The Impact of the Federal Appelate Courts on State Abortion Policymaking

Abstract

Federal appellate courts are, on many issues, the “last word”: because the Supreme Court hears so few cases, it is the circuit courts that are left with the task of interpreting and shaping the law in important policy areas. In this dissertation, I explore the impact this has on state level policymaking. Specifically, I argue that state legislatures look across the boundaries of the American federal system to consider what impact federal courts will have on their policymaking endeavors. Because state legislators are strategically motivated to create policy that will ultimately become, and remain, law, federal appellate courts are an important factor for them to consider. I focus on two factors that, I argue, structure how the state legislature thinks about the federal courts: ideology and uncertainty. Ideology simply refers to the policy preferences of the state and the court. Uncertainty refers to how easy it is for the legislature to pinpoint where the court’s ideology is, and depends on factors such as doctrinal clarity and legislative professionalism. This dissertation suggests that (1) when a state legislature is ideologically close to its circuit, it should be more likely to pass a law, because that law is likely to be upheld; and (2) when a state legislature is highly uncertain about what its circuit will do, it should be less likely to pass a law, because it cannot accurately predict the outcome. I use abortion policy as a case study to examine this theory. Because abortion is a constitutional issue, generally litigated in federal courts, it is an ideal case to focus on the links across and between the levels of federalism. I take a mixed methods approach and examine legislative histories, court opinions, and bill introductions and passage in all fifty states over a twenty year period. I find that there is, indeed, evidence that federal court doctrine is something that state legislators research and discuss in their deliberations about a bill. There is also some evidence that state legislatures consider federal appellate court doctrine while choosing whether or not to pass a bill, though the evidence is weaker than we may expect. These findings contribute to both the literature on state policymaking, by adding to our understanding of what state policymakers consider when they craft a law; and the literature on federalism, by identifying an important, and often overlooked, link between state and federal governments.