Cases Involving Limitations on Public Funding for Abortions

In the 1973 Roe decision, the Supreme Court’s far-reaching ruling legalized abortion in the United States, setting aside numerous state-level laws that generally outlawed abortion. At the time of Roe, the judicial and political climate was generally receptive for abortion rights. While organized opposition to abortion existed (and had for some time (Williams Reference Williams2016)), abortion was not yet the heavily debated and polarizing issue it would soon become, particularly with a mobilized and broader conservative religious-right movement in the late 1970s and then the election of Ronald Reagan to the presidency in 1980 (Greenhouse and Siegel Reference Greenhouse and Siegel2010). The Court’s ruling in Roe extended a due-process right to privacy, building on earlier Court decisions regarding contraceptive use. The Roe Court stated that “the right of personal privacy includes the abortion decision” and the Court’s ruling created a zone of privacy during the first trimester of pregnancy in which the state could not impinge on a woman’s decision to terminate her pregnancy (Roe 1973, 154). The Court held that while this due-process privacy right was a fundamental right, the state retained an ability to regulate access to abortion after the first trimester. In the second trimester, the Court stated, the government had an important interest in regulation to ensure a woman’s health, and in the third trimester, as the fetus became viable, the state had a compelling interest in protecting the fetus.

Within a few years of Roe, the high court heard a series of cases involving use of public assistance, particularly Medicaid payments, to support a woman’s right to choose. The broader political climate, however, quickly became resistant to using public funds for abortion. Abortion opposition was strong among Catholic leaders, and just after Roe Catholic members of Congress would begin introducing bans on public funding for abortion, that scholars (Tribe Reference Tribe1992; Ziegler Reference Ziegler2018; see also Quadagno Reference Quadagno1994) suggest drew additional support from conservative lawmakers and rising opposition to welfare funding for the poor. The growing opposition to public funding would also become evident in that by 1980 Jimmy Carter’s presidential administration opposed use of public assistance for abortion, directing the Solicitor General to argue against such support for women seeking abortion (Rosenberg Reference Rosenberg2008). Additionally, in the years following Roe, more than a dozen states took steps to limit use of Medicaid funds for abortion (NYU Law Review 1979; Copeland and Law Reference Copeland, Law, Elizabeth and Stephanie2011). In 1976, Congress passed the Hyde Amendment (sponsored by Illinois representative Henry Hyde), which severely limited use of federal funding for abortion (Ziegler Reference Ziegler2015). With this shift in the broader political context, by the late 1970s, in cases concerning use of Medicaid funding and public facilities for abortion, the Roe majority split, with some of the more conservative Justices (Warren Burger, Lewis Powell, and Potter Stewart) now joining Byron White and William Rehnquist in opposing abortion rights.

We consider cause-lawyer women’s-rights legal framing in four public-funding Supreme Court cases in this increasingly hostile climate: Maher v. Roe (1977), Poelker v. Doe (1977), Harris v. McRae (1980), and Williams v. Zbaraz (1980). Each case concerns use of public benefits for abortion among economically marginalized women, those who could least afford the cost of the medical procedure. The Maher case involves a challenge to Connecticut’s policy prohibiting use of state Medicaid funds for first-trimester abortions unless the abortion was deemed medically necessary. The Poelker case differs in that it considers a St. Louis restriction on performing abortions in the city’s public hospitals. Williams assesses an Illinois law restricting state medical-assistance funding for abortion to instances in which a woman’s life was at stake. The plaintiffs in Harris contested the federal Hyde Amendment’s ban on use of federal Medicaid benefits for abortion unless the woman’s life was endangered or the pregnancy resulted from rape or incest. In all four cases, in an increasingly hostile climate toward public funding for abortion, the Supreme Court ruled against the pro-choice lawyers, indicating that public funds and facilities would not be available for the most part to economically marginalized women who chose to terminate their pregnancies.

Legal framing by the pro-choice cause lawyers in the public-funding cases provides evidence of women’s-rights framing innovations occurring in this resistant political-legal context. The attorneys preparing the briefs in these cases represented a growing network of early pro-choice cause lawyers. Most of them were tied to the ACLU, particularly its Reproductive Freedom Project (RFP), which was founded in 1974 to ensure compliance with Roe (RFP 1974). Catherine Roraback, counsel in Maher, served on the ACLU board (Civil Liberties News 2008). Judith Mears, RFP’s first director, assisted Frank Susman with the Poelker brief (RFP 1976b). The Illinois ACLU spearheaded the Williams case, and in Harris, illustrating the strengthening pro-choice coalition, attorneys from RFP (Janet Benshoof), Planned Parenthood (Eve Paul), Center for Constitutional Rights (Rhonda Copelon), along with Sylvia Law and Harriet Pilpel, both of whom had encouraged the ACLU to found the RFP and served on the RFP’s Advisory Board (RFP 1978; Copelon and Law Reference Copeland, Law, Elizabeth and Stephanie2011), combined efforts to challenge the Hyde Amendment.

While these pro-choice attorneys drew on Roe’s due-process privacy framework in their briefs, they engaged in women’s-rights framing innovations in various and related ways. They developed an intersectional pro-choice legal frame centered on the experiences of economically marginalized women and the barriers they confronted in seeking abortions. Figure 3 shows the higher incidence of use of this intersectional frame in Maher, Poelker, Harris, and Williams compared to Roe. As Crenshaw and colleagues (Crenshaw Reference Crenshaw1989; Cho, Crenshaw, and McCall Reference Cho, Crenshaw and McCall2013) tell us, multiple systems of oppression can combine to produce inequality and injustice. For low-income women, restrictions on public funding for abortions would severely limit their right to choose abortion, illustrating the intersection of gender and class dynamics. The combination of gendered patriarchal beliefs motivating the funding restrictions and the fact that the restrictions most impacted those with limited economic resources illustrates how gender and class subjugation can combine to produce an intersectional outcome. As the pro-choice attorneys in Maher argued, with restrictions on Medicaid funding for abortion in place, “a fundamental right is conditioned totally on the ability to pay” (16).

FIGURE 3. Word/Phrase count for the Intersectionality Frame.

Note: The horizontal axis lists legal cases for the briefs and years in which the case was decided. The vertical axis indicates the count of the words/phrases associated with the frame, divided by the number of words overall in the legal brief. A list of the words/phrases appears in the Appendix.

Black bars = Roe and public-funding cases, light gray bars = multiple-restriction cases, and medium gray bars = second-trimester abortion cases.

The primary legal rationales underpinning the intersectionality frame further illustrate innovations in women’s-rights pro-choice framing in the funding cases. In two of the funding cases (Maher and Poelker) the reproductive-rights attorneys emphasized an equal-protection rationale, and in one case (Harris) the lawyers articulated a religious-liberty legal rationale. Figures 4 and 5 respectively highlight the equal-protection and religious-freedom framing innovations in these funding cases.Footnote ¹¹ In Maher and Poelker, the pro-choice advocates emphasized that indigent women seeking abortions were treated differently than other individuals, and this differential treatment, they argued, was a violation of the Constitution’s Equal Protection Clause. The Maher and Poelker lawyers offered three comparisons to justify their equal-protection claim. First, Medicaid-eligible women who sought to terminate pregnancies were not treated similarly to others dependent on Medicaid, whose access to other medical procedures was not denied. Second, the cause lawyers compared economically disadvantaged pregnant individuals who chose to give birth and who would receive Medicaid benefits to cover the cost of the birth with those seeking abortion and who would not receive financial assistance for the abortion procedure. This circumstance could effectively compel women in the latter group to give birth, while pregnant women not seeking abortions did not face a similar pressure. Finally, the attorneys contrasted economically marginalized women with financially more secure women. While wealthier individuals would be able to exercise their right to choose abortion because they had the means to afford the procedure, the Medicaid restrictions meant that lower-income women would not be able to exercise their right.

FIGURE 4. Word/Phrase count for the Equal-Protection Frame.

Note: The horizontal axis lists legal cases for the briefs and years in which the case was decided. The vertical axis indicates the count of the words/phrases associated with the frame, divided by the number of words overall in the legal brief. A list of the words/phrases appears in the Appendix.

Black bars = Roe and public-funding cases, light gray bars = multiple-restriction cases, and medium gray bars = second-trimester abortion cases.

FIGURE 5. Word/Phrase count for the Religious-Freedom Frame.

Note: The horizontal axis lists legal cases for the briefs and years in which the case was decided. The vertical axis indicates the count of the words/phrases associated with the frame, divided by the number of words overall in the legal brief. A list of the words/phrases appears in the Appendix.

Black bars = Roe and public-funding cases, light gray bars = multiple-restriction cases, and medium gray bars = second-trimester abortion cases.

As Figure 5 shows, the Harris brief stands out in its use of another women’s-rights legal-rationale framing innovation, use of the religious-freedom frame. This new framing formulation occurred as the context for government funding for abortion became even more hostile, with anti-abortion Court decisions in 1977 in both Maher and Poelkler. This new framing approach was a response to these losses and was an effort to make headway in an increasingly resistant environment. Also, in the 1980 Harris case, signaling the Carter administration’s opposition to use of public funding for abortion, the US Solicitor General defended the Hyde Amendment. The pro-choice Harris attorneys challenged the Hyde Amendment’s limits on Medicaid funding for abortion, invoking the First Amendment’s Establishment and Free Exercise Clauses.Footnote ¹² They argued that the Hyde Amendment enacted into law the religious belief that life begins at conception, and such an action violated the Establishment Clause, which bars the government from establishing religion. The attorneys went on to state that by impeding financially disadvantaged women’s ability to follow their own conscience in making decisions regarding pregnancy termination, the Hyde Amendment also violated the Free Exercise Clause, which protects individual religious liberty and the right of individuals to make personal moral choices on the basis of their religious beliefs. In the brief’s wording, the Hyde Amendment “condition[s] entitlement to necessary health care on abandonment of religious and conscientious convictions that abortion is appropriate” (Harris brief 1980, 150). The brief drew on a sociological analysis of the language of supporters of the Hyde Amendment during congressional debates in which lawmakers described the fetus as “being in relation to God” and “having a soul” (86). Some congressional Hyde Amendment supporters also referred to “church teachings to legitimate their positions” and to their own religious affiliations and upbringings as shaping their view of the amendment (87).

In the fourth funding case, Williams v. Zbaraz, the reproductive-rights attorneys again innovated in their legal framing, but in this case the framing innovation was not a women’s-rights frame. The Williams brief attacked the Hyde Amendment by drawing on Title XIX of the Social Security Act. Title XIX, passed in 1965, required that Medicaid-funded medical care “be of high quality and provided in a manner consistent with the best interest of recipients” (Williams brief 1980, 25). The brief argued that Title XIX should outweigh the Hyde Amendment in determining when Medicaid recipients would have access to publicly funded abortion services. While use of the Title XIX legal frame was novel, the framing innovation did not develop a women’s-rights framing theme and although the context was hostile to public funding for abortions, the brief in this case does not provide evidence supporting our assertion about women’s-rights framing innovations in such a context.Footnote ¹³

As the political-legal climate turned increasingly resistant toward public funding for abortion, the pro-choice cause lawyers deployed innovative women’s-rights legal framing and legal rationales in an effort to persuade the Justices and others that economically disadvantaged women should be able to exercise their right to choose abortion. These ongoing innovations in the increasingly hostile climate provide at least suggestive evidence that framing innovations are linked to the growing resistance in the political-legal context. In the following discussions of the multiple-restriction and second-trimester-ban cases, we find additional evidence that cause-lawyer legal-framing innovations occur in more threatening environments.

Cases Involving Laws with Multiple Restrictions on Abortion Access

Beginning in the late 1970s, the Supreme Court ruled in a number of pivotal cases involving state and local laws that placed restrictions on women’s access to abortion. The restrictions included: mandated waiting periods prior to an abortion, parental consent for minors, spousal consent for married women, and an informed-consent process in which patients must be provided with state-mandated information regarding the abortion procedure (sometimes containing inaccurate information (Daniels et al. Reference Daniels, Janna, Grace and Roberti2016)). While the earlier of these cases took place in a context that was largely receptive for continuing Roe’s general protection of abortion rights, by the late 1980s and early 1990s, when the Court decided Webster and Casey, the environment was far less receptive. Here, we explore new legal-framing strategies that pro-choice cause lawyers developed in the face of this more hostile political and legal environment.Footnote ¹⁴

Beginning with the Planned Parenthood v. Danforth ruling in 1976 and including Akron v. Akron Center for Reproductive Health (1983), Planned Parenthood v. Ashcroft (1983), and Thornburgh v. American College of Obstetricians and Gynecologists (1986), the Supreme Court handed down a series of decisions that, for the most part, limited the capacity of states and local governments to restrict women’s access to abortion. In both Akron and Thornburgh, the Court held informed-consent requirements unconstitutional. In both instances, the Supreme Court decided that the required information “is designed not to inform the woman’s consent but rather to persuade her to withhold it altogether” (Akron 1983, 444; Thornburgh 1986, 762). In Akron, the Court went on to note that the Akron ordinance specified that physicians must tell their patients that “the unborn child is a human life from the moment of conception,” which the Court stated was simply one view of when life begins, and that “abortion is a particularly dangerous procedure,” an assertion for which supporting evidence did not exist (Akron 1983, 444–45). Through the mid-1980s the Court generally limited the reach of these multi-restriction abortion laws.

By the end of the 1980s, the political context had shifted markedly and the makeup of the Supreme Court reflected the change. In the late 1970s a broad conservative religious-right movement began to emerge, and it included evangelical religious messages about feminist “assaults” on the family (Spruill Reference Spruill2017, 71). The electoral results of this movement were evident in the 1980 election of Ronald Reagan. This new right movement combined with anti-abortion groups, intensifying pro-life efforts (Tribe Reference Tribe1992). Reagan’s election made visible the increasing political polarization around the abortion issue, with legal efforts on both sides gradually becoming more coordinated (Carmines, Gerrity, and Wagner Reference Carmines, Gerrity and Wagner2010; Copeland and Law Reference Copeland, Law, Elizabeth and Stephanie2011). State legislators as well were passing restrictive abortion laws (Congressional Quarterly Almanac 1989). During both the Reagan and first George Bush administrations, the Solicitor General’s office routinely filed amicus briefs in opposition to women’s reproductive rights. By the late 1980s and into the early 1990s, the Reagan and Bush administration appointees to the Supreme Court—including Justices staunchly opposed to abortion rights, in particular, Antonin Scalia and Clarence Thomas—moved the Court in a decidedly anti-choice direction (Allen Reference Allen1992). In this period of political and judicial conservative ascendency, two multi-restriction abortion cases, Webster and Casey, came before the Supreme Court, and in these cases we see framing innovations by reproductive-rights attorneys.

Pro-choice cause lawyers spearheaded all the multiple-restriction cases from the 1970s through the 1990s, and their organizations overlapped with those litigating the public-funding cases.Footnote ¹⁵ As noted in Figure 1, one framing development in the pro-choice briefs in Webster and Casey was an intensification in use of the privacy frame. Our close read of this frame reveals that its meaning in Webster and Casey, with its focus on the right to privacy as articulated in the due-process rationale of Roe, is the same as the privacy frame’s meaning in the earlier Danforth, Akron, Ashcroft, and Thornburgh briefs. Thus, while there is variation in use of the privacy frame, the Webster/Casey increase is an intensification in the frame’s use rather than an innovation in framing. In all likelihood, use of the privacy frame is heightened in the Webster/Casey briefs because of a clear sense among the attorneys that Roe could be overturned in these decisions, and, therefore, the pro-choice lawyers augmented their defense of the privacy right (Wharton and Kolbert Reference Wharton and Kolbert2013).

Two women’s-rights framing innovations, however, do occur in the Webster and Casey pro-choice briefs. The first of these is what we refer to as the women’s-citizenship frame. Figure 6 illustrates the sizeable increase in reliance on this frame in the feminist Webster and Casey briefs. The women’s-citizenship frame stems from a critique of Roe’s due-process framework wherein, for the latter, the right to choose abortion is situated in a doctrine of individual privacy. The privacy doctrine provides women with the right to choose abortion (in Roe’s phrasing, the choice would stem from a woman and her physician), but the right is granted as a negative right. A negative right occurs when, as in Roe, the law limits the government’s ability to impede an individual’s action—in the case of abortion, the government’s ability to burden a woman’s decision to terminate a pregnancy (Ratelle Reference Ratelle2018). A positive right, on the other hand, exists when the government has an obligation to ensure that individuals can exercise the right. The right to choose abortion has not been protected as a positive right under US law, as illustrated in the public-funding cases, where the Supreme Court found no right to government funding for abortion (Bailey Reference Bailey2016). In the 1970s and 1980s, state and municipal governments enacted restrictions on women’s right to choose abortion, typically as a response to proponents in the pro-life movement and their demands that the state offer greater protections for fetuses (Margolis and Neary Reference Margolis and Neary1980). As these restrictions took hold, various commentators (Karst Reference Karst1977; Law Reference Law1984) argued that the Court’s abortion jurisprudence, with its emphasis on privacy and refusal to recognize abortion as a positive right, failed to adequately protect the right to choose abortion.

FIGURE 6. Word/Phrase count for the Women’s-Citizenship Frame.

Note: The horizontal axis lists legal cases for the briefs and years in which the case was decided. The vertical axis indicates the count of the words/phrases associated with the frame, divided by the number of words overall in the legal brief. A list of the words/phrases appears in the Appendix.

Black bars = Roe and public-funding cases, light gray bars = multiple-restriction cases, and medium gray bars = second-trimester abortion cases.

Pro-choice critics of the Roe framework argued that a stronger form of legal protection was needed, specifically an approach where women’s citizenship was fully acknowledged and protected under the law (Siegel Reference Siegel1992; Rose and Hatfield Reference Rose and Hatfield2007).Footnote ¹⁶ A women’s-citizenship frame recognizes that women’s control over reproduction is intimately linked to women’s ability to participate in society as full and equal citizens. When women control decision making over reproduction, their ability to pursue education, employment, civic engagement, and community activism and service is substantially enhanced. This can be particularly the case for women from economically disadvantaged backgrounds, young women, and women who confront racial, ethnic, and other social discrimination. Legal protection for reproductive decision making also gives greater social status to women, countering long-standing traditional beliefs that have anchored women in the domestic sphere, devalued their decision-making capacity, and attached stigma when they do decide to terminate pregnancies (Siegel Reference Siegel1992; Reilly Reference Reilly1998; Rose and Hatfield Reference Rose and Hatfield2007). Abortion-rights law that fully recognizes women’s equal citizenship does not permit states to compel women to carry an unwanted pregnancy to term, but rather such law allows women to control reproductive decision making, because such decisions profoundly shape women’s future lives.

The Webster and Casey pro-choice briefs innovated by incorporating women’s-citizenship framing far more than prior feminist reproductive-rights briefs, as Figure 6 illustrates. In Webster, the pro-choice cause lawyers stated that the right to choose abortion has “enabled millions of American women to enter the work force, continue their education, and escape the spectre of illegal abortion or forced pregnancies” (Webster brief 1989, 2). The brief goes on to argue that “decisions with a profound effect on personal identity and destiny be placed largely beyond the reach of government” (2) and must be “in the hands of the person it most affects—the woman” (11). The Casey attorneys also emphasized the women’s-citizenship frame, stating that “[f]ew decisions are more basic to ‘individual dignity and autonomy’ than the right of a woman to choose to terminate or continue a pregnancy” (Casey brief 1992, 15). The brief asserted that “[b]ecause parenthood has a dramatic impact on a woman’s educational prospects, employment opportunities, and self-determination, restrictive abortion laws deprive her of basic control of her life” (26–27). The pro-choice attorneys asked the Court to consider the far-reaching impact of compulsory motherhood for women and to understand that laws restricting abortion serve to fuel women’s economic and social subordination in society (Law Reference Law1984; Siegel Reference Siegel1992). The women’s-citizenship frame bolsters the claim that abortion rights should be a positive right, so that women can attain their full potential and experience equal citizenship.

Even though the women’s-citizenship frame emerged out of criticism of the limits of the due-process framework, the pro-choice legal framing in Webster and Casey continued to link women’s citizenship to women’s right to liberty and privacy in reproductive decision making. The briefs stated that protecting a zone of privacy around women’s right to make the abortion decision would ensure women’s ability to reach their full potential as citizens. Only in the Casey brief are there hints of another legal rationale underpinning the women’s-citizenship frame, one focused on equality rather than privacy. The brief states, “by affording women greater control over their childbearing, Roe has permitted American women to participate more fully and equally in every societal undertaking … and thus [to] continue their education, enter the workforce, and otherwise make meaningful decisions consistent with their own moral choices” (Casey brief 1992, 33). Invoking “equality” here suggests the possibility of situating the women’s-citizenship frame in an equal-protection framework, one where equal treatment of women compared to men is elevated in the legal rationale. This is a legal-rationale innovation for abortion litigation (although one not fully realized in the Casey brief) that a number of legal scholars recommend as providing stronger legal protection for reproductive rights (Siegel Reference Siegel1992).

In addition to the women’s-citizenship frame, the pro-choice attorneys in Webster and Casey innovated in their framing by using an overturn-Roe frame. Their briefs called upon the Court to “squarely call[] the question: ‘[h]as the Supreme Court overruled Roe v. Wade, holding that a woman’s right to choose abortion is a fundamental right protected by the United States Constitution?’” (Wharton and Kolbert Reference Wharton and Kolbert2013, 147). The briefs discussed the consequences for the Court of reversing precedent and “for the first time in its history, withdraw[ing] from constitutional protection a previously recognized fundamental personal liberty” (Webster brief 1989, 3). In Casey, the cause lawyers’ brief stated that “overruling the decision would dislodge settled rights and expectations” that have been in place for two decades (Casey brief 1992, 20).Footnote ¹⁷

Riker (Reference Riker1986) refers to such framing as a type of heresthetical maneuvering, maneuvering that can be utilized when actors believe they face likely defeat, which is the situation the pro-choice activists confronted in facing a hostile political-judicial context in Webster and Casey. In engaging in heresthetical framing, the reproductive-rights lawyers attempted to minimize their losses by adding another possibility to the outcomes the Court could choose, specifically, an alternative designed to divide the pro-choice opponents on the Court. That is, the reproductive-rights attorneys anticipated that some of their opponents would fully embrace the new alternative (rejecting Roe) but others would reject it (RFP 1989a, 1989b; Wharton and Kolbert Reference Wharton and Kolbert2013). Riker (Reference Riker1986, 6) refers to this as “splitting the majority,” a particularly apt phrase for the pro-choice attorneys in both Webster and Casey who were attempting to split the Court’s conservative majority. The pro-choice legal advocates used heresthetical framing in what we call an overturn-Roe frame. They did not simply frame their arguments as against the particular abortion restrictions at stake (those in Webster’s Missouri law and Casey’s Pennsylvania law). They took the added step of framing the Court’s decision in each case as a referendum on Roe and a woman’s right to choose abortion generally (RFP 1988). Figure 7 reveals that prior to the Webster and Casey cases, the pro-choice briefs rarely utilized an overturn-Roe frame.

FIGURE 7. Word/Phrase count for the Overturn-Roe Frame.

Note: The horizontal axis lists legal cases for the briefs and years in which the case was decided. The vertical axis indicates the count of the words/phrases associated with the frame, divided by the number of words overall in the legal brief. A list of the words/phrases appears in the Appendix.

Black bars = Roe and public-funding cases, light gray bars = multiple-restriction cases, and medium gray bars = second-trimester abortion cases.

Use of the overturn-Roe frame in Webster and Casey had some success in splitting the majority in that, in the end, not all the conservative Justices wanted fully to dismantle Roe. In Casey, for instance, Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter, all appointed by pro-life presidents, took a middle-ground, undue-burden approach, which forestalled the other conservative Justices’ willingness to overturn Roe (Greenhouse Reference Greenhouse2005). While the Court in Webster and Casey upheld most of the states’ specific abortion restrictions, it took explicit steps to clarify that it was not overturning Roe. As Benshoof stated, “our legal strategy was successful—dividing the anti-choice judges so they couldn’t agree on how or when to overturn Roe” (RFP 1989a). While the reproductive-rights cause lawyers did not succeed in setting aside the multi-issue abortion restrictions in these cases, they engaged in innovative framing, using a heresthetical maneuver, a framing step that minimized their losses. Moreover, as our results show, these two novel framing efforts, both the women’s-citizenship and overturn-Roe frames, appeared only after the political-judicial context had become more resistant to women’s reproductive rights.

Cases Challenging Second-Trimester Abortion Bans

The Court’s ruling in Casey established a new standard for assessing the constitutionality of restrictive abortion laws: the undue-burden standard. As the Casey Court stated,

This was a major shift in the Court’s abortion jurisprudence, away from Roe’s trimester framework and the assumption of privacy in reproductive decision making, especially in the earlier stages of pregnancy. The undue-burden standard elevated the state’s interest in protecting the potential life of the fetus and significantly enhanced the state’s power to regulate abortion throughout pregnancy. Under this new standard, states could regulate abortions before the point of viability as long as the regulation was not an undue burden on a woman’s right to choose abortion, which the Court defined as a regulation that “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion” (Casey 1992, 877). Going forward, this meant that the courts, attorneys, and legislative bodies would now need to consider what constituted an undue burden.Footnote ¹⁸

In Stenberg v. Carhart (2000), Gonzales v. Carhart (2007), and Gonzales v. Planned Parenthood (2007), the Court assessed the constitutionality of laws banning intact dilation and evacuation (D&E), a late-second-trimester abortion procedure. Less than 10 percent of all abortions occur after the first trimester, and the intact D&E method was used in only a small minority of these cases (Guttmacher 2007). Most late-second-trimester abortions involve a nonintact procedure. The intact D&E method, similar to the nonintact D&E procedure, uses dilation and evacuation to abort the fetus, but the intact method leaves the fetus intact to reduce complications (such as infection and sterilization) associated with medical instrumentation in the uterus for at-risk patients. The pro-life movement, however, termed the intact D&E method “partial-birth abortion” in an effort to encourage widespread opposition to the procedure (Gerrity Reference Gerrity, Schaffner and Sellers2010). Use of the word “birth” in the label incorrectly suggested that these late-second-trimester abortions were postviability abortions, which they were not (Smith Reference Smith2008). Some women seek abortions at this later stage when there is a serious malformation of the fetus or the patient’s health or life is in danger (Cha Reference Cha2019).

In Stenberg, with Democratic president Bill Clinton’s appointees Ruth Bader Ginsburg and Stephen Breyer now on the Supreme Court, the conservative tilt of the Court during Webster and Casey was lessened. The Court, in a five-to-four decision, ruled that a Nebraska law banning the second-trimester procedure was unconstitutional, because the provision placed an undue burden on the abortion right. By Gonzales, however, the composition of the Court had again shifted, with appointments by Republican president George W. Bush. New Justices Samuel Alito and John Roberts both opposed abortion rights, and Alito in particular had taken a strong stance against Roe while serving as a Department of Justice attorney in the mid-1980s, where he assisted in preparation of the Solicitor General’s amicus briefs against abortion rights (Cooper Reference Cooper1985). The Gonzales case was a challenge to Congress’s 2003 Partial-Birth Abortion Ban Act (PBABA), prohibiting use of the divisive second-trimester abortion procedure. The Act reveals the strong political opposition to the abortion method, with numerous state legislatures also banning the procedure (Mezey Reference Mezey2011). Additionally, by the time Gonzales reached the Supreme Court, the pro-life movement’s framing of the issue was well publicized and had succeeded in shifting public opinion. By 2007, nearly three-quarters of those surveyed stated that late-term abortions should be illegal, up from 57 percent holding this view in 1996 (Saad Reference Saad2002, Reference Saad2007).

While pro-choice attorneys in both Stenberg and Gonzales relied on the undue-burden standard as the legal rationale to challenge the second-trimester abortions bans, in the more hostile climate of Gonzales, the cause lawyers pursued two innovations in their women’s-rights framing.Footnote ¹⁹ First, they offered framing substantially rooted in empirical evidence, evidence supporting their claim that the federal ban on the second-trimester abortion method created an undue burden on women’s right to choose abortion. As can be seen in Figure 8a, the pro-choice cause lawyers intensified use of an evidence frame by drawing heavily on the language of “evidence” and “facts,” using the evidence-based approach more so than in past cases, including Stenberg. For instance, one of the attorneys’ briefs stated that the law “imposes an unconstitutional burden on a woman’s right to choose whether or not to terminate a pregnancy” arguing “[t]hat evidence, from numerous, highly credentialed physicians practicing in hospitals, academic institutions, and clinics, establishes the intact D&E is a commonly performed and safe procedure” (Gonzales v. Carhart brief 2006, 2, 15). While the evidence-based frame was an intensification of a frame used in prior cases (as can be seen in Figure 8a), a closer look at the evidence frame in Gonzales suggests that there was an innovation in framing as well.

FIGURE 8a. Word/Phrase count for the Evidence Frame.

Note: The horizontal axis lists legal cases for the briefs and years in which the case was decided. The vertical axis indicates the count of the words/phrases associated with the frame, divided by the number of words overall in the legal brief. A list of the words/phrases appears in the Appendix.

Black bars = Roe and public-funding cases, light gray bars = multiple-restriction cases, and medium gray bars = second-trimester abortion cases.

In Gonzales, the pro-choice attorneys emphasized the role of medical evidence, referencing the testimony of physicians and the medical literature about the judgment of doctors regarding the procedure (Figure 8b). They emphasized the medical consensus that the procedure was needed to protect the health of women in particular types of cases, and thus prohibiting its use placed a substantial obstacle in the path of a woman’s right to access a late-second-trimester abortion. That this kind of evidence framing is not present to the same degree in Stenberg suggests that the framing innovation, as an invigoration of a frame with new emphasis on medical judgment, occurred when the overall climate became more hostile.

FIGURE 8b. Word/Phrase count for the Medical-Evidence Frame.

Note: The horizontal axis lists legal cases for the briefs and years in which the case was decided. The vertical axis indicates the count of the words/phrases associated with the frame, divided by the number of words overall in the legal brief. A list of the words/phrases appears in the Appendix.

Black bars = Roe and public-funding cases, light gray bars = multiple-restriction cases, and medium gray bars = second-trimester abortion cases.

In the end, the Supreme Court in Gonzales decided against the pro-choice attorneys, upholding the federal ban, ruling that the law did not impose an undue burden on a woman’s right to abortion. One legal scholar (Borgmann Reference Borgmann2013) indicates that some lower federal courts are now increasingly looking more closely at the factual evidence presented in abortion cases. It may be that the pro-choice evidence-framing strategy in Gonzales, as the attorneys worked to determine useful frames under the new undue-burden standard, encouraged this action within the courts.Footnote ²⁰

A second legal-framing innovation in the pro-choice Gonzales briefs parallels the heresthetical maneuvering used by the cause lawyers in their Webster and Casey briefs in that it emphasized the extreme implications of the opposing side’s argument. The Gonzales briefs framed PBABA as an “overly broad” law, one that proscribed not only intact D&Es but also nonintact D&Es (Smith Reference Smith2008). As one of the briefs argued, “Congress intentionally drew the definition of ‘partial-birth abortion’ to reach beyond intact D&E abortions” and thus “Congress opted to make subject to criminal sanction procedures common to the vast majority of second trimester abortion” (Gonzales v. Carhart brief 2006, 17).

The Gonzales briefs thus put this additional understanding of the PBABA “on the table.” Given that PBABA’s imprecise wording could be utilized by state lawmakers to outlaw all D&E abortions, the lawyers argued that the Court’s decision upholding the prohibition would impinge on a woman’s right to choose abortion by banning late-second-trimester abortions altogether, given that most of these abortions were performed using a D&E procedure (Smith Reference Smith2008). Figure 9 shows the more frequent use of the “overly broad” frame in the Gonzales briefs. This heresthetical maneuvering, as had been done in the Webster and Casey briefs, painted the dispute in Gonzales as one with a possible extreme outcome. In Webster and Casey, the cause lawyers innovated by arguing that Roe itself was at stake; in Gonzales the legal advocates stated that a nearly complete ban on later-second-trimester abortions was possible, and that this overbroad ban placed an undue burden on women’s right to choose abortion. The lawyers’ goal to split the Court’s conservative majority, inviting those Justices less adamantly opposed to abortion to dissent from embracing the PBABA’s broad wording, met with some success. In the Gonzales decision—written by Justice Kennedy, known for being a potential swing voter in the Court’s abortion decisions—the Court explicitly stated that the PBABA does not ban use of the nonintact D&E procedure (Gonzales 2007). The Gonzales decision overall, of course, was not a win for the pro-choice side, in that the Court upheld the ban on the disputed procedure. But, as in Webster and Casey, the Court narrowed its decision, in this case by not allowing the broader restriction on all D&E abortion methods.

FIGURE 9. Word/Phrase count for the Overly Broad Frame.

Note: The horizontal axis lists legal cases for the briefs and years in which the case was decided. The vertical axis indicates the count of the words/phrases associated with the frame, divided by the number of words overall in the legal brief. A list of the words/phrases appears in the Appendix.

Black bars = Roe and public-funding cases, light gray bars = multiple-restriction cases, and medium gray bars = second-trimester abortion cases.