Movement Litigation and Unilateral Disarmament: Abortion and the Right to Die

Abstract

The use of courts to achieve social change has long been criticized on the grounds that judicial victories tend to provoke unwanted political backlashes. Backlash arguments characterize controversial rights-protecting judicial decisions as counterproductive, in the sense that courtroom victories provoke political counter-mobilization that is likely to leave advocates worse off than they were at the outset. These accounts generally assert or imply that if movement litigators had relied on democratic rather than judicial politics, their policy victories would be more stable and better insulated from opposition. That empirical claim has been challenged by a number of scholars, but we argue in this article that even if it is true, the backlash thesis wrongly implies that the unilateral decision by a group of movement advocates to eschew litigation will necessarily lead to a reduced role for courts in resolving the relevant policy and political conflicts. To the contrary, such a decision will often result in a policy field with judges every bit as active, but with the legal challenges initiated and framed by the advocates’ opponents. We document this claim and explore its implications for constitutional politics via a counterfactual though experiment, rooted in two historical case studies of litigation seeking a constitutionally protected right to life.

Keywords: abortion, assisted suicide, litigation, backlash, legal mobilization