Vol. 5 No. 8 (August, 1995) pp. 203-205.

ABORTION POLITICS IN THE FEDERAL COURTS: RIGHT VERSUS RIGHT by Barbara M. Yarnold. Westport, Conn.: Praeger, 1995. 176 pp. Cloth $49.95.

Reviewed by Robert A. Carp, Department of Political Science, University of Houston.

This monograph focuses on some 145 U.S. district court cases decided between early 1973 and the end of 1990 on the general subject of abortion. The study is not so much a textual analysis of the decisions themselves but rather of the interest groups -- "pro-choice" and "pro-life" -- aligned with one of the two war- ring sides. A key underlying theme is that the outcome of these abortion cases is influenced greatly by the efforts of these interest groups, and furthermore that the success of these groups is partially determined by their organizational strengths and resources.

After a brief introduction, the author provides a literature review of the degree to which interest groups affect judicial outcomes and she explores the political and litigation-related resources of groups. Likewise she sets forth the propositions that abortion decisions (as with other politically visible) types of cases are affected by the region wherein the cases are decided and by the partisanship (or appointing president) of the judge. In Chapter 3 Yarnold uses her acquired data to respond to whether judges respond to the political power of interest groups or rather to their status as "repeat players" with superior litiga- tion resources. A fourth chapter provides a systematic, in-depth look at the resources, strategies, and organizational character- istics of the individual players in the abortion controversy, and a short final chapter is used to summarize her findings.

Among her more interesting findings are: (1) that Democratic judges (or jurists appointed by Democratic presidents) were more likely to support the pro-choice position; (2) that there appeared to be no correlation between the success of pro-choice litigants and the author's measure of the political strength of women in the states under study; and that geographic region seemed to affect the success rate of pro-choice advocates (the West being the least supportive region). As far as the interest groups themselves, Yarnold's data reveal that the pro-choice forces are significantly more powerful in abortion litigation, both in terms of the strength of their organizations and the level of their financing. Pro-life groups, on the other hand, tended to be a loose collection of underfunded and understaffed public interest organizations.

Yarnold's book is a timely one on a major public issue, and her good, recent data on the abortion lobbying groups give the book a special appeal. Despite these kudos, the book has a few disappointments.

One major shortcoming is that the text is frequently very unclear about the interrelationship of the variables being exam- ined. Is Variable X merely correlated with Variable Y or did the former CAUSE the latter? More often than not we are not told but are left with the impression that correlation between variables and cause-and-effect are the same phenomenon. The author's continuous references to variables being "related to" or "linked to" one another, without being precise about what that

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relationship is, is often disconcerting. For example, in her discussion of the relationship between geographic region and the direction of abortion decisions, the author hypothesizes correlations in this regard. And what do the data reveal: that federal courts located in the West were more pro-life. But why? Is there something about living in Oregon or New Mexico that CAUSES judges there to be more pro-life? Is there something about being a pro-life interest group in Kansas or California that give it more clout? There is no hint of any causal relationship; we are just told that court location and pro-life victories are "related."

Another troublesome aspect of the monograph is the total reliance on only 145 federal district court decisions. There are so many vagaries that determine whether a given judge's decision gets published in the FEDERAL SUPPLEMENT. (Some judges send in hundreds of decisions to West Publishing during the course of their tenures; others send in only a few. Some circuits encourage publication of opinions while others downplay the practice.) I think it is very problematic to use the SUPPLEMENT as the source of data when the N's are so small. For example, in the analysis of the effects of region, the cell for cases decided in the "significant" West contained only 12 decisions.

A third reservation I have with the text is that it sets forth a number of untested hypotheses that to me are either counter-intuitive or are not based on any good literature. For example, (on pp. 27-28) the author says that "[her] addition is that federal court judges continue to decide cases in a politicized manner `due to the prospect of future promotion within the ranks of the judiciary or appointment to administrative positions.'" I'm as cynical as the next fellow, but I just cannot conceive of U.S. district judges intentionally and frequently "playing politics" with their cases in the vain hope that some current or future President might appoint them to an appeals court or to some bureaucratic post. Another example is when the author attempts to explain the success of pro-choice lobbying groups in the courts. She hypothesizes (on pp. 116-17) that "it may be that members of the federal judiciary are wary of the power of these groups and make their decisions in abortion cases with these groups' preferences in mind." Why should judges with lifetime tenure be "wary of the power" of pro-choice groups? What dire things would happen to the jurists who took an anti-abortion stance? Likewise (on p. 11) the author speculates that "the presence of a politically powerful female constituency in [federal] judges' states may influence judicial outcomes." Maybe so in state courts with ELECTED judiciaries, but what is the basis for such a hypothesis for federal judges APPOINTED FOR LIFE?

One final quibble is that sometimes, perhaps in an attempt to be vivid in her analysis, the author uses language that is to my taste a bit too colorful for a serious monograph. For example, (on p. 24) the author says that in the typical abortion case federal judges "whipped law-makers and judges in the Midwest and North into conformity." And (on p. 114) the pro-life forces are referred to as a "motley crew of public-interest and religious groups."

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Still in all, Yarnold's work is a serious piece of writing on an important and significant national issue, and my few reservations about parts of it are overridden by the generally good scholarship and thought that went into the majority of the text.