Chapter 1: Actors in the Judicial Process

1.8 Opposition to Abortion, Then and Now: How Amicus Briefs Use Policy Frames in Abortion Litigation

Laura P. Moyer, Alyson Hendricks-Benton, and Megan Balcom

They [the public] felt that pro-life people were not compassionate to women and that we were only “fetus lovers” who abandoned the mother after the birth. . . . We had to convince the public that we were compassionate to women. Accordingly, we test marketed variations of this theme. Thus was born the slogan “Love Them Both.” . . . Five or ten years ago my emphasis would have been on the right to life and on saving babies. But now I want to tell those who are involved in women’s helping centers that they are doing what I believe is the most important single thing that the pro-life movement is doing in our time.

—Jack Willke, former director of National Right to Life (quoted in Siegel 2008: 1670–1).

 

Early in the debate over abortion, opposition to the procedure was primarily described in terms that reflected moral concerns about the protection of “the unborn.” Indeed, much of the media coverage and public discourse describing opposition to abortion since the time of Roe characterizes the movement as focused on securing rights for all human beings from the moment of conception (Huff 2014, 39). However, interviews with activists and movement leaders suggest that antiabortion groups have employed an array of public outreach strategies over time.

As seen above, the former director of the antiabortion group National Right to Life described how market research into public perceptions of his organization led to a shift in its outreach strategy in the 1990s.

But did this shift in public rhetoric and outreach strategy extend to litigation as well? While most of the literature on social movements and framing focuses on the media, here we focus on another important venue that social movement organizations use to push for policy change and to raise visibility: the Supreme Court. Given the primacy of Supreme Court decisions in the abortion debate, it is crucial to understand changes in groups’ use of frames in legal arguments presented to the Court. There is every reason to believe that the frames employed in briefs filed before the Supreme Court represent important strategic decisions by pro-life activists and groups in response to signals from the political environment and the current temporal context (Meyer and Minkoff 2004; Tilly 1978; Meyer 2004), or what is sometimes called the political opportunity structure. Framing in amicus briefs should align with the messaging strategy employed by the group in other advocacy contexts and be reflective of the political opportunity structure (Tarrow 1998:77) and adapted somewhat to fit the language of law and the contours of legal doctrine. (We explore this point more in the conclusion.)

The Framing of Abortion as a Policy Issue

 

Framing helps individuals make sense of the world around them by providing a scheme of interpretation (Goffman 1974) that highlights particular aspects for attention while downplaying others (Kahneman and Tversky 1984). For instance, gun rights groups often use the “crime control” frame, emphasizing the ineffectiveness of existing gun restrictions in stopping crime (Goss 2006; Merry 2016). In their review of the research on framing and social movements, Benford and Snow (2000) emphasize that framing is an active, evolving process to construct meaning and that the evolution of frames reflects changes in the social movement or among activists. The authors also note that framing is contentious because it “involves the generation of interpretive frames that not only differ from existing ones but that may also challenge them” (614). This description is an apt one for the interactive, dynamic process that is the abortion policy space.

The pro-life movement began organizing in the 1960s and encompasses a range of groups for whom abortion policy may be either a primary focus (e.g., National Right to Life) or part of a larger constellation of issues (e.g., the Catholic Church; Woliver 1998). Early after Roe v. Wade, morality frames emphasized the conflict between the fetus and the mother and characterized women who obtained abortions as morally repugnant (Rose 2011; Rohlinger 2002). For instance, in the amicus filings for the 1989 case Webster v. Reproductive Health Services, Woliver describes the framing of abortion this way: “Fetuses are never called fetuses, they are always ‘unborn children,’ ‘unborn life,’ ‘prenatal life,’ ‘children in the womb,’ ‘human life before birth,’ unborn grandchildren,’ ‘viable unborn,’ ‘minor child,’ ‘unborn human life’ (Webster Brief 20)” (1998, 238).

However, antiabortion groups are not monolithic in their frames or goals (Duff 2014). To illustrate, the American Life League (ALL) emphasized messaging that used frames about morality during the 1980s but differed from other abortion opponents in that the stated goal of the group was to eliminate abortions entirely, with no exceptions for abortions to save the life of the mother (Rohlinger 2006, 550). This hard-line position caused a conflict with the National Right to Life Committee (NRLC), which ran a media campaign in the early 1980s that was linked to their position that abortion should be allowed to save a woman’s life (Rohlinger 2006, 550). Similarly, Rose’s (2011) study of literature from antiabortion groups finds that the Elliot Institute supported the reframing of abortion to emphasize concern for women. This was done for strategic reasons—namely, the belief that taking a more compassionate stance toward women and emphasizing women’s rights would be more likely to “topple the abortion industry” (Reardon 1996, cited in Rose 2011, 12). The Elliot Institute (and an associated activist, David Reardon) were featured in a 2007 article in the New York Times that discussed how they utilized medical and psychological data about the negative impacts of abortion on women and sought out women’s stories illustrating this theme through a project called Operation Outcry (Bazelon 2007). This shift in framing was intended to influence public opinion by targeting those who were unmoved by the emphasis on the unborn but who might be persuaded by concern for the woman (Huff 2014; Bazelon 2007). It also capitalized on what some saw as a key weakness within the pro-choice movement: the tendency to downplay the emotional distress surrounding abortion. In sum, these examples demonstrate the range of frames employed and how choices about framing appear to change over time.

Because the presence of one movement in a venue tends to force the opposing movement to operate in that space (Meyer and Staggenborg 1996; Epstein and Kobylka 1992), there were increasingly strong incentives for antiabortion groups to challenge the near monopoly that pro-choice groups had on the use of “science” frames related to abortion. Huff (2014, 61, 78–79) notes that from the mid-1990s on, the antiabortion movement has granted more prominence to scientific claims about how women are harmed by abortion, making assertions about negative associations between abortion and breast cancer, mental illness (“postabortion syndrome”), and infertility. Given that judges are not trained to assess statistical or scientific evidence (Ahmed 2015; Foster and Huber 1997), antiabortion groups could reasonably make the calculation that utilizing medical and scientific claims would cancel out any advantage in framing held by pro-choice groups in litigation, though it is unclear whether this was a coordinated strategy by movement leadership or an opportunity seized by some activists (Huff 2014, 60–1).

While this literature relies on a rich body of interviews, primary source materials, and media coverage to investigate the framing of abortion, no existing work has systematically examined framing in amicus briefs filed in abortion cases before the Supreme Court over an extended time period. This is unfortunate because amicus briefs fit well into the conception of strategic framing processes in which social movement organizations are deliberate and goal oriented in their selection and use of particular frames (Benford and Snow 2000, 623). As the literature has demonstrated, organized interests tend to work simultaneously on several fronts, and litigation is the “sugar on top” strategy that complements advocacy directed at other forums (Solberg and Waltenburg 2006). Given the centrality of court battles to the abortion movement more generally (Rosenberg 1995), it is crucial to gain an understanding of how activists portray their cause to the judges responsible for creating the national legal policy on abortion. Decisions by the Supreme Court dictate the permissible bounds for future state and federal legislation on abortion and have proven to be effective mobilizers for social movement activists as well as the two major political parties (Wilcox and Norrander 2002; Abramowitz 1995).

Again, we argue that the framing choices employed in amicus briefs reflect strategic decisions and signals from the political environment (Meyer and Minkoff 2004). The political opportunity structure, a concept from the literature on social movements, helps us understand the ways that context affects the claims made by abortion movement activists and groups and why those claims arise in particular moments in time (Tilly 1978; Meyer 2004). Tarrow describes the political opportunity structure as the “consistent—but not necessarily formal or permanent—dimensions of the political environment that provide incentives for people to undertake collective action by affecting their expectations for success or failure” (1998, 77).

Below, we provide a brief timeline of the three cases we use in our analysis as a way to identify factors within the political opportunity structure that should affect the choice of frames used by abortion opponents from the 1970s to 2016. We focus on three key aspects of the political opportunity structure: (1) the legal frameworks within which amicus groups had to structure their arguments, (2) changes to the composition of the Supreme Court, and (3) signals from the political environment about openness to the antiabortion position (Meyer and Minkoff 2004).

Roe and the Trimester Framework

 

The policy space in which pro-life amicus groups were operating in the early 1970s was quite different from what we observe today. Abortion had only very recently come into the political realm as a contested public policy issue, and abortion-focused interest groups were still relatively young organizations. In the decade prior to Roe v. Wade (1973), there had been a sea change in public opinion about abortion, and the momentum clearly appeared to be on the side of those who supported abortion rights (Rosenberg 1995, 396–8). Religious politics around abortion were also in a relatively favorable place for abortion rights compared to later years. While Catholic groups opposed state legislative reforms that would liberalize abortion laws, Protestants were generally more favorably disposed toward such reforms (Greenhouse and Siegel 2011, 2047–48). President Nixon reportedly sought to capitalize on this Catholic-Protestant divide in order to gain the support of Catholic voters (Greenhouse and Siegel 2011, 2053), reversing some of his earlier pro-abortion positions. However, the Nixon administration did not take a formal position on the outcome of Roe, unlike presidents in future abortion cases (Keck and McMahon 2016).

After lengthy and divisive deliberations among justices on the Supreme Court (Woodward and Armstrong 1979), Justice Blackmun delivered the seven to two majority opinion striking down Texas’s abortion law, establishing abortion as a constitutional right and setting forth a new legal standard for evaluating abortion restrictions nationwide. The new test, called the trimester framework, legalized abortion during the first trimester, keeping the decision between “a woman and her responsible physician.” During the second trimester, the state had more interest in abortion cases and could regulate abortion procedures in “ways that are reasonably related to maternal health” but could not ban the procedure. Finally, during the third trimester, states could prohibit abortions unless the life or health of the mother was in danger (410 U.S. 113, 1973).

Backlash against Roe was swift. Within a week of the decision, proposals to amend the Constitution to ban abortion had been introduced in Congress (Rosenberg 1991, 185–188), and Catholic groups called for the excommunication of the only Catholic justice on the Court, William Brennan (Woodward and Armstrong 1979, 287). In the 1980 presidential race, the Republican Party platform expressly advocated for both the overturning of Roe and a constitutional amendment that would guarantee “the right to life for unborn children” (Keck and McMahon 2016, 39). The modern era of abortion politics had begun, and amicus groups responded accordingly.

Casey and the Undue Burden Standard

 

Nearly two decades later, when the Supreme Court granted certiorari in Planned Parenthood v. Casey (1992), the composition of the Supreme Court, the state of legal doctrine on abortion, and the now solidified association between the Republican Party and opposition to abortion all appeared very favorable to abortion opponents.

First, since the Court’s controversial decision in Roe v. Wade, six new justices had been appointed to the Supreme Court, each by Republican presidents. Five of these appointments replaced a justice who had been in the majority of Roe, and William Rehnquist (who was one of the two Roe dissenters) was now elevated to the position of chief justice, with opinion assignment power. That left Justice Blackmun, the author of Roe, as the sole remaining member of the Roe majority. President Bush’s appointments of David Souter (in 1990) and Clarence Thomas (in 1991) also signaled a favorable audience for abortion opponents compared to the justices they replaced (Epstein and Walker 2013, 420).

These personnel changes, coupled with the state of legal doctrine, presented a political opportunity for antiabortion groups. A series of decisions by the Court in the 1980s had increasingly limited Roe’s reach, allowing for more state regulation of the procedure and restrictions on public funding for abortion. Significantly, a closely divided 1989 ruling (Webster v. Reproductive Health Services) laid the doctrinal groundwork for overruling Roe, saying, “To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases” (492 U.S. at 521). Thus momentum seemed to have shifted back in favor of pro-life groups.

Finally, since the Roe decision, the Republican Party had become increasingly identified with the pro-life movement, with presidents Ronald Reagan and George H. W. Bush each taking public positions in opposition to Roe (but see Tushnet 2005). In Casey, President Bush’s solicitor general took the position that the Court should overrule Roe. Known as the “Tenth Justice,” the solicitor general enjoys substantial advantages in litigation before the Supreme Court (Black and Owens 2012). Although previous solicitors general had taken this position in the decade before Casey, the call to overturn Roe came at a time when the makeup of the Court seemed to all but guarantee success (Keck and McMahon 2016). However, this did not come to pass. In Casey, Justices O’Connor, Kennedy, and Souter joined together with Blackmun and Stevens to explicitly uphold Roe in a five to four decision.

Several aspects of the Casey decision created more space for the usage of frames emphasizing the woman rather than the fetus. One such provision was the exception for abortions necessary for the health or the life of the mother. This allowed women, theoretically, to obtain abortions after the point of viability if medical necessity dictated. Another was the requirement that regulations on abortion must “inform the woman’s free choice, not hinder it” (505 U.S. 833 (1992)). In the case, mandated counseling scripts were deemed acceptable because they furthered the legitimate interest of the state in “reducing the risk that a woman may elect an abortion, only to discover later with devastating psychological consequences, that her decision was not fully informed” (quoted in Rose 2007, 77). Thus the undue burden test created an opportunity for advocates who opposed abortion to make successful arguments framed in terms of concern for women’s health, informed consent, and the like. Some scholars have argued that this ruling effectively put an end to the hopes of antiabortion groups wishing to overturn Roe, and it also provided an opportunity for both sides of the abortion debate to claim that their opponents had prevailed and thus motivate their supporters to mobilize (Meyer and Staggenborg 1996).

Abortion Doctrine in the Obama Era

 

By the time the Supreme Court heard arguments in its Whole Woman’s Health v. Hellerstedt (2016), the political context remained relatively favorable for pro-life amicus groups. First, the composition of the Supreme Court had steadily shifted in a more conservative direction in the decades following Planned Parenthood v. Casey. During his time in office, President George W. Bush was successful in confirming two conservative justices (John Roberts and Samuel Alito) to the Court. In particular, the appointment of Justice Alito to replace O’Connor, one of the authors of the Casey decision, was a victory for abortion opponents because of his more conservative stance on abortion (Keck and McMahon 2016). In contrast, President Obama’s judicial nominees (Sonia Sotomayor and Elena Kagan) did not change the balance of power on the Court because they replaced two justices (Souter and Stevens) whose voting records generally supported Roe and abortion rights.

In addition to the composition of the Supreme Court, legal doctrine also was favorable for abortion opponents. In 2016, the Court had not revisited the right to abortion in nine years, with its last decision (Gonzales v. Carhart) upholding a controversial federal law banning “partial birth” abortions. In the majority opinion, Kennedy used terminology favored by abortion opponents (e.g., “abortionist,” “unborn child”) and then expressed concern that women who had abortions would suffer long-term negative mental health consequences (Ahmed 2015; Gerrity 2010). This seemed to be an encouraging development for groups hoping to persuade the Supreme Court to limit or end abortion.

Another important factor was the success of the Republican Party in making big gains at the state level in 2010. Republican state legislators and state officials used this position of power in the years that followed to propose a number of restrictive abortion laws. For instance, in the year prior to Whole Woman’s Health, the Guttmacher Institute reported that thirteen states introduced bills that required abortion providers to have admitting privileges at hospitals, and seven states enacted other “targeted” regulations for abortion providers. These types of provisions were at issue in Whole Woman’s Health. Taking the opposing view, the Obama administration’s solicitor general filed a brief that argued that the Texas law and others like it failed to produce “actual health benefits” and created “substantial obstacles” for women seeking abortions, in violation of Casey (Brief of the Solicitor General 2016).

Thus when certiorari for Whole Woman’s Health was granted by the Court in November 2015, the composition of the Court remained evenly split between the four liberal justices and the four conservatives, with Kennedy in the middle. For pro-life groups filing amicus briefs, it seems likely that they would continue to identify Kennedy as a key target for their arguments and emphasize frames that had played well with him in the past. Of course, this strategy could not have anticipated the sudden death of Justice Antonin Scalia, which came after the deadline for amicus briefs to be filed in the case (Denniston 2016). Scalia’s death meant that if the court divided evenly (four to four), the decision of the Fifth Circuit upholding the Texas law would stand but would not become national precedent. This would be a minor victory for abortion opponents. Ultimately, Justice Kennedy joined the four liberal justices in a five to three vote to strike down the Texas abortion regulations, with Justice Breyer (a Clinton appointee) writing the majority opinion.

Hypotheses

 

With this background, we draw from the frames identified in the existing literature on the antiabortion movement and test for their presence in amicus briefs. The literature suggests that “pro-woman” frames utilized by abortion opponents may take several forms. We focus on two such frames here: harm to women and science. The Harm-women frame emphasizes anecdotes and tragic stories from women with “postabortion syndrome” or other traumatic abortion experiences (described in language intended to pack an emotional punch). An example of this first category is an amicus filing from Whole Woman’s Health by “3,348 women injured by abortion” that consists of a series of harrowing personal anecdotes. The second frame, Science, makes arguments based on data and medical evidence (intended to counter peer-reviewed studies cited by pro-choice advocates). An example of this frame can be seen in a brief filed by Pro-Life Obstetricians and Physicians for Life in which the amici cite peer-reviewed studies about the medical risks associated with abortions performed in outpatient abortion clinics. Both the Harm-women and Science frames shift the rhetorical emphasis from opposition to abortion on moral grounds to opposition on evidence-based grounds that include both anecdotal and more systematic data.

With these definitions in hand, we next detail a series of hypotheses about the amicus briefs filed in each of the four cases in our study. Our first two hypotheses relate to early decisions about framing made by antiabortion groups.

 

H1: In Roe, we expect that the morality frame will be the most common frame used in pro-life amicus briefs.

 

H2: In Casey, we expect that the morality frame will be the most common frame used in pro-life amicus briefs.

 

 

Several factors point to a shift in antiabortion strategy after 1992, with an increased focus on harm to women and science frames. First, legal doctrine lent itself readily to these frames; the Supreme Court’s decision in Casey emphasized themes of self-determination for women, “reasonable” regulations designed to “inform” and not “hinder” a woman’s “free choice,” and maintained exceptions for late-term abortions necessary to save women’s lives or for their health. Second, antiabortion groups could reasonably conclude that shifting their focus would allow them to counter pro-choice arguments about science. Third, the laws being challenged in the 2016 case Whole Woman’s Health v. Hellerstedt (couched in terms of making abortion and abortion clinics safer for women) were not well suited for arguments about morality compared to previous cases. Together, these factors suggest the following two hypotheses.

 

 

H3: Science and harm to women frames will be used more often in Whole Woman’s Health than in any previous case.

 

H4: Morality frames will be used less often in Whole Woman’s Health than in either Casey or Roe.

 

Data and Methods

 

To investigate our hypotheses, we used LexisNexis and Westlaw to download all available amicus briefs filed in three major abortion decisions: Roe v. Wade (1973), Planned Parenthood v. Casey (1992), and Whole Woman’s Health v. Hellerstedt (2016). We then identified the position of each brief and limited the sample only to antiabortion briefs, resulting in fifty-nine amicus briefs for content analysis. The three cases selected allow us to compare rulings over the full time span of abortion litigation in the Supreme Court to date (i.e., Roe is the first, Casey is roughly at the midpoint, and Whole Woman’s Health is the most recent).

The Supreme Court lays out very precise guidelines for the structure of an amicus brief in its official rules, ensuring consistency across texts. Rather than analyze the entire brief (including extraneous information like the table of contents, table of authorities, and the attorneys’ contact information), we trimmed each brief so that the content analysis included only the summary of argument, arguments, and conclusion sections. This decreased the overall denominator of words and allowed us to focus on only the parts of the brief where amici made legal arguments.

Once these briefs were downloaded and trimmed, we utilized two automated content-analysis software programs to process the texts: WordStat and Linguistic Inquiry and Word Count (LIWC). WordStat allows users to identify the most commonly used words in a text, among other features. LIWC has been used in both nonlegal (Merry 2016) and legal contexts (Owens, Wedeking, and Wolfarth 2013). The software program processes text files and produces a battery of indicators related to linguistic and psychological attributes of the writing. Crucially for our purposes, it also allows the user to develop customized dictionaries.

We used WordStat first to generalize a master list of all complete words used in the amicus briefs and from that list created three custom LIWC dictionaries related to the following frames: (1) Morality, (2) Harm-women, and (3) Science. (Full dictionaries for each of these frames appear in the appendix.) The first category includes language linked to the morality frame (e.g., “unborn,” “kill,” “infant,” “murder”), while the second focuses on negative health consequences for women who obtain abortions (e.g., “depression,” “complication,” “mental health,” “regret”). The last category emphasizes scientific evidence (e.g., “peer review,” “data,” “evidence,” “accepted medical practice”). The dependent variables for our analysis reflect the percentage of words from the argument portion of the brief that fall into the three frames described. Figure 1 displays the distribution of each frame in each case using a box plot, which shows the minimum and maximum values as well as the twenty-fifth percentile, fiftieth percentile (also called the median), and seventy-fifth percentile values. This is helpful because it allows us to see how much variation there is across pro-life briefs in the use of a particular frame; for instance, in Roe, we can see that the most variation in frame use across briefs comes from the Morality frame (because the box is longer than for the other two frames). This means that pro-life briefs filed in Roe varied rather substantially in how heavily they used Morality language. In contrast, in Whole Woman’s Health, the distance between the bottom of the box (twenty-fifth percentile value) and the top of the box (seventy-fifth percentile value) is fairly similar across frames.

 

Figure 1: Variation in Frames in Pro-life Amicus Briefs
Figure 1: Variation in Frames in Pro-life Amicus Briefs. Note: Figure is a box plot (also known as a box-and-whiskers plot).  The number of pro-life amicus briefs for each case is as follows: Roe (5), Casey (20), and Whole Woman’s Health (34).

 

To evaluate our hypotheses about how often these frames are used in amicus briefs, we use a statistical test called a t-test. We want to know whether, on average, the use of a particular frame in a single case is different from the usage of other frames (in the same or other cases), and we want to know whether any differences are statistically different from zero. The results of our analyses are presented in several ways; in the text, we provide standard information about t-tests (including the t-value, degrees of freedom, and the significance for a 95 percent confidence interval with a two-tailed test). We also present results in graphical form, which may be more intuitive to interpret. Figure 2 shows three bar graphs, which allows for comparisons of frames within a single case; there, significant differences between frames are denoted with an asterisk. In figure 3, where we compare the use of frames across cases, we have graphed the mean value (also called a point estimate) for each frame as well as the uncertainty around that value (i.e., the confidence interval). A good rule of thumb for interpreting graphs like this is to check whether the confidence intervals for different point estimates overlap. If they do not, we can say that the difference between the two mean values is statistically significant at a 95 percent level. However, if the confidence intervals do overlap, this does not automatically mean that the difference is not significant (Schencker and Gentleman 2001). Rather, it means that we should check the p-value to see whether it is greater than .05, which would indicate the means are not significantly different from each other. For this reason, we discuss both the p-value and the confidence intervals as shown in the graphs.

 

Figure 2: Within-Case Comparison of Frames
Figure 2: Within-Case Comparison of Frames. Notes:  Results shown are from t-tests with assumed unequal variance. * denotes that the mean for that frame was significantly different from the Morality frame mean within the same case (at p < .05, two tailed-test). The number of pro-life amicus briefs for each case is as follows: Roe (5), Casey (20), and Whole Woman’s Health (34).

Framing Analysis

 

Moving now to our analyses, the first two hypotheses predict that the Morality frame will be the most commonly used frame in both Roe and Casey. Figure 2 allows us to compare how often frames are used within each case, and we can see that in Roe, an average of about 3.4 percent of words fall into the Morality frame compared to 1.0 percent for Harm-women and about 0.7 percent for Science. The results of the t-tests for Roe show that the Morality frame is significantly different from Science [latex]t[4.12] = 2.86, p < 0.05[/latex], but the difference between Morality and Harm-women barely misses the p < .05 threshold for significance [latex]t[6.60] = 3.19, p = 0.06[/latex]. As such, Hypothesis 1 receives only partial support. Looking next to Casey, we see again that the Morality frame is used more often than the other two frames. T-tests confirm that the differences between both Morality and Harm-women [latex]t[22.2] = 5.21, p < 0.05[/latex] and Morality and Science [latex]t[27.7] = 4.41, p < 0.05[/latex] are statistically significant. This may seem surprising given that the bars for frame use show more extreme differences in Roe than in Casey. However, it is important to note that because the number of amicus briefs in Casey is much larger (twenty) than Roe (five), it is easier to achieve statistical significance. (The smaller the number of observations, the harder it is to show that differences are not attributable to chance.) Taken together, these findings indicate strong support for Hypothesis 2, which predicted that the morality frame would be used more frequently than other frames in Casey.

Figure 3: Comparison of Frames across Cases
Figure 3: Comparison of Frames across Cases. Notes: Results shown are from t-tests with assumed unequal variance.  Dots are mean values and range bars indicate 95% confidence intervals. Where confidence intervals do not overlap, the two values are significantly different from each other at p < .05 (two-tailed test).

 

Our third hypothesis posited that antiabortion amici would use Science and Harm-women frames more often in Whole Woman’s Health than in either previous case. This requires us to compare across cases, as seen in figure 3. Recall that the dots represent the mean values, and the range bars show the upper and lower bounds of a 95 percent confidence interval. Starting with the Science frame, we can see that it was indeed used more often in Whole Woman’s Health than in either previous case and that there appears to be a steady upward trend in its use. Because the confidence intervals for Whole Woman’s Health do not overlap with either Casey [latex]t[51.1] = −3.32, p < .05[/latex] or Roe [latex]t[24.9] = −6.17, p < .05[/latex] and the p-values for each are less than .05, we can say that this difference is statistically significant at the 95 percent level. Note, however, that in spite of the overlapping error bars for Roe and Casey, the difference between the two cases is actually significant at p < .05. This means that the Science frame is increasingly used by antiabortion amici over the time period shown.

Next, we look at the Harm-women frame as shown in figure 3. We want to know whether amici framed abortion more in terms of harm to women in the 2016 Whole Woman’s Health case than in the two earlier cases. The graph shows us that the difference is significant both when comparing Whole Woman’s Health to Casey [latex]t[51.1] = −3.32, p < 0.05[/latex] and when comparing it to Roe [latex]t[8.51] = −2.38, p < 0.05[/latex], although not when comparing Casey and Roe to each other (p = .68). As such, Hypothesis 3 is supported with respect to both frames.

The last hypothesis focuses on use of the Morality frame across cases. As expected, the point estimates show that abortion opponents used this frame the least often in amicus filings for Whole Woman’s Health and more often in both older cases. Because the confidence intervals for Whole Woman’s Health and Casey do not overlap, we can say that this difference is statistically significant at a 95 percent level [latex]t[27.5] = 4.39, p < 0.05[/latex]. But while there appears to be quite a large difference between the point estimates for Whole Woman’s Health and Roe, the confidence intervals overlap, and the difference actually fails to reach the p < .05 threshold for statistical significance [latex]t[4.17] = 2.29, p = 0.08[/latex]. Again, this is likely a consequence of the increased uncertainty around the point estimate for Roe because of its small number of observations. Thus Hypothesis 4 is supported with respect to Casey but not for Roe.

Discussion

 

The Supreme Court has become an increasingly important forum for social movements and their associated interest groups to make policy and to demonstrate “action” on issues of interest (Owens and Epstein 2005). While the conservative legal movement generally eschewed public interest litigation as a focus of their efforts through the 1970s and into the 1980s, the “second wave” of the movement has been more proactive in targeting the courts as a means to achieve policy goals (Teles 2008). Abortion opponents now routinely utilize the opportunity to file amicus curiae briefs in abortion cases coming before the Supreme Court. This presents scholars with a rich body of texts from which to analyze one of the most contentious political issues in contemporary American politics.

The results of our study also highlight distinctive changes in the way that abortion opponents frame the issue, particularly when contrasting the 2016 Supreme Court decision (Whole Woman’s Health v. Hellerstedt) with earlier decisions from the 1970s and 1990s. In Roe v. Wade and Planned Parenthood v. Casey, abortion opposition was largely framed in terms of morality language, but by 2016, use of the Morality frame had declined and was used less than it ever had been before. At the same time, we observe a rise in the use of the Science frame by abortion opponents. Briefs using the Science frame focused their arguments on findings from medical studies (though not always peer reviewed), regulatory agencies like the FDA, and medical experts as a means to demonstrate legitimacy.

Opposition to abortion in terms of harm to women also emerges as a newer emphasis for pro-life groups in Supreme Court litigation. Our results show that this frame was used significantly more often in amicus briefs filed in Whole Woman’s Health than in amicus briefs for Casey or Roe. This makes sense as a response to post-Casey legal doctrine on abortion, which directs attention to the relationship between abortion regulations and women’s health, and seems to pair well with an increased emphasis on Science frames. Moreover, the challenged law in Whole Woman’s Health emphasized the medical necessity of its various regulatory provisions, so it seems natural that groups defending the state’s position would adopt similar language.

Like all studies, there are limitations to our findings. First and foremost, our conclusions are limited by the small number of cases analyzed, and future research should examine how framing choices by both antiabortion and pro-choice groups have varied over time. Along these lines, it could be instructive to compare the framing used in press releases and other public-focused communication materials with amicus briefs on a group-by-group basis. This would provide support for our assumption that messaging is consistent across contexts and would allow for exploration about variation across groups on the same side of the issue. Additionally, because our interest is in identifying the strategies and frames used in amicus briefs, we cannot weigh in on what influence these frames had on the substance of the Supreme Court’s ruling in those cases, though the literature suggests such influence is likely (Collins, Corley, and Hamner 2015). We also acknowledge that some frames necessarily work better than others in particular cases and that groups’ decisions about how to frame their legal arguments are in some ways responsive to how the movement has been able to shape the kind of legislation that states (and the federal government) have enacted on abortion. In each new instance of litigation, amici must decide how to adjust their arguments to the contours of the case facts and the statutory language so as to provide maximum advantage. Groups also may update their approach for the next case based on how they fared for the previous case and on how influential justices ruled (e.g., O’Connor or Kennedy). Finally, there may be other factors in the political opportunity structure that influence strategic decisions about framing opposition to abortion; for instance, future work could examine changes in public opinion and media coverage of abortion during this time period.

After their 2016 loss in Whole Woman’s Health, antiabortion groups may be forced to reevaluate the best rhetorical strategy moving forward. Public policy scholars have generally classified abortion policy under the rubric of morality policy, which is considered to be “easy” because it does not require the public to comprehend highly technical information (Gerrity 2010: 64). If both sides resort to using science as a dominant frame, this may change the dynamics of abortion as a policy issue, with judges and the general public not always able to decipher technical language, interpret statistical significance, or determine the quality of the scientific research being presented. Would such an approach be successful in convincing those in the public who are neither fully opposed nor fully supportive of abortion? Or would it be less persuasive than an approach that emphasized themes of harm to women? Clearly, the answer to these questions depends in large measure on how the composition of the Supreme Court changes over the near term and how such changes affect their resolution of future cases involving the constitutional right to abortion.


Cases

Gonzales v. Carhart, 550 U.S.124 (2007). https://supreme.justia.com/cases/federal/us/550/124/

Planned Parenthood v. Casey, 505 U.S. 833 (1992). https://supreme.justia.com/cases/federal/us/505/833/

Roe v. Wade, 410 U.S. 113 (1973). https://supreme.justia.com/cases/federal/us/410/113/

Webster v. Reproductive Health Services, 492 U.S. 490 (1989). https://supreme.justia.com/cases/federal/us/492/490/

Whole Woman’s Health v. Hellerstedt, 579 U.S. __ (2016). https://supreme.justia.com/cases/federal/us/579/15-274/


References

Abramowitz, Alan. 1995. “It’s Abortion, Stupid: Policy Voting in the 1992 Presidential Election.” Journal of Politics 57: 176–86. (↵ Return)

Ahmed, Aziza. 2015. “Medical Evidence and Expertise in Abortion Jurisprudence.” American Journal of Law & Medicine 41: 85–118. (↵ Return 1) (↵ Return 2)

Bazelon, Emily. 2007. “Is There a Post-Abortion Syndrome?” The New York Times. January 21 http://www.nytimes.com/2007/01/21/magazine/21abortion.t.html (↵ Return 1) (↵ Return 2)

Benford, R., & Snow, D. (2000). Framing Processes and Social Movements: An Overview and Assessment. Annual Review of Sociology, 26, 611-639. (↵ Return 1) (↵ Return 2)

Black, Ryan C., Owens, Ryan J. 2012. The Solicitor General and the United States Supreme Court: Executive branch influence and judicial decisions. New York: Cambridge University Press (↵ Return)

Collins, Paul M., Jr., Pamela Corley, and Jesse Hamner. 2015. “The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content.” Law & Society Review 49(4): 917–944. (↵ Return)

Denniston, Lyle. 2016. “Argument Preview: New Look at Abortion after Nine Years.” Scotusblog [blog] February 24. http://www.scotusblog.com/2016/02/argument-preview-new-look-at-abortion-after-nine-years/ (↵ Return)

Duff, April N. 2014. “Constructing Abortion’s Second Victim: Science and Politics in the Contemporary Antiabortion Movement.” PhD. Dissertation. https://escholarship.org/uc/item/4rr2f96t (↵ Return)

Epstein, Lee, and Joseph F. Kobylka. 1992. The Supreme Court and Legal Change: Abortion and the Death Penalty. Chapel Hill, NC: The University of North Carolina Press. (↵ Return)

Epstein, Lee and Thomas G. Walker. 2013. Constitutional Law: Rights, Liberties, and Justice (8th ed.). Thousand Oaks, CA: SAGE. (↵ Return)

Foster, Kenneth R. and Peter W. Huber. 1997. Judging for Science: Scientific Knowledge and the Federal Courts. Cambridge, Mass.: The MIT Press. (↵ Return)

Gerrity, Jessica C. 2010. “Building a Framing Campaign: Interest Groups and the Debate on Partial-Birth Abortion.” In Schaffner, Brian F., and Patrick J. Sellers, eds. Winning with Words: the Origins and Impact of Political Framing. Routledge. (pp.60–77). (↵ Return 1) (↵ Return 2)

Goffman, Erving. 1974. Frame Analysis: An Essay on the Organization of Experience. Cambridge, MA: Harvard University Press. (↵ Return)

Goss, Kristen A. (2006). Disarmed: The Missing Movement for Gun Control in America. Princeton University Press. (↵ Return)

Greenhouse, Linda, and Reva B. Siegel. 2011. “Before (and After) Roe v. Wade: New Questions about Backlash.” Yale Law Journal 120: 2028. (↵ Return 1) (↵ Return 2)

Huff, April. (2014). "Constructing Abortion’s Second Victim: Science and Politics in the Contemporary Antiabortion Movement." San Diego: University of California. (↵ Return 1) (↵ Return 2) (↵ Return 3) (↵ Return 4)

Kahneman, Daniel and Amos Tversky. 1984. “Choices, Values, and Frames.” American Psychologist 39(4): 341–350. (↵ Return)

Keck and McMahon 2016. “Why Roe Still Stands: Abortion Law, the Supreme Court, and the Republican Regime.” Studies in Law, Politics & Society 70 (2016): 33–83. (↵ Return 1) (↵ Return 2) (↵ Return 3) (↵ Return 4)

Merry, Melissa K. 2016. “Constructing Policy Narratives in 140 Characters or Less: the Case of Gun Policy Organizations.” Policy Studies Journal 44(4): 373–395. (↵ Return 1) (↵ Return 2)

Meyer, David S. 2004. “Protest and Political Opportunities.” Annual Review of Sociology 30: 125–145. (↵ Return 1) (↵ Return 2)

Meyer, David S., and Debra C. Minkoff. 2004. “Conceptualizing Political Opportunity.” Social Forces 82(4): 1457–1492. (↵ Return 1) (↵ Return 2) (↵ Return 3)

Meyer, David S., and Suzanne Staggenborg. 1996. “Movements, Countermovements, and the Structure of Political Opportunity.” American Journal of Sociology 101(6): 1628–1660. (↵ Return 1) (↵ Return 2)

Owens, Ryan J. and Lee Epstein. 2005. “Amici Curiae During the Rehnquist Years.” Judicature 89: 127–132. (↵ Return)

Owens, Ryan, Justin Wedeking, and Patrick Wolfarth. 2013. “How the Supreme Court Alters Opinion Language to Evade Congressional Review.” Journal of Law & Courts 1(1): 35–59. (↵ Return)

Rohlinger, Deana A. (2002). Framing the Abortion Debate: Organizational Resources, Media Strategies, and Movement-Countermovement Dynamics. The Sociological Quarterly, 43(4), 479-507. (↵ Return)

Rohlinger, Deana, A. (2006). Friends and Foes: Media, Politics, and Tactics in the Abortion War. Social Problems, 53(4), 537-561. (↵ Return 1) (↵ Return 2)

Rose, Melody. 2007. Safe, Legal, and Unavailable? Abortion Politics in the United States. CQ Press: Washington, D.C. (↵ Return)

———. 2011. Rose, Melody. “Pro-life, pro-woman? Frame extension in the American antiabortion movement.” Journal of Women, Politics & Policy 32(1): 1–27. (↵ Return 1) (↵ Return 2) (↵ Return 3)

Rosenberg, Gerald. 1991. The Hollow Hope: Can Courts Bring About Social Change? University of Chicago Press: Chicago. (↵ Return)

———. 1995. “The Real World of Constitutional Rights: The Supreme Court and the Implementation of the Abortion Decisions.” In Contemplating Courts, edited by Lee Epstein, 390-415. CQ Press: Washington, D.C. (↵ Return 1) (↵ Return 2)

Siegel, Reva. 2008. “The Right’s Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument.” Duke Law Journal 57: 1641-1692. (↵ Return)

Solberg, Rorie Spill and Eric N. Waltenburg. 2006. “Why Do Interest Groups Engage the Judiciary? Policy Wishes and Structural Needs.” Social Science Quarterly 87(3): 558–572. (↵ Return)

Tarrow, Sidney. 1998. Power in Movement: Social Movements and Contentious Politics. Cambridge: Cambridge University Press. (↵ Return 1) (↵ Return 2)

Teles, Steven. 2008. The Rise of the Conservative Legal Movement: The Battle for Control of the Law. Princeton: Princeton University Press. (↵ Return)

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Tushnet, Mark V. 2005. A Court Divided: The Rehnquist Court and the Future of Constitutional Law. New York, NY: W.W. Norton & Co. (↵ Return)

Wilcox, Clyde, and Barbara Norrander. 2002. “Of Mood and Morals: The Dynamics of Opinion on Abortion and Gay Rights.” In Understanding Public Opinion, 2nd ed., edited by Barbara Norrander and Clyde Wilcox, 121-148. Washington, DC: CQ Press. (↵ Return)

Woliver, Laura. 1998. “Social Movements and Abortion Law.” In Social Movements and American Political Institutions, edited by Anne N. Costain and Andrew S. McFarland, 233-250. New York: Roman & Littlefield. (↵ Return 1 ) (↵ Return 2 )

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Appendix

LWIC Dictionaries 
Morality Harm-women Science

Abortionist

Person

Body part

Human

Wholesaler

Harvester

Abortion industry

Sold

Unborn

Bab*

Infant*

Child*

Kill*

Murder*

Die*

Dying

Dead

Death*

Innocent*

Life

Alive

Concept*

Conceive*

Mother*

Abortion doctor*

Right*

Hurt*

Protect*

Pain*

Harm*

Mother*

Rape

Unsafe

Domestic violence

Intimate partner violence

Abuse

Abusive

Victim

Survivors

Safe*

Depress*

Maternal mortality

Alone

Hurt*

Regret*

Cry*

Cried

Upset*

Protect*

Risk*

Danger*

Complication*

Mental health

Woman

Women

Female*

Pain*

Blood*

Bled

Harm*

Public health

Safe*

Study

Studies

Research

Data

Evidence

Peer-review*

Healthcare

Procedure*

Medical prof*

Maternal mortality

Accepted medical pract*

Patient*

Obstet*

Gynecol*

Physician*

Fetus*

Reproduc*

Protect*

Risk*

Danger*

Complication*

Mental health

Woman

Women

Female*

Pain*

Blood*

Bled

Harm*

Fetal pain

Breast cancer

 

Note:  * denotes word stem (e.g., death* would include both “death” and “deaths”).


Class Activity

Amicus Curiae Activity in Abortion Cases

When third parties that are not involved in litigation want to weigh in on a pending Supreme Court case, they may file an amicus curiae (friend of the court) brief. These briefs must comply with the guidelines established by the Supreme Court. You can read the guidelines here: https://www.law.cornell.edu/rules/supct/rule_37.

Groups like the American Civil Liberties Union (ACLU), the Cato Institute, the Chamber of Commerce, the National Association for the Advancement of Colored People (NAACP), and even members of Congress file amicus briefs to express their views. Below are a few activities to help you research and explore amicus briefs yourself.

Amicus Briefs

SCOTUSblog is a helpful resource for finding the filings by litigants and amicus groups in recent Supreme Court cases.

  1. First, find the amicus briefs filed in the 2016 case Whole Woman’s Health v. Hellerstedt and pick out five to six that look interesting. (Be sure to pick some from each side in the case.) You can access the filings here, under “Proceedings and Orders”: https://www.scotusblog.com/case-files/cases/whole-womans-health-v-cole/.
  2.  There are a variety of different approaches and strategies used in amicus briefs. For instance, one kind of brief calls the Court’s attention to the practical impact of ruling in a particular way. Another kind of brief might raise a novel legal argument that the litigants don’t mention. Read the following post on SCOTUSblog about different ways to “friend” the Supreme Court. Then look at the amicus briefs you found above and see if you can classify them in the categories identified by the authors. Here’s the post: https://www.scotusblog.com/2018/08/top-10-ways-to-friend-scotus/.
  3. Looking at the content of the briefs, what frames can you identify? How do the groups who have signed on to each brief “sell” the expertise or special insights they bring to the issue? What kind of evidence is used to support arguments made by medical professionals? By abortion-related groups? By groups with religious affiliations?
  4. Once the Supreme Court has read the written arguments in a case, they hear from lawyers representing each side and sometimes from the US solicitor general. Listen to the oral arguments in Whole Woman’s Health and compare how the frames used by the advocates representing the litigants compare to the frames you notice in the amicus briefs. You can access the oral arguments here: https://www.oyez.org/cases/2015/15-274.

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