an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The enormous growth in empirical studies on topics relating to law and policy makes it all but inevitable that legislators and Supreme Court justices will be encouraged to consider those findings in crafting legislation and rendering decisions. Indeed, it is increasingly common to see extensive references to empirical studies in legislative enactments as well as in Supreme Court opinions. But navigating the seas of empirical studies to find the ones that correctly advance our understanding of the world is a tricky enterprise.
The Supreme Court in particular has wrestled with this difficulty in recent years, sometimes quite publicly, on contentious issues ranging from the death penalty to abortion. In last year’s majority opinion in Gonzales v. Carhart , which upheld the federal ban on partial-birth abortions, Justice Anthony Kennedy reiterated a hard fact that confronts hundreds of thousands of women each year who face an unwanted pregnancy. “Whether to have an abortion,” he wrote, “requires a difficult and painful moral decision.” Justice Kennedy then went on to assert: “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.” At this point Justice Kennedy paused to reference a brief submitted in the case by Sandra Cano, the former “Doe” of the 1973 case Doe v. Bolton, before continuing, “Severe depression and loss of esteem can follow.” In so doing, Justice Kennedy’s opinion has energized the so-called “woman-protective” branch of the anti-abortion movement. Anti-abortion activists reveled in the strategic opportunities presented by Justice Kennedy’s Carhart opinion. The Los Angeles Times reported that pro-life groups, drawing on the momentum of Carhart, intend to pursue a strategy that “won tacit endorsement in the Supreme Court ruling,” focusing on “the testimony of women who have had abortions—and regret them.” Advocates hope that they can seize upon Justice Kennedy’s seeming receptiveness to the woman-protective argument and bolster it with either anecdotal evidence or serious statistical data. The woman-protective anti-abortion movement claims that women who choose to abort frequently suffer severe psychological and physical consequences. Among the most commonly mentioned psychological complications are increased risks of depression, suicide, and what pro-life advocates alternately call “abortion trauma syndrome,” “post-abortion psychosis,” or “post-abortion syndrome.” Proponents of this view also argue that women who have undergone abortions are more susceptible to medical illnesses and to substance abuse—and even face a substantially higher risk of death. Woman-protective anti-abortion advocates often point to the research of David Reardon to support their contentions. An early proponent of this approach, Reardon has authored several papers exploring potential psychological and physical consequences of abortion. He also directs the Elliot Institute, an organization whose stated mission includes “expos[ing] the anti-woman agenda of poor-choice advocates who promote abortion by hiding its risks.” Reardon’s institute, which had three employees in 2005, recently launched a website—www.unfairchoice.info—offering a “fact sheet” of research claiming to demonstrate the dangers that abortion poses to women’s health. But are the prominent claims made in this document and elsewhere in the woman-protective literature true? Consider a few:
FIRST, the unfairchoice.info document maintains that women who abort have a “62% higher risk of death from all causes.” The claim is based on an August 2002 article in the Southern Medical Journal, authored by Reardon and others, that examined health records for 173,279 low-income California women who had had either an induced abortion or a delivery in 1989. The authors gathered their data from records kept by Medi-Cal, California’s health insurance program for low-income individuals and families. Because Medi-Cal offers different plans for individuals with different yearly incomes, there is likely significant variation among income levels in the women involved in the study. The Southern Medical Journal study, however, makes no attempt to account for income differences among the women included in the analysis. Yet because “adverse health experienced by those below the poverty threshold is amplified for severe poverty ,” accounting for income disparities—even among those individuals somewhat above, at, or below the poverty line, i.e., those covered by Medi-Cal—is crucial. Given the significant positive correlation between income and overall health, and the negative correlation between income and likelihood of abortion, it is not surprising that women who abort have higher overall death rates than women who do not. As one indication that the Southern Medical Journal study is picking up something other than the impact of abortion’s impact on mortality, AIDS is listed as the primary reason that aborting women are purportedly more at risk of death. Indeed, in the “delivery only” group the rate of death from AIDS was 26.1 per 100,000, and in the “abortion only” group the rate of death was 65.9 per 100,000. But it is nonsensical to suggest that the women’s decisions to undergo an abortion contributed to the AIDS deaths when one considers the parameters of this study and the time lapsed between contracting HIV and ultimately succumbing to AIDS. If abortion increased a woman’s risk for AIDS, the women in this study would have had to contract HIV after 1989 and succumbed to AIDS by 1998. Yet the median time between infection with HIV and development of full-blown AIDS is ten years. In addition, 52% of the 3.1 million unintended pregnancies in 2001 occurred among the small proportion of women—11%—who were not using a contraceptive during the month they became pregnant. This fact suggests that a small minority of women not using contraception is responsible for the majority of unintended pregnancies, many of which terminate in abortion. It is likely that, in addition to becoming pregnant, many of these women are at considerably higher risk of contracting sexually transmitted diseases like HIV/AIDS.
SECOND, the unfairchoice.info fact sheet also claims a “significantly higher risk of clinical depression” among women who chose to report. In a 2002 article published in the British Medical Journal, Reardon and Jesse Cougle analyzed data from the National Longitudinal Study on Youth. They claimed that, among married women, those who chose to abort an unwanted pregnancy were 138% more likely to become depressed than those who carried to term.
But in a 2005 response article, Sarah Schmiege and Nancy Felipe Russo examined data from the same survey, and found no direct relation between terminating or delivering an unwanted first pregnancy and the risk of clinical depression. (The consensus within the medical community is that the general psychological risks are no different between those two groups.) How did Schmiege and Russo arrive at such a different conclusion? Reardon and Cougle seem to have improperly coded their data. They used as their sample women who reported that their first pregnancy had been unwanted and who then went on to either abort or deliver, but excluded from the “delivery group” women who gave birth and then had subsequent abortions. In effect, they created “a bias in favour of finding lower depression” in women who had carried their pregnancies to term.
Reardon and Cougle also excluded those pregnancies that ended in stillbirth or miscarriage. Yet 1 in 115 births is a stillbirth, and between 10% and 25% of clinically recognized pregnancies end in miscarriage. Given the substantial risk of pregnancy ending in stillbirth or miscarriage and the psychological trauma associated with these outcomes, an examination of the psychological risks of pregnancy should include in the “delivery group” those women who chose to deliver but whose pregnancies terminated in miscarriage or stillbirth. But Reardon and Cougle neglected to do so.
THIRD, the unfairchoice.info fact sheet also reports that 65% of aborting women “suffered trauma” and that 64% of abortions “involve coercion.” These statistics are based on a 2004 Medical Science Monitorarticle authored by Vincent Rue, Priscilla Coleman, James Rue, and the energetic David Reardon. The study evaluated survey responses from American and Russian women to determine whether they perceived abortion as traumatic and, if so, whether their symptoms resembled signs of post-traumatic stress disorder. This article too has many obvious shortcomings. First, the American data were collected from 217 women at one urban hospital and two medical outpatient clinics in the United States. This small sample is not random, since the participants not only lived in the same geographic area, but also attended the same hospitals and clinics. Second, women who had received multiple abortions were “asked to identify and only report on the ‘most stressful’ one,” a request that would be expected to bias the results. Third, one of the two data collection instruments used was a questionnaire from the Institute for Pregnancy Loss, an organization that seeks to demonstrate the existence of a post-abortion syndrome. Those obvious concerns go unmentioned in the Medical Science Monitor article. More worrisome still, the authors did not collect data on women who chose not to participate, providing no information on typical abortion patients at the institutions studied. Given the orientation of the researchers, one might anticipate that those who did not share the views of the researchers would be less likely to participate. While the survey shows that 64% of the 217 American women “felt pressured by others” sometime over the course of their decision to abort, the unfairchoice.info document alters this conclusion in a self-serving way by reporting that 64% of all abortions “involve coercion.” Similarly, while the study concludes that 65% of the 217 American women experienced at least one symptom of PTSD, the unfairchoice.info fact sheet treats this finding as meaning that 65% of women “suffered trauma.” What is the common theme among these findings? The woman-protective anti-abortion literature has likely inadvertently confused a socio-economic effect with an abortion effect. It is now widely known that “social class is linked with premature mortality, disease, and mental illness.” In a 1998 British Medical Journal study measuring income distribution in the United States, researchers at the Harvard School of Public Health found that five times as many people earning under $10,000 a year reported fair or poor health than did people making more than $35,000 a year. A 2005 National Center for Health Statistics report adds, “Although, in some cases, illness can lead to poverty, more often poverty causes poor health by its connection with inadequate nutrition, substandard housing, exposure to environmental hazards, unhealthy lifestyles, and decreased access to and use of health care services.”
This glimpse at the woman-protective literature is not intended to suggest that abortion is a risk-free procedure. Choosing whether or not to abort doubtless frequently entails a stressful decision-making process. But without careful assessment of the circumstances that lead to that choice being exercised in a particular way, it can be reckless to attribute subsequent measures of well-being to the choice rather than to the circumstances surrounding the choice. Unwanted pregnancies and decisions to abort do not occur randomly, and causal inferences of the types made in the studies discussed above would only be valid if they were. Judges and legislators must insist on greater methodological sophistication before empirical studies can illuminate legal and policy choices. Posted
by Guest Blogger [link]