by Joshua C. Wilson. Stanford: Stanford University Press, 2013. 260pp. Cloth $85.00. ISBN: 9780804785334. Paper $24.95. ISBN: 9780804785341. Reviewed by James Daniel Fisher, Department of Political Science and Criminal Justice, Edinboro University of Pennsylvania. Email: jdfisher [at] edinboro.edu.
pp.38-43
The American anti-abortion movement is historically comprised of several different “streams” or groups of activists that engage in distinct strategies for reducing or eliminating abortions (Munson 2009). Since the growth of stand-alone abortion clinics after ROE V. WADE in 1973, activists in the “direct action” stream have focused on directly engaging pregnant women, clinic workers, and the general public at facilities that provide abortions. Direct action tactics, including prayer vigils, leafleting, picketing, “sidewalk counseling,” and the physical blocking of clinic entrances, have been practiced in ways that are gentle and non-confrontational in tone and content. They have also been practiced in aggressive, deliberately provocative, and even violent ways.
In the 1980s and 1990s, one contingent of street-level activists engaged in an increasingly confrontational and intimidating style of clinic protest, dubbed “rescues.” Waves of protestors would “blockade” a clinic, attempting to physically shut down its operations. Furthermore, patients attempting to enter clinics were often intimidated verbally and physically (Risen and Thomas 1999).
Several clinic owners and workers, feeling as if they were under siege, requested injunctions to legally prohibit blockades and ensure patients unobstructed and unintimidating access to clinics. These legal requests and related legislation that limited the practice of confrontational-style protests were subject to high profile First Amendment challenges by anti-abortion activists and their lawyers. Throughout the 1990s, state and federal judges consistently found anti-abortion protest regulations constitutional. As a result, these injunctions and laws, including the federal Freedom of Access to Clinics Act (FACE), largely ended the era of confrontational, blockade-style protests.
These events are the subject of Joshua C. Wilson’s book, THE STREET POLITICS OF ABORTION, and involve the intersection of four topics: political movements that involve litigation; anti-abortion activism; First Amendment doctrine and judicial decision making; and legal consciousness, in particular the evolving view of law of various elite and non-elite actors. This combination makes for a rich and fascinating subject of study and promises Wilson’s book a wide audience.
It would have been a Herculean task for Wilson, in a single book, to give each of these topics equal space and analytical weight. Instead, Wilson focused on developing insights regarding the legal [*39] consciousness of the actors involved and how their view of the law was affected by the dynamics of a political movement utilizing litigation. He did so by analyzing the events surrounding three court cases representative of the issues and the era: PLANNED PARENTHOOD SHASTA-DIABLO V. WILLIAMS (1995); SCHENCK V. PRO-CHOICE NETWORK OF WESTERN NEW YORK (1997); AND HILL V. COLORADO (2000). Wilson conducted 50 interviews of “street-level” activists involved in the three cases studied, including anti-abortion protestors and clinic workers, and elite actors, consisting of lawyers, state legislators, and authors of amicus briefs.
After an introductory first chapter, each of the next three chapters of the book bring the reader up to speed on a court case and related events. This part of the book is largely descriptive in character: Anti-abortion activists explain why they practiced direct action tactics against abortion facilities in a given city. Clinic workers and their allies describe their reaction to the confrontational tactics of the demonstrators. The two sides battle in court over attempts to rein in the activities of the anti-abortion activists. Judges at various levels issue decisions that explore the First Amendment implications of the regulations or injunctions at issue. The pro-choice forces largely win in court and, as a result, the anti-abortion demonstrators either shift the focus of their activism or retire from anti-abortion activism altogether. Given the length of the litigation process, the main players on the anti-abortion side often moved on or retired well before the ultimate outcome of the litigation was known.
These chapters are the most crisply written parts of the book. Wilson’s descriptions of First Amendment doctrine and its specific application to anti-abortion protests are precise and clear. In these chapters (and throughout the book), Wilson lets the various actors speak for themselves. As a result, the reader gets a good sense of the motivation and thinking of the activists on both sides.
Wilson makes two empirical claims in this section of the book. First, Wilson identifies an unintended consequence of the court battles over blockade-style protests. The litigation played a role in developing and professionalizing the skills of some anti-abortion movement actors, who then, after the decline of confrontational clinic protests, used their developed experiences and knowledge to focus on passing state legislation limiting the exercise of abortion rights.
Second, Wilson suggests, less plausibly, that pro-choice success in shutting down the most confrontational tactics of clinic protestors played a major role in the rise (and resulting surge) of anti-abortion state legislation. “Anti-abortion activists have correspondingly relocated the main abortion politics battlefield from the visible, participatory, and volatile streets to the more private, elite, and staid state legislative halls” (p.106).
This suggestion relies on the presumption that clinic protests were in fact “the main abortion politics battlefield” so that, once injunctions and legislation “effectively eliminated” (p.106) rescue-style tactics, significant resources were reallocated to legislative efforts. It is not clear from the history of post- ROE anti-abortion activism that direct action was ever in fact the [*40] “marque of abortion politics” (p.106). Clinic protests were perhaps the most visible and controversial anti-abortion activity, but that is not the same as being the most effective activity or the activity that commands the bulk of anti-abortion funding, personnel, and attention.
Furthermore, the various streams of the anti-abortion movement, including the legislation and litigation streams, developed simultaneously and in parallel with the direct action stream in the decades after ROE. They cannot be seen, in other words, as rising out of the ashes of rescue-style protests. As Wilson notes, the strategy of using state legislation to chip away at abortion rights “did not start suddenly after the waning of the street politics of abortion. … [T]he anti-abortion movement had been attempting to use any and all means available to it. The difference in eras is more a matter of the degree of organization, professionalization, commitment of resources, and success” (pp.106-107).
This qualification – which makes Wilson’s observation much more accurate – almost swallows the assertion. What we are left with is a more nuanced and modest suggestion that anti-blockade injunctions and legislation caused some shifting of resources and attention away from direct action tactics and toward other streams of anti-abortion activism. Someone coming to the book without a background in the history of abortion politics might miss the importance of this qualification for accurately understanding of the evolution of anti-abortion activism.
The remaining three chapters of the book are where the bulk of Wilson’s analysis occurs. Wilson closely and subtly examines the legal consciousness of actors involved in the three cases discussed. Wilson wants to know “if and how law mattered for those involved in these disputes; how their stories may or may not reproduce, challenge, or amend legal power and state authority; what conditions contributed to evidence variations between differently situated groups of actors; and how their conceptions of law affect the ongoing politics of abortion” (p.111).
Based on the literature, how would one expect activists to think about the law after the outcome of the cases, in which pro-choice clinic owners largely emerged victorious? One might expect pro-choice activists to have “unencumbered access to the law in their narratives” and “correspondingly wholly affirm state law in their stories” (p.173). Anti-abortion activists, on the other hand, with their rejected conception of free speech, would “have limited, if any, affirmative use of state law in their stories” and would “be outright defiant toward state law” (p.173).
In fact, Wilson finds something of the opposite effect. Clinic owners and pro-choice activists, while happy with the outcome of the litigation, and encouraged regarding the power of law to achieve policy goals, were nonetheless unable to “use” their legal victories, and legal language, to make rhetorical advances over their anti-abortion opponents. They were unable to find simple and powerful ways of talking about limiting clinic protests, in part because many pro-choice activists were ambivalent about possibly treading on free speech rights. Instead, they justified their litigation and legislation in [*41] balanced and qualified (and less rhetorically effective) terms. Furthermore, they could not find the right language to adequately describe the kinds of harms that direct action protestors were causing with their confrontational tactics. Finally, battles over regulating protesters, focusing on free speech questions, were not neatly justified or captured by the “master frame” of “established ‘pro-choice’ rights talk” (p.121). Because of these factors, pro-choice activists experienced a “paradox of winning in court but failing to gain lasting access to law’s normative power” (p.175).
Anti-abortion protestors, on the other hand, lost in the courts but had an easier time processing and narrating what happened to them, a demonstration that “people do not necessarily lose the ability to use the law in various beneficial ways when they lose in the courtroom” (pp.175-176). A majority of protestors, whom Wilson labels “picketers,” saw their adherence to the law as fundamental to their self-conception as good Christians. Therefore, in reaction to the shock of being labeled by state law as potential lawbreakers, they did not construct a narrative that would serve to delegitimize state law. Instead, they found a way to frame state law as legitimate while preserving their self-conception as good citizens: They accused clinic owners and pro-choice activists of fooling judges with lies and accused specific judges of engaging in biased (that is, non-legal) decision-making.
A smaller contingent of protestors whom Wilson labels “rescuers” promoted more extreme forms of protest and possessed an “extralegal” conception of their work as obeying a higher law. One might expect that these protestors would use their commitment to extralegal norms to engage in resistance of court rulings against aggressive protesting. Interestingly though, Wilson noticed that the conception of a higher law to which the rescuers were committed had to do with the immorality of abortion, rather than free speech rights. In fact, “[t]he rescuer’s quotes reveal that they never expected, nor would they want, their actions to be protected by the First Amendment,” (p.124) so the outcome of the cases did not spur them to additional forms of resistance.
Wilson also examined the views of “state legal insiders, or elites,” in particular the state legislators, lawyers, and amicus briefs writers involved in the cases, on the “premise that legal consciousness research should not be limited to institutional outsiders” (p.131). Legal elites not only affect “movement strategy” but also the views of the activists for and with whom they work. In addition, elite actors are themselves “susceptible to having their perceptions, beliefs, and language affected by their interactions with the activists” (p.132).
Wilson found that a majority of the elite actors involved in the cases portrayed the law as an “unmoored political tool” (p.179). One might expect that this rather cynical view of the law by the majority of elites would undermine respect for the law by street-level activists. As noted, Wilson found to the contrary. In addition, a normal phenomenon in “the interaction between movements and elites” did not occur in the cases examined, namely, “that elites [*42] … have a detrimental effect on movements” (p.132).
Why not? One of Wilson’s major innovations is to identify and label the First Amendment cases studied as examples of “secondary movement litigation.” “Secondary movement litigation” involves the resolution of legal issues that are not directly related to the ultimate policy goal of activists in a given political movement. In the case of pro-choice and anti-abortion activists, the First Amendment rights of protestors were side issues not directly related to the main legal or policy issue regarding abortion: its legality or criminalization.
Identifying the cases discussed in the book as involving “secondary movement litigation” serves two analytical purposes. First, it helps explain why street-level activists largely developed their own legal narratives in reaction to the outcome of the First Amendment cases rather than take on the framing of movement elites. Second, it helps explain why legal elites did not cause activists on both sides to “feel alienated by the [litigation] process and . . . lose control of their causes” (p.166) as sometimes happens with movements that transition into the judicial system.
In short – I am not doing justice here to Wilson’s many fine and subtle observations – the impact of movement elites on street-level activists was limited because the litigation process over protest rights and related questions of First Amendment law (while quite important and directly impacting both anti-abortion and pro-choice activists) were seen as tangential to what activists on both sides cared about most: abortion law and rights. As a result, “involving lawyers” is less likely to cause street-level activists to “exchange disruptive and participatory tactics for more passive elitist institutional strategies” (p.133) or to adopt an elite conception of the law.
As Wilson himself acknowledges, whether these specific insights or the concept of “secondary movement litigation” can provide analytical leverage over other political and legal phenomena is unclear, as it “remains to be seen how often such secondary movement litigation occurs in movement-countermovement conflicts and other contexts” (p.172). Regardless, Wilson’s work on the evolution of legal consciousness in the context of “secondary movement litigation” is valuable for understanding the mindset of actors at the intersection of abortion politics and free speech doctrine. The book positively contributes to the literature of legal consciousness, political movements, and the history of American abortion politics.
REFERENCE:
Munson, Zaid W. 2009. THE MAKING OF PRO-LIFE ACTIVISTS: HOW SOCIAL MOVEMENT MOBILIZATION WORKS. Chicago: University of Chicago Press.
Risen, James, and Judy L. Thomas. 1999. WRATH OF ANGELS: THE AMERICAN ABORTION WAR. New York: Basic Books.
CASE REFERENCES:
HILL V. COLORADO, 530 U.S. 703 (2000).
PLANNED PARENTHOOD SHASTA-DIABLO V. [*43] WILLIAMS, 10 Cal.4th 1009 (1995).
ROE V. WADE, 410 U.S. 113 (1973).
SCHENCK V. PRO-CHOICE NETWORK OF WESTERN NEW YORK, 519 U.S. 357 (1997).
Copyright 2014 by the Author, James Daniel Fisher.
