Reproductive Rights, the Supreme Court, and Institutionalization

The most recent Hobby Lobby decision reminded me of previous cases where the Supreme Court adjudicated whether federal and state funding could be used for abortions (Harris v. McRae and Williams v. Zbaras). In 1980 the Supreme Court heard two cases related to the Hyde Amendment of 1976. The Hyde Amendment is a “rider” type of legislation that prohibits federal funding of abortion when it is medically “unnecessary.” In both cases the Court affirmed the law. Scholars of the abortion debate often view the passage of this law and the Court’s support as a critical historical juncture (Ferree, Gamson, Gerhards, and Rucht 2002; Staggenborg 1989). Both the Hyde legislation and the Court’s affirmation represent the first major anti-abortion successes following the Roe v. Wade case (1973). The Roe v. Wade decision was a landmark success for the abortion-rights movement, and the victory sparked a countermobilization that was strong and effective at challenging abortion rights activists (Meyer and Staggenborg 1996). Given the most recent Hobby Lobby decision, the tangible benefits of Roe v. Wade may come into question. 

The Affordable Care Act program re-opened the judicial debate on using state funding or state mandates to provide access to abortions.  In the Hobby Lobby case the requirement that businesses provide access to contraception came into question. (Now that oral contraceptives include “morning-after pills,” the distinction between contraceptives and abortion is politically ambiguous.) On June 30th, 2014, the Supreme Court ruled in favor of restricting reproductive control, as they did in 1980. But the Court did not just ban funding of “unnecessary” abortions, as they did in 1980; they affirmed the business owner’s right to not provide employees access to contraceptives based on religious beliefs. This is an arguably stronger federal restriction on access to contraceptives and abortion. The counsel for Hobby Lobby and the other complainant, Conestoga Wood Specialties, designed a legal case that latched onto two of most dominant cultural frames in the U.S.: religious rights and business rights.

Is the Hobby Lobby ruling another incremental success of the anti-abortion backlash that followed Roe v. Wade? Or does it reflect maintenance of a status quo through institutionalization of movement demands? Roe v. Wade may have been a political concession that functionally placated activists with some legal rights that might be retrenched. Does the Hobby Lobby case reflect the interplay between movements and countermovements at all?

Institutionalization of a movement and its demands blurs boundaries between movement, countermovement, and other important actors that may not fit categories scholars use to analyze contentious politics. Countermovements are more likely to mobilize (hold protests) in response to successes by the challengers (Meyer and Staggenborg 1996), but some forms of protest are not limited to disruption and forming advocacy organizations. Legal efforts, like Hobby Lobby, might factor into the movement as tactics, and not only as contextual events. Perhaps we should examine the place of the church and religiously owned businesses as parts of the countermovement against reproductive rights? Instead of using protest, like abortion clinic protests, as part of the definition of a countermovement, we could consider the role of entities like the church and business as part of the countermovement that behaves institutionally.

This is especially true for movements with longer histories of mobilization. And this is especially interesting when looking at how small political gains affect future mobilization.

Using institutional tactics and becoming more professionalized can be resources for activists. Scholars of organizations involved in the abortion conflict found that increased professionalization and adaptability strengthens movements both in terms of getting media attention (Rohlinger 2002) and building stronger organizational foundations (Staggenborg 1988; Staggenborg 1989). Professionalization that includes tactics like lobbying and legal efforts, may help ensure access to political decision-making. Using institutional tactics may also create adaptability to an ever-changing political and social context. By becoming an insider to political decision-making, activists may influence a targeted institution or react to changes in the institution quicker (Banaszak 2010). Movements have activists vying for claims within institutions and outside of institutions. In this way, becoming a part of the system may not be the end of a movement, but an extension of it. The way that anti-reproductive rights seem to be enmeshed in American institutions, could reproductive rights become similarly enmeshed in the future?

I am not usually optimistic about this question. I’ll give the last word to my very pessimistic side towards institutionalization. The idea of using political access to promote social change makes me think of Bonilla-Silva’s theory of colorblind racism, and how seemingly egalitarian policies disguise systemic racism. Supreme Court decisions can sustain, instead of resolve, racial injustice by invoking pseudo-egalitarian arguments. (Like liberalism’s claim that the U.S. can be a level playing field in which social mobility exists.) Roe v. Wade may have been a placebo to the movement. The Hobby Lobby case grants constitutional protection of religious practice and corporate personhood that could further institutionalize the employer’s power over the employee’s body. Roe v. Wade made abortion legal in the abstract, but what have been the real social and cultural outcomes of these political concessions? Could future Court decisions make abortion and other forms of contraception functionally impossible for women to acquire? Would it then even matter if they were legal?

* For another recent discussion of protest restrictions, first amendment rights, and the abortion debate, see David S. Meyer’s blog post http://politicsoutdoors.com/2014/06/26/thirty-five-feet/.

References

Banaszak, Lee Ann. 2010. The Women’s Movement Inside and Outside the State. New York: Cambridge University Press.

Ferree, Myra Marx, William A. Gamson, Jurgen Gerhards, and Dieter Rucht. 2002. Shaping Abortion Discourse: Democracy and the public sphere in Germany and the United States. Cambridge, NY: Cambridge University Press.

Meyer, David S. and Suzanne Staggenborg. 1996. “Movements, Countermovements, and the Structure of Political Opportunity.” American Journal of Sociology 101:1628-1660.

Rohlinger, Deana A. 2002. “Framing the Abortion Debate: Organizational Resources, Media Strategies, and Movement Countermovement Dynamics.” Sociological Quarterly 43:479-507.

Staggenborg, Suzanne. 1988. “The Consequences of Professionalization and Formalization in the Pro-Choice Movement.” American Sociological Review 53:585-605.

—. 1989. “Organizational and Environmental Influences on the Development of the Pro-Choice Movement.” Social Forces 68:204-40.

 

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