Why does the Supreme Court refer to the woman who is seeking an abortion as "mother"? Surely the definition has not escaped the attention of a Court that frequently relies on the dictionary to define important terms or principles. And why does the Court choose to describe the fetus as a child? What message does this language send about abortion and the woman who seeks an abortion? The Court's abortion decisions embody an ongoing debate on the legitimacy of constitutional protection of the right to choose. This debate unfolds most obviously as a discourse on constitutional interpretation; disagreements within the Court are reflected in the language of constitutional principles and standards. This debate also plays out, hidden in plain view, in the vocabulary used by the Court to describe the woman who stands at the center of the constitutional controversy and the life within her. The opinions of the Court, beginning with Roe, mediate abortion stigma through both language and legal standards. The Court's framing of the abortion procedure, of the woman and physician, and of prenatal life has contributed to the ascendancy of abortion stigma. Casey, in particular, marks a turning point, where the Court's overt expression of moral disgust with abortion correlates with diminished constitutional protection. This article examines how the abortion decisions contribute to abortion stigma. It argues that several narratives emerge from the vocabulary deployed by the Court to describe both the woman who seeks an abortion and prenatal life. These narratives serve a potent expressive function. Most display considerable ambivalence about the moral authority of women, particularly women who decide, even temporarily, not to become mothers. From Roe onward, the Court has reinforced abortion stigma through discourse as well as constitutional standards. This stigma marginalizes both the abortion procedure and the woman who seeks an abortion. This marginalization, in turn, provides justification for increasing restrictions on a woman's access to abortion.
The Scarlet Letter: The Supreme Court and the Language of Abortion Stigma,
Mich. J. Gender & L.
Available at: https://repository.law.umich.edu/mjgl/vol19/iss2/2