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Unpublished Paper
DEADLY DICTA: ROE’S “UNWANTED MOTHERHOOD”, GONZALES’S “WOMEN’S REGRET” AND THE SHIFTING NARRATIVE OF ABORTION JURISPRUDENCE
ExpressO (2013)
  • Stacy A Scaldo, Florida Coastal School of Law
Abstract
For thirty-four years, the narrative of Supreme Court jurisprudence on the issue of abortion was firmly focused on the pregnant woman. From the initial finding that the right to an abortion stemmed from a constitutional right to privacy[1], through the test applied and refined to determine when that right was abridged[2], to the striking of statutes found to over-regulate that right[3], the conversation from the Court’s perspective maintained a singular focus. Pro-life arguments focusing on the fetus as the equal or greater party of interest were systematically pushed aside by the Court.[4] The consequences of an unwanted pregnancy, or as the Court in Roe v. Wade suggested, “unwanted motherhood,” and the effect it had, or would have, on a woman remained at the forefront of abortion opinions. In 2007, the Court, in Gonzales v. Carhart,[5] upheld the Partial Birth Abortion Ban Act of 2003. In the few years since its release, the scholarly attention paid to this case has been fueled in large part by what has been dubbed the Court’s discussion of “women’s regret” and its potential effect on future abortion case law. Proponents of abortion rights argue it sets women back years and essentially reverts them to pre-Roe status in society. These criticisms focus almost exclusively, whether expressly or impliedly, on the validity of women’s regret because the effect of the Court’s reasoning could be a change in the way we view abortion, in the stories we tell about abortion, and in who and what we think of when deciding the constitutionality of abortion regulations. The fear which dwells in the heart of these critiques is that women’s regret could supplant thirty-four years of abortion narrative focused almost exclusively on the pregnant woman. Roe gave us the trimester test, the physician-state competing rights analysis, and the extension of the right to privacy – all under the guise of “unwanted motherhood.” While Gonzales may not have changed much in terms of abortion rights and regulations, its effects may have far greater consequences, and the pro-abortion community knows this. Despite all of the theories, tests and holdings discussed and implemented in these two cases, what remains within our collective conscience are the effects of unwanted motherhood and women’s regret. Under most definitions, these statements are a type of social dicta – unnecessary, memorable language that speaks directly in favor of a particular societal point of view. In light of the current debate, these social dicta are also deadly dicta - unwanted motherhood deadly in its effect on the rights of the unborn; women’s regret deadly in its effect on unwanted motherhood. As Supreme Court level dicta functions differently than dicta from lower level courts, it is even more crucial that it is properly identified and understood. As will be explained, social dicta have the potential to be particularly influential as it becomes part of the nation’s consciousness. This is especially so in highly controversial cases like abortion. It is usually the most quoted by popular media outlets and non-legal sources, is often times the most remembered part of the case, and is thematically opportunistic in guiding the debate and framing the narrative for use in future cases. The focus of this article is to explore how this type of dicta drives and affects the long-term societal opinion and understanding of a stated controversy, and note the glaring inconsistencies between the current critiques of women’s regret and abject silence with regard to unwanted motherhood. Part II of this article will define social dicta and explain the theme creating and narrative shaping effect of its use in case law. Part III will provide examples of how the use of social dicta frames the narrative of controversial cases and steers the debate going forward. Part IV will debate the success of using social dicta in both Roe and Gonzales and the result of its placement in these opinions. The parallel effects of the reasoning to support the Court’s holding in each case will be examined. Part IV will explore the future of abortion jurisprudence as a consequence of the Gonzales shift in narrative. Part VI will conclude this article. [1] Roe v. Wade, 410 U.S. 113 (1973). [2] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). [3] See, eg., Stenberg v. Carhart, 530 U.S. 914 (2000). [4] Even Roe’s competing rights analysis was set up and applied as a balance between the physician’s medical judgment and the state’s ability to regulate that right in the interest in the fetus. It was neither designed nor applied as a “fetal rights” analysis. Roe, 410 U.S. at 164-65. [5] 550 U.S. 125 (2007).
Keywords
  • abortion,
  • dicta,
  • narrtive
Publication Date
March 9, 2013
Citation Information
Stacy A Scaldo. "DEADLY DICTA: ROE’S “UNWANTED MOTHERHOOD”, GONZALES’S “WOMEN’S REGRET” AND THE SHIFTING NARRATIVE OF ABORTION JURISPRUDENCE" ExpressO (2013)
Available at: http://works.bepress.com/stacy_scaldo/2/