In Abortion Cases, Legions of ‘Friends’ Seek to Persuade Supreme Court

When the Supreme Court decided Roe v. Wade in 1973, establishing a constitutional right to abortion, it noted that it had received 14 friend-of-the-court briefs and listed them in a snug footnote at the beginning of the decision.

By 1992, when the court reaffirmed Roe’s core holding in Planned Parenthood v. Casey, the number of such filings, which lawyers call amicus briefs, had swelled to more than 30, and the footnote reciting them had grown unwieldy, taking up more than a page.

In the decision that overturned Roe in 2022, Dobbs v. Jackson Women’s Health Organization, the court was flooded with more than 140 amicus briefs. The footnote had metastasized, spanning seven pages.

Those 50 years of amicus briefs tell a cumulative story, one explored in a new study published in The Missouri Law Review, “The Rhetoric of Abortion in Amicus Briefs.” Using corpus linguistics, a social-science tool that analyzes patterns of words in large databases, the study found that the briefs “serve as a barometer revealing how various constituencies talk about abortion, women, fetuses, physicians, rights and harms over time.”

The study, conducted by Jamie R. Abrams, a law professor at American University, and Amanda Potts, who teaches at Cardiff University, concluded that opponents of abortion had in some ways been more effective, remaining “resolutely intent on advancing fetal personhood.” The anti-abortion briefs were nimble, they wrote, and were “able to adapt and evolve in response to doctrinal shifts of the court.”

Overall, the authors wrote, abortion opponents had pressed “a more relentlessly human, emotional, personal attack to pursue its political agenda.”

The authors, self-described feminist scholars, wrote that supporters of abortion rights “simply could not counter these arguments within conventional advocacy strategies.”

None of this means that the many scores of amicus briefs were particularly influential. Indeed, the sheer number of briefs probably diluted the power of any individual one.

“Normally I didn’t even read amicus briefs,” Justice John Paul Stevens told me in 2011, a year after he retired and a few years before he died in 2019.

Justice Antonin Scalia, who died in 2016, said something similar in 2011 at Chicago-Kent College of Law.

“My law clerks read all amicus briefs,” he said. “If there’s one that has a hidden truffle in there somewhere, they call it to my attention.”

Still, Allison Orr Larsen, a law professor at William & Mary who has written extensively on amicus briefs, said some of the new study’s findings “highlight for me a problem in abortion litigation that I think applies in amicus practice more generally: More amici than ever before claim to be factual experts, but in reality these ‘experts’ are motivated by advocacy and masked in neutral-sounding names.”

For example, The New York Times reported last week that a questionable survey on gun safety cited in amicus briefs made its way into a concurring opinion from Justice Samuel A. Alito Jr. in a major Second Amendment case in 2022.

Something similar happened in a 2007 abortion decision, Gonzales v. Carhart, which upheld the federal Partial-Birth Abortion Ban Act. Justice Anthony M. Kennedy, writing for the majority, supplemented his legal analysis with an observation drawn from an amicus brief.

“While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained,” he wrote, citing a brief filed by The Justice Foundation, an anti-abortion group.

In a 2008 article in The Duke Law Journal, Reva Siegel, a law professor at Yale, said the passage was remarkable.

“The woman-protective argument that appears in Carhart seems to have entered the case not through findings of Congress or the lower courts, but rather through amicus briefs filed in the Supreme Court,” she wrote.

That phenomenon is troubling, Professor Larsen said. “The end result is that the studies and statistics and history presented by these groups are selected by people with a dog in the fight and presented to the justices without any serious adversarial testing or fact-checking,” she said. “It is a system ripe for abuse and risks tainting Supreme Court decisions with unreliable evidence.”

The Supreme Court heard two abortion cases this term, one on whether emergency rooms in states with strict abortion bans must sometimes perform the procedure and the other on whether to limit the availability of abortion pills. There were, as usual, scores of amicus briefs, though not as many as were filed in Dobbs.

The first case will probably be decided this week. In the second, the court unanimously ruled earlier this month that the doctors and medical groups challenging the Food and Drug Administration’s approval of the pills lacked standing to sue.

Professor Abrams said that passages in Justice Clarence Thomas’s concurring opinion in that case reflected a rhetorical trend in amicus briefs by groups opposing abortion, which she said have “increasingly demonized abortion caregivers over time from Roe to Dobbs.”

She pointed to a sentence that managed, she said, to use four loaded words in quick succession.

“Just as abortionists lack standing to assert the rights of their clients,” Justice Thomas wrote, “doctors who oppose abortion cannot vicariously assert the rights of their patients.”

Professor Abrams reviewed the bidding. “So-called ‘abortionists’ have ‘clients,’” she said, “and so-called ‘doctors’ who are opposed to abortion have ‘patients.’”