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Deadly Dicta: Roe’s “Unwanted Motherhood,” Carhart II’s “Women’s Regret,” and the Shifting Narrative of Abortion Jurisprudence


For thirty-four years, the narrative of Supreme Court jurisprudence on the issue of abortion was firmly focused on the pregnant woman. Arguments focusing on the fetus as the equal or greater party of interest during any stages of pregnancy were systematically pushed aside by the Court.Whether expressly or impliedly, these criticisms focus almost exclusively on the validity of women’s regret because the Court’s reasoning could result in a change in the way we view abortion, in the stories we tell about abortion, and in who and what we think of when deciding the constitutionality of abortion regulations. Roe provided us with the trimester test, the physician-state competing rights analysis, and the extension of the right to privacy—all under the guise of “unwanted motherhood.” While Carhart II may not have changed much in terms of the fundamental right to abortion, its effects may have far greater consequences, and both the pro-life and pro-choice communities are aware of this. Despite all of the theories, tests, and holdings discussed and implemented in Roe and Carhart II, what remain within our collective conscience are the effects of unwanted motherhood and women’s regret. Under most definitions, these statements are a type of social dicta—unnecessary, memorable language that speaks directly in favor of a particular societal point of view. In light of the current debate, these social dicta are also deadly dicta: unwanted motherhood deadly in its effect on the rights of the unborn, and women’s regret deadly in its effect on unwanted motherhood. As this article will explain, social dicta have the potential to be particularly influential as they become part of the nation’s consciousness. Such dicta are usually the most quoted language by popular media outlets and non-legal sources, are often the most remembered part of the case, and are thematically opportunistic in guiding the debate and framing the narrative for use in future cases. The focus of this Article is to explore how this type of dicta drives and affects the long-term societal opinion and understanding of a stated controversy, and to note the glaring inconsistencies between the current critiques of women’s regret and the abject silence with regard to unwanted motherhood.