Her book, Controlling Women: What We Must Do Now To Save Reproductive Freedom, co-authored with fellow campaigner Kathryn Kolbert and published in 2021, accurately predicted the “ultraconservative” majority on the US Supreme Court would overturn the 1973 landmark Roe v Wade decision legalising abortion across United States. In the Dobbs v Jackson decision last June, the court overruled Roe, returning to individual states the power to regulate any aspect of abortion not protected by federal law.
According to Kay, there are some “real concerns” about access to abortion here and she describes the 12-week limitation period as “judgmental”. “The kind of model of the conscience clause and the waiting period and the baggage they carry with them, it’s still about controlling women.”While “always careful as the American not to come in and say what Ireland needs”, there is strength in multi-issue coalitions, she believes.
“I was really surprised by the whole set-up around abortion rights and access in Ireland,” says Kay. “On the one hand, there was a very cruel and unforgiving constitutional provision [the Eighth Amendment] but, on the other hand, people were facilitating the Irish solution to the Irish problem and helping women to travel.
Working with activists, supportive lawyers and the IFPA, it was decided to have three women at the centre of the litigation to present different situations. Taking the case directly to the ECtHR was “to make the lawsuit feasible” given the “quite sobering” fees in the Irish courts. Kay, who began her legal career with the Centre for Reproductive Rights in New York, regards litigation as an effective tool for promoting reproductive rights but stresses litigation alone is not enough. “It’s a tree falling in the forest or in the courtroom if you don’t have advocacy in partnership, if you’re not talking to the community.”