Amicus briefs written in favour of abortion access were too weak in their language to be able to counter those written against, research concludes.
The paper, by academics from Cardiff University and the American University Washington College of Law, is the first to analyse amicus curiae, or 'friend-of-the-court' briefs, which have been filed in the three landmark abortion cases heard by the U.S. Supreme Court: Roe vs Wade (and companion case Doe v. Bolton), Planned Parenthood vs Casey and Dobbs vs Jackson.
Amicus briefs are filed by people, groups, or organisations who have strong interests in the subject of a case but are not parties to or directly involved in the litigation. Modern amicus brief authors generally write to assert their own individual or organisational interests, which they perceive to be "potentially jeopardised by the litigation". A court can decide to take these viewpoints into account when making their ruling.
This study explores the role of the briefs over the course of five decades, who wrote them and their rhetorical and engagement strategies.
Dr Amanda Potts, a linguist based at Cardiff University's School of English, Communication and Philosophy, said: "Our analysis of the 189 briefs, which equates to 1.1 million words, shows that regardless of whether the writers were seeking to restrict or expand abortion access, pregnant people are presented as passive and lacking full agency.
"Instead, in briefs supporting abortion access, vulnerable pregnant people engage in faceless, corporate processes. The organisational, government, academic, and medical briefs comprised substantial coalitions of authors coming together, seemingly seeking to influence the Court by unity, volume, and gravitas. But conversely, this meant access briefs were stripped of nuance, and individual, more human-led narratives. Attempts at providing unified voices might have paradoxically undermined the effectiveness of amici as contributors.
Narratives of fetal personhood increasingly dominate the rhetorical framing of briefs seeking to restrict abortion access, even when that issue is not explicitly before the Court. Many of these narratives draw on highly charged words and graphic detail to get their argument across. The briefs seeking to expand abortion access do not counter these personhood arguments directly, which leaves them lacking the required strength and emotional power.
Abortion was made legal across the US after a landmark legal ruling in 1973, often referred to as the Roe v Wade case. In June 2022, the US Supreme Court - the nation's most senior legal body - overturned that right. In its Dobbs v Jackson Women's Health Organization decision, the conservative majority on the court turned over the power to regulate abortion - or ban it outright - to individual states.
Co-author Jamie R Abrams, of the American University Washington College of Law, said: "Our research, which was carried out following the landmark Supreme Court rulings has asked, How did we get here? What's the trajectory going forward? We set out to answer this question by collecting all possible evidence left by society's many stakeholders: senators, scholars, religious leaders, medical practitioners.
"Studying changes in the makeup of amicus brief authors, as well as the rhetoric used in these briefs, provides vital insights regarding both the trajectory of the Court's decision-making and the strategic shifts in judicial advocacy surrounding reproductive rights. They serve as a barometer measuring how a diverse range of interested groups have defined and defended the abortion right over time.
"Our analysis also found many of the briefs written in favour of restrictions were authored by one doctor as part of a group of people with religious and political objections to abortion. This meant religious arguments were obscured by briefs seemingly based on medical insights. This is a strategy that amici supporting abortion access could not compete with. Over time, we found briefs seeking to expand abortion access began with bold and creative arguments but later retreated to defending the status quo."
Dr Potts added: "The use of amicus briefs has soared since the rulings two years ago. We hope our findings demonstrate that there is a need for institutional reforms, namely that briefs with authors from multiple backgrounds or categories should be stopped to avoid distortions, and that amici should offer distinct perspectives rather than generalised ones in order to be of real use to the courts."
The paper, The Rhetoric of Abortion in Amicus Briefs, is published in the Missouri Law Review and available to view here.
