One of the most salient criticisms of the majority opinion in Dobbs v. Jackson Women’s Health Organization is its failure to give any consideration to the very real physical risks of pregnancy and childbirth. As Justices Breyer, Sotomayor, and Kagan’s dissent recognized, even the most uncomplicated pregnancies “impose[] significant strain on the body, unavoidably involving significant physiological change and excruciating pain.” The majority’s oversight of this critical fact is even more striking given that the rates of maternal morbidity and mortality in the U.S. are abysmal compared to other developed countries, and are furthermore inequitably distributed by race.
Francesca Laguardia’s excellent article, Pain That Only She Must Bear: On the Invisibility of Women in Judicial Abortion Rhetoric, offers an insightful perspective on this glaring omission of the lived reality of pregnancy in judicial rhetoric. In light of Laguardia’s findings, the approach taken in Dobbs must be viewed not as an anomalous oversight, but rather as a natural extension of a long history of judicial disregard for the physical consequences of pregnancy and childbirth. When courts in abortion cases weight the state’s interest in fetal life against a pregnant patient’s right to bodily autonomy, they inevitably express concern for fetal pain and dignity, but are notably silent about the physiological consequences and dangers of pregnancy – including preeclampsia, gestational diabetes, vaginal and perineal tearing, the pain of labor, hemorrhaging, and postpartum depression. For scholars seeking to understand how the rhetoric of abortion jurisprudence contributes to the erasure of women’s voices, Laguardia’s article is required reading.
The title of this article is a reference to a moving sentence from Planned Parenthood v. Casey: “The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear.” Laguardia describes her analysis of federal and state cases on the constitutional right to abortion between 1974 and 2021 as “less an examination of rhetoric than an examination of a lack of rhetoric.” Her primary finding from a comprehensive review of 223 judicial opinions is that “the pain of pregnancy is articulated far less often than the (still hypothetical and vigorously debated) pain of the fetus.” She finds that courts discuss fetal pain “nearly nine times as often in just over twice as many opinions” than pregnancy- and childbirth-related pain, and discuss the abortion-related pain three times as often.
In the few opinions that do mention the risks of pregnancy and childbirth, “pain is discussed using euphemisms and vague language,” often focusing on the consequences of a woman’s emotional distress from unwanted pregnancy on her family. In contrast, references to fetal pain and the details of abortion procedures are frequent, explicit, and often graphic. Laguardia notes that in Carhart v. Ashcroft, for example, the Supreme Court devoted five pages a discussion of fetal pain and its legal implications.
One of the most fascinating pieces of Laguardia’s article is her consideration of possible reasons why judicial rhetoric in abortion cases ignores maternal physiology, and what impact this omission has.
It is clear why anti-abortion advocates pursuing litigation would want to emphasize the harmful consequences of abortion as compared to the harmful consequences of unwanted pregnancy. However, Laguardia notes that pro-choice attorneys may also have strategic reasons to “downplay the actual physical implications of pregnancy.” In particular, those advocating for freedom of choice may be concerned that “focus[ing] on women’s particular physical interests might be seen as opening the door to a balancing of interests, almost accepting the notion that a previable fetus might rise to the level of a protectable person whose interests could compete with the pregnant person.”
Laguardia further highlights the importance of legal rhetoric as a form of “strategic communication[], purposefully written in order to shape the behavior of other actors,” and argues that “the failure of judges to acknowledge the individual interests of pregnant women is both influenced by social rejection of that idea and influences that rejection.” Laguardia’s findings are a valuable contribution to the extensive body of scholarship that demonstrates the silencing of women’s voices within the legal system, as well as the consequences of that silencing from a broader societal perspective.
