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Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

Abortion in the United States: The Road to Vague Legislation

Gianna Bruno2

Roe v. Wade was one of the first landmark cases instituting abortion
policies in the United States. While legislation regarding abortion has
been modified since 1973, the state of the nation has also changed as it
has become increasingly polarized. Abortion legislation was introduced
as an attempt to solve a privacy issue. However, over time, the discourse
around abortion turned away from its legality in terms of privacy to also
include discussion about healthcare and the morality of the legislation
itself. Vague legislation yields uncertainty for the future of abortion
policies.

Introduction
In 1973, the Supreme Court finalized the decision of the Roe v.

Wade case. The final verdict deemed that abortion was constitutional
based on privacy rights as detailed in the 1st, 4th, 5th, 9th, and 14th
Amendments.3 However, this landmark decision left room for individual
states to interpret the holding in the way they saw fit. This led to various
arguments among governmental actors and court cases brought to the
judiciary over the past few decades. Considering Congress’ and the
Supreme Court’s framing of the issue in terms of privacy, why have
interest groups and the public utilized the frames of morality and
healthcare when advocating for or against legal abortion? Moreover, how
has the framing of these issues caused immense inaction during the
policymaking process? While the Legislative and Judiciary branches
debate over the legality of privacy concerning the right to abortion,
interest groups and the public have been pushing the two branches to
consider morality and healthcare as aspects of the right to abortion.
Confusion regarding what the most important argument is for either
being against or in support of abortion has led to controversial and vague
legislation. This paper will discuss the history of abortion policies, how
the Legislative and Judiciary branches have dealt with the issues
addressed in the 1973 Supreme Court case, as well as how interest groups
and the public face those problems as constituents.

3 "Roe v. Wade." Oyez.
2 Brandeis University Undergraduate, Class of 2023.

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Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

Background
Major Events

In 1973 during the Roe v. Wade court battle, the Supreme Court
decided on the basis of the Due Process Clause of the 14th Amendment
that every woman has the right to privacy regarding their choice to have
an abortion. However, state doctrines still vary in opinion regarding
whether to prioritize their interest in protecting women’s health or to
prioritize the “potentiality of human life” and so state laws are left to
debate over these opinions.4 Thus, the law states that during the first
trimester states could not regulate a woman’s choice. In the second
trimester, a state can impose regulations only insofar as the mother’s
health is at risk. Then, in the third trimester, states have complete control
as to whether or not to prohibit abortion except in cases of saving the
mother’s life. Even though the 1973 Supreme Court case stated a
woman’s right to privacy protects a woman’s right to choose, the case
also stated, “...the decision leaves the state free to place increasing
restrictions on abortion as the period of pregnancy lengthens, so long as
those restrictions are tailored to the recognized state interests.”5 This
sanction has allowed states to apply restrictions as they see fit, which
caused great controversy. Since the Roe v. Wade decision essentially
concluded that the right to privacy and state’s rights were not mutually
exclusive, there was bound to be tension between the two.

No more than six years later, Webster v. Reproductive Health
Services was another major case brought to the Supreme Court that
debated the constitutionality of Missouri legislation that imposed major
regulations on abortion, to the extent that it appeared to violate Roe. The
final Court decision dictated that, “...a regulation imposed on a lawful
abortion is not unconstitutional unless it unduly burdens the right to seek
an abortion,” which seems to negate the trimester ruling set in place a
few years earlier by Roe. In addition to the Webster ruling not
conforming to the Roe v. Wade decision, the Webster ruling is just as
vague as Roe in terms of defining the restrictions and put even more
power into the hands of the state with regards to abortion legislation.6

6 “Webster v. Reproductive Health Svcs., 492 U.S. 490 (1989).” Justia Law.
5 “Roe v. Wade, 410 U.S. 113 (1973).” Justia Law.
4 "Roe v. Wade."

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Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

Current State of Affairs
Currently, 43 states prohibit abortion after a certain number of

weeks have passed since conception and 45 states have laws that permit
individual healthcare providers to refuse to perform abortions.
Additionally, 12 states block private insurance plans from covering the
medical expenses of an abortion. In 33 states, it is against the law to use
public funds, for those who are enrolled in Medicaid, for coverage of an
abortion except, “...where the woman’s life is in danger or the pregnancy
is the result of rape or incest.”7 Since there is no immutable or established
federal law regarding abortion, legislation is continually being changed
or amended. For instance, on March 9th, 2021, Governor Hutchinson of
Arkansas signed SB6 into law, thereby prohibiting abortion in all cases
with the only exception being to save the mother’s life  in medical
emergencies.8 This law goes against the Supreme Court case rulings, as it
disrupts a woman’s privacy, and yet, it took effect in June 2021. This law
is one of 66 state legislations that were introduced in 2021 with the end
goal of a whole or partial prohibition of abortion.9

On the other hand, in 2018, Oregon and Washington both passed
legislation requiring  health plans to cover abortion and maternal care,
including contraception.10 More recently, on April 13th, 2021, the Biden
Administration changed federal government policy about contraception
delivery. They announced that because of the COVID-19 pandemic,
abortion pills would be allowed to be sent to patients through mail. This
sparked even more controversy between groups who oppose the right to
abortion and groups that believe that this is a step in the correct direction
for abortion rights.11

Key Stakeholders
Social movements such as the Pro-Choice and Pro-Life groups

are both very active in the public sphere and have been extraordinarily
outspoken in their responses to the Biden Administration’s decision.

11 Abigail Abrams. “Why Abortion Pills Are The Next Battle Over Abortion Rights.”
Time. Time, April 14, 2021.

10Anusha Ravi. “How the U.S. Health Insurance System Excludes Abortion.” Center for
American Progress.

9 “State Legislation Tracker.” Guttmacher Institute. (April 1, 2021).

8 “Governor Hutchinson Issues Statement on Signing of SB6.”Arkansas Governor Asa
Hutchinson.

7 “An Overview of Abortion Laws.” Guttmacher Institute. (April 5, 2021).

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Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

Pro-Choice advocates look at the decision to allow abortion pills to be
sent through mail as a win for reproductive health while Pro-Lifers see
this decision as “...catastrophic loss of life by mail.”12 Each year, Pro-Life
groups meet nationally and march in major cities across the US, most
notably including Washington DC, in support of the unborn and
Pro-Choice groups host fundraiser events featuring speakers and
discussions on the importance of the freedom of choice as a “fundamental
human right.”13 Traditionally, Pro-Life activists focus on the morality of
abortion and human rights, while Pro-Choice supporters focus on
reproductive health and a different interpretation of human rights.14 Both
groups focus on what they believe is advocacy for human rights, but on
opposite sides of the political spectrum. This leads to major strife on a
public level.

Planned Parenthood is viewed underneath the umbrella term
Pro-Choice. They are the nation's largest provider for women’s
reproductive health and extensive advocates for the Pro-Choice
movement. As well as acting as healthcare providers, they also defend the
right to an abortion when it is attacked by Congress and the Supreme
Court alongside the Center for Reproductive Rights, which is actively
working to eliminate laws that restrict reproductive rights.15 Both groups
are heavily involved in the policy narrative regarding abortion.16 On the
other side, the Heritage Fund, a conservative think tank, conducts
research and distributes articles against abortion. There are also
organzations such as March for Life which is an organization that unites
once a year to march across major cities in support of the ban of
abortion.17 Additionally, those in power, such as judges in the courts and
members of Congress, are heavily involved in making sure legislation
swings in favor of their respective ideology or party. Personal stance and

17 “Pro-Life Organizations: EWTN.” EWTN Global Catholic Television Network.
16 “Abortion.” Center for Reproductive Rights. April 19, 2021.
15 “Who We Are.” Planned Parenthood.

14 Lucy Jackson and Gill Valentine. “Performing ‘Moral Resistance’? Pro-Life and
Pro-Choice Activism in Public Space.” Space and Culture 20, no. 2. 201. 222.

13 “State Marches Near You.” March for Life. April 8, 2021; “Abortion Access.”
NARAL Pro-Choice America, July 30, 2019.

12 Carlie Porterfield. “Biden Administration To Allow Abortion Pills Via Telemedicine
And Mail.” Forbes. Forbes Magazine, April 13, 2021.

12

https://studentsforlife.org/2021/04/13/students-for-life-action-condemns-the-fdas-decision-to-allow-death-by-mail-making-abortion-easier-to-sell-for-corporate-abortion-while-risking-womens-lives/


Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

religion play a role in policy-makers’ decisions regardless of if they are
subject to voters' views or not.18

Recent Action and Inaction
On an institutional level there is action among states regarding

legislation about the right to an abortion. However, legislation that both
prohibits or expands that right is often challenged in the courts. It has
been that way since the Roe v. Wade decision was finalized. There is
concern that Roe could be overturned on a federal level, thus, states have
taken the matter into their own hands to protect the right to an abortion.
Currently, Roe v. Wade is constantly being undermined by a few states,
and not every piece of legislation breaking with the precedent set by Roe
is being reviewed by the courts.19 With the constant back and forth
between restricting and allowing abortion, the process has been described
by Nancy Northup, CEO of the Center for Reproductive Rights, as,
“...hollowed out by a game of constitutional whack-a-mole.”20

From the perspective of those whom the laws affect, it is
frustrating to have to consistently pay attention to these changes because
rules and regulations are constantly changing: restrictions are being
added, taken away, and debated in the courts. Nancy Northup, the author
of the opinion piece quoted above, outlines the exact reason as to why
there is so much discourse between the members of the courts or
Congress and between the institutions and the actors. At the beginning of
her piece, she wrote, “...the Constitution protects our personal liberty and
dignity to make such decisions for ourselves,” but further down wrote,
“...treat[ing] abortion for what it is: health care.”21 Institutions are
debating on a constitutional level, but actors are focused on the
healthcare and moral aspect, which explains the discourse between the
two groups.22

22 Northup, “Opinion | It's Time for Congress to Stop the States from Playing
Whack-a-Mole with Abortion.”

21 Northup, “Opinion | It's Time for Congress to Stop the States from Playing
Whack-a-Mole with Abortion.”

20 Nancy Northup. “Opinion | It's Time for Congress to Stop the States from Playing
Whack-a-Mole with Abortion.” The Washington Post. WP Company, June 29, 2020.

19 Elizabeth Nash, Guttmacher Institute, and Megan K. Donovan. “Ensuring Access to
Abortion at the State Level: Selected Examples and Lessons.” Guttmacher Institute,
August 21, 2019.

18 Byron W. Daynes and Raymond Tatalovich. "Religious Influence and Congressional
Voting on Abortion." Journal for the Scientific Study of Religion 23, no. 2 1984. 199.

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Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

Institutions
Legislative Branch

It is important to understand the current state of Congress before
explaining why there is so much trouble moving forward in the
policymaking process surrounding abortion. The two contemporary
problems with Congress include congressional dysfunction and
increasing polarization among the parties. Congressional dysfunction
occurs for a multitude of reasons, but the main reason is that of increased
polarization which leads to Congress not being able to pass any major
legislation that could create a meaningful change. Without a functioning
Congress, other institutions, such as the Executive and the Judicial
branch, are required to make changes or pass (or veto) laws, which is
supposed to be the primary job of the Legislative branch. Originally,
when the Constitution was written, Congress was established as the first
branch of the U.S. Government. Political researcher and writer Kevin
Koser states that, “...congress is given all lawmaking power and complete
authority over raising revenues. The national legislature has the authority
to identify problems, craft policies and establish agencies to execute its
policies.”23 Even though Congress was originally granted those powers in
particular, the other branches have had to step in due to Congress’s lack
of progress and the slowing effect of bureaucracy. This action in the
Executive and Judiciary throws the balance of power off because what
was supposed to be Congress’ role exclusively is now being performed
by the other branches. The solution to this problem would be for
Congress to take back the control of legislation, but that is proven near
impossible due to the overabundance of polarization.24

Polarization occurs when tension draws political parties farther
away from the other parties and closer to themselves as demonstrated in
Figure 1.25 D'Antonio wrote, “All complex societies are characterized by
a high degree of internal tension and conflict... their [polarization’s]
intensity makes difficult the kind of compromise which has sustained the

25 Christopher Ingraham. “A Stunning Visualization of Our Divided Congress.” The
Washington Post. (WP Company, April 26, 2019).

24 Kosar, 11.

23 K, Kosar. “Restoring Congress as the First Branch”. R Street Institute. (2016). 2.

14

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Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

two-party system.”26 Figure 1 from The Washington Post shows how over
time political parties in the House of Representatives have begun to only
vote along their party lines and almost never with the other side. Figure 1
ranges from the years 1975-1982 on the left and from 1997-2011 on the
right.27

Figure 1
S. M. Theriault claims that Republicans and Democrats have

become so polarized over time because of their policy agenda, which is
the list of policies the House and Senate are to discuss and pass, which
has shifted over time in favor of policies that are, “...more prone to party
conflict, like abortion.”28 Therefore, Congress has an incredibly difficult
time trying to get a majority vote for any legislation that either
completely prohibits or allows abortion. Members of Congress will not
distance themselves from their party’s view about what they believe the
Constitution states in terms of human rights, in fear of being ostracized
by their own party.29

29 Sarah E. Anderson and Daniel Butler. “Analysis | Biden Wants to Bring Democrats
and Republicans Together. Here's Why That's so Challenging.” The Washington Post.
WP Company, December 19, 2020.

28 J.W. Kingdon. “Agendas, Alternatives, and Public Policies.” Boston, MA: Little,
Brown and Company. 3; S.M. Theriault. “A Review of ‘Beyond Ideology: Politics,
Principles, and Partisanship in the US Senate’”. Congress & the Presidency. 2010. 324.

27 Ingraham. “A Stunning Visualization of Our Divided Congress.”

26 William V. D'Antonio, Tuch, Steven A., and Baker, Josiah R.. Religion, Politics, and
Polarization : How Religiopolitical Conflict Is Changing Congress and American
Democracy. Lanham, MD: Rowman & Littlefield Publishers, 2013. 17.

15

https://moodle2.brandeis.edu/pluginfile.php/2113895/mod_label/intro/Kingdon_Ch1.pdf
https://moodle2.brandeis.edu/pluginfile.php/2113960/mod_label/intro/Theriault-Review-Beyond-Ideo.pdf
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Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

Judiciary Branch
Those on the Supreme Court are not elected by the people as they

have to be nominated by the President and approved by the Senate before
they can sit on the bench. As Justices, their role is to be apolitical and
remain neutral about the cases they hear, only abiding by the previously
upheld laws and the Constitution.30 However, just as polarization is
plaguing the Legislative branch, debates over Judicial Activism versus
restraint and over politicization are afflicting the Judiciary branch.
Judicial Activism refers to the Court striking down or overturning
legislation. In contrast, Judicial Restraint is defined as the understanding,
“...that Justices ought to avoid usurping powers belonging to the
legislature and executive.”31 The divide in the Court is less clear than the
divide in Congress because polarization separates members of Congress
by party, while the debate of Judicial Activism versus restraint can
change on a case by case basis, and is not purely a matter of ideological
alignment. In 2013, the late Justice Ginsburg stated that the courts took
too much liberty in utilizing Judicial Activism and defended the action in
the name of respecting Congress’ motives as well as protecting minorities
who may be disproportionately affected by said legislation.32 Those listed
reasons alone do not account for all the uses of Judicial Activism which
is why there remains so much controversy.

Over time, Supreme Court Justices have transitioned from being
neutral advocates of the Court to being politicized actors. It is theorized
that this change likely happened because presidents opt to nominate
Judges who will vote along their party’s lines rather than remain neutral.
The politicization of the Court accounts for the use of Judicial Activism
because now judges vote along their ideological lines which creates
contention among those who wish to remain neutral and those who wish
votes were cast in their ideological favor. Figure 2 shows that between
the years 1918-2018, political alignments of Supreme Court Justices have
shifted.33

33 Quinn, “Supreme Court Justices Are Increasingly Political.”
32 Liptak, “How Activist Is the Supreme Court?”

31 Adam Liptak. “How Activist Is the Supreme Court?” The New York Times. The New
York Times, October 12, 2013; Barton Swaim. “Politics: When Pundits Hold Court.”
The Wall Street Journal. Dow Jones & Company, March 26, 2021.

30 Martin Quinn. “Supreme Court Justices Are Increasingly Political.” The Economist.
The Economist Newspaper.

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Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

Figure 2
At the top of the graph, the median ideology was just about in the

center and all the dots are closer to the center while towards the bottom
of the graph, representing more recent years, the dots are considerably
more spread out by party. However, in the graph there also seems to be a
shift to the more “liberal” side regardless of whether a Democrat or
Republican nominated the Justice. Tracking shifts in ideology is now
more important than ever because with this data, political scientists can
predict Justices’ voting patterns and whether a particular Justice may use
Judicial Activism or Restraint.34

Regarding the decision of Roe v. Wade and subsequent legislation,
there are two main bodies of thought. The Judicial Activist side claims
that the courts had the right to interpret that the 14th Amendment gives
Americans the right to privacy and thus, the right to an abortion. The
Judicial Restraint side argues that the former side took too much liberty
in their interpretation and granted more rights than the Constitution truly
allows. The author of Why all Americans should want Roe v. Wade
overturned--regardless of their views on abortion, Paul Stark, argues that
both the Justices on the bench during Roe v. Wade and those who are
currently debating over passing legislation in favor of the original
decision are fighting for a cause with no real rationale. He writes,

34 Quinn, “Supreme Court Justices Are Increasingly Political.”

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Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

“Supreme Court Justices are not lawmakers. They are judges who are
supposed to interpret and apply the law that already exists.”35 Supreme
Court Justices, once nominated and approved, remain on the bench until
the end of their lives or until they choose to retire. The only way to
change a Supreme Court ruling is to change the Constitution or to have
another Supreme Court case to change the ruling, thus Justices are the
ones holding themselves accountable to the democratic process.36

Actors
Interest Groups

Interest groups are organizations that constantly watch for bills
that may be beneficial or harmful to their cause and push their agenda to
the forefront of legislators’ agenda through discussion and persuasion.37

These groups are able to persuade legislators through lobbying which is
defined as: “...an attempt by a group to influence the policy process
through persuasion of government officials.”38 Legislators are elected
officials, so while they are working for their own agenda, it is also
imperative that they work in favor of the public so that they continue to
be re-elected. Lobbyists provide information to legislators about specific
legislation and its possible outcomes and provide intel on what the public
supports and opposes.39 Politicians have become increasingly dependent
on lobbyists to know the positions the voting members of their party hold
so they do not deviate from it. L. Drutman and S. Teles even go so far as
to claim Congress has lost the ability to research and make decisions on
its own about policies because of the high volume of Congressional
dysfunction. The most polarized members of Congress heed advice from
the biased interest groups which further divides the already divided
Legislative branch. Discussion between the Congress and the interest

39 Lowi, 574.

38 T.J. Lowi, Ginsberg, B., Shepsle, K.A. and Ansolabehere, S. “Groups and Interests”
in American Government: Power and Purpose. 2019. 571.

37 J. Gelman. “Rewarding Dysfunction: Interest Groups and Intended Legislative
Failure.” Legislative Studies Quarterly. 2017. 666.

36 Quinn, “Supreme Court Justices Are Increasingly Political.”

35 Paul Stark. "Why all Americans should want Roe v. Wade overturned--regardless of
their views on abortion: A reversal of the Supreme Court's abortion ruling would be
pro-Constitution and pro-democracy." National Right to Life News. January 2019. 9.

18

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https://moodle2.brandeis.edu/pluginfile.php/2113971/mod_label/intro/Gelman-Rewarding-Dysfunction.pdf
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Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

groups cause rifts which, in turn, means that no substantial legislation is
passed which continues debates.40

The Legislative and Judiciary branches are essentially deadlocked
in their debates, forcing interest groups to use alternative points of
discussion to get their associations’ interests to the forefront of the
decision makers’ minds. Groups utilize grassroots campaigns to get the
public on their side. Planned Parenthood and March For Life both use
lobbying events to push their agenda on Capitol Hill.41 These events
lobby for their respective views on abortion in regard to healthcare. For
example, Planned Parenthood held one of its largest Lobby Days back in
2018. Supporters and advocates gathered to attack the Trump-Pence
Administration on their restrictive reproductive health bills.42 In contrast,
starting in 1974, March for Life planned their first march in Washington a
year after the Roe v. Wade decision, and continues to march each year to
commemorate the decision. They follow this action by lobbying
legislative leaders on policies which they view as being in favor of
women's health.43 Because the lobbying industry has grown exponentially
and members of Congress rely heavily on lobbyists to provide pertinent
information, more and more money is being funneled into Pro-Life and
Pro-Choice lobbyists as seen in Figure 3 and Figure 4, respectively.

43 “About the March for Life.” March for Life. July 27, 2020.

42 “Planned Parenthood Holds Largest Lobby Day Ever.” Planned Parenthood. April 26,
2018.

41 Lowi, 576.

40 L. Drutman, & Teles, S. “Why Congress Relies on Lobbyists Instead of Thinking for
Itself”. The Atlantic. 2015.

19

https://www.theatlantic.com/politics/archive/2015/03/when-congress-cant-think-for-itself-it-turns-to-lobbyists/387295/
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Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

Figure 3 Figure 4
Figure 3 ranges from $0-$1.2 Million per year while Figure 4 ranges
from $0-$3 Million.44 While Pro-Choice interest groups have consistently
spent more on lobbyists, Pro-Life interest groups are maintaining a
somewhat steady incline in spending. Both sides attempt to persuade
legislators to create legislation in favor of their agenda and switch the
debate away from privacy into a discussion of women’s health.

Public Opinion
There is a longstanding discussion as to whether or not the

general public impacts public policy. The main argument states that
public opinion could be more or less impactful depending on the amount
of issue salience. Saliency refers to how important an issue is to the
public, the more important it is, the more likely citizens will use the
policy to make their decision on Election Day, which could change the
direction of legislation or at least put it on Congress’s agenda to be
debated further.45 While interest groups pour hundreds of thousands of
dollars yearly into lobbying support for their side, the general public is
not as politically motivated, leading to a lack of issue salience. As of
2019, about 61% of Americans believe that abortion should be legal in

45 P. Burstein. “The Impact of Public Opinion on Public Policy: A Review and an
Agenda”. Political Research Quarterly. 2003. 30.

44 “Abortion Policy/Anti-Abortion Lobbying Profile.” OpenSecrets; “Abortion
Policy/Pro-Abortion Rights Lobbying Profile.” OpenSecrets.

20

https://moodle2.brandeis.edu/pluginfile.php/2113949/mod_label/intro/burstein-public-opinion.pdf
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either all or at least most cases.46 While that percentage is above the
majority, there are two issues: questions still remain regarding complete
legalization versus partial legalization, and just because a policy is
popular in the majority does not mean it is automatically put into law.
Dylan Matthews writes in his article, Remember That Study Saying
America is an Oligarchy? 3 Rebuttals Say it's Wrong that democracy
entails compromise and both sides end up “winning” about half of the
time.47

There will never be a general consensus in the public regarding
abortion for two reasons. First, Matthews states that “...most Americans
aren't very politically engaged — and most don't want to be politically
engaged, preferring that professional policymakers make decisions for
them, so long as the economy stays on track.”48 Policies regarding
abortion only truly affect women and, more specifically, those are who
are looking to have an abortion, as abortion is considered women’s
healthcare. While the general public can have an opinion on the policy, a
smaller percentage of the public would be actively affected by its
implementation. Abortion policy is not as salient of an issue as others
because it affects a smaller percentage of voters. Second, there is no real
compromise between those who want abortion legalized and those who
do not. The general public is debating whether or not abortion is murder
because it is a less politicized question than a discussion of the
Constitution or healthcare. The two main responses are that abortion is,
“...the same thing as murdering a child,’” and “‘...abortion is not murder
because a fetus isn’t a person’” with a few responses in between as
shown in Figure 5.49

49 Everett C. Ladd and Bowman, Karlyn H.. Public Opinion about Abortion.
Washington: American Enterprise Institute for Public Policy Research. 1997. 3; Ladd,
19.

48 Matthews, “Remember that Study Saying America is an Oligarchy? 3 Rebuttals Say
It’s Wrong”.

47 Dylan Matthews. “Remember that Study Saying America is an Oligarchy? 3
Rebuttals Say It’s Wrong”. Vox. 2016.

46 “Public Opinion on Abortion.” Pew Research Center's Religion & Public Life Project.
July 7, 2020.

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http://smile.amazon.com/Stealth-Democracy-Americans-Government-Psychology/dp/0521009863?sa-no-redirect=1&ascsubtag=[]vx[p]11266505[t]w[r]moodle2.brandeis.edu[d]D
http://smile.amazon.com/Stealth-Democracy-Americans-Government-Psychology/dp/0521009863?sa-no-redirect=1&ascsubtag=[]vx[p]11266505[t]w[r]moodle2.brandeis.edu[d]D
https://www.vox.com/2016/5/9/11502464/gilens-page-oligarchy-study
https://www.vox.com/2016/5/9/11502464/gilens-page-oligarchy-study
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Figure 5
While Figure 5 only goes through 1998, by 2019 the public

became increasingly divided, especially through their political
associations. About 38% of adults believe abortion should be illegal in
most or all situations, while 61% of adults believe abortion should be
legal in most or all situations, and 1% have no opinion on the matter.50

There can be no true compromise between the two groups because now
the discussion is not about abortion directly, but whether or not the fetus
is human and whether or not abortion should be labeled as murder. There
is little to no middle ground between people who believe it is murder and
those who do not.51 When it comes to impacting Congress, there is no
generalized stance, just a divided one, and it is near impossible to create
legislation that will not be controversial and be challenged in courts.

Conclusion
In conclusion, Congress and the courts debate the legality of

abortion through the lens of the Constitution and the right to privacy. The
consequences of polarization and the use of Judicial Activism and
Restraint have made it impossible for any new progress from the
legislative branch because of strict divisions of ideology. In turn, interest
groups fund lobbyists to persuade legislators from a healthcare
perspective to create legislation in favor of their position and to break
from the debate on privacy. Thus, as the public is not generally politically
engaged, they tend to debate abortion on a non-political level. Regardless
of the institution or the actor, the conclusion remains the same for

51 Ladd, 3.
50 “Public Opinion on Abortion.”

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abortion policies; there is no policy that would be satisfactory to both
sides. With increased lobbyist spending from interest groups further
polarizing Congress, courts taking over some of the Legislative Branch’s
duties, and the general public’s inablility to compromise, the future of
abortion policies remains a game of whack-a-mole.52 This results in an
unsatisfying conclusion as policies will be changed depending on the
majority in Congress, challenged in the courts regardless of the outcome,
and interest groups will continue to mobilize to try to gain favor either
way, and the public will fight for what it believes is truly right.

52 Northup. “Opinion | It's Time for Congress to Stop the States from Playing
Whack-a-Mole with Abortion.”

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