Katie L Gibson. Southern Communication Journal. Volume 73, Issue 4. September 2008.
Roe v. Wade is widely recognized as the most historic Supreme Court decision involving women’s rights in the twentieth century. The Court’s 1973 ruling struck down a Texas statute that criminalized abortion and announced that women had a fundamental right to privacy that encompassed the right to choose abortion. Evaluating the significance of the High Court’s decision, Copelon (1988) remarked:
Pragmatically, there is probably no decision that has had as a profound impact on women’s lives as Roe v. Wade. Legalization of abortion transformed unwanted pregnancy from a potentially life-shattering event into one over which a woman could take rightful control. Abortion was no longer a life-endangering, desperate, criminal, and stigmatizing experience but rather a safe, legitimate, health-care option. The right to abortion recognizes women as decision-makers, as agents of their destiny. (pp. 316-317)
In public memory, Roe v. Wade stands for the victories of second wave feminism and women’s hard fought independence. Gloria Feldt (2004), president of the Planned Parenthood Federation of America, explained: ‘‘Not only did [Roe v. Wade] legalize abortion but it became a symbol of our independence’’ and a ‘‘major step toward empowerment’’ (p. 5). In contrast to the public meaning of Roe’s ruling as a validation of women as ‘‘agents of their destiny,’’ this essay argues that Roe’s rhetoric failed to legitimate women as decision makers. An examination of the majority opinion in Roe v. Wade reveals two constructs central to the opinion’s guiding medical framework: a controlling ‘‘doctor knows best’’ philosophy and a characterization of the ‘‘woman-as-patient.’’ Thus, the rhetorical community of meaning endorsed through Roe’s rhetoric advanced traditional ideas about women and provided a host of warrants for future judges and legislatures to limit women’s reproductive rights.
Although the art of rhetoric was understood as organically related to the practice of law within the classical rhetorical tradition, contemporary rhetorical scholars have only recently turned to the judicial opinion as an appropriate site for rhetorical inquiry. Contemporary scholarship on the law in the field of communication has instead traditionally focused on the arguments of lawyers and on the legal process more generally (see Buchanan, 1983; Fontes & Bundes, 1980, for examples). In recent years, however, rhetorical scholars have rearticulated the relationship between rhetoric and the law to legitimate judicial opinion as an appropriate and productive site for rhetorical inquiry. Marouf Hasian, Celeste Condit, and John Lucaites’ (1996) important work, The Rhetorical Boundaries of ‘the Law,’ outlined such a perspective, arguing that the law is emerged in, draws from and contributes to our public rhetorical culture.
Legal scholar James Boyd White is widely known for his writings on the law as a constitutive rhetoric and for championing a rhetorical approach to legal criticism. The traditional focus of legal criticism, White (1985) explained, looked to the material results of legal discourse—to the actual redistribution of assets, including property, money, and rights that result from legal decisions. Instead, White noted, a rhetorical focus turns back to the language of the judicial opinion to investigate the community that is constituted in the discourse. As White noted, ‘‘The central idea is not of goods, but of voices and relations: what voices does the law allow to be heard, what relations does it establish among them? With what voice, or voices, does the law itself speak? These are the questions with which rhetorical criticism would begin’’ (p. 697). White’s approach to the rhetorical criticism of the law echoes rhetorical scholars, most notably Charland (1987), who argued that constitutive rhetorics create political subjects. He explained: ‘‘Constitutive rhetorics are ideological not merely because they provide individuals with narratives to inhabit as subjects and motives to experience, but because they insert ‘narratized’ subject-as-agents into the world’’ (p. 143). The rhetorical communities advanced through the Court’s opinions have real consequences, creating possibilities and limitations that extend far beyond specific Court rulings. ‘‘What is significant in constitutional rhetoric,’’ Charland argued, ‘‘is that it positions the reader towards political, social, and economic action in the real world’’ (p. 141). This study draws on the common ground between White and Charland to investigate the communities of meaning constituted in the Roe v. Wade opinion and to evaluate the political and legal consequences of this constitution.
The Court’s opinions are of importance to feminist rhetorical critics as they often include representations of women and gender that become a part of the Court’s collective rhetorical framework for thinking and reasoning about the legal rights of women. These representations, infused with the authority and finality of the United States Supreme Court, are especially of interest because of their potential to endorse, to reshape, or to resist public meaning. Carrie Crenshaw (1996) argued, ‘‘Feminist criticism of legal argument is an especially important endeavor. Because the law institutionalizes relations of power, it can authorize and order our conceptions of social justice and it is a prominent model for theories of practical argument’’ (p. 183). In effect, the communities of meaning that follow from the Court’s institutional rhetoric invite us to consider subject positions for women in particular ways. They invite us— as readers, citizens, and advocates—to recognize or to repudiate the rights and possibilities of women through their discursive positioning in judicial discourse.
Considering that the Supreme Court’s ruling in Roe v. Wade rests at the center of one of the most controversial political issues to shape American public discourse, rhetorical scholars have had strikingly little to say about the historic ruling. Condit (1990) explained: ‘‘Like many other important decisions [the abortion decisions] have been approached primarily through the artificially narrow lens of legal scholarship’’ (p. 97). Legal scholars have contributed vast and significant commentary on the Roe opinion. Many legal critics have reflected specifically on the Court’s ‘‘medicalization’’ of abortion (Asaro, 1983, p. 52). Although it is not a revelation here that the Court medicalized abortion, the value of this analysis lies partly in its elaboration of how this is achieved rhetorically. Additionally, this analysis includes consideration of the specific consequences of judicial rhetoric. According to McDorman (1998), ‘‘Ultimately, an analytical perspective combining feminist views on rhetoric and law asks that we look beyond just formal legal doctrine as case law to consider the political and social implications of legal rulings as discourse’’ (p. 31). This essay is underpinned by the belief that rhetorical scholars have insight and expertise to contribute to a discussion of Roe v. Wade that heretofore has been dominated by legal critics.
Condit’s (1990) book, Decoding Abortion Rhetoric: Communicating Social Change, is perhaps the most comprehensive analysis of abortion rhetoric in the field of rhetorical studies. Condit argued that the seven-justice majority ruled that the prochoice vocabulary was constitutionally legitimate: ‘‘Blackmun repeatedly employed precise vocabulary from the Pro-Choice discourse citing ‘a fundamental right to choose,’ and ‘freedom of choice’’’ (p. 103). Condit concluded that Justice Blackmun’s opinion ‘‘clearly placed [the abortion decision] in the hands of the woman’’ and argued that the decision functioned to adopt the pro-choice vocabulary as a ‘‘legitimate component of the national repertoire’’ (p. 116). While Condit demonstrated how the Court incorporated lines of argument that were central to the public argument for choice, this analysis demonstrates how the totality of the Court’s rhetorical framework in Roe actually undermined the concept of a woman’s choice altogether.
Thus, this essay is a study of Justice Blackmun’s rhetorical attempt to justify a constitutional right to abortion and an exploration of the potential long-term consequences of these rhetorical choices. To explore this issue, the remainder of this essay is divided into four parts. First, I detail relevant background information to Roe v. Wade. Second, I examine the rhetorical strategies used by Justice Blackmun to legitimate a controversial ruling. Third, I critique the Court’s rhetoric and discuss the consequences of the community of meaning that emerge from the opinion. Finally, I consider the lessons of this analysis for our broader understandings of the abortion controversy and the United States Supreme Court as a rhetorical institution.
Background to Roe v. Wade
The road to the Court’s historical decision in Roe v. Wade was paved in part by the efforts of birth control advocates who fought for decriminalization of the use and prescription of birth control. In the early 1920s, after the Nineteenth Amendment to the Constitution was ratified and women won the right to vote, many women’s rights groups turned their attention to family planning and women’s reproductive health. The birth control movement included campaigns to legalize birth control and efforts to open sites for birth control education and distribution. Two Supreme Court cases involving the right to reproductive control laid the foundation for the Court’s decision in Roe v. Wade. The Supreme Court’s 1965 decision in Griswold v. Connecticut articulated a Constitutional right to marital privacy that protected the rights of married couples to use contraceptives without government interference. The Court’s 1972 ruling in the case of Eisenstadt v. Baird extended the right of marital privacy to a more general right of individual privacy. Writing for the Court majority in Eisenstadt, Justice William J. Brennan argued, ‘‘If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child’’ (p. 453). Justice Brennan’s words seemed to be looking forward to Roe v. Wade, the historic decision that would be announced less than a year later (Goldstein, 1994). Woodward and Armstrong (1979) also concluded, ‘‘He included the reference to ‘bear’ a child with the abortion case in mind. Brennan hoped the language would help establish, under the right to privacy, for a woman’s right to abortion’’ (p. 176). Indeed, Justice Brennan’s defense of individual privacy in Eisenstadt v. Baird provided a constitutional footing from which the High Court defended a woman’s right to abortion in Roe v. Wade.
Under the pseudonym of Jane Roe, Norma McCorvey, a pregnant woman from Texas, challenged the state’s nineteenth-century antiabortion law, which outlawed all abortions except in cases when abortion was necessary to save a pregnant woman’s life. Henry Wade was the district attorney for Dallas County, Texas. At the time the Supreme Court decided Roe v. Wade, all except four states had criminal abortion laws. The Texas law at the center of Roe v. Wade, Goldstein (1988) explained, ‘‘was the traditional anti-abortion law, and was typical of American state laws at the time’’ (p. 15). McCorvey’s attorneys framed her suit as a class action on behalf of all women faced with unwanted pregnancies.
The Court’s seven-justice majority decision in the case of Roe v. Wade was handed down on the morning of January 22, 1973. The decision announced that women have a fundamental right under the constitutional right to privacy to choose abortion in certain circumstances. No longer could states proscribe all abortions or to make them difficult to obtain. The Court employed a trimester analysis to divide its ruling into three parts. During roughly the first trimester of pregnancy, the Court ruled, a woman and her doctor have the right to choose abortion without state interference. During the second trimester the Court ruled that states may regulate abortion only in ways that are reasonably related to preserving the health of women. In the third trimester of pregnancy the Court ruled that states may limit or proscribe all abortion, except when the procedure is necessary to save a woman’s life.
A Medical Framework: The Doctor Knows Best and Woman-as-Patient
Justice Blackmun recognized that writing the Court’s majority opinion in the case of Roe v. Wade would be one of his greatest challenges on the High Court (Woodward & Armstrong, 1979, p. 183). Indeed, Woodward and Armstrong described Blackmun as ‘‘tormented’’ by the difficult task (p. 183). Justice Blackmun responded to the challenge by classifying the abortion decision as a medical decision, crafting a medical framework to support the opinion’s following conclusion: ‘‘The abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician’’ (pp. 165-166). Here I unpack two central rhetorical constructs of Blackmun’s medical framework that justify this conclusion: a controlling ‘‘doctor knows best’’ philosophy and the characterization of the ‘‘woman- as-patient.’’
A central theme of Roe v. Wade is the apotheosis of medicine. Instead of outlining the Court’s authority and power to legitimate a constitutional right to abortion, Justice Blackmun positions medicine as the ultimate arbiter in this case and communicates the Court’s deference to medicine. A significant portion of the Court’s opinion is dedicated to a historical narrative. Justice Blackmun’s detailed account of the history of abortion, spanning 19 pages, interweaves the stories of medicine and law and introduces medicine as an authority alongside the law. He begins his historical inquiry by ‘‘bracketing’’ the appellant’s claim:
The principle thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy … Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight that history may afford us, and then to examine the state purposes and interests behind criminal abortion laws. (p. 129)
Although he suggests the appellant’s claim will be set aside, in effect, Blackmun’s account of the history of abortion advances parameters for how that claim should ultimately be understood. At the conclusion of his historical survey, Blackmun explicitly proclaims, ‘‘It is with these interests, and the weight to be attached to them, that this case is concerned’’ (p. 152). Sarat and Kearns (1999) explained, ‘‘Law writes the past … for those over whom law seeks to exercise its dominion. Law constructs a history that it wants to present as authoritative’’ (p. 3). Indeed, Justice Blackmun’s lengthy historicism assigns equivalent importance to the practices and attitudes of the medical community as it assigns to legal precedent, positioning medicine alongside the law as legitimate parameters for negotiating the questions before the Court.
Blackmun begins his historical narrative with an account of ‘‘ancient attitudes.’’ He explains that early abortion policies and opinions varied widely; ‘‘The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome’s prevailing free-abortion practice. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable. Greek and Roman law afforded little protection to the unborn’’ (p. 130). Justice Blackmun’s introduction of Soranos as the single representative of ancient attitudes and his characterization as ‘‘the greatest of the ancient gynecologists’’ assign considerable weight and significance to the attitudes and policies of the medical community—from the very start of the Court’s historical inquiry.
The second section of the Court’s medical narrative positions the history of medical policy on par with legal precedent, as a component of the past to which the Court is responsible. Blackmun begins:
What then of the famous Oath that has stood for so long as the ethical guide of the medical profession and that bears the name of the great Greek … who has been described as the Father of Medicine, the ‘‘wisest and greatest practitioner of his art,’’ and the ‘‘most important and most complete medical personality of antiquity,’’ who dominated the medical schools of his time, and who typified the sum of the medical knowledge of the past? The Oath varies somewhat according to the particular translation, but in any translation the content is clear: ‘‘I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce an abortion.’’ (pp. 130-131)
Justice Blackmun introduces the Hippocratic Oath as ‘‘the ethical guide of the medical profession.’’ His first words, ‘‘What then of the famous Oath,’’ suggest that the Court must answer to this long-standing medical guide that seemingly proscribes the practice of abortion. Justice Blackmun’s discussion of the Hippocratic Oath and his careful refutation of the Oath’s abortion proscription that follows are markedly similar to the rhetorical tasks that follow from stare decisis, the doctrine of legal precedent that ensures the stability and continuity of the law. The doctrine requires the Court to demonstrate respect for and careful consideration of past decisions, departing from the guidance of legal precedence only in special cases and with significant reason. Similarly, the Court’s opinion suggests that a departure from the ancient medical guide must be carefully justified. Justice Blackmun demonstrates close attention to this task as he questions the origin of the abortion clause:
Why did not the authority of Hippocrates dissuade abortion practice in his time and that of Rome? The late Dr. Edelstine provides us with a theory: The Oath was not uncontested even in Hippocrates’ day … The abortion clause of the Oath … ‘‘echoes Pythagorean doctrines,’’ and ‘‘in no other stratum of Greek opinion were such views held or proposed in the same spirit of uncompromising austerity. But with the end of antiquity a decided change took place The Oath came to be popular.’’ The Oath ‘‘became the nucleus of all medical ethics’’ and ‘‘was applauded as the embodiment of truth.’’ Thus, suggests Dr. Edelstein, it is ‘‘a Pythagorean manifesto and not the expression of an absolute standard of medical conduct.’’ (pp. 131-132)
The Court could have exercised its right to override the Hippocratic Oath outright or could have simply ignored it. Instead, Justice Blackmun demonstrates the abortion clause as a consequence of Pythagorean dogma that ‘‘came to be popular’’ and characterizes the prohibition of abortion as a negotiable component of the long-standing medical guide. Justice Blackmun concludes, ‘‘This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath’s apparent rigidity. It enables us to understand, in historical context, a long-accepted and revered statement of medical ethics’’ (p. 132). Justice Blackmun is careful to make the Court’s ruling in Roe v. Wade agree with the history of medical policy and practice. The Court’s justification of its apparent departure from the Hippocratic Oath elevates the significance of the policies and practices of medicine to the Court’s ruling.
Justice Blackmun’s emphasis of the state of the art of contemporary medicine also contributes to his apotheosis of medicine. His repeated references to medical advancements and to contemporary technologies create a narrative of medical progress that Blackmun employs to legitimate a right of reproductive choice for women. Following his historical narrative, Justice Blackmun explains, ‘‘Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence’’ (p. 147). The first, he explains, was ‘‘the product of a Victorian social concern to discourage illicit sexual conduct’’ (p. 148). The second reason was a concern for the health and safety of women. And the third reason was a concern for protecting prenatal life. After dismissing the first concern, because ‘‘no court or commentator has taken the argument seriously’’ (p. 148), Blackmun answers the concerns for women’s health and prenatal life by positioning each within a narrative of medical progress.
Justice Blackmun argues that modern medical techniques have removed the hazards to women’s health that previously created a need for criminal abortion laws. He describes the risks that women faced in the past: ‘‘Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940s, standard modern techniques such as dilation and curettage were not nearly so safe as they are today’’ (p. 149). Although abortion procedures were once life-threatening, Justice Blackmun tells us, ‘‘Modern medical techniques have altered this situation’’ (p. 149). The opinion details medical advancements that now ‘‘insure maximum safety for the patient’’ (p. 150) to demonstrate that much of the concern for women who undergo abortion procedures has been eliminated by contemporary medical science.
The concern for protecting fetal life is also positioned within a narrative of medical progress. ‘‘We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate the answer’’ (p. 159). Blackmun points to contemporary medical science to challenge the belief of pro-life advocates that fetal life exists from the moment of conception: ‘‘Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a ‘process’ over time, rather than an event, and by new medical techniques such as menstrual extraction, the ‘morning after pill,’ implantation of embryos, artificial insemination, and even artificial wombs’’ (p. 162). Justice Blackmun avoids confronting the complex issues of religion and morality by examining a faith-based belief through a medical lens. Because of advancements in medical science, the justice explains, we now can determine when the fetus has the ‘‘capability of living a meaningful life outside of the womb’’ (p. 163). According to the Court, it is only after the point of viability that the state has a legitimate concern for protecting fetal life.
Justice Blackmun grounds a new right of reproductive choice for women in the state of the art of contemporary medicine. Considering that the Court’s decision in Roe v. Wade connotes, to many, a turning point in the fight for women’s equality, one might expect the Court’s narrative of advancement to focus on new thinking about the rights and autonomy of women. However, Blackmun grounds the right to reproductive choice squarely within a narrative of medical progress, suggesting that women’s reproductive freedom hinges on contemporary medical knowledge and technology. The choice to frame the decision in such a way advances medicine as the final arbiter, to which a woman’s constitutional right of reproductive control owes its existence. The very short discussion of the appellant’s right to privacy, two brief paragraphs, is overwhelmed by the opinion’s apotheosis of medicine, more than 10 extended paragraphs, and is negated by the Court’s repeated emphasis of the physician’s right to practice medicine.
Justice Blackmun’s characterization of the esteemed physician and the Court’s deference to his medical judgment also contribute to the apotheosis of medicine. Blackmun’s gendered characterization of the physician reflects the male-dominated reality of medicine in the early 1970s and lends an ethos of ‘‘male authority’’ to the Court’s argument. Thus, the Court rhetorically conflated an ideology of ‘‘man knows best’’ with a ‘‘doctor knows best’’ philosophy to support the treatment of the right to choose abortion as belonging to the male physician and his broader right to practice medicine. Beginning with the Court’s praise of Soranos and Hippocrates, considerable attention is given to demonstrating respect for the practitioner of medicine and to casting the physician as a wise professional. The Court’s praise of Soranos as ‘‘the greatest of the ancient gynecologists’’ (p. 130) and characterization of Hippocrates as ‘‘the great Greek … the Father of Medicine, [and] the ‘wisest and greatest practitioner of his art,’’’ (pp. 130-131) demonstrates the Court’s respect for these two medical subject positions. Considering that such overt and lengthy praise is not typically germane to the Court’s opinions, the characterizations of Soranos and Hippocrates stand out amidst discussion of legal precedent and medical policy.
The Court’s respect for the physician and the medical community remains a prominent theme throughout the opinion and is communicated in part by the Court’s characterization of the physician. Through his repeated use of descriptors such as ‘‘licensed’’ (p. 122), ‘‘competent’’ (p. 151), and ‘‘responsible’’ (p. 153), Justice Blackmun characterizes the physician as a knowledgeable, level-headed professional, supporting his argument that the physician possesses ‘‘professional judgment’’ (p. 165) and also supporting the considerable weight he assigns to this judgment. Law professor Henry H. Wellington (1973) remarked that Justice Blackmun ‘‘treats the private physician with the reverence that one expects only from advertising agencies employed by the American Medical Association’’ (p. 301). Indeed, the Court’s portrayal of the physician appears carefully constructed to support the opinion’s underpinning philosophy that the doctor knows best.
Justice Blackmun’s characterization of the physician as the primary authority in the abortion decision-making process underscores the central position of medicine in the Court’s rhetorical framework. Although many celebrate the Court’s opinion in Roe v. Wade for placing the abortion decision ‘‘in the hands of the woman,’’ Justice Blackmun unmistakably assigns primary responsibility for the abortion decision to the physician. Justice Blackmun’s summary of the Court’s ruling points to the core of the ruling in Roe v. Wade as a defense of the physician’s right to practice medicine: ‘‘The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician’’ (pp. 165-166). Justice Blackmun’s concluding thoughts do not mention a woman’s right to reproductive choice. Instead, the Court concludes its opinion with the qualified, venerated, and decisive physician and his right to practice medicine, affirming the philosophy, once again, that the institutions of patriarchy and medicine, with their continued privileges, are valued above women. Physicians are agentic and women are passive or nonexistent; a demonstration that the doctor knows best.
The authority and centrality of the physician in the Roe opinion is completed by the Court’s portrayal of woman-as-patient. Justice Blackmun limits the Court’s consideration of pregnancy to its physiological features. By narrowing the understanding of pregnancy in such a way, the Court is able to position pregnancy under the jurisdiction of medicine and to delimit its considerations of the pregnant woman to her role as the patient. Justice Blackmun’s reliance on the trimester framework reflects the Court’s narrow consideration of pregnancy as a physiological process. The Court’s three part ruling reads as follows:
- For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
- For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
- For the stage subsequent to viability, the State in promoting its interests in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion. (pp. 164-165)
The Court justifies its three-part ruling by demonstrating the ruling’s agreement with the three stages of fetal development. The assignment of rights in the case of Roe v. Wade hinges on the trimester understanding of pregnancy, as three stages of gestation, and limits the Court’s attention to the physiological features of a woman’s reproductive role. This rhetorical focus removes the woman from a position of authority and agency and redefines her role as the pregnant patient.
The passive role assigned to women in the abortion decision-making process contributes to the portrayal of woman-as-patient. Justice Blackmun repeatedly characterizes the judgment and voice of women as subordinate to the physician’s authority, as at one point: ‘‘This means, on the other hand, that, for the period of pregnancy prior to this ‘compelling point,’ the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated’’ (p. 163). It is important to note that the role of the patient suggests passivity; as one who is worked upon. Legal scholar Erin Daly (1995) made a similar observation: ‘‘Roe conjures up the image of the pregnant woman, patiently lying on an examining table, feet in stirrups, waiting for the man in the white coat to exercise his medical judgment’’ (p. 89). While the Court’s ruling in Roe v. Wade is oft-cited for endowing women with increased agency, the Court’s rhetorical portrayal of woman-as-patient is unmistakably passive.
The portrayal of woman-as-patient silences the complex stories of women’s lives and unwanted pregnancies that were topics of emotional debate in the public controversy. Several legal scholars have noted the conspicuous ‘‘absence’’ of women in Justice Blackmun’s opinion. Henderson (1987) remarked, ‘‘Roe can be characterized as the case of the Incredible Disappearing Woman’’ (p. 1574). Woman’s absence from Justice Blackmun’s opinion stems, in part, from the Court’s choice to cast her as the physician’s patient. Blackmun’s characterization one-dimensionalizes women, obscuring the complicated stories of women’s lives and of unwanted pregnancies. The stories that color Justice Blackmun’s opinion, stories of medical tradition, doctors, and fetuses, fit within his medical narrative. The story of women receives very little attention, as told in one paragraph in a document that is 51 pages long:
The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are the factors that the woman and her responsible physician will necessarily consider in consultation. (p. 153)
Blackmun’s attention to the harms caused by pregnancy to many women’s lives appears to validate the personal and intimate nature of the abortion decision and the significance of abortion as an option for women. Situated within the opinion’s guiding medical narrative, however, Blackmun’s brief account of this reality for many women is fraught with contradiction, as the justice characterizes the physician as the primary authority and positions all of the harms, intimate concerns, and personal distress that women carry into the abortion decision-making process under the expertise of the physician’s medical judgment.
The Consequences of Roe’s Rhetorical Community
The Court’s rhetorical negotiation of Roe v. Wade invites understandings about women and reproductive rights in particular ways and, conversely, precludes others. Recall White’s (1985) conceptualization of the law as a constitutive rhetoric, as ‘‘an art in which communities and culture are established, maintained, and transformed’’ (p. 693). The analysis of the constitutive nature of legal discourse involves uncovering the rhetorical communities that are created through the language of the law and engaging in a political and ethical assessment of them. Considering that the Supreme Court’s decision in Roe v. Wade is celebrated as a feminist victory, it would follow that the rhetorical community implied in the High Court’s majority opinion would announce a liberated view of women and introduce new ways of thinking about women’s roles, rights, and responsibilities. An examination of this rhetorical community, however, reveals no such announcement or ground-breaking introduction. In fact, the rhetorical parameters that follow from the Court’s medical framework advance, in many ways, a traditional understanding of women. Two significant features of the Court’s medical framework, the privileging of medical judgment and the physiological approach to women’s reproductive rights, combine to remove women’s judgments, voices, and stories from the Court’s historic opinion. The consequences that result from these rhetorical choices, and the ways that it suggests thinking about women, reveal a dramatic disconnect between the Court’s rhetorical defense of Roe v. Wade and the profound symbolic meaning of Roe as a second-wave feminist victory.
The primacy of the physician and subordination of women’s judgment and voice advance a philosophy of ‘‘doctor knows best’’ as a significant organizing theme of this rhetorical community. Such a philosophy endorses a paternalistic understanding of the doctor-patient relationship, a top-down understanding that characterizes patients as passive and unquestioning recipients of care at the hands of expert medical practitioners. This philosophy takes on added significance when understood within the gendered context of this decision, revealing a worldview that privileges man’s authority and takes for granted woman’s need for protection and guidance. Following from this worldview is an understanding of women as passive and unable to make tough decisions in accordance with their best interests. The philosophy of ‘‘doctor knows best,’’ in effect, denies women agent status and undermines their judgments and their voices.
The rhetoric of the High Court prior to Roe v. Wade had not introduced women as agents, as independent or as responsible decision makers. Instead, the rhetoric of protection and the philosophy of ‘‘doctor (man) knows best’’ were accepted and established features of the High Court’s collective rhetorical framework for thinking and reasoning about the rights of women. Justice Blackmun chose to legitimate a controversial decision with widely accepted topoi. His invocation of the physician’s credibility and his reliance on the implicit assumption of male authority can be understood as a rhetorical strategy to secure women the right to abortion within the parameters of the High Court’s collective rhetorical framework. Although Justice Blackmun’s invocation of the ‘‘doctor knows best’’ philosophy may have, in the short run, provided the High Court the justification it needed for a controversial ruling, the choice to reaffirm women’s traditional role as passive and dependent resulted in long-term consequences for women, both in the way the High Court thinks about women and in the parameters it endorsed for negotiating their reproductive rights.
The rhetoric of Roe v. Wade laid ground rules that continue to shape legal issues involving reproductive control. Writing women out of Roe v. Wade through the philosophy of ‘‘doctor knows best’’ created a rhetorical opening for future judges and legislatures to allow the state a greater role in the abortion decision-making process and to further remove the abortion decision from women. In fact, the ‘‘Partial Birth Abortion Ban Act of 2003’’ illustrates this fact as Congress recently inserted itself into the abortion decision-making process to claim that the procedure of Intact Dilation and Extraction is never medically necessary. Since Roe v. Wade wrote women out of the decision-making process, voices of ‘‘authority’’ from Congress, to a spouse, to a parent—all have been inserted into this rhetorical opening to limit abortion rights. Restrictions continue to be placed on women’s reproductive rights and legislation increasingly focuses on the personhood of the fetus without any attention to the personhood, voice, or agency of women. In fact, the Court’s 2007 opinion in Gonzales v. Carhart eclipses women entirely, as it stands as the first abortion ban upheld by the Court that includes no exception for the health or safety of women. Justice Ginsburg’s scathing dissent points to the Court majority’s personalization of the fetus, ‘‘a fetus is described as an ‘unborn child,’ and as a ‘baby,’’’ she explained, while no attention is paid to the rights and humanity of women (2007). The Court’s rhetorical negotiation of Roe v. Wade may help to explain the striking absence of women’s voices and personhood that plagues contemporary legislation.
As a result of the opinion’s medical framing, a second organizing feature of the rhetorical community advanced in Roe v. Wade is a physiological approach to women’s reproductive rights. The rhetoric of Roe directs our attention to the physiological ‘‘facts’’ of reproduction and, in doing so, displaces consideration of social forces and recognizes only a one-dimensional view of woman. This physiological framework disallows considerations of the social forces that shape the varied meanings and experiences of reproduction. According to Siegel (1992):
Social forces play a powerful part in shaping the process of reproduction. Social forces define the circumstances under which a woman conceives a child, including how voluntary her participation in the intercourse may be. Social forces determine whether a woman has access to methods of preventing and terminating a pregnancy, and whether it is acceptable for her to use them. Social forces determine the quality of health care available to a woman during her pregnancy, and they determine whether a pregnant woman will be able to support herself throughout the term of gestation, or instead will be forced to depend on others for support. Social relations determine who cares for a child once it is born, and what resources, rewards, and penalties attend the work of gestating and nurturing human life. (p. 267)
The rhetorical community that emerges from the Court’s response to Roe v. Wade delimits the meaning and consideration of reproduction to biological processes and cycles of gestation. Within these parameters, the social meanings and genderbased judgments that shape women’s experiences of pregnancy and motivate reproductive regulations are obscured. Henderson (1987) commented, ‘‘Imagination and compassion, empathic understanding of women with unwanted pregnancies or compassion for them leading to action to help them, seem strangely lacking in Roe’’ (p. 1627). This may be explained, in part, as a result of the Court’s narrow focus on the physiological features of reproduction. The rhetorical parameters that result from this naturalistic framework exclude consideration of the relationship between reproduction and women’s social roles and status. It restricts asking questions about the social regulation of motherhood and the role of women in society. In addition, such an understanding disregards the high stakes that women have in the freedom to control their childbearing capacity.
Sixteen years after the Court’s decision in Roe, the narrow focus on the physiological character of women’s reproductive role appears as a significant feature of the High Court’s majority opinion in Webster v. Reproductive Health Services, the Court’s decision that furthered the state’s interest in fetal life by suggesting that the Court abandon the trimester framework in favor of viability testing. The decision also upheld a Missouri state law that prohibited the use of public funding or facilities to perform or to assist in abortion.
Chief Justice Rehnquist’s justification of this decision demonstrates the vulnerability of women’s reproductive freedom within the medical paradigm. Justice Rehnquist limits his consideration to the physiological features of reproduction and argues that medical advancements and viability testing, now allowing a more complete understanding of gestation and fetal development, limit the rights of women to choose abortion. Rehnquist explains that ‘‘interest in human life must be safeguarded’’ and that the majority is satisfied that ‘‘the requirement of [viability testing] permissibly furthers the state’s interest in protecting human life’’ (p. 519). The medical paradigm endorsed in Roe v. Wade not only creates a space for Rehnquist to uphold the Missouri statute and to justify abortion restrictions but also stands as an obstacle to Blackmun’s own dissent in Webster. Justice Blackmun argues that the infringement of the High Court on the reproductive freedom of women is ‘‘shameful’’ (p. 547). Blackmun describes the abortion decision as ‘‘quintessentially intimate, personal, and life-directing’’ (p. 538). This characterization is strikingly inconsistent with Blackmun’s argument in Roe v. Wade that ‘‘the [abortion] decision in all its aspects is inherently and primarily a medical decision’’ (p. 166).
Although Blackmun’s dissent attempts to redefine the abortion decision as ‘‘quintessentially intimate’’ and ‘‘inherently and primarily’’ a woman’s choice, he appears to be struggling against the rhetorical framework he advanced in Roe v. Wade. In fact, it is possible that Justice Blackmun’s endorsement of the physiological standpoint at the center of Roe’s rhetorical community provided Justice Rehnquist a strategic opportunity to limit women’s reproductive freedom in Webster v. Reproductive Health Services. Feminist scholars argue that a successful defense of women’s reproductive freedom must acknowledge the relationship between women’s social roles and women’s ability to control their childbearing capacity (Rhode, 1989). The physiological standpoint at the center of the Court’s defense of Roe v. Wade fails to acknowledge this connection.
The physiological emphasis in Roe not only removes reproduction from the social and gendered context that shapes its meaning but it also diverts attention from the plurality of women’s lives. ‘‘Neither the female body nor the pregnant body is uniform in kind or meaning,’’ Eisenstein (1988) reminds us. She writes, ‘‘A middle-class, black, pregnant woman’s body is not one and the same as a working-class, white, pregnant woman’s body. A welfare woman’s pregnant body may not be the same as an upper-middle-class woman’s pregnant body, or a diabetic’s pregnant body, or an inseminated lesbian’s pregnant body, or a surrogate mother’s pregnant body’’ (pp. 222-223). The Court’s physiological approach to women’s reproductive rights invites a singular understanding of woman-as-womb and occludes considerations of difference.
Legal scholarz Kathryn Abrams (1997) argued that simple and unitary characterizations of women, like woman-as-womb, have impeded development of women’s equality. Abrams explained that a more promising approach ‘‘would emphasize con- textualization (the need to adapt rules or theories to respond to variation in context) rather than bright-line rules, and would describe women in a way that highlights their variety and the ambiguities of their condition, rather than advancing singular or simplified descriptions of them’’ (p. 867). When diversity is obscured in favor of a singular model of woman, this model is implicitly white, middle class, and heterosexual. Thus, the supposed universality of women’s bodies has especially harmed women whose experiences of pregnancy and motherhood are shaped by socioeconomic disadvantage. As Baer (1999) explained, ‘‘Roe v. Wade offers no protection to the woman who cannot pay for an abortion, cannot find a qualified professional to perform it, [or] needed help in preventing the pregnancy in the first place’’ (p. 137). The universality of women, which this naturalistic framework assumes, fails to recognize the vast differences in women’s experiences and leaves many women unprotected.
The physiological standpoint at the center of the Court’s rhetorical negotiation of Roe v. Wade endorsed a particular subject position for women; one that is detached from its many contexts. In effect, this physiological focus reduces women to wombs. The rhetoric of woman-as-womb permits disregard for women’s subjectivity and results in a rhetorical community, or language system, in which women’s voices and differences are denied expression (see Bordo, 1995, pp. 71-98).
Although an explicit discussion of women’s lives, social roles, and experiences occupied little space in the Supreme Court’s opinion in Roe v. Wade, the rhetorical parameters that follow from the Court’s medicalization of abortion reveals that the opinion, in fact, said a lot about women. Otten (1993) acknowledged women’s absence from the opinion, but her conclusions about the Court’s ruling were in dramatic contrast to the conclusions drawn here: ‘‘Although Roe said little about women’s status, it nevertheless altered it. The Court was accepting the notion that women were capable of making rational decisions and deserving the opportunity to carry forward their decisions in a nonstigmatizing way. It gave them credibility, dignity, and the promise of safety’’ (pp. 95-96). Although the Court’s ruling may have functioned to recognize some women as credible and rational decision makers, the Court’s rhetoric in defense of this ruling makes no such recognition, displacing woman’s agency and her voice. Further, the rhetorical framework of the Court’s opinion shut out considerations of social forces and pluralities of gendered-subject positions, leaving the right of reproductive freedom vulnerable to attack and many women unprotected.
Conclusion
Three and a half decades following Roe, the right of women to choose abortion continues to be challenged. The community of meaning advanced through the language of Roe v. Wade constituted a field of argument that affirmed traditional ideas about women leaving the right of reproductive choice vulnerable to attack. Arguing that legal rhetoric was argumentatively constitutive, White (1985) explained that judicial opinions proclaim not only ‘‘‘Here is how this case should be decided,’ but also, ‘Here, in this language, is the way this case and similar cases should be talked about’’’ (p. 690). Recently, the Supreme Court handed down a ruling to a pair of cases that once again emphasized the vulnerability of abortion rights within the language of Roe v. Wade. The cases—Gonzales v. Planned Parenthood Federation of America (2007) and Gonzales v. Carhart (2007)—asked the Court to determine if the Bush Administration’s ‘‘Partial Birth Abortion Ban Act of 2003’’ was constitutional. The Court upheld the constitutionality of the ban in a 5-4 ruling. Gorney (2004) wrote about the rhetorical struggle that Pro-Choice advocates have faced since Roe:
For two decades the people who frame legal-abortion campaigns in this country had been working assiduously to keep the door to that procedure room shut, redirecting the national attention to the action beforehand and afterward: the choice to seek an abortion, the decision to have an abortion, the values inherent in a society that gives women the liberty to make this momentous decision without interference from the state. They had worried for years that if the general public were faced into a mangled-fetus-versus-women’s-autonomy tradeoff, the mangled fetus would win. (p. 41)
Pro-choice advocates have thus worked tirelessly to keep the abortion debate out of the procedure room. Considering the Court’s rhetoric in Roe v. Wade, it is no surprise that the effort Gorney described has been an uphill battle. The door to the procedure room was propped open when the Supreme Court justified the right to abortion as a medical decision that belongs to the physician. The constructs of the doctor-knows-best and the woman-as-patient-as-womb provide a host of warrants that have been employed to erode women’s reproductive rights since Roe.
Alongside this constitution of argument, Roe constituted a powerless subject position for the advocate of abortion rights. Recalling Charland (1987), ‘‘What is significant in constitutional rhetoric,’’ he wrote, ‘‘is that it positions the reader towards political, social, and economic action in the real world’’ (p. 141). The rhetoric of Roe v. Wade failed to validate the voices of women. The Court effectively disqualified the agent status of women, ruling their lives and their gendered meanings impotent in the abortion debate. Feminist Sonia Johnson (1989) wrote about the misguided politics that follow from this subject position:
For the last fifteen years we have been nailed to the system by Roe v. Wade, our mighty energy and hope and love channeled into begging men in dozens of state and national bodies not to pare away cent by cent the truly miserable allowance they promised us for abortions for poor women. If we hadn’t trusted them again, if we had kept on going in the same direction we were headed, with the same time and energy we have since expanded on groveling, we could by this time have had a woman on every block in every city and town who is an expert on contraceptives, women’s health, birthing, and abortion. We could have educated the women of this country in countless creative ways about their bodies and their right to rule them. (pp. 27-28)
The rhetoric of women-as-patient-as-womb denied the very existence of the woman- as-agent. Thus, the possibilities for collective action and for alternative methods of seizing reproductive control were undermined in the world constituted through the language of Roe v. Wade.
This analysis highlights the dramatic disconnect between the Court’s rhetorical negotiation of Roe v. Wade and the public meaning assigned to Roe v. Wade. In popular memory, Roe v. Wade stands for a victory of second-wave feminism and a ‘‘symbol of [women’s] independence’’ (Feldt, 2004, p. 5). Clearly, the Court’s ruling in Roe was a significant step forward for women. The ability to control one’s childbearing capacity certainly translates into greater independence for many women. This analysis does not suggest otherwise, but it does demonstrate that the rhetoric of the Court sent an entirely different message. So while advocates for choice celebrated the Court’s ruling in Roe v. Wade and the architects of public memory went to work labeling Roe the crown jewel of women’s rights, Roe’s rhetoric received little public scrutiny and continued forward to slowly aid in the undermining of reproductive choice.
Several important lessons emerge from this analysis. First, the disconnect between the symbolism and the rhetoric of Roe v. Wade reveals that scholars are not paying close enough attention to judicial rhetoric. As rhetorical critics and informed citizens, we need to do much more to understand and to engage judicial opinion as a branch of constitutive rhetoric. Feminist rhetorical critics, specifically, need to direct more attention to the rhetoric of the Supreme Court. In a recent discussion of feminist politics and scholarship, Mari Boor Tonn (2004) explained:
We now live in a culture in which Jennifer Lopez, Britney Spears, and Michael Jordan are household names, but nearly two-thirds of the public cannot name a single sitting Justice of the U. S. Supreme Court, and those who can correctly name all nine justices number not even 1%. While critiques of popular culture often have worth, privileging such critiques of popular culture at the expense of public policy and other big ‘‘P’’ political analysis is potentially perilous if anti-feminist forces succeed in putting anti-feminist politicians, judges, and therefore, anti-feminist policies, in place while we are busy watching television. (p. 389)
In addition to the Supreme Court’s ruling in Gonzales v. Carhart, two other restrictive decisions for women’s rights were also handed down in 2007. Long Island Care v. Coke (2007) denied minimum wage and benefits to home health care workers and Ledbetter v. Goodyear (2007) limited the rights of women to combat pay discrimination. The National Women’s Law Center explained that the 2006-2007 Supreme Court term ‘‘has had disastrous consequences for women’s rights’’ (National Women’s Law Center, 2007).
More attention to the Court opinion as a significant site of meaning-making promises to yield a more accessible judicial discourse and a more active citizenry. A rhetorical perspective encourages an understanding of the law that is embedded in our public rhetorical culture. As Klinger (1994) explained, ‘‘Under the analytic paradigm, the legal method was cloaked in a shroud of mystery. The only way to participate in the system was through mastery of what has become an increasingly discrete and technical knowledge. When the law is seen as communication, however, it becomes a practice more accessible to the people over whom it reigns’’ (p. 246). When the law is engaged as a branch of constitutive rhetoric—and understood as an exercise of persuasive communication that seeks to constitute society in a particular way—citizens more fully understand their right to respond.
Finally, this analysis demonstrates that the debate over reproductive freedom must be reframed in order to legitimate the voices of women. A new constitutive rhetoric could legitimate an alternative field of argument and acknowledge an agentic status of women. Discussing reproductive rights advocacy, Tonn (1996) argued: ‘‘the most effective rhetorical approach for abortion rights advocates may be to locate the ethical question of abortion in the issue of sex discrimination rather than in opposition propositions of embryonic life and interests’’ (p. 277). Although the medical framework of Roe has encouraged a preoccupation with embryonic interests in judicial and public argument, abortion rights advocates must refuse to be constituted by this field of argument. Instead of treating judicial decisions as inviolable, advocates for reproductive rights could insist on speaking about the lives, the liberty, and the equality of women. ‘‘In a representative form of government,’’ Hasian, Condit, and Lucaites (1996) noted, ‘‘the law can only function effectively within the rhetorical boundaries set up by a public vocabulary. The law flows from public discourse. It is therefore at least partially dependent upon the political action of the community in which it operates’’ (p. 335). In the end, understanding the law as a branch of constitutive rhetoric calls for an active citizenry; a citizenry that claims their right to contribute and to respond to the constraints and possibilities advanced through judicial opinion writing.