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Abstract
An examination of the rhetoric of the Court's majority opinion in Roe v. Wade shows that, in contrast to the public meaning of Roe's ruling as a second wave feminist victory, Roe's rhetoric denied women agency and undermined their judgments and their voices. This study demonstrates how the community of meaning endorsed through Roe's rhetoric—specifically the rhetorical constructs of the “doctor knows best” and the “woman-as-patient”—advanced traditional ideas about women and provided a host of warrants for future judges and legislatures to limit women's reproductive rights. Ultimately, this study informs our understandings of the contemporary abortion rights struggle, the role of the Supreme Court as a rhetorical institution, and the rhetorical history of gender and sex politics in the United States.
Notes
Legal scholars immediately criticized the Court's decision on a number of different grounds. Some critics disagreed with the decision entirely, arguing that the Constitution does not, in any way, suggest a fundamental right to abortion. Others questioned the Court's choice to ground a woman's right to abortion in the right to privacy. This critique is central to feminist discussions of Roe v. Wade. Law (Citation1984) explained: “The rhetoric of privacy, as opposed to equality, blunts our ability to focus on the fact that it is women who are oppressed when abortion is denied” (p. 1920). Although this is an important discussion, this analysis will bracket out this consideration of privacy in order to more fully account for the Court's medical framework and features of the Court's rhetoric that have not received the attention that the privacy feature has received. But the issue at the center of some of the harshest criticism of the High Court's handling of Roe v. Wade was that the Court acted prematurely, closing off public debate and polarizing U.S. politics. Ehrenreich (1989) described Roe v. Wade as “tragically premature” (p. 31).
The framework I describe was revealed in my analysis of sections 5 through 10 of Justice Blackmun's opinion. The first four sections of Blackmun's opinion address issues of legal standing and jurisdiction in the cases of Roe v. Wade and Doe v. Bolton. These sections, though dealing with important questions of jurisprudence, are bracketed out of this analysis to provide for a more thorough examination of the Court's rhetorical framework in the subsequent sections that deal more closely with the constitutional questions before the Court and the Court's attempt to justify a constitutional right to abortion.
This trope of medical progress has been employed post-Roe to place limits on women's reproductive rights. In Webster v. Reproductive Health Services (1989) for example, Justice Rehnquist argued that medical advancements provide a more complete understanding of fetal life, allowing the Court to place limits on the right of women to choose abortion. More recently, fetal pain research and 3-D ultrasound technologies have provided pro-life advocates new “scientific” warrants to advance the personhood of the fetus. While it is true that Justice Blackmun used this medical lens to sidestep faith-based beliefs regarding religion and morality in favor of reproductive rights, pro-life advocates have been more successful in marshalling the discourse of science to advance their position post-Roe (See Callahan, Citation1986; de Gama, Citation1993).
The consequences of a one-dimensional understanding of reproduction are especially observable in the High Court's abortion funding decisions that followed Roe. In the 1977 case of Maher v. Roe, the Court upheld the right of states to deny Medicaid funding for nontherapeutic abortions while fully subsidizing childbirth. Three years later in the case of Harris v. McRae (1980) the Court upheld Congress's ban on federal abortion funding. These decisions are supported, in part, by an understanding of pregnancy and reproduction abstracted from contextual considerations.