Conference Presentations » SEWSA 2021 Presentation

SEWSA 2021 Presentation

Graduate Students: For the proposal example, follow Her “Qualified Right” for a pdf version. I’m re-working this into a submission for a journal.

Below are important quotations and links to images I hope to show during the presentation. Below I have the original (2020) title and a secondary one:

Her “Qualified Right”: The Rhetoric of Patriarchy and Women’s Reproductive Freedom

Looking Beyond “Justice”: The Rhetoric of Misogyny in Law

“Justice” and “Freedom”: Instability of Meaning

Justice (n) from the Oxford English Dictionary (sign into Atkins)

  • Definitions related to administering law, punishment, retribution, etc.
    • 1. Administration of law or equity: Maintenance of what is just or right by the exercise of authority or power; assignment of deserved reward or punishment; giving of due deserts.
    • 2. (a) Punishment of an offender; retribution deemed appropriate for a crime; esp. capital punishment, execution.
    • 3. (a) The administration of law; due legal process; judicial proceedings.
    • 8. Observance of divine law; righteousness; the state of being righteous or justified in the eyes of God.
    • 9. Conformity (of an action or thing) to moral right, or to reason, truth, or fact; rightfulness; fairness; correctness; validity.
  • The above definitions highlight the force of justice based on an agent’s (the State, deity, ‘conventional wisdom, etc.) power. Justice as a verb is similar.

Freedom (n) from the Oxford English Dictionary

  • Definitions related to the absence of hindrance, servitude, or metaphysical torment.
    • 1. The state or fact of being free from servitude, constraint, inhibition, etc.; liberty.
    • 1. (a) Exemption or release from slavery or imprisonment.
    • 1. (b) Liberation from the bondage or dominating influence of sin, spiritual servitude, worldly ties, etc.
    • 1. (c) Exemption or release from the obligations of a contractual agreement; spec. release from a marriage, divorce.
    • 3. The state or fact of not being subject to despotic or autocratic control, or to a foreign power; civil liberty; independence.
    • 4. (a) the state of being able to act without hindrance or restraint; liberty of action.
    • 5. The fact of not being controlled by or subject to fate; the power of self-determination attributed to the will.

End of story? Not when we think about the instability of meaning (Derrida):

  • “All gestures here are necessarily equivocal” (17)
  • “‘everyday language’ is not innocent or neutral. It is the language of Western metaphysics” (19)

Or when we consider the socially constructed nature of ideology (Barthes):

  • “connotations have become naturalized…accepted as ‘normal’ and ‘natural’” (90).
  • “[Myths] may appear to be pre-given universal truths embedded in common sense” (90).

Or when we grapple with the idea that words, that is, signs, are cultural codes (Saussure):

  • “…language does not reflect a pre-existent and external reality of independent objects. Instead, a sign system like language constructs meaning from within itself” (86)

It is difficult, and, frankly, irresponsible to attempt to defend the immutability of words and hold one over the other. They are in flux and depend upon impossible-to-nail-down sites of meaning making.

Misconceptions of Courts

Courts do not seek truth; they make rulings.

  • Guilty vs Not Guilty (Innocent vs. Not Innocent)
  • Liable vs Not Liable
  • Own vs Not Own

Definition of Rhetoric for Today’s Purpose

I like to define rhetoric as “what builds meaning into something” or “how meaning is conveyed by something.” That something can be an object, belief, event, or system, but, whatever it is, meaning is attached personally and culturally. It’s still persuasion, but not simply the persuasiveness of the speaker at the moment of utterance.

SCOTUS, the “Final” Arbiter of Justice

Let’s not bury the lead (any more than I have): the inherent misogyny of the American legal system makes it difficult, damn near impossible, for that body to grant women reproductive freedom. Justice: forget it. As an agent of social control for the State, steeped in the primacy of patriarchal authority, the Court weighs the right of an individual’s reproductive self-determination against the State “promoting its interest in the potentiality of human life” (Roe v. Wade 114).

Roe v. Wade Decision

The paternalism of “granting” women the right to reproductive self-determination:

  • “the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy” (114).
    • The State qualifies pregnancy options
    • The ruling, a 7-2 and all-male decision in favor of a qualified right to access abortion, deals solely with pregnancy.
    • However, the Justices reference Griswold v. Connecticut, which has broader protections for reproductive freedom.
    • The State qualifies pregnancy options
    • The ruling, a 7-2 and all-male decision in favor of a qualified right to access abortion, deals solely with pregnancy.
    • However, the Justices reference Griswold v. Connecticut, which has broader protections for reproductive freedom.
  • Ever read the three pillars of Roe v. Wade:
    • (a) 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.
    • (b) 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.
    • (c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. (114)
  • Conclusion:
    • We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation. (154)

But then there’s a dissenting opinion…Justice William Rehnquist (eventually Chief Justice):

  • The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment. (174)
  • “Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the ‘right’ to an abortion is not so universally accepted as the appellant would have us believe” (174).
    • Neither was the right to expression for LGBTQ+ individuals, civil rights for people of color, and of course, equal rights based on gender.
    • This is why we don’t allow the racist masses to vote/legislate away the rights of minorities.
  • “…by the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion” (174-175).
  • “21 of the laws on the books in 1868 remain in effect today,” (176), meaning 1973.
  • “The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter” (177).

Here’s where it gets VERY interesting. In Section VI (6) of the decision, the seven (male) Justices voting to uphold access to abortion detail the acceptance of abortion by commenting on 2500 years of history, including Greco-Roman attitudes, common law assumptions, Christian theology, English statutory law, American law, the American Medical Association disputes, the American Public Health Association standards, and the American Bar Association’s 1970 resolution. Clearly, there was no consensus, but there was a prevailing assumption that women had a qualified right to abortion access.

Doe v. Bolton Decision

Companion decision to Roe v. Wade, grouped together were other cases moving through the courts. Justice White dissents and characterizes Roe in this summary:

  • “The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother” (221)
  • “…the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand” (221-222).
  • “In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court’s exercise…” (222).
  • “…the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health” (222).

Works Cited

Blackstone, William. Commentaries on the Laws of England: A Facsimile of the First Edition of 1765—1769, Vol. 2. Chicago: University of Chicago Press, 1979. https://oll.libertyfund.org/title/sharswood-commentaries-on-the-laws-of-england-in-four-books-2-vols

Doe v. Bolton, 410 U.S. 179 (1972)

Hafetz, Jonathan L. “A Man’s Home is His Castle?”: Reflections on the Home, the Family, and Privacy During the Late Nineteenth and Early Twentieth Centuries, vol. 8, no. 2. William & Mary Journal of Women & Law. (2002 Feb.) https://scholarship.law.wm.edu/wmjowl/vol8/iss2/2.

Jones R.K., Witwer E. and Jerman J. Abortion Incidence and Service Availability in the United States, 2017. New York: Guttmacher Institute, 2019.

Roe v. Wade, 410 U.S. 113 (1973)

Suk, Jeannie. At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy. New Haven: Yale UP, 2009.