American Journal of Law & Medicine

Medical Evidence and Expertise in Abortion Jurisprudence

For another thing, the division of medical opinion about the matter at most means uncertainty, a factor that signals the presence of risk, not its absence. That division here involves highly qualified knowledgeable experts on both sides of the issue.--Stenberg v. Carhart, 2000 (1)

While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.--Gonzales v. Carhart, 2007 (2)

I.  INTRODUCTION

II. ROLE OF SCIENCE AND MEDICAL EXPERTISE IN THE ABORTION
JURISPRUDENCE: RE-READING ROE, CASEY, STENBERG AND GONZALES
  A. ROE V. WADE
     1. Medical Authority and Expertise in the Roe Court
     2. Setting the Stage: The AMA as an Apolitical Institution
     3. Deference to Medical Expertise: Viability
     4. Ignoring Conservative Claims: Abortion and Mental Health
  B. CASEY V. PLANNED PARENTHOOD
     1. Medical Authority in the Casey Court
     2. Deference to Medical Evidence and Expertise: Viability and
        Medical Emergencies
  C. STENBERG V. CARHART
     1. Medical Authority in the Stenberg Court
     2. Conflicting Expertise: Intact versus Non-Intact Dilation and
        Extraction
     3. Recalibrating the Stage: All Evidence is Objective Evidence
  D. GONZALES V. CARHART
     1. Medical Authority in the Gonzales Court
     2. Conflicting Expertise: Intact versus Non-Intact Dilation and
        Extraction
     3. The Psychological Impact of Abortion

III. FROM THE SUPREME COURT TO THE STATE: TEXAS MEDICAL
PROVIDERS PERFORMING ABORTION SERVICES V. LAKEY

IV:  A RETURN TO FEMINIST SKEPTICISM
     A. THE WOMEN'S HEALTH MOVEMENT: SKEPTICS, BELIEVERS, AND EXPERTS
     B. RETHINKING THE STRATEGY FOR REPRODUCTIVE JUSTICE: REGULATORY
     REFORM PROPOSALS
     1. Mandatory Disclosure of Services for All Pregnancy-Related
        Service Providers--Including Those That Do Not Provide
        Abortions
     2. Offer Moderated Language on Abortion Consequences
     3. Regulate Abortion Service Providers--Including Pregnancy
        Counselors
V.   CONCLUSION

I. INTRODUCTION

Medical literature on abortion largely supports pro-choice legal claims. In turn, progressive lawyers often call for "evidence-based approaches" to lawmaking on the assumption that it will produce pro-choice legal and regulatory outcomes. This article argues that the evidence-based approach is no longer a reliable or stable strategy for pro-choice lawyering given transformations in judicial treatment of medical knowledge and a shifting evidentiary base. (3)

Drawing on landmark cases from 1973 to 2012, this article demonstrates how the Supreme Court and lower courts selectively utilize medical expertise and evidence to liberalize or constrain abortion access. With Roe v. Wade, (4) the Supreme Court began its engagement with medical evidence and expertise intending to liberalize abortion. The Court relied on medical knowledge that lent credibility to progressive arguments, while dismissing evidence that supported conservative claims. In doing so, the court treated evidence supporting progressive claims as objective and neutral and discounted claims that supported limiting access to abortion. This has now flipped--the Supreme Court and lower courts often treat medical evidence and expertise that supports conservative claims as objective and neutral. These newly-legitimated conservative ideas about abortion provide the foundation for the vast proliferation of informed consent laws that regulate provider-patient interaction at the most minute level--mandating that women seeking abortion look at sonograms and hear the fetal heartbeat, as well as scripting physician disclosures. (5) This new reality is exemplified in Texas Medical Providers Performing Abortion Services v. Lakey, a Fifth Circuit case regarding the Texas 2011 Women's Right to Know Act, in which the court heralds conservative expert and evidentiary claims as objective while discounting progressive assertions. (6)

Given the transformation in the development and use of medical evidence and expertise, I argue that progressive lawyering strategies on the issue of abortion should delink legal advocacy from its nearly absolute reliance on "evidence based approaches." This is a novel, transformative, and controversial recommendation that challenges the nearly universally held position that abortion rights advocacy should rely on medical evidence and expertise. In keeping with reproductive rights advocacy, health law scholars support the idea that an evidence base, when developed with rigor and attention to methodology, lends itself to better judicial outcomes. (7) In making this argument, progressive lawyers often overestimate the objectivity of scientific and medical expertise and under-theorize the role of politics in judicial decision-making.

The position of progressive lawyers implicitly runs against the argument made by constitutional legal theorists who argue that it is necessary to understand purportedly objective legal thinking in the context of politics and ideology. (8) Similarly, STS scholars argue that science, evidence, and expertise emerge from society and that the court not only uses knowledge it also produces what we know. (9) Drawing on insights from constitutional legal theory, health law, feminist legal theory, (10) and the field of science, technology, and society (STS), (11) this paper argues that the use of medical and scientific evidence and expertise, rather than produce determinate outcomes, as asserted by progressive health and reproductive rights advocates often proves indeterminate. For example, in the 2000 Supreme Court case Stenberg v. Carhart, the Court's examination of conflicting evidence and expertise on an abortion procedure resulted in a progressive outcome. (12) In the 2007 Supreme Court case Gonzales v. Carhart, nearly identical evidence and expertise resulted in a conservative outcome. (13) Understanding the complicated role of medical evidence in adjudication requires an exploration of how courts and lawmakers use medical expertise and evidence to code the political projects of courts, how medical experts with conflicting opinions legitimate themselves through participating in adjudication, and how medical expertise and evidence constrains judicial decision-making. Importantly, rather than the Court simply consuming and adjudicating factual information about abortion, the Court itself becomes a site for production of new facts and knowledge about abortion. (14)

Given the indeterminacy of outcomes, how should progressive lawyers proceed? This analysis offers a series of strategic interventions designed to recalibrate progressive lawyering for reproductive health. These interventions are rooted in the feminist critique of science. (15) In assessing the social and political context in which evidence emerges, this paper takes a critical view of the "objectivity" of knowledge about abortion. (16) This approach revives an important piece of lawyering and advocacy for health: the critique of science, evidence, and expertise. It is a call to return to the skepticism offered to us by two of the most successful health movements in recent history--the feminist women's health movement and the AIDS movement. (17) For some, this is a frightening proposition that will lead to assertions unmoored from "truth" or "fact." I argue instead that we need to revive this critique of evidence and expertise to maintain an analytic agility necessary to understanding the material consequences of a long-term transformation in the knowledge environment around abortion. Without sensitivity to the social construction of evidence and expertise, we will be unable to understand how the courts enable and legitimate shifts in the evidentiary base on abortion that result in a rapid decrease in abortion access.

This paper proceeds as follows. Part II analyzes four crucial Supreme Court decisions, Roe v. Wade, Planned Parenthood v. Casey, (18) Stenberg v. Carhart, and Gonzales v. Carhart, to understand how the role of medical and scientific evidence in each decision changes from deferring to expertise and evidence supporting progressive views on abortion to eventually legitimizing conservative claims. This analysis facilitates an understanding of how the courts co-produce knowledge about abortion, and how some ideas about abortion become naturalized and taken as "fact" over time. Part III considers the impact of Supreme Court decisions on access to abortion services through the circulation of newly legitimized scientific, medical, and public health facts. I focus on Lakey, in which the claim that abortion has negative mental health consequences justified conservative demands for the imposition of heightened informed consent requirements for women seeking abortion against the wishes of progressive advocates. (19) Given the transformation in Supreme Court and state court jurisprudence on abortion, Part IV draws on critiques offered by the feminist women's health movement to reimagine reproductive justice advocacy. I argue that we should find regulatory interventions that seek both to reset the advocacy agenda for progressive lawyering on abortion and to reinvigorate the longstanding (but forgotten) critique of evidence and expertise in health law advocacy.

II. ROLE OF SCIENCE AND MEDICAL EXPERTISE IN THE ABORTION JURISPRUDENCE: RE-READING ROE, CASEY, STENBERG AND GONZALES

Both medical expertise and law are embedded in social, historical, and political environments. (20) In turn, we must view the actors in this current study--judges, lawyers, researchers, and physicians--as similarly embedded in these social, historical, and political environments. (21)

Understanding how medical evidence and expertise shaped abortion jurisprudence requires a close reading of four landmark decisions: Roe v. Wade, Planned Parenthood v. Casey, Stenberg v. Carhart, and Gonzales v. Carhart. To be clear, this is not simply an inquiry into when and in which context the Court cited to the "best evidence." Instead this section seeks to, first, show how evidence codes political decisions in the technicality of expert knowledge. Second, the analysis shows how the invocation and deployment of medical evidence and expertise has indeterminate outcomes. (22) Third, it shows how courts increasingly legitimize arguments based on evidence that supports limiting abortion access. Courts eventually place this research on par with the research that justifies liberalizing abortion. Finally, it is an examination of how courts mobilize expertise and evidence to establish new common sense "facts" about abortion: that life begins at viability, that women experience negative mental health consequences with their abortions, and that intact dilation and extraction is not a necessary procedure.

A. ROE V. WADE

1. Medical Authority and Expertise in the Roe Court

In 1973, Roe dramatically altered the legal landscape for abortion in the United States by instituting the trimester framework to evaluate laws impacting abortion access: the Court held that, prior to the end of the first trimester, states should not regulate abortion; after the end of the first trimester, states may reasonably regulate abortion; and after the moment of viability, the state may proscribe abortion altogether. (23)

The Roe Court continued a tradition that was established in the nineteenth century of relying on medical evidence and expertise to shape the legal and regulatory environment on abortion. (24) However, in Roe and the many cases that followed, the Supreme Court had to address a major issue: medical experts often take contradictory positions with regard to abortion procedures and consequences. Crucially, rather than argue that medical experts and evidence might be influenced by politics, society, and culture, (25) the Court helped to paint a picture of medical experts detached from their social and political contexts. In doing so, the Court was able to defer to expertise understood to be objective, neutral, and apolitical on a highly contested issue. (26) The insulation of physicians and mere deference to their unbiased expertise enabled the political project of liberalizing abortion, (27) while fulfilling the promise made at the outset of the opinion: that the Court would consider the case of abortion "free of emotion and of predilection." (28) In other words, through rationalizing the liberalization of abortion in terms of medical science and evidence, the Court insulated itself from accusations of acting politically. But first, the Court had to do the work to ensure that medical science was secure from scrutiny.

2. Setting the Stage: The AMA as an Apolitical Institution

The Roe Court's discussion of the American Medical Association's (AMA's) shifting stance on abortion between 1857 and 1970 exemplifies how courts establish medicine's independent expert authority while acknowledging but minimizing the role of historical, political, and social context.

The Roe Court began its discussion by presenting the AMA's 1857 position that abortion was a practice leading to the "destruction of human life." (29) The Court then drew upon the 1871 Report on Criminal Abortion by the AMA's Committee on Criminal Abortion, which has a similar tenor:

   [A]mong other things, that it 'be unlawful and unprofessional for
   any physician to induce abortion or premature labor, without the
   concurrent opinion of at least one respectable consulting
   physician, and then always with a view to the safety of the
   child-if that be possible,' and calling 'the attention of the
   clergy of all denominations to the perverted views of morality
   entertained by a large class of females-aye, and men also, on this
   important question.' (30)

The decision jumps forward nearly 100 years to 1967 when the AMA softened its position with a "policy of opposition to induced abortion, except when there is 'documented medical evidence' of a threat to the health or life of the mother ...," (31) The Court ended its assessment of the AMA with the organization's 1970 Judicial Council opinion emphasizing that abortion is a medical procedure and the importance of the role of medical experts in performing the procedure. (32)

According to the Roe Court, the AMA position did not change due to physicians' political beliefs or shifting political, social, and cultural attitudes towards abortion. Rather, physicians were simply responding to new developments in medical knowledge:

   When most criminal abortion laws were first enacted, the procedure
   was a hazardous one for the woman. This was particularly true prior
   to the development of antisepsis.... Thus, it has been argued that
   a State's real concern in enacting a criminal abortion law was to
   protect the pregnant woman, that is, to restrain her from
   submitting to a procedure that placed her life in serious jeopardy.

   Modern medical techniques have altered this situation. Appellants
   and various amici refer to medical data indicating that abortion in
   early pregnancy, that is, prior to the end of the first trimester,
   although not without its risk, is now relatively safe....
   Consequently, any interest of the State in protecting the woman
   from an inherently hazardous procedure, except when it would be
   equally dangerous for her to forgo it, has largely disappeared.
   (33)

By ascribing shifts in medical opinion to advances in medicine rather than evolving political and social beliefs, the Court left open the possibility that physicians have always simply acted on the best medical evidence of the day, uninfluenced by social forces. (34) Further, the decision ignored the possibility that the evidence itself may emerge from social norms including concerns for women's virtuousness or shifting demographics. (35)

The AMA's treatment of changing opinion illustrates how the Court is able to discursively separate politics from science when interpreting medical expertise and evidence. (36) This allowed the Court to liberalize abortion laws--arguably the goal of the Roe Court--while insulating itself from scrutiny. As will be illustrated, in order to establish the rigor of scientific objectivity the Court had to proceed in two steps. First, it had to minimize, if not actively discredit, conservative physicians that filed a brief arguing that life begins at conception. Second, and relatedly, the Court had to downplay or ignore the oppositional nature of the medical amicus briefs.

3. Deference to Medical Expertise: Viability

Examining a key question of medical import in the decision exemplifies how the Court distinguished between medical authority that supported conservative or progressive arguments to eventually justify liberalizing abortion. In Roe, the Court's analysis of the key medical question, "when is the fetus viable?" demonstrates the Court's efforts to insulate progressive medical expertise and evidence from external scrutiny. The Court had before it both progressive and conservative claims about abortion. For example, the brief for the Planned Parenthood physicians argued that modern medical opinion regarded abortion as a procedure that should be available without state-imposed restrictions as to permissible reasons, pointing out that on June 25, 1970, the House of Delegates of the AMA recommended that licensed physicians be permitted to perform abortions in hospitals or approved clinics without restriction after consultation with two other physicians. (37)

The brief of the American College of Obstetrics and Gynecologists (ACOG) similarly emphasizes the need for physicians to practice medicine without state regulation. ACOG argued that "[a] decision to perform an abortion should be regarded as strictly a medical decision and a medical responsibility.... [that] should be removed entirely from the jurisdiction of criminal law."

Pro-life physicians acting under the name "Certain Physicians, Professors, and Fellows of ACOG" also asserted their own medical authority. Their primary goal was to "urge [the] Court to consider the current medical and scientific evidence of the humanity of the unborn...." (39) By keeping ACOG in its title, the group established itself within the larger medical community and in turn as a legitimate voice of the medical practitioner. Further, the group is careful to point out that many of their physician members are fellows of ACOG and practicing physicians. (40) These "Certain physicians of ACOG" disagree with ACOG's push for the decriminalization of abortion in arguing that the fetus is an unborn child.

The Court, however, discounts the brief from these "certain" physicians in a sweeping move:

   The latter [life starting at conception] is now, of course, the
   official belief of the Catholic Church. As one brief amicus
   discloses, this is a view strongly held by many non-Catholics as
   well, and by many physicians. … 

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