Skeptics in the Court: The Use of Rhetorical Skepticism to Protect Abortion Rights
In 2016, the Supreme Court heard the most important abortion case in more than 20 years. Whole Woman’s Health v. Hellerstedt concerned a new Texas law that placed two key requirements on abortion clinics. First, the Texas law required that doctors who perform abortions have admitting privileges at a nearby hospital. Second, it required that the facilities meet the requirements of an “ambulatory surgery center,” meaning they would have to meet requirements similar to hospital operating rooms. After the law passed, about three-quarters of the 42 abortion clinics in Texas closed, which made it impossible for some women in the state to obtain an abortion without traveling hundreds of miles. At the remaining clinics, women had to wait an average of 20 days for an abortion because so few clinics were open. At stake in the ruling was whether these regulations constituted an “undue burden” on women’s access to abortion, as defined in Planned Parenthood of Southeastern Pennsylvania v. Casey.
Justices Ginsburg, Kagan, and Sotomayor challenged the way that women’s voices and varied lived experiences have been erased in past court cases, exposed the paternalistic logic that drives abortion regulations, and inspired public outcry against the limitations on abortion.
Whole Woman’s Health v. Hellerstedt was a landmark case not only because it dealt with a new wave of restrictions on abortion, but also because there were three women on the Supreme Court: Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. In a new article published in the NCA journal Quarterly Journal of Speech, Katie L. Gibson argues that Justices Ginsburg, Kagan, and Sotomayor engaged in rhetorical skepticism during the oral arguments for Whole Woman’s Health v. Hellerstedt. This skepticism, Gibson writes, challenged the way that women’s voices and varied lived experiences have been erased in past court cases, exposed the paternalistic logic that drives abortion regulations, and inspired public outcry against the limitations on abortion.
Gibson defines rhetorical skepticism as the “communicative demand of feminist jurisprudence—a necessary mode of invention that challenges the deep traditions of erasure and exclusion in the law to make way for feminist legal argument.” The justices engaged in rhetorical skepticism by subjecting the limitations on abortion to strict scrutiny, engaging in persistent questioning, and inserting narratives of lived experience into the oral arguments. “Strict scrutiny” refers to the highest level of judicial review. Under this level of review, the law is presumed to be unconstitutional, and the government must prove that it is justified. In the past, laws concerning women’s rights were often subject to “rational basis,” which is the lowest level of review; rational basis assumes that laws are legitimate if they are reasonably related to state legislative interests.
The first function of rhetorical skepticism is to challenge the historic erasure of women in the law. Studies of the Supreme Court’s oral arguments have found that the women of the court are frequently interrupted by their colleagues. In contrast to their normal experience of interruption and erasure, Justices Ginsburg, Kagan, and Sotomayor were in control of the oral argument during Whole Woman’s Health v. Hellerstedt. They repeatedly asked questions and followed up. Furthermore, by incorporating stories about women’s experiences with the anti-abortion laws into their deliberations, the justices also challenged the historical erasure of women in previous abortion cases. In Roe v. Wade, the decision focused on abortion as a medical procedure performed by a doctor who was assumed to be a man. The philosophy behind the decision was “doctor-knows-best,” rather than “woman-knows-best” about her own medical needs and body. In contrast to this philosophy, Justice Ginsburg focused her questioning on women and their rights. Through questions, the justices brought attention to the experiences of poor women, rural women, and women of color who are disproportionately harmed by a lack of access to abortion clinics.
According to Gibson, the second function of rhetorical skepticism is to expose the underlying logic of paternalism behind abortion restrictions. The Texas law used language that emphasized women’s safety and health, rather than fetal life. However, this emphasis on safety was not based on the actual experiences of women having abortions. For example, during the oral arguments, Justice Ginsburg challenged the state’s claim that women in El Paso, Texas, could simply go to New Mexico for the procedure. New Mexico’s safety standards for abortion clinics did not meet the Texas safety standards. When the Texas lawyers argued that women could seek abortions at abortion clinics in New Mexico with lower standards, they demonstrated that the state’s concern was not with women’s safety, but rather with restricting access to abortion. Furthermore, under the law, Texas heavily regulated early-term abortions. Early-term abortions require women to take two pills on two consecutive days. Under the Texas law, women were required to take these pills at a healthcare facility, rather than at home. This placed an additional burden on people who may have already driven hundreds of miles to the facility. Justices Ginsburg, Kagan, and Sotomayor challenged the idea of “unsafe” abortions by pointing out that early-term abortions are safer than many other medical procedures that do not have such regulatory restrictions placed on them.
The third function of rhetorical skepticism is to inspire public scrutiny. The justices’ skepticism inspired a wave of support inside and outside the courtroom. Although court norms typically dictate that the audience remain silent, the audience laughed at some of the comments from the justices, highlighting their skepticism. In addition, the media frequently reported on a “must-read” quote from Justice Ginsburg: “It is beyond rational belief that [the Texas law] could genuinely protect the health of women.” The commentary and memes that resulted from the case demonstrated that the justices’ rhetorical skepticism inspired public engagement on abortion rights.
Gibson argues that the justices’ rhetorical skepticism resulted in two outcomes. First, Justice Stephen Breyer incorporated women’s stories, which were a key element of the justices’ questioning, into the majority opinion. Second, the choice to have an abortion was treated as a right, and limitations were subjected to strict scrutiny, as with other constitutional rights. Gibson argues that rhetorical skepticism gave a voice to those who are “too often ignored, excluded, and harmed by the practices of American jurisprudence.”