Roe v. Wade and Its Metaphors

Summary

In 2022, the US Supreme Court handed down its decision in Dobbs v. Jackson Women’s Health Organization and held that the Constitution does not confer a right to abortion. In so doing, the Court overruled its prior decisions in Roe v. Wade and Planned Parenthood v. Casey, undid forty-nine years of precedent, and eliminated a right on which tens of millions of people had come to rely. That the end of Roe changed the world is commonly understood. Less common is the understanding that the right to abortion, like the right to privacy with which it was associated, had long been articulated in metaphorical terms. In Griswold v. Connecticut, the Court situated the right of a married couple to use contraception without government restriction in the “penumbras, formed by emanations,” from several amendments. In Roe, the Court once again wrote in spatial terms to situate the liberty interest protected by the new rule in the metaphorical space of the Constitution and the Court’s precedents.

The penumbra in Griswold and substantive due process in Roe function metaphorically in these opinions and their attendant doctrines. A constitutional metaphor is an act of representation, comprehension, and construction of the meaning of a constitutional phenomenon like the abortion right. It is an interpretive commitment to analogy: to seeing two things as reasonably similar and thus as deserving of equal treatment. Although all metaphors share this affordance, constitutional metaphors are special because of their direct effect on the normative universe. In the case of Roe, the decision to situate the right to an abortion along the “rational continuum” of liberty interests contemplated by the due process clause named a right where none had existed before. As these cases demonstrate, constitutional metaphors are suffused with intense cultural significance because they suggest that the substantive meaning of rights is an object and that the job of constitutional interpretation is to describe rather than make that meaning.

What the story of penumbral reasoning and substantive due process jurisprudence uncovered here suggests is that metaphors are part of how the Court produces an impression of itself as the ultimate arbiter of constitutional meaning while attempting to avoid the charge that it is creating law. Scholars of literature are well positioned to make a unique contribution to an understanding of the law because literature, like law, is immanently attentive to the rhetorical effects of language. As the Court’s constitutional metaphors demonstrate, the force of a figure can also be the force of law. Given how consequential these figures can be, it is worthwhile to interrogate the principle of analogy that underlies the Court’s metaphorical reasoning and to ask what might happen when that reasoning meets its end.