The seminal Supreme Court case Roe V. Wade (1973) is a textbook example of a game-theoretical focal point. Why? Roe like many other Supreme Court rulings operates as an unspoken point of convergence in public policy. Ideally, such decisions made by the high courts should clarify the existing laws. In theory, the application of the law is the attempt to apply static statutes to dynamic circumstances. Generating ample opportunities for ambiguity and other categories of confusion regarding the administration of law. These cases generally serve as centering fixtures of public policy debates. After all, there are typically steep penalties for violating the law. If a law is flawed or otherwise unjust it can be amended or repealed, providing use revisions have gone through the proper channels. Making such court decisions a common destination of all pundits regardless of their stance on abortion. Endowing this infamous court decision with all of the unique characteristics of a focal point. No formal coordination or communication is required to reference this court case in the abortion debate, for decades it has been the centerpiece of all the contemptuous verbal sparring matches.
In many regards, Roe is unique even from the standpoint of being a Schellingian focal point. Even individuals lacking the proper understanding and context of the legal and normative arguments if the debate knows the case. Maybe not a bit of the factual or legal details of the case, but they know it by name. It is long been know as being synonymous with the legal justification for abortion. Many pro-choice and pro-life advocates use this case as a springboard to crafting normative positions either defending or repudiating the legality of this controversial procedure. Oddly enough, most of these talking points craft from a superficial understanding of the case has little to no legal substance, it degenerates into an ethical debate. Ethical justifications are also important but signify a conflation between normative and positive arguments. This an all too common occurrence in just about any political debate, the confusion between hard facts and ethics. Despite the common misconceptions regarding the abortion debate, without any formal coordination, even the arm-chair pundit looks towards Roe for the basis of their arguments.
Even people who are not interested in nor have an invested interest in the abortion debate, colloquially know Roe as the “abortion case”. Demonstrating how culturally in the United States this one Supreme Court decision from the 1970s has taken on a life of its own. Whether its legal significance is overblown is almost immaterial, but a matter to be debated among proper jurists. The significance or the salience of the focal point is culturally constructed. This isn’t to say that the moral arguments surrounding the debate are subjective. Rather, points of reference are most certainly subjective, but what makes them centralized or significant is a consensus of its importance. There is certainly a democratization effect that takes place in the establishment of culturally relevant focal points. The actual importance of the case is not nearly important as its perceived significance. A lot of Roe cultural clout was most likely sustained due to the decision being sandwiched between the cultural liberalization of the 1960s and the nascent period of feminism. It’s difficult to surmise if this ruling was made at a different point in time that it would possess the same degree of gravity. The cultural tides of the 1960s and 1970s provide the fertile substrate for such a contentious issue to be in the Supreme Court docket. These temporal and cultural aspects of the 1970s made Roe the ideal cause to be a focal point. In the decades since it has remained a consistent point of reference that also doubles as a divisive cultural event. Mirroring the same contentions of the Vietnam war and the Civil Rights movement.
2 thoughts on “Focal Points- II: Roe V. Wade (1973)”
Focal-point cases like Roe (a terrible decision, in my view) are also referred to as “super-precedents” by some conlaw scholars; here is a link:
Click to access 14-2_Sinclair.pdf
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Crap. Wish I had known that! My bad on that one. This does look like an interesting paper.
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