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ABSTRACT
Whole Women’s Health v. Hellerstedt was the most important abortion case to come before the United States Supreme Court in 25 years. It was also the first time that three women were seated on the high court to hear a case that challenged the fundamental right to choose abortion. I investigate the questioning by Justices Ginsburg, Sotomayor, and Kagan at oral argument for Whole Women’s Health as a rhetorical enactment of feminist judging and argue that the rhetorical skepticism of the SCOTUS women—their persistent questioning, defiant expressions of doubt, and incredulous style—challenged the discursive boundaries of abortion jurisprudence and advanced a feminist demand that regulations to abortion rights receive heightened scrutiny from the courts. Importantly, Whole Women’s Health demonstrates how rhetorical skepticism may operate as a powerful mode of feminist legal invention—to disrupt the norms of legal reasoning and draw the traditions of legal discourse into doubt in order to authorize a discursive space for feminist legal judgment.
Acknowledgements
The author wishes to thank Mary Stuckey and the anonymous reviewers of this essay for their valuable feedback. She would also like to thank her colleagues and students at Colorado State University for their generous support. Correspondence can be sent to [email protected].
Notes
1 Whole Women’s Health v. Hellerstedt, 579 U.S. __ (2016).
2 Dahlia Lithwick, “The Women Take Over,” Slate, March 2, 2016. Accessed March 5, 2016. https://slate.com/news-and-politics/2016/03/in-oral-arguments-for-the-texas-abortion-case-the-three-female-justices-upend-the-supreme-courts-balance-of-power.html.
3 Leila Abolfazli, “My Front Row Seat to Oral Argument in Whole Women’s Health,” National Women’s Law Center, March 10, 2016. Accessed March 30, 2016. https://nwlc.org/blog/my-front-row-seat-to-oral-argument-in-whole-womens-health/.
4 Lithwick, “The Women Take Over.”
5 Adam Feldman and Rebecca D. Gill, “Echoes from a Gendered Court: Examining the Justices’ Interactions During Oral Argument,” (January 31, 2017). Available at SSRN: https://ssrn.com/abstract=2906136 or https://doi.org/10.2139/ssrn.2906136.
6 Linda Greenhouse, “Abortion at the Supreme Court’s Door,” New York Times, October 15, 2015. Accessed July 30, 2016. https://www.nytimes.com/2015/10/15/opinion/abortion-at-the-supreme-courts-door.html.
7 The court announced that the regulation of abortion imposes an “undue burden,” if it has the “purpose or effect” of placing a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Planned Parenthood v. Casey, 505 U.S. at 878.
8 Katha Pollitt, Pro: Reclaiming Abortion Rights (New York: Picador, 2014), 25.
9 Rachel K. Jones and Jenna Jerman, “Abortion Incidence and Service Availability in the United States,” Perspectives on Sexual and Reproductive Health, 49, no. 1 (2017): 17–27.
10 For a detailed discussion of the “TRAP Law” Strategy see Linda Greenhouse and Reva B. Siegel, “The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Women’s Health,” The Yale Law Journal 126 (2016): 150–54.
11 Peter Weber, “Wendy Davis’ Stunning Filibuster of a Texas Abortion Bill,” The Week, June 26, 2013. Accessed July 30, 2016. https://theweek.com/articles/462815/wendy-davis-stunning-filibuster-texas-abortion-bill; Jessica Mason Pieklo, “Abortion Rights Under Fire: Why Wendy Davis’ Filibuster Matters,” Rolling Stone, June 26, 2013. Accessed November 28, 2018. https://www.rollingstone.com/politics/politics-news/abortion-rights-under-fire-why-wendy-davis-filibuster-matters-198389/; Amanda Terkel, “Wendy Davis Just Won: Supreme Court Vindicates Her Epic Filibuster,” Huffington Post, June 27, 2016. Accessed November 28, 2018. https://www.huffpost.com/entry/wendy-davis-abortion-filibuster_n_5771371de4b017b379f677a2.
12 Lithwick, “The Women Take Over.”
13 See, e.g., Brief for American Civil Liberties Union as Amicus Curiae, Supporting Appellants at 13, Craig v. Boren, 429 U.S. 190 (1976), 1976 WL 181333 (1976).
14 Martin A. Schwartz, “‘Whole Women’s Health’: Judicial Standards and Abortion Litigation,” New York Law Journal 256 (2016): 2.
15 Lisa Ede, Cheryl Glenn, and Andrea Lunsford, “Border Crossings: Intersections of Rhetoric and Feminism,” Rhetorica 13, no. 4 (1995): 438.
16 Some important contributions include Karlyn Kohrs Campbell, Man Cannot Speak for Her (New York: Greenwood Press, 1989); Barbara Biesecker, “Coming to Terms with Recent Attempts to Write Women into the History of Rhetoric,” Philosophy & Rhetoric 25, no. 2 (1992) 2: 140–61; Lisa Ede, Cheryl Glenn, and Andrea Lunsford, “Border Crossings: Intersections of Rhetoric and Feminism,” Rhetorica 13, no. 4 (1995): 401–41; Andrea A. Lunsford, ed., Reclaiming Rhetorica: Women In the Rhetorical Tradition (Pittsburgh: University of Pittsburgh Press, 1995); Lisa A. Flores, “Creating Discursive Space Through a Rhetoric of Difference: Chicana Feminists Craft a Homeland,” Quarterly Journal of Speech 82, no. 2 (1996): 142–56; Karen Foss, Sonja Foss, and Cindy Griffin, Feminist Rhetorical Theories (Thousand Oaks, CA: 1999); Cheryl Glenn, Rhetoric Retold: Regendering the Tradition from Antiquity Through the Renaissance (Carbondale: Southern Illinois University Press, 1997); Krista Ratcliffe, Anglo American Feminist Challenges to the Rhetorical Tradition: Virginia Woolf, Mary Daly, Adrienne Rich (Carbondale: Southern Illinois University Press, 1995); Shirley Wilson Logan, ed., With Pen and Voice: A Critical Anthology of Nineteenth-Century African-American Women (Carbondale: IL, Southern Illinois University Press, 1995).
17 Joy Ritchie and Kate Ronald, eds., Available Means: An Anthology of Women’s Rhetoric (Pittsburg: University of Pittsburgh Press, 2001), xvii.
18 Cat Duffy, “States’ Rights vs. Women’s Rights: The Use of the Populist Argumentative Frame in Anti-abortion Rhetoric,” International Journal Of Communication 9 (2015): 3494–501; Randall A. Lake, “Order and Disorder in Anti-Abortion Rhetoric: A Logological View,” Quarterly Journal of Speech 70, no. 4 (1984): 425–43; Nathan Stormer, “In Living Memory: Abortion as Cultural Amnesia,” Quarterly Journal of Speech 88, no. 3 (2002): 265–83; Mari Boor Tonn, “Donning Sackcloth and Ashes: Webster v. Reproductive Health Services and Moral Agony in Abortion Rights Rhetoric,” Communication Quarterly 44, no. 3 (1996): 265–79; Marsha L. Vanderford, “Vilification and Social Movements: A Case Study of Pro-Life and Pro-Choice Rhetoric,” Quarterly Journal of Speech 75, no. 2 (1989): 166–82.
19 Celeste Michelle Condit, Decoding Abortion Rhetoric: Communicating Social Change (University of Illinois Press, 1990); Tasha N. Dubriwny, “Consciousness-Raising as Collective Rhetoric: The Articulation of Experience in the Redstockings’ Abortion Speak-Out of 1969,” Quarterly Journal of Speech 91, no. 4 (2005): 395–422; Kathleen M. de Onís, “Lost in Translation: Challenging (White, Monolingual Feminism’s) <Choice> with Justicia Reproductiva.” Women’s Studies in Communication 38, no. 1 (2015): 1–19.
20 Condit, Decoding, 23–24.
21 De Onís, “Lost in Translation,” 5.
22 See Katie L. Gibson, Ruth Bader Ginsburg’s Legacy of Dissent: Feminist Rhetoric and the Law (Tuscaloosa, AL: University of Alabama Press, 2018): 19–37; Katie L. Gibson, “The Rhetoric of Roe v. Wade: When the (Male) Doctor Knows Best,” Southern Communication Journal 73, no. 4 (2008): 312–31.
23 Berta Esperanza Hernández-Truyol, “Talking Back: From Feminist History and Theory to Feminist Legal Methods and Judgments,” in Feminist Judgments: Rewritten Opinions of the United States Supreme Court, eds. Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford (New York: Cambridge University Press, 2016), 51.
24 For critiques of essentialism in feminist legal theory see Sarah Lucia Hoagland, Lesbian Ethics: Toward a New Value (Palo Alto, CA: Institute of Lesbian Studies, 1988); Mari J. Matsuda, “When the First Quail Calls: Multiple Consciousness as Jurisprudential Method,” Women’s Rights Law Reporter 11, no. 7 (1989): 7–11; Susan Wendell, “Toward a Feminist Theory of Disability,” Hypatia 4, no. 2 (1989): 104–24.
25 The term outsider jurisprudence is credited to Mari J. Matsuda, “Public Response to Racist Speech: Considering the Victim’s Story,” Michigan Law Review 87, no. 8 (1989): 2320–81.
26 Judith A Baer, Our Lives Before the Law: Constructing a Feminist Jurisprudence (Princeton: Princeton University Press, 1999), 122.
27 Martha Chamallas, “Importing Feminist Theories to Change Tort Law” Wisconsin Women’s Law Journal 11, no. 3 (1997): 390.
28 Stanchi, Berger, and Crawford, Feminist Judgments, 4.
29 Ibid., 5.
30 Richard A. Posner, “The Jurisprudence of Skepticism,” Michigan Law Review 86 (1988): 829.
31 Katherine Bartlett and Rosanne Kennedy eds., Feminist Legal Theory: Readings in Law and Gender (New York: Routledge, 2018): 9.
32 Katie L. Gibson. “In Defense of Women’s Rights: A Rhetorical Analysis of Dissent,” Women’s Studies in Communication 35, no. 2 (2012): 123–37.
33 Nancy E. Dowd and Michelle S. Jacobs, eds., Feminist Legal Theory: An Anti-Essentialist Reader (New York: New York University Press, 2003), 12.
34 Tonja Jacobi and Dylan Schweers, “Justice, Interrupted: The Effect of Gender, Ideology and Seniority at Supreme Court Oral Arguments,” Virginia Law Review 103, no. 7 (2017): 1379.
35 Ibid., 1459.
36 Feldman and Gill, “Echoes from a Gendered Court,” 361.
37 Ashley Gray, “Whole Woman’s Health v. Hellerstedt Oral Arguments Translated LPJ League-style,” Lady Parts Justice League, March 4, 2016. Accessed March 28, 2016. https://lpjleague.org/whole-womans-health-v-hellerstedt-oral-arguments-translated-lpj-league-style/.
38 All citations from oral argument are taken from the official Supreme Court transcript: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2015/15-274_d18e.pdf.
39 Lithwick, “The Women Take Over.”
40 Karen Tracy, “How Questioning Constructs Judge Identities: Oral Argument About Same-Sex Marriage,” Discourse Studies 11, no. 2 (2009): 208.
41 Gray, “Oral Arguments Translated;” Lauren Oyler, “The Supreme Court Women Just Did a Fucking Awesome Job Defending Abortion Rights,” Broadly, March 2, 2016. Accessed March 28, 2016. https://www.vice.com/en_us/article/qkgywp/the-supreme-court-women-just-did-a-fucking-awesome-job-defending-abortion-rights.
42 Lynn Henderson, “Legality and Empathy,” Michigan Law Review 85 (1997): 1626.
43 Roe v. Wade, 410 U.S. 113 (1973) at 165–166.
44 Interview with Emily Bazelon “The Place of Women on the Court,” New York Times Magazine. July 7, 2009. Accessed July 30, 2016. https://www.nytimes.com/2009/07/12/magazine/12ginsburg-t.html.
45 Lithwick, “The Women Take Over.”
46 Sirin Kale, “Poorer Latina and Black Women Were Most Screwed Over by Texas Abortion Ban,” VICE, July 25, 2016. Accessed July 30, 2016. https://www.vice.com/en_us/article/43gyx9/poor-latina-black-women-most-screwed-texas-abortion-ban-hb2.
47 Bazelon, “The Place of Women on the Court.”
48 Lucinda Finley, “Breaking Women’s Silence in the Law: The Dilemma of the Gendered Nature of Legal Reasoning,” Notre Dame Law Review 64 (1989): 185.
49 When the Supreme Court decided Roe v. Wade, it outlined two legitimate interests that could justify state regulation of abortion: “protecting the health of pregnant women” and “protecting the potentiality of human life,” Roe v. Wade, 410 U.S. at 113,162.
50 Carrie Baker, “Fighting Fake Facts About Abortion,” MsMagazine, March 7, 2018. Accessed November 28, 2018. https://msmagazine.com/2018/03/07/fighting-fake-facts-abortion/.
51 Carrie Crenshaw, “The ‘Protection’ of ‘Women’: A History of Legal Attitudes Toward Women’s Workplace Freedom,” Quarterly Journal of Speech 81, no. 1 (1995): 63–82; Reva Siegel, “The Right’s Reasons: Constitutional Conflict and the Spread of Woman Protective Anti-Abortion Argument,” Duke Law Journal 57 (2008): 1690.
52 Gray, “Oral Arguments Translated.”
53 Maya Dusenbery, “Friday Feminist Fuck Yeah: The Women of The Supreme Court,” Feministing, March 4, 2016. Accessed March 28, 2016. http://feministing.com/2016/03/04/friday-feminist-fuck-yeah-the-women-of-the-supreme-court/.
54 Pollitt, Reclaiming Abortion Rights, 23–24.
55 Lithwick, “The Women Take Over.”
56 Linda Greenhouse, “The Facts Win Out on Abortion,” New York Times, June 16, 2016. Accessed July 30, 2016. https://www.nytimes.com/2016/06/28/opinion/the-facts-win-out-on-abortion.html.
57 Stassa Edwards, “The Supreme Court’s Three Female Justices are Fighting Tooth and Nail for Reproductive Rights,” Jezebel, March 3, 2016. Accessed March 28, 2016. https://theslot.jezebel.com/the-supreme-courts-three-female-justices-are-fighting-t-1762607159.
58 Emma Freeman, “Giving Casey its Bite Back: The Role of Rational Basis Review in Undue Burden Analysis,” Harvard Civil Rights-Civil Liberties Law Review 48, no. 1 (2013): 296.
59 Tracy, “How Questioning Constructs Judge Identities,” 208.
60 Edwards, “Tooth and Nail.”
61 Emily Crockett, “What you need to know about how the Supreme Court’s big Abortion case went,” VOX, March 2, 2016. Accessed March 28, 2016. https://www.vox.com/2016/3/2/11149194/scotus.
62 Lithwick, “The Women Take Over.”
63 Oyler, “Fucking Awesome Job.”
64 Crockett, “What You Need to Know.”
65 Hernández-Truyol, “Talking Back,” 51.
66 See, for example, Karlyn Kohrs Campbell, “The Rhetoric of Women’s Liberation: An Oxymoron,” Quarterly Journal of Speech 59, no. 1 (1973): 74–86; Anne Teresa Demo, “The Guerrilla Girls’ Comic Politics of Subversion,” Women’s Studies in Communication 23, no. 2 (2000): 133–56; Dubriwny, “Consciousness-Raising as Collective Rhetoric.”
67 Feldman and Gill, “Echoes from a Gendered Court.”
68 Gray, “Oral Arguments Translated.”
69 Lithwick, “The Women Take Over.”
70 Stassa Edwards, “Tooth and Nail;” Oyler, “Fucking Awesome Job.”
71 Crockett, “What You Need to Know.”
72 Feldman and Gill, “Echoes from a Gendered Court,” 250.
73 Stephen L. Wasby, Anthony A. D’Amato, and Rosemary Metrailer, “The Functions of Oral Argument in the U.S. Supreme Court,” Quarterly Journal of Speech 62, no. 4 (1976): 418.
74 Robin West, “Law’s Emotions,” Richmond Journal of Law and the Public Interest, 19 (2016): 343.
75 Democratic Underground. June 28, 2016. Accessed July 30, 2016. https://www.democraticunderground.com/10027964112.
76 Mark Joseph Stern, “Ruth Bader Ginsburg Slams Texas” Anti-Abortion Arguments: ‘Beyond Rational Belief’ Slate, June 27, 2016. Accessed July 30, 2016. https://slate.com/news-and-politics/2016/06/ruth-bader-ginsburg-says-texas-abortion-arguments-are-beyond-rational-belief.html; Laura Bassett, “Ruth Bader Ginsburg Smacks Down Future Abortion Restrictions in a Single Paragraph,” The Huffington Post, June 27, 2016. Accessed July 30, 2016. https://www.huffpost.com/entry/ruth-bader-ginsburg-abortion-opinion_n_57713624e4b017b379f676f7; Sarah Kliff, “Supreme Court Abortion Decision: Ruth Bader Ginsburg’s Must-Read Quote,” Vox, June 27, 2016. Accessed July 30, 2016. https://www.vox.com/2016/6/27/12039702/supreme-court-abortion-ginsburg.
77 Amanda Hollis-Brusky and Rachel VanSickle-Ward, “Here are two ways that Breyer’s wonky opinion in Whole Woman’s Health could transform abortion politics,” Washington Post, July 3, 2016. Accessed August 15, 2016. https://www.washingtonpost.com/news/monkey-cage/wp/2016/07/03/here-are-2-ways-that-breyers-wonky-opinion-in-whole-womens-health-could-transform-abortion-politics/?utm_term=.223fa0c61c03.
78 Ibid.
79 B. Jessie Hill, “The Day the Court Saved Abortion Rights: Whole Women’s Health v. Hellerstedt,” Case Text, June 29, 2016.
80 Martin Schwartz, “Judicial Standards and Abortion Litigation,” 2.
81 See the Supreme Court’s ruling in National Institute of Family and Life Advocates v. Becerra, 585 U.S. ___ (2018) to observe how the new conservative majority on the court affirmed a religious liberty argument to, once again, obscure the voices and judgments of women and provide greater leeway for antichoice clinics to provide women with misleading and/or inaccurate information.
82 Baker, “Fighting Fake Facts.”
83 See Dubriwny, “Consciousness-Raising as Collective Rhetoric;” Sara Hayden, “Toward a collective rhetoric rooted in choice: Consciousness raising in the Boston Women’s Health Book Collective's Ourselves and Our Children,” Quarterly Journal of Speech 104, no. 3, (2018): 235–56.
84 Biesecker, “Coming to Terms,” 144.
85 Tracy, “How Questioning Constructs Judge Identities,” 218.