defending choice to ensuring access.

Thanks to the work of RJ advocates, there’s also been increased awareness of racial disparities in reproductive health outcomes. For example, people of color are many times more likely to die from pregnancy-related causes than white people. While these outcomes are a profound manifestation of systemic racism and injustice, with awareness comes opportunities for cultural and policy change.

Conscience: What is your greatest fear for the future of reproductive rights in the United States? What is your greatest hope?

Stephanie Toti: My greatest fear is that, despite the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, courts will continue to permit states to enact laws that single out abortion care for burdensome and medically unnecessary regulation. Such laws increase the cost and decrease the availability of abortion care without providing any benefit to abortion patients. They also undermine religious liberty and exacerbate social and economic inequality by making it significantly harder for poor and working-class people to exercise their constitutional right to abortion.

My greatest hope is that the Supreme Court will continue to adhere to its decision in Whole Woman’s Health. That would require courts to strike down laws that burden abortion access while providing little or no demonstrable benefit to patients.