In her recent dissent in the Texas Heartbeat Act case (Whole Woman’s Health v. Jackson), Justice Sotomayor on six separate occasions uses the euphemism abortion care. Indeed, she even once refers to abortion providers as “abortion care providers.” According to my research assistant, the term abortion care has been used only twice before in Supreme Court opinions—both times by Sotomayor earlier this year, first in her dissent in FDA v. ACOG and then in her dissent from the Court’s September 1 order in Whole Woman’s Health v. Jackson.
In that same recent dissent, Sotomayor invokes the supposed “constitutional guarantee” of “a pregnant woman’s right to control her own body.” That rhetoric, which elides the fact that an unborn child is not part of the “pregnant woman’s … own body,” has apparently never before been used by a Supreme Court justice.
Similarly, Sotomayor speaks in that same dissent of women “exercising their constitutional right to choose,” without recognizing that, outside the realm of political sloganeering, the infinitive to choose requires a direct object (to choose what?). There have been other instances in which a justice has referred to a “constitutional right to choose …,” but in every previous instance except one the justice has included a direct object in the phrase (e.g., “constitutional right to choose abortion”). In the one exception, Justice Stevens referred to a “constitutional right to choose to have an abortion” a mere two sentences before using the truncated “constitutional right to choose.”
(As in the first paragraph, I’m relying in the second and third paragraphs on the findings of my research assistant.)