Textualism and Corpus Analysis

by Robert VerBruggen

I previously noted a court case in which a judge, tasked with deciding what the word “personal” meant, resorted to corpus analysis — that is, he searched a massive compilation of English prose for the word, and tallied how it was used. Well, it’s happened again

The case involves a pregnant minor who solicited a stranger to punch her in the stomach. Utah law defines an abortion as a “procedure” to terminate a pregnancy; since it is not criminal to solicit an abortion, and a punch to the stomach is a “procedure” that can end a pregnancy, she should not be found delinquent, a lower court found. An appeals court found otherwise. From the (concurring) opinion:

There are means at our disposal to answer the question that the majority raises in Part I.A — whether the “ordinary and accepted meaning of the term ‘procedure,’“ supra ¶ 21, is limited to medical methods. I have employed such means (corpus linguistics data) before, explaining that an empirical measure of ordinary usage may be appropriate to check our less-than-perfect judicial intuition. In this case, the majority’s confident assertion about the “ordinary and accepted meaning” of the term “procedure” in an abortion setting ultimately is based on its intuition — that although “procedure” sometimes signifies any means of accomplishing a result, an “abortion procedure” has reference to a medical procedure. I do not doubt that intuition. (In fact, empirical corpus analysis confirms it.3)

A footnote reveals:


In contemporary usage, “abortion procedure” references the termination of a pregnancy under medical conditions, such as in a clinic and under the supervision of a physician. This conclusion is based on a review of every instance in which the words “abortion” and “procedure” co-occur in the Corpus of Contemporary American Usage. . . .

This search revealed 223 co-occurrences of “abortion” and “procedure.” Of those, 106 referred to specific medical procedures such as dilation and extraction or vacuum aspiration. An additional 75 refer to circumstances in which an abortion is performed in a “clinic” or with a “doctor” or under “surgical” conditions. The remaining 27 use the terms “abortion” and “procedure” interchangeably. In 5 instances, the term “procedure” and “abortion” were not related. Not once were the terms used to connote an ad hoc, violent, nonmedical effort to terminate a fetus (as by striking the mother’s abdomen).

I find this use of the technique unconvincing, even though it produced a result consistent with my policy views (anti-asking-strangers-to-punch-your-pregnant-womb). It assumes that if the average person understands a word to apply in a given context, the use of the word in that context will appear somewhere in the corpus. I suspect this assumption is false — and that it reveals a difference between how law-writers use language, and how other people use language. (The corpus the judge used comprises “spoken, fiction, popular magazines, newspapers, and academic texts.”) In a law, the word “procedure” means any procedure; in everyday language, “procedure” has a dry and clinical feel, so a writer or speaker would typically use more colorful words to describe non-clinical procedures. 

In other words, the fact that the ordinary usage of the term is limited to medical methods does not mean that the “ordinary and accepted meaning of the term” is. (Emphasis added.) Some words become tied to specific contexts, and might even sound odd if used elsewhere; it does not mean their definitions are restricted to those contexts.

Bench Memos

NRO’s home for judicial news and analysis.