The Women Take Over: Oral argument, rhetorical skepticism, and the performance of feminist jurisprudence in Whole Women’s Health v. Hellerstedt

Abstract

ABSTRACT Whole Women’s Health v. Hellerstedt was the most important abortion case to come before the United States Supreme Court in 25 years. It was also the first time that three women were seated on the high court to hear a case that challenged the fundamental right to choose abortion. I investigate the questioning by Justices Ginsburg, Sotomayor, and Kagan at oral argument for Whole Women’s Health as a rhetorical enactment of feminist judging and argue that the rhetorical skepticism of the SCOTUS women—their persistent questioning, defiant expressions of doubt, and incredulous style—challenged the discursive boundaries of abortion jurisprudence and advanced a feminist demand that regulations to abortion rights receive heightened scrutiny from the courts. Importantly, Whole Women’s Health demonstrates how rhetorical skepticism may operate as a powerful mode of feminist legal invention—to disrupt the norms of legal reasoning and draw the traditions of legal discourse into doubt in order to authorize a discursive space for feminist legal judgment.