A War of Words Over Abortion: The Legal-Framing Contest Over the Undue Burden Standard

Abstract

Movement lawyering often results in litigation battles. Litigant lawyers in Supreme Court abortion cases, who are typically affiliated with, if not members of the reproductive-rights and antiabortion movements, for many years have engaged in a war of words as they dispute abortion laws and what constitutes an undue burden on abortion access. I use and build on social movement framing theory to examine the legal-framing contest unfolding across the undue-burden abortion cases, toward discerning the anatomy and causal sequence of this discursive legal battle. Using both qualitative and quantitative-computerized text analysis, I show that a broad discursive-opportunity structure shapes the legal-framing contest, and the contest itself is structured by framing innovations and persistence and by dialogic and monologic framing. This theoretical framework can aid our understanding of the sometimes fierce discursive battles in movement litigation, shedding light on how social movements influence legal policy development.

Keywords:

• Supreme Court
• abortion
• reproductive rights
• undue burden
• framing

Discursive clashes led by movement-affiliated lawyers occur in litigation settings for a variety of social movements, including the environmental, immigrant rights, LGBTQ, and racial and indigenous justice movements. Socio-legal scholars increasingly study social movements (Cummings 2017), and the rich burgeoning field now offers a small handful of empirical studies examining framing in litigation by lawyers associated with movements (Brown-Nagin 2005; Davis 2011). While movement scholars (McCaffrey and Keys 2000) study framing contests, few (Hedley and Clark 2007) take the step of exploring the causal and structured aspects of these discursive battles, including how they produce framing innovations and persistence. Yet, litigation framing contests, including those fueled by movement legal advocates, can influence judicial decision making and thus how legal policy develops (Eskridge 2002; Wedeking 2010). To further our knowledge, this paper investigates the legal-framing contest before the Supreme Court in the highly contentious battle over abortion rights. I examine arguments proffered by both the antiabortion and reproductive-rights litigant lawyers and how their legal-framing confrontation unfolded over the undue-burden standard.

The fierce battle over abortion in the U.S. involves a number of Supreme Court cases. In a key decision in 1992, the Supreme Court in Planned Parenthood v. Casey established that the undue-burden standard would govern judicial review of laws restricting abortion access. While Roe v. Wade gave individuals the legal right to seek abortion as a fundamental constitutional privacy right, one requiring strict judicial scrutiny, Casey lowered the level of review to the undue-burden standard, allowing courts to balance the legal right to terminate a pregnancy against a state’s interest in protecting the potential life of the fetus. For the next 30 years, lawyers on both sides, typically the legal and political allies if not participants in the reproductive-rights and antiabortion movements, engaged in a heated discursive legal struggle over the constitutionality of abortion restrictions and what constitutes an undue burden. In a recent major reversal, in Dobbs v. Jackson the Supreme Court not only overturned Roe’s longstanding protection of the abortion right. Dobbs also ended Casey’s undue-burden standard. Given Dobbs’ abrupt end to this standard of review, the current moment presents an opportunity to look back and make sense of the undue-burden legal conflict in abortion litigation, a discursive contest that now has both a beginning and an end.

I use the legal-framing contest over the undue-burden doctrine not only to distill the overall structure or anatomy of this litigation framing conflict but to develop a causal framework explaining important innovations and continuities in the abortion advocates’ legal battle. I examine the pivotal Supreme Court abortion cases in which litigant lawyers waged their arguments to persuade the justices of their respective understandings of an undue burden. Examining the structured aspects and causes of framing innovation and persistence in the undue-burden abortion legal debate helps us understand reproductive-rights politics, and it can also shed light on a broader set of movement legal struggles working to influence judicial policy.

I build on social movement and legal-framing concepts to trace the anatomy of this war of words (Pedriana 2006; Snow et al. 1986). I examine litigant briefs in the pivotal Supreme Court cases providing the Court’s core statements on the undue-burden standard prior to Dobbs: Casey, Stenberg v. Carhart (2000), Gonzales v. Carhart (2007), and Whole Woman’s Health v. Hellerstedt (2016). I use both qualitative and quantitative-computerized methods to examine the contest, including its innovations in legal-advocate framing and its enduring frames, all toward delineating the sequential causal and layered structure of this legal discursive battle. Social movement activists routinely use the courts as an arena for activism (Boutcher and McCammon 2019), and applications of framing theory can illuminate and clarify the complex structure of these discursive legal contestations and how they work to shape legal policy.

Theorizing legal-framing contests

A framing contest is an identifiable and often intense struggle over meaning making, with opposing groups positing different views, or frames concerning the nature of the problem and the needed solution (Hedley and Clark 2007). In the overall adversarial culture of litigation, we can find such contests in litigant brief writing, where lawyers draw on existing law and legal concepts to assert claims designed to persuade judges and justices. Invoking existing law introduces a certain discursive stability in legal debates. In fact, one structural feature of the legal-framing contest examined here is the persistence of some frames. Yet, briefs also provide venues where novel legal reasoning occurs. These novel arguments mean that the legal debate shifts as framing innovations emerge. Understanding the framing utilized by activists engaged in litigation, and when and how their framing changes and does not change, is an important step in understanding how legal policy develops.

While scholars examine the expertise of attorneys who succeed in winning legal cases (McGuire 1995; Hickle 2021), examinations of litigant framing are fewer in number (Corley 2008; Schoenherr and Black 2019). Wedeking (2010) presents an exception in his study of how lower court rulings constrain petitioner and respondent legal framing, although he does not focus on movement legal advocate briefs. A growing body of scholarship considers amicus briefs, and Moyer’s (2022, 10) recent study shows that reproductive-rights amicus parties are more likely to rely on framing using the language of science (“professional expertise, clinical language, and scientific research”) than their antiabortion counterparts. While legal scholars closely examine abortion argumentation by litigant advocates across cases (Siegel 2008; Ziegler 2017b, 2020), rarely is the anatomy of ongoing legal-framing contests dissected to offer theorized explanations of innovations and other legal-framing developments. Here, I track across multiple, pivotal abortion cases a sequential and layered discursive process, one that leads to legal-framing innovations and persistence for both antiabortion and abortion-rights litigant brief authors.

I theorize a causal process resulting in innovations and other developments in the legal-framing contest over abortion’s undue-burden standard. To develop this causal understanding, I build on social movement discursive concepts: framing, framing contests, frame transformation, discursive-opportunity structures, and dialogic and monologic framing. Snow et al. (1986) tell us framing entails meaning making in which actors articulate their understanding of the social issue at hand, in the contest studied here, whether a law restricting access to abortion constitutes an undue burden on the right to end an unwanted pregnancy. I argue that framing by the litigant lawyers in these cases—legal actors who themselves align with the antiabortion or reproductive-rights movement—is legal framing in that their meaning making invokes legal concepts, doctrine, and rationales to justify their positions in the dispute (Pedriana 2006). Tracking this framing across a key set of cases allows me to describe the general anatomy of the framing contest and to define a causal process leading to framing innovations and other developments.

Snow et al. (1986, 474) discuss frame transformation as a fundamental change in meaning, a “‘systemic alteration’ that radically reconstitutes” how people understand a social circumstance. I hold that shifts and important adjustments in activist meaning making can also occur, in less fundamental ways, what I refer to as framing innovation. This is similar to Wedeking’s (2010) notion of alternative frames, although he posits alternative frames do not exist prior to their introduction in litigation. My analysis reveals lawyers often draw into litigation innovative frames from the larger discursive-opportunity structure. The current investigation shows that while abortion-rights and antiabortion legal advocates do not alter their fundamental position on whether women should have reproductive control—that is, their framing does not undergo frame transformation—they do bring into litigation new and important ideational elements.¹

Figure 1 illustrates the general causal process theorized here, showing that framing innovations and persistence ultimately result from an ongoing framing contest, that itself is influenced by a broader and changing discursive-opportunity structure. Figure 1 uses the language of framing theory, and in the following discussion I define terms and theorize relationships among concepts.

Figure 1. Basic structural elements and causal sequence in a legal-framing contest.

Note: Text in italics (including legal case names) refers to the specific empirical focus examined here. Non-italicized text refers to the general model.

I draw on Koopmans and Statham's (1999) concept of discursive-opportunity structure to point to the importance of the broader environment in which abortion legal cases are situated. Scholars in political science (Richards and Kritzer 2002, 307) theorize the importance of “jurisprudential regimes,” those “analytic frameworks” within specific legal areas stemming from court precedent, that the justices employ to decide similar cases similarly. In terms of influences on abortion litigant framing, Supreme Court decisions play a fundamental role. When the Court provides a decision, as a powerful institutional actor with extensive capacity to shape the legal discourse, the decision elevates some ideas that, then, going forward, pivotally shape legal disputes between litigants. I incorporate this critical insight from the jurisprudential-regimes literature into the concept of discursive-opportunity structure. The Court’s decisions, even individual justice statements (for instance, in prior dissenting opinions), and, of course, the Court’s composition itself are foundational elements in the discursive-opportunity structure. When the court defines legal doctrine, for instance, like the undue-burden standard, this ideational element is then highly likely to persist in the subsequent legal-framing contest.

While the Court advantages some ideas, the Court disadvantages other discursive claims proffered by legal advocates, often when one side loses in a case. Legal advocates are likely to view such a loss as a legal threat given that the Court rejected their claims. I theorize that such losses or threats are likely to be an important prompt to legal advocates to revise their legal framing, and such threats, therefore, are likely to be a key source of legal-framing innovation (McCammon and Beeson-Lynch 2021). Social movement scholars (Pellow and Brehm 2015) note that activists shift framing approaches when confronted with defeats. Discursive-opportunity structures, then, have a selective quality (Ferree 2003). In judicial disputes, this is particularly traceable to actions of the most powerful actors in that arena, wherein some ideas are elevated as legitimate by the Court’s decisions, while others are rejected and the opportunity for such ideas closes (Ziegler 2010). This, then, compels actors to search for framing innovations.

However, where a jurisprudential regime focuses only on law’s influence, a discursive-opportunity structure allows us to incorporate other actors beyond the Court and other ideational elements beyond legal decision making, that can also influence legal-advocate framing. As socio-legal scholars (Marshall 2006) show, deep connections can exist between lawyers and broader movement activists. The analysis below illustrates how themes developing in the broader antiabortion and reproductive-rights social movements, as well as in legislative debates and in emerging bodies of public-health scientific research, particularly as the legal debate in these cases begins to center on evidence, also provide discursive opportunities for the legal advocates. As lawyers prepare their briefs, they incorporate into their framing discursive elements beyond judicial rulings and statements. While some scholars (Hickle 2021) explain lawyers’ use of argumentative strategies largely in terms of the legal environment, this paper’s investigation helps expand our understanding of the discursive environment shaping legal-framing disputes, beyond simply the law and legal actors.

Hedley and Clark (2007) offer a rare effort to describe the structure of a framing contest, that is, the basic contours of the unfolding dispute. Drawing on Goffman’s (1974) notion of laminations, they point to a layering that occurs as a contest shifts from one topic to another and as new frames emerge in the new layers. The investigation of the anatomy of the legal-framing contest studied here finds such layering, structured by three pivotal post-Casey legal cases, Stenberg, Gonzales, and Whole Woman’s Health, and the legal-framing innovations occurring within these cases. New layers can introduce framing innovations, but the frames discussed below can also simply carry over and persist from one legal case to another (Figure 1). Not surprisingly, this continuity occurs for key legal concepts, specifically in this investigation, undue burden and arguments regarding evidence of an undue burden. So, in addition to the overall causal sequence and layered innovations, another structural feature of the framing contest includes persistent frames. As the analysis shows, ultimately framing innovations tend to follow legal threats for one side or the other, as the discursive-opportunity structure closes for certain ideational elements, while persistent frames tend to be those elevated by the Court.

The analysis below also illustrates another important structural feature of the legal-activist framing contest, the presence of both dialogic and monologic framing (Figure 1). Social movement scholars (Steinberg 1999; Esacove 2004) describe activist framing contests as often centered on particular ideational elements, with actors on opposing sides attempting to infuse their preferred meaning of the particular concept or term into the discursive contest. They refer to this mode of contested framing as “dialogic” framing, and I invoke this term to refer to instances when both sides in the legal debate over abortion engage in a struggle to convince justices to adopt their way of interpreting the contested concept. Often in legal-framing contests, dialogic framing occurs regarding a key legal concept defined by the court, such as the undue-burden doctrine. A dialogic framing contest, then, involves actors competing in an ideational struggle to convince elites of their understanding of the particular discursive element, and if the element is at the core of the debate, the dialogic struggle tends to persist through the framing contest.

Monologic framing also occurs within the framing contest but, as I use the term, it involves framing by just one side, as that side proffers an argument to convince the target of their particular assertion. Monologic framing transpires when activists develop a line of reasoning that is not specifically engaged by their opponents. Opponents do not attempt to infuse their meaning into the ideational theme.² The analysis here suggests that monologic framing is more agentic, because this is where one side or the other introduces framing innovations. In the analysis below, new, innovative monologic frames emerge after an important legal loss for that party, suggesting that closing discursive opportunities can trigger new layers of monologic framing, shedding insight into why legal-framing innovations materialize.

Data and methods

I trace the key abortion cases before the Supreme Court disputing the undue-burden standard, beginning with the Casey Court’s elevation of the doctrine. Besides Casey, the analysis focuses on Stenberg, Gonzales, and Whole Woman’s Health (WWH). These three cases along with Casey provide the critical abortion jurisprudence under the undue-burden standard prior to Dobbs (Paulk 2013; Kendis 2019).³ I concentrate the investigation on legal framing in the party briefs on the merits along with their joint appendices.⁴ To examine the broad discursive-opportunity structure, I consider the Court’s decisions, justice dissenting opinions, framing in the antiabortion and reproductive-rights movements, political debates, and evidence emerging in public-health science. I often began with the sources invoked in the briefs themselves (e.g., lawmakers or public health experts), then viewed these sources in media or scholarly accounts and read available secondary literature on the sources or events where the sources made their statements. To trace the overall sequential causal process involving the discursive-opportunity structure, the legal-framing contest, and framing innovations and persistence, I use both quantitative and qualitative methods of investigation.

My investigation begins with a qualitative step, multiple close readings of the briefs. In initial readings, I used an inductive approach focused on how the briefs discussed undue burden and the evidence of undue burden or lack thereof (Strauss and Corbin 1998). My initial readings revealed a core set of frames utilized by the legal advocates as they offered their arguments. It became apparent that some of these framing efforts were dialogic, in that both sides attempted to impart their understanding of a particular ideational element, while other framing put forward innovative monologic frames, a frame articulated by just one side. Below I discuss three dialogic frames (undue-burden, expert-evidence, and final-authority) and four monologic frames (untruthful, abortion-negative, uncertainty, and scientific). The monologic frames illustrate framing innovations introduced by the litigants (albeit, litigants sometimes draw the new frames from the broader opportunity structure), while the dialogic frames grow from the Court’s pronouncements and tend to persist in the contest. The frames I discuss represent the core legal-framing debate regarding undue burden in the party briefs across these pivotal legal cases.⁵

To track use of the frames, I utilize quantitative text analysis to produce a set of figures indicating frequency of use of the words and phrases associated with each legal frame. To generate these graphs (presented in the analysis below), I produced a dictionary (see Supplemental Appendix, Part I)—a set of key unique words and phrases used by the brief writers as they discussed a particular frame. I constructed the dictionary iteratively. My close readings of the briefs allowed me to locate passages in the briefs articulating the particular frames. Additionally, discussion of each frame involved certain fairly obvious key words/phrases (e.g., for the undue-burden frame, the phrase “undue burden” or “substantial obstacle”). I then read passages in the briefs articulating the frames closely again, to add to the dictionary any other unique frame words/phrases used in the discussion. I proceeded through all the briefs for cases appearing in the graphs to distill any type of key frame wording. In the dictionary, some of the frames entail substantially longer lists of terms, given a broader variety in ways of stating the frame.⁶

The graphs offer a visualization of frame frequency, framing innovations and persistence, and dialogic and monologic frames. The word/phrase frequencies for the graphs were generated using R programming. Frame frequencies are the cumulative counts of the words/phrases listed in the dictionary for a particular frame in each litigant brief. The frequencies are divided by the brief’s total word count to control for brief length. Before the word/phrase counts were produced, a number of preprocessing steps prepared the briefs for the counts: a) briefs were pared back to exclude lists of cases and authorities (at the brief’s beginning) and recitation of statutes (often in appendices); b) various items were removed: stop words,⁷ URLs, brackets to avoid misspellings (“[u]ndue”), apostrophes, superscripts, quotations, dashes, hyphens; and c) misspellings were corrected. R then tokenized the briefs, preserving word order, and searched for and tabulated instances of the words/phrases for the particular frame (using tokens_lookup). Separate graphs are shown for the same frame for the reproductive-rights and antiabortion litigants, using the same y axis allowing comparison of use of the frame by the two sides. The graphs for different frames have different y axes because frames can be conveyed with substantially different amounts of language (frequencies of words/phrases) overall in a brief. Part II of the Supplemental Appendix reports z and chi-square tests for all comparisons cited in the analysis of frame frequency proportions across cases and between the reproductive-rights and antiabortion sides. All tests produced significant results (see Part II, Supplemental Appendix).

In the final step of the analysis, I return to a qualitative investigation of the legal-framing contest, and its layered unfolding across the pivotal cases. I do so to examine how the discursive-opportunity structure shapes the ongoing, layered legal-framing contest and to point to monologic innovations and dialogic persistence in framing. This sequential causal process and these framing elements reveal the overall structure of the framing contest. While the word/phrase counts in the graphs permit me to see uses of the terminology associated with a frame, they do not fully allow understanding of the meaning of these ideational elements. Thus, the qualitative analysis provides not only an investigation of the causal process but also a deeper examination of developments in the contested legal meaning making.

Results

Casey

A doctrinal shift occurred in the discursive-opportunity structure regarding abortion jurisprudence with the pivotal 1992 Casey ruling (Paulk 2013). While Roe established the abortion right, Casey lowered the judicial standard of review of restrictive abortion laws to the undue-burden standard. The new standard held that the court would now balance the legal right to end a pregnancy with the state’s interest in protecting the potential life of the fetus, including protecting this interest prior to fetal viability (Casey 1992, 873). Under the new doctrine, a restrictive abortion law would be judged unconstitutional if it “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion” (Casey 1992, 877). Unless the court deemed the regulation placed an undue burden on a woman’s abortion right, the restriction would be allowed to stand. As commentators (Siegel 2008) note, Casey substantially increased the government’s ability to restrict abortion access, and growing collaboration between antiabortion advocates and conservative lawmakers, particularly at the state level, resulted in use of this increased government capacity (Reitman 2014; Khazan 2015).

Figure 2a and b, illustrate the changed discursive-opportunity structure with Casey. One can see greater attention in Casey and continuing in subsequent cases to the undue-burden standard in the language of both the abortion-rights and antiabortion litigant briefs. There is one prominent exception to this pattern particularly in Figure 2b, where in Akron, a 1983 case, the antiabortion party brief shows measurable attention to whether Akron’s city ordinance imposed an undue burden on abortion access. This case is not part of the main analysis, but it involves a challenge to the ordinance’s provisions, including requirements of informed-consent counseling for abortion patients. The case’s antiabortion legal team, aided by lawyers from Americans United for Life (AUL) and the Reagan administration, introduced a framing innovation arguing that the city’s restrictions did not unduly burden abortion rights (Winter 2016; Ziegler 2020).⁸ Just prior to Akron, the Reagan administration appointed Justice Sandra Day O’Connor to the Supreme Court. It was O’Connor’s dissent in Akron that in later years drew the attention of the abortion opposition movement. In her dissent, O’Connor disagreed with the majority’s ruling that Akron’s abortion restrictions were unconstitutional, stating instead that a new undue-burden standard should govern judicial scrutiny. By the time the Court heard Casey, importantly, with four additional conservative justices on the bench (Anthony Kennedy, Antonin Scalia, David Souter, and Clarence Thomas), the antiabortion litigators understood they had an opportunity to succeed in lobbying for the lower, undue-burden standard (Ziegler 2020). Figure 2b illustrates their heightened undue-burden framing in Casey as they pressed for this lower review standard. Akron reveals that the emergence of the undue-burden doctrine did not happen suddenly in Casey. Rather, the shift unfolded more gradually in prior abortion debates, with input from Justice O’Connor and antiabortion advocates, like the AUL (Ziegler 2017b).

Figure 2. (a) Word/phrase proportions for the undue-burden frame for the reproductive-rights litigant brief. (b) Word/phrase proportions for the undue-burden frame for the antiabortion litigant brief.

The Court’s decision in Casey elevated the undue-burden standard, institutionalizing it by giving the ideational element governing power in future decisions and legal debates. While Casey instituted the new discursive opportunity structure, the Court did not clarify precisely what established a substantial obstacle (Paulk 2013). So while the Court elevated the standard, without a precise definition of what constitutes the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion” (Casey, 877), Casey opened discursive space for a framing contest. Going forward, as this analysis of the legal-framing struggle reveals, reproductive-rights and antiabortion advocates presented arguments promoting and justifying their understanding of an undue burden in dialogic fashion, and they also introduced monologic frames. The dialogic debate increasingly focused on the “purpose or effect” of the legal restrictions on abortion, and, specifically, whether there was evidence of an undue burden in the law’s purpose or effect, with both undue-burden and evidence framing showing persistence across the cases. As the analysis also shows, for both parties in the overall causal sequence, losses, that is, closing opportunities, prompted litigators to deploy new and innovative monologic discursive approaches. Figure 3, referred to below, provides more detail than Figure 1 in its description of the overall structure of the legal-framing contest examined here.

Figure 3. Structural elements and causal sequence in a legal-framing contest.

Note: boxes with a) double-lined borders indicate the discursive-opportunity structure, b) dotted lines, legal cases, c) solid lines, persistent frames, and d) dashed lines, innovative monologic frames.

Stenberg

Both the antiabortion and abortion-rights proponents in the legal struggle over abortion lost in Casey (Ziegler 2020). The antiabortion advocates did not achieve their goal of overturning the right to choose abortion. The reproductive-rights litigants, while preserving the basic legal right to abortion, were unable to defeat most provisions of the Pennsylvania law the case challenged, and they lost the high level of judicial review established by Roe (Benshoof 1993). Both sides, in subsequent cases, engaged in a dialogic framing struggle over how the Court should understand an undue burden on an individual’s right to access abortion, and in Stenberg both sides introduced innovative monologic framing (Figure 3).

The 2000 Stenberg case concerned a legal challenge to a Nebraska statute banning the intact dilation and extraction (D&X) method of performing pre-viability, second-trimester abortions, or, as antiabortion activists labeled the procedure, “partial-birth abortions.” The method was an infrequently utilized procedure, but one that medical evidence indicated may be the safest method for some women who needed to terminate a second-trimester pregnancy (Stenberg Brief of Amici Curiae American College of Obstetricians and Gynecologists (ACOG) et al. 2000).⁹ The abortion-rights legal team argued that banning the procedure constituted an undue burden for women for whom this was the safest procedure (Stenberg Brief of Respondent 2000). The antiabortion advocates countered that other safe procedures were available and “[a]n abortion regulation that covers one ‘way’ of performing an abortion, while leaving open other safe alternatives, does not constitute an undue burden” (Stenberg Brief of Petitioners 2000, 9). This dialogic discursive struggle over undue burden, as a core element in the dispute, then, will persist in the framing contest unfolding in subsequent cases (see Figures 2 and 3).

Both sides in Stenberg also innovated in their framing, in all likelihood in response to their defeats in Casey, and both innovations were monologic frames (Figure 3). That is, both Stenberg briefs reveal important new framing not engaged by their opponents. The Stenberg legal team defending the Nebraska ban was the state attorney’s general office. Following the Clinton administration’s 1996 veto of a proposed federal ban, Nebraska lawmaker, Dave Maurstad, primary sponsor of the state bill, used the wording of the federal bill, a bill that the National Right to Life Committee (NRLC) participated in drafting, as the basis for the state ban (Washington Post 2000). Maurstad, by the time of Stenberg, was Nebraska’s Lieutenant Governor, and he reported that in working for passage of the ban he “developed a coalition that included National Right to Life and the Catholic Conference” (Washington Post 2000, np). The reproductive-rights attorneys included the Center for Reproductive Rights’ (CRR) Simon Heller and Janet Benshoof.¹⁰ The CRR, formed in 1992, continues today to be a leading reproductive-rights public-interest law organization.

While the abortion-rights litigants had the advantage of the additions of Justices Stephen Breyer and Ruth Bader Ginsburg on the Court, both supportive of reproductive rights, the lawyers were also navigating the new discursive-opportunity structure, responding to the challenge of a defeat in Casey, and weighing their opponent’s framing. In this context, they introduced in Stenberg a monologic framing innovation, the untruthful frame. The untruthful frame assessed and challenged the veracity of their opponents’ claim that the Nebraska ban did not impose an undue burden on the right to seek an abortion and revealed, according to the reproductive-rights advocates, a lack of truthfulness in their opponents’ assertions. Figure 4a shows the striking increase in untruthful-frame language by the reproductive-rights advocates beginning with Stenberg and continuing in subsequent cases. As graph b shows, there is little evidence of an untruthful frame in the antiabortion briefs, indicating that this is a monologic frame used by just one of the parties. In articulating the Stenberg untruthful frame, the women’s-rights attorneys argued that the ban had an “impermissible purpose,” and they centered their discussion on the purpose prong, saying the Nebraska law was “actually” designed to ban abortion methods well beyond the D&X procedure (Stenberg Brief of Respondent 2000, 32, 42). As Benshoof (2014) clarifies, the specific wording of the ban was “partial-birth abortion,” not “intact dilation and extraction,” and the definition of a “partial-birth abortion,” according to the reproductive-rights advocates, was broad enough to allow interpretations prohibiting far more than just the second-trimester D&X procedure.

Figure 4. (a) Word/phrase proportions for the untruthful frame for the reproductive-rights litigant brief. (b) Word/phrase proportions for the untruthful frame for the antiabortion litigant brief.

The women’s-rights litigants stated that “Senator Maurstad acknowledged that [the ban] could operate in the first trimester of pregnancy” and that “Maurstad refused to equate ‘partial-birth abortion’ with the ‘intact dilation and extraction’ [D&X] method of abortion” (Stenberg Brief of Respondent 2000, 4). They drew on a discursive opportunity in the broader context, beyond the judiciary, to make their point, invoking statements by Maurstad and other Nebraska lawmakers (23–24). Figure 3 diagrams this influence. As they articulated the untruthful frame, the feminist brief asserted that Nebraska’s claim, that the law would only ban the D&X procedure, was false. The brief’s untruthful framing used strong language, referring to the ban “as part of a deceptive nationwide campaign to eviscerate the key protections guaranteed to American women” (18), arguing that the state based its claims on “erroneous factual assumption” (36), and asserting that these were “invidious efforts to interfere with [women’s] right to privacy” (50).

The Stenberg antiabortion advocates also innovated, deploying their own new monologic frame. Their frame, the abortion-negative frame, involved portraying abortion—particularly in Stenberg, the D&X procedure—in a highly negative light, with graphic depictions of the abortion method and of fetal demise (Cahill 2013). For instance, the first statement in the Stenberg antiabortion brief describe how the physician, Dr. LeRoy Carhart, the original plaintiff in the case who challenged the Nebraska law, used forceps to “pull[] the feet of the living fetus from the uterus” (Stenberg Brief of Petitioners 2000, 3). Figure 5b shows the heightened use of the abortion-negative frame by the Stenberg abortion opposition advocates. There is some use of this framing language in Stenberg by the reproductive-rights side (see graph a), but a close look at their brief shows, in the large majority of instances, the abortion-rights lawyers were simply quoting the Nebraska law, which itself amplified the antiabortion language of the abortion-negative frame, particularly harm to the fetus that would result from the D&X procedure.¹¹

Figure 5. (a) Word/phrase proportions for the abortion-negative frame for the reproductive-rights litigant brief. (b) Word/phrase proportions for the abortion-negative frame for the antiabortion litigant brief.

Stenberg emerged during a critical juncture in a national campaign led by the NRLC to draw public attention to the second-trimester method, a step designed to increase public opposition to abortion (Esacove 2004; Armitage 2010). In this broader public discourse, the complex undue-burden debate in the courts would be difficult for many to follow. Yet, in the public debate, abortion-negative framing, often using visual images designed to shock, could leave a lasting impression. Rosenberg (2003), for instance, remarks that the images utilized to depict the D&X procedure portrayed a 24-week viable fetus rather than a fetus at earlier stages of development when physicians would actually use the D&X method. Antiabortion litigants drew the abortion-negative frame in from this broader public discourse, one where the NRLC and the antiabortion movement utilized the frame to persuade the public (Figure 3).

Scholars (Armitage 2010; Cahill 2013) remark on the persuasive role of the abortion-negative frame in both the public and judicial arenas, with some of the Stenberg justices adopting the extreme wording of the abortion-negative frame. As a discursive monologic framing innovation perhaps designed at least in part to sidetrack the justices from considering the debate over whether banning an abortion procedure presented an undue burden on women’s abortion rights, the abortion-negative frame in Stenberg produced some judicial success. While the plurality in Stenberg in a 5–4 vote decided that the Nebraska ban placed an unconstitutional burden on the abortion right, a dissenting opinion, written by Justice Clarence Thomas and joined by Chief Justice William Rehnquist and Justice Antonin Scalia, adopted the abortion-negative framing language, referring to the procedure in terms of “killing the unborn child” and “as closely border[ing] on infanticide” (Stenberg Dissenting Opinion, Justice Thomas, 5, 11).

A second Stenberg dissent, this one authored by Justice Anthony Kennedy, stressed an additional point, one that established an important discursive opportunity in subsequent debates (Figure 3). Kennedy argued that the state of Nebraska had the right to “take sides in the abortion debate” and it “could conclude the procedure presents a greater risk of disrespect for life.” Kennedy went on to state, “[t]he Court is without authority to second-guess this [legislative] conclusion” (Stenberg Dissenting Opinion, Justice Kennedy 2000, 6, 8). With this pronouncement, Kennedy signaled a discursive opportunity for future antiabortion litigants, that they might develop a final-authority frame and convey that state lawmakers, not judicial decisionmakers, should be the ultimate arbiters in the abortion dispute. This, the final-authority frame, elevated by Kennedy’s dissent, becomes a frame engaged by both sides in Gonzales.

Gonzales

The gruesome depictions of the second-trimester procedure were not only repeated by some justices in their Stenberg opinions but also by justices in the subsequent Gonzales decision (Gonzales v. Carhart 2007). Gonzales entailed a challenge to the federal Partial-Birth Abortion Ban Act (PBABA), passed by a Republican-controlled Congress in 2003. PBABA was an outcome of the nationwide movement against abortion rights’ campaign, still led by the NRLC, now to gain a federal ban on use of the D&X abortion method.¹² In Gonzales, now with the addition of conservative justices, Samuel Alito and John Roberts, the Court reversed Stenberg, in a win for the antiabortion advocates, this time upholding a ban, even though the new federal law did not provide a health exception for women. The antiabortion litigants in Gonzales—the U.S. Solicitor General responsible for defending the federal law—continued to utilize the abortion-negative frame as they made their case (Figure 5b).

A key point of contention between the two sides in Gonzales was PBABA’s lack of a health exception for women. Reproductive-rights advocates stated that for some individuals the medical evidence showed the disputed method was the safest possible procedure, and the lack of a health exception in the law meant that the outright ban on the method placed a substantial obstacle in the path of these women’s abortion access (Gonzales Brief of Respondents 2006, 3). The prochoice litigants drew on considerable evidence to support their claim, combing through the trial court evidence, including the lower court’s evaluation of Congress’s evidentiary record. They cited testimony from the American College of Obstetricians and Gynecologists, stating, “[t]he record establishes that many prominent board-certified obstetrician/gynecologists who provide abortions believe that the intact D&E [that is, D&X] is sometimes the safest procedure to reduce the risks to particularly sick women” (21).

As these reproductive-rights advocates reviewed the evidence, they drew on the effect prong articulated earlier in Casey, where the Court stipulated that if the law had “the purpose or effect of placing a substantial obstacle” in a woman’s path, the law imposed an undue burden on abortion access (Planned Parenthood v. Casey 1992, 877; emphasis added). The Gonzales women’s-rights litigants argued that PBABA’s lack of a health exception meant the law’s effect was to put a substantial obstacle in the path of individuals who needed this procedure for safety reasons, and thus the ban imperiled their health.

What developed in Gonzales, then, was an added layer of dialogic framing between the two parties, one that builds from their discursive struggle over what constitutes Casey’s undue burden. The discursive focal point for this emerging dialogic framing is expert evidence of an undue burden, specifically concerning evidence of the effect of the law on women’s health. That is, while the undue-burden dialogic framing continued between the litigants in Gonzales (Figure 3), references more specifically to the evidence from experts became pronounced. Figure 6 shows the higher level of attention to an expert-evidence frame in Gonzales, for both parties, where the expert-evidence frame is articulated by both sides, through reliance on the language of evidence, including use of words and phrases, in addition to “evidence,” such as “data,” “fact,” “record shows,” and “medical proof.”

Figure 6. (a) Word/phrase proportions for the expert-evidence frame for the reproductive-rights litigant brief. (b) Word/phrase proportions for the expert-evidence frame for the antiabortion litigant brief.

Gonzales antiabortion litigants’ framing shows this as well. The government’s attorneys argued, contrary to the assertion of the abortion-rights litigants, that “[t]he absence of a health exception to the Act’s ban … does not impose an undue burden” because Congress’s “extensive findings,” as that legislative body investigated and deliberated the proposed law, showed that “partial-birth abortion is never medically indicated to preserve the health of the mother” (Gonzales Brief for the Petitioner 2006, 2, 9; emphasis in original). The brief then reviewed a large body of expert evidence, including quoting numerous physicians, many of whom were ACOG fellows. Dr. Kathi Aultman, for instance, stated, “[t]he ban on partial-birth abortion would not endanger a woman’s health because it isn’t medically necessary and there are standard alternative methods available” (31–32).

Expert-evidence framing was, thus, heavily relied on by both sides in Gonzales, and an important aspect of this framing was the reliance on knowledge from medical practitioners, with both sides drawing into the debate their own physician-expert allies (Figure 3). Here, we see again the broader ideational environment, in this case, the views among medical practitioners regarding the second-trimester procedure, providing a discursive opportunity for the legal advocates in Gonzales. On both sides, in dialogic framing, they tapped into the medical discourse among physicians and professional medical organizations and drew into the legal debate medical evidence and opinions supporting their respective arguments.

In Gonzales, the abortion-rights litigants continued to utilize the untruthful frame, strenuously calling the evidence promoted by their opponents into question (Figure 4). Likely their victory in Stenberg did not compel them to seek an alternative discursive strategy. In Gonzales, they stated, “‘a significant body of medical opinion’ contradicts the congressional finding that the procedures banned by the Act are never medically necessary” (Gonzales Brief of Respondents 2006, 3). They continued to use hard-hitting language, stating that their legal opponent in the case, the Solicitor General, “cites selectively,” “ignores testimony,” and “ignores…evidence at trial that does not support its position” (34–5). The same untruthful framing, casting a critical eye on the claims of their adversaries, was not relied upon by the Gonzales antiabortion litigants (Figure 4b).

The antiabortion legal advocates in Gonzales introduced a monologic framing innovation into the litigation arena, following in the wake of their defeat in Stenberg. Figure 7b shows the introduction by the government’s attorneys in Gonzales of the anti uncertainty frame, and, as we will see, use of this frame by the abortion legal opponents intensified substantially in the subsequent WWH case. Figure 7a does not indicate similar framing by the abortion-rights side. The uncertainty frame centers on an assertion that the evidence of an undue burden on the right to seek an abortion is unclear or mixed. Ziegler (2017a) shows the broader antiabortion movement was already utilizing the uncertainty frame beginning in the 1980s. Antiabortion activists, David Reardon and Vincent Rue, promoted the idea that women experience psychological trauma following abortions. When various groups, including the American Psychological Association (Dadlez and Andrews 2010), vigorously contested this claim, the antiabortion movement responded with assertions that the evidence, rather, was uncertain and further investigation was needed. The Gonzales government lawyers, then, tapped into this broader discursive opportunity, bringing the uncertainty ideas already in use into litigation.¹³

Figure 7. (a) Word/phrase proportions for the uncertainty frame for the reproductive-rights litigant brief. (b) Word/phrase proportions for the uncertainty frame for the antiabortion litigant brief.

Additional dialogic framing between the reproductive-rights and antiabortion litigants emerged in Gonzales, beyond the expert-evidence frame. This added discursive struggle occurred over which government body was the final arbiter of the evidence. This legal frame, the final-authority frame, built on the trajectory of dialogic framing over both undue burden and its evidence. The frame also stemmed from Kennedy’s dissent in Stenberg. With the two sides increasingly battling over evidence of abortion restrictions’ effects on women’s wellbeing, by Gonzales an argument sharpened over whether the courts or legislative bodies should be the final adjudicator of the disputed evidence, and each side presented a different understanding of which government entity should have ultimate authority. Figure 8 shows the final-authority dialogic framing dispute in Gonzales. The antiabortion litigants argued that the Congressional findings are “entitled to deference under the long-standing principle that Congress is better equipped than courts to make factual findings that inform the constitutionality of federal statutes” (Gonzales Brief for the Petitioner 2006, 10). The reproductive-rights attorneys responded, stating that in cases involving “a Constitutional question,” that is, an “individual’s fundamental liberty interests,” as was the circumstance in reproductive-rights litigation, “the Court has a duty to preserve its own status as a coequal branch, a duty to ‘say what the law is’” (Gonzales Brief of Respondents 2006, 26). This dispute over which government actor holds final authority to decide, again, shows the Court (in Kennedy’s dissent in Stenberg) elevating an idea that then becomes part of the dialogic framing contest for the two sides.

Figure 8. (a) Word/phrase proportions for the final-authority frame for the reproductive-rights litigant brief. (b) Word/phrase proportions for the final-authority frame for the antiabortion litigant brief.

The Court’s Gonzales decision embraced the antiabortion uncertainty frame and its view on the final-authority frame. The 5–4 majority concluded, when medical uncertainty exists, legislative bodies have “wide discretion to pass legislation” regulating the procedure under scrutiny. The court ruled that the ban was constitutional and did not present an undue burden, even without a health exception. The Gonzales ruling, again, revised the discursive-opportunity structure. It signaled a willingness to defer to the evidentiary conclusions of a legislative body and provided a clear invitation to abortion opponents to augment use of the uncertainty frame, which, as Figure 7b illustrates, they did in the next pivotal abortion case, WWH.

Whole Woman’s Health

Whole Woman’s Health stemmed from a challenged Texas law targeting abortion clinics and their physicians. Texas HB2 stipulated that clinic physicians must have hospital admitting privileges within 30 miles of the clinic and clinics must adhere to the state’s requirements for ambulatory surgical centers (ASCs). As with earlier abortion restrictions, antiabortion movement leaders, now from AUL, provided guidance on the Texas law (Americans United for Life (AUL) 2015). Texas Governor Rick Perry expressed gratitude to AUL for its “key role in developing and promoting legislation” (Carpenter 2016). Journalists (Fessenden 2016) reported that implementation of the admitting-privileges regulations caused a significant number of Texas abortion clinics to close. In litigation, the Texas Attorney General’s Office defended the law, and, again, CRR attorneys, including Stephanie Toti, represented the plaintiffs, a group of the state’s abortion clinics.

The undue-burden standard as a persistent frame in the overall contest was heavily debated by the WWH litigants, as can be seen in Figure 2. While the state claimed its goal was “to improve the standard of care for abortion patients,” many medical organizations, including the AMA, ACOG, and the American Academy of Family Physicians opposed the regulations, given the harm, they argued, these requirements would pose to women’s health (Carpenter 2016; WWH Brief for Respondents 2016, I). In fact, evidence existed that the intent of the law was not to protect women but rather to close abortion clinics. When the Texas Senate passed the bill, David Dewhurst, then Lieutenant Governor, tweeted, “[w]e fought to pass SB5 thru the Senate last night, & this is why.” His tweet then showed a map indicating that 40 clinics would close (Greenhouse 2016, SR1). The abortion-rights attorneys drew on the purpose prong and the discursive opportunity Dewhurst’s statement provided to state in their brief, “[t]he Texas requirements … are designed to close abortion clinics—not to promote women’s health” (WWH Brief for Petitioner 2015, 34). That is, repeatedly, these lawyers returned to their untruthful frame, contesting both their opponents’ stated purpose of the law and their opponents’ evidence of the law’s impact on women’s health (see Figures 3 and 4a).

The reproductive-rights legal advocates experienced a significant defeat in Gonzales. The recent death of Justice Antonin Scalia meant the WWH Court’s composition was somewhat more favorable for the abortion-rights advocates (the sudden death of Scalia did not leave time for a replacement before the WWH decision), but Justice Kennedy remained an unpredictable swing vote in the case (Redden and Popovich 2016). In the aftermath of Gonzales and facing a largely closed opportunity structure, these legal actors offered an important monologic framing innovation. But the innovation took a different overall form than seen in previous cases. Rather than observing the framing innovation specifically in the language of the brief, the shift occurred in the nature of the evidence cited in the brief. Thus, this new frame, the scientific frame, grew from the undue-burden and expert-evidence framing within the overall framing contest. Throughout the WWH’s abortion-rights brief, the attorneys heavily referred to the parties’ Joint Appendix (JA). Unlike past JAs in these abortion cases, the WWH JA contained a new form of abortion-rights evidence, systematic aggregate evidence generated through scientific study of the Texas law’s impact on women’s ability to access abortion in the state. While expert-evidence language per se does not show up as more heavily utilized in the WWH abortion-rights brief (see Figure 6a), scientific evidence of the law’s effect pervades their argument.

The JA is routinely cited in the women’s-rights lawyers’ brief.¹⁴ In the appendix, various public-health scientists outline their evidence of the law’s effects. For instance, Dr. Daniel Grossman, a professor in the Department of Obstetrics, Gynecology and Reproductive Sciences at the University of California, San Francisco, provided direct testimony, drawing from his collaborative research which would soon be published in the peer-review journal, Contraception (Grossman et al. 2014; WWH JA 2015). After gathering and examining comprehensive data on Texas abortion clinics across the state, including tracking the timing of closures of a number of the facilities and interviewing staff at those facilities, the study’s authors concluded that “[t]he admitting privileges requirement was almost certainly the main driver of the large number of clinic closures observed in the months preceding and following its implementation” (Grossman et al. 2014, 500).¹⁵ Grossman also discussed the longer distances women would have to travel to access abortion and the likely increases in self-induced and riskier second-trimester abortions as a result of the law (WWH JA 2015). Other science experts in the appendix offered additional and similar results from their investigations (WWH JA 204, 262),

The framing innovation by the reproductive-rights legal advocates in WWH, then, is the overt reliance on systematically and scientifically generated evidence to understand the public-health implications of the Texas law. The WWH JA is different than those in the earlier abortion cases. In both Stenberg and Gonzales, physicians and their practical experiences are routinely cited as the lawyers present evidence, but as the physicians themselves sometimes acknowledge, they merely offer their opinions and anecdotal observations from their medical practice (Stenberg JA 1999, 673; Gonzales JA 2006, 106, 181, 323). Additionally, in these earlier cases, physicians note the lack of or limitations in systematic and peer-reviewed evidence (Stenberg JA 1999, 673; Gonzales JA 2006, 368–9, 375–6).

In the WWH’s attorneys’ use of the scientific frame, we also see, again, an example of the legal advocates tapping into a broader discursive context (Figure 3). In this case, the lawyers brought into the legal debate an emerging body of public-health scientific evidence concerning the impact of restrictive abortion laws on women’s lives, a body of evidence generated by academic scholars that increasingly and with few exceptions reveals the detrimental impact of these restrictive laws (Jerman et al. 2017; Austin and Harper 2018; Hawkins et al. 2020). The discourse of the scientific community provided an opportunity for the legal advocates to incorporate this body of evidence into the legal dispute in the instant case, bringing science and law into a shared conversation. The Court, in the end, in a 5–3 decision that included Kennedy’s vote, agreed with the abortion-rights legal proponents, accepting the evidence and ruling that “neither of [the Texas] provisions confers medical benefits sufficient to justify the burdens upon access that each imposes” (WWH 2016, 2300).

The expert-testimony rebuttals offered by the Texas Attorney General in the WWH JA did not persuade the Court. The state of Texas did not provide its own scientific evidence in support of its assertions that the law would protect women’s health. Rather, it drew on its experts only to rebut the testimony of the reproductive-rights experts, an effort that illustrated the persistence of the uncertainty frame. As Figure 7b shows, the abortion opponents continued to rely heavily on the uncertainty frame in their litigant brief, and given the Court’s ruling in Gonzales, the Texas litigants drew on this discursive opportunity from the Court and reminded it that “legislatures have ‘wide discretion to pass legislation in areas where there is medical and scientific uncertainty,’” thus also continuing to assert its version of the dialogic final-authority frame (WWH Brief for Respondents 2016, 15; Figure 8b). But the government’s arguments and experts in WWH faced substantial criticisms. In the Court’s decision, the majority noted, that, “when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case” (WWH 2016, 2311–12).

Discussion

Few scholars in both socio-legal and social movement research consider the structure of legal-framing contests in movement litigation disputes. I use the antiabortion and reproductive-rights litigant legal-framing contest over the undue-burden standard to shed light not only on the specific trajectory of abortion politics but on the anatomy of advocacy legal-framing contests generally. Understanding this anatomy, the role of discursive opportunities, how and why innovations and persistence occur, and how opposing sides engage in the discursive dispute is an important step in explaining how legal policy develops. As scholars demonstrate (Eskridge 2002; McCammon et al. 2020) social movements can influence court decision making. The current research helps build our knowledge of how movement legal advocacy shapes judicial policy.

The current study uses and advances framing theory to reveal the role of discursive opportunities in the sequential and layered process of this ideational legal battle and to explain both the persistence of arguments and introduction of innovative claims. The investigation also shows that these struggles include both dialogic and monologic framing. Persistent frames are likely to involve dialogic framing, as both sides attempt to infuse their meaning into core ideational elements given legitimacy by the Court. Such discursive themes tend to persist across cases in the ongoing legal dispute, giving the contest discursive stability. Legal-framing innovations, on the other hand, I find, are responses to closing discursive opportunities, when one side in the dispute is threatened by a recent legal loss, and these innovations are likely to entail monologic framing, when only one side proffers a frame, which is not then engaged by its opponents. While Wedeking’s (2010) research introduces the idea of alterative frames, my work delves deeper into the introduction of novel arguments to explore the circumstances in which they emerge in legal-framing contests and whether framing opponents respond to them. The current work thus provides a causal explanation of important innovations in framing, a causal explanation not often explored in the movement framing literature (Pellow and Brehm 2015).

Unlike jurisprudential-regime theorizing (Richards and Kritzer 2002), which concentrates on how prior court decisions influence judicial debate, this study invokes the framing concept of discursive-opportunity structure to expand our theorizing. This allows us to see, as socio-legal scholars (Pedriana 2008; Siegel 2008) tell us, that broader discourses, in addition to court rulings, also influence litigation framing, broader discourses including social movement framing, political debates, and, in abortion litigation, evidence from the medical and scientific communities. The current study reveals that the discursive-opportunity structure influenced the legal-framing contest over abortion and the undue-burden standard. While social movement scholars theorize both discursive-opportunity structures and framing contests, rarely are the two key framing concepts linked. Here I show how the concepts work together, with discursive-opportunity structures shaping a legal-framing contest as it unfolds across pivotal abortion cases.

With the Supreme Court’s recent Dobbs decision setting aside the undue-burden standard, the legal conflict over abortion rights will move into new discursive terrain, some say into the state supreme courts (Wines 2022) with others pointing to upcoming battles over fetal personhood (Ziegler 2022). While Dobbs is not part of this study, my initial examination of arguments submitted by the Dobbs’ petitioners, representing the state of Mississippi, suggests they innovated in their brief’s framing. After a critical loss in WWH,¹⁶ the antiabortion litigants appear to have articulated a new frame, one emphasizing harm to the Court’s reputation as it continues to weigh in on the abortion debate (Dobbs Brief for Petitioners 2021), a frame encouraging the Court to follow its “institutional self-interest” (Garrow 2021, A15). The Dobbs litigants successfully prevailed on the Court to overturn Roe and Casey, contending that “nothing in constitutional text, structure, history, or tradition supports a right to abortion” (1) and removing the Supreme Court from the debate would recover the Court’s legitimacy.

While the Dobbs case now requires close scrutiny, lessons from the current study of abortion’s legal war of words can be helpful in examining social movement legal-framing contests more generally. Our understanding of framing contestations for other social movements, including the environmental, LGBTQ, and racial justice movements, can be strengthened by invoking the ideas here, for discursive skirmishes inside and outside the judicial arena. In a judicial dispute, the role of the courts, of course, will loom large as powerful actors shaping the discursive-opportunity structure. In litigation framing disputes, the findings here show, other discursive opportunities also shape the legal framing contest, influencing whether framing innovations or persistence unfold. Understanding the anatomy of these contests is a step further in discerning how social advocacy groups can help shape judicial law and bring about legal change.

Case decisions and briefs cited

Akron v. Akron Center for Reproductive Health, 462 US 416 (1983).

Akron v. Akron Center for Reproductive Health, Brief Amicus Curiae of AUL (1982).

Ayotte v. Planned Parenthood, 546 US 320 (2006).

Dobbs v. Jackson Women’s Health Organization, 597 US __ (2022).

Dobbs v. Jackson, Brief for Petitioners (2021).

Gonzales v. Carhart, 550 US 124 (2007).

Gonzales v. Carhart, Brief for the Petitioner (2006).

Gonzales v. Carhart, Brief of Respondents (2006).

Gonzales v. Carhart, Joint Appendix (2006).

June Medical Service v. Russo, 519 US __ (2020).

Planned Parenthood v. Casey, 505 US 833 (1992).

Roe v. Wade, 410 US 113 (1973).

Stenberg v. Carhart, 530 US 914 (2000).

Stenberg v. Carhart, Brief of Amici Curiae ACOG et al. (2000).

Stenberg v. Carhart, Brief of Petitioners (2000).

Stenberg v. Carhart, Brief of Respondent (2000).

Stenberg v. Carhart, Dissenting Opinion, Justice Thomas (2000).

Stenberg v. Carhart, Dissenting Opinion, Justice Kennedy (2000).

Stenberg v. Carhart, Joint Appendix (1999).

Thornburgh v. ACOG, 476 US 747 (1986).

Webster v. Reproductive Health Services, 492 US 490 (1989).

Whole Woman’s Health v. Hellerstedt, 579 US __ (2016).

Whole Woman’s Health v. Hellerstedt, Brief for Petitioner (2015).

Whole Woman’s Health v. Hellerstedt, Brief for Respondents (2016).

Whole Woman’s Health v. Hellerstedt, Joint Appendix (2015).

Acknowledgment

I am grateful to Amanda Konet for her assistance with programing for the computerized text analysis.

Additional information

Funding

This research was supported by a National Science Foundation grant (#1420721).

Notes

1 At times, I refer to “women” and abortion access, but, importantly, trans men and nonbinary individuals can also need abortion services.

2 A monologic frame could become dialogic if the opponent begins engaging the idea, working to impose its meaning into the term.

3 All but two of the other cases occurring after Casey and before Dobbs consider the right of antiabortion activists to protest outside clinics, centering instead on protest and free speech rights. One case during this period (Ayotte v. Planned Parenthood 2006) involved minor’s rights, which resulted for the most part in substantially different framing. Another case, June v. Russo (2020), stemmed from a challenge to a Louisiana law very similar to the WWH Texas law. For these reasons, I exclude these cases. I discuss Dobbs again in the conclusion.

4 Appendices are important particularly for the evidence they contain. Amicus briefs may also be part of a framing contest. Some amici may counterframe many of their opponent’s arguments. Other amici likely weigh in with specific arguments related to their expertise (e.g., in the abortion debate, medical expertise (Moyer 2022) and thus may not be tightly enmeshed in the framing contest. A next research step is assessing amici’s role in litigation framing contests. Litigant attorneys also present oral arguments before the Court. However, oral proceedings are short, highly interactive exchanges with the justices. Full statements of advocates’ legal framing appear in the written briefs. Lower court briefs could also be studied (Wedeking 2010). Lower court briefs for the cases here reveal the framing innovations appearing before the Supreme Court are also in the lower court briefs, which is not surprising given that the same group of lawyers authored the briefs at the various judicial levels. Impacts of discursive opportunities and threats likely begin at these lower levels.

5 Other frames which are not part of the undue-burden debate appear in the briefs (e.g., physicians rights, the fetus, vagueness of law). One exception is a women’s-health frame (using terms, e.g., such as “women’s health” and “harm to women”). Both sides invoke the frame at high levels in nearly all the cases presented here, leaving little variation in framing to explain. This frame also overlaps substantially with many of the frames discussed here (e.g., expert-evidence, untruthful, abortion-negative). For these reasons, I do not pursue this frame further.

6 The graphs contain abortion cases prior to Casey to allow comparison of frame use with the post-Casey cases focused on here. These earlier cases (Roe v. Wade, Akron v. Akron Center for Reproductive Health, Thornburgh v. ACOG, Webster v. Reproductive Health Services) are core Supreme Court decisions regarding restrictive abortion laws prior to Casey (Ziegler 2020).

7 Stop words were not removed if their removal could importantly change the meaning (e.g., use of “not,” etc. in the untruthful frame, given that the untruthful frame entails revealing false statements about the evidence and thus contains phrases such as “not credible”).

8 Akron’s AUL amicus brief uses the language of “a substantial burden on the liberty” (1982, 8).

9 The vast majority of abortions, 89 percent (Donovan 2017), take place during the first trimester. In second-trimester abortions at the time of Stenberg, most were performed using a dilation and evacuation (D&E) procedure. Only about 10 percent of second-trimester abortions relied upon the D&X method (Stenberg Brief of Amici Curiae ACOG et al. 2000).

10 At the time, CRR’s name was the Center for Reproductive Law and Policy.

11 The abortion-negative frame is evident in some of the earlier prochoice briefs too, because women’s-rights lawyers discussed the negative psychological impact on women of not being able to obtain abortions.

12 In Gonzales, the term for the procedure shifted from “D&X” to “intact D&E” (Gonzales v. Carhart 2007). For clarity, I continue using “D&X.”

13 Among the antiabortion amicus briefs in Webster in 1989, one can see the prolife movement beginning to deploy this frame in litigation. The amicus briefs themselves can be considered as part of the discursive-opportunity structure that suggests framing innovations to litigant lawyers.

14 In addition to heavy reliance on the JA, the attorneys cited the District Court’s conclusions, which were also based on the aggregate evidence provided in the JA.

15 Texas had not yet implemented the ASC regulation.

16 Along with a similar loss in June following WWH.