Thursday, October 16, 2014

Science and Democracy: The Shifting Role of Medical Expertise and Evidence in Abortion Jurisprudence

Guest Blogger

Aziza Ahmed

For the conference on Public Health in the Shadow of the First Amendment

In Roe v. Wade, the Supreme Court utilized medical evidence and expertise to protect liberalizing abortion.  In doing so, the Court insulated progressive medical expertise and evidence and delegitimized conservative claims.   In contemporary abortion jurisprudence, however, the courts frequently treat conservative medical science, evidence, and expertise claims as objective and neutral. Understanding this transformation requires an examination of the court’s shifting position towards a growing “conservative” literature on abortion.

In Carhart v. Gonzales, the Supreme Court case that found that there was no need for a health exception for a late term abortion procedure.  In the opinion, Kenned stated:

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. Severe depression and loss of esteem can follow.

This statement did not go without notice.  In her dissent, Justice Ginsberg criticized Kennedy’s assertion by citing to numerous studies that disprove the assertion of a link between mental health consequences and abortion.  Towards the end her long citation, however, are two key words: “but see.”  At this pivot point the citation shifts to an acknowledgement of a growing literature claiming that there are negative mental health consequences for women who choose abortion. 

The citation should concern reproductive justice advocates and lawyers. It differs significantly from Blackmun’s implicit dismissal of a similar claim presented to the Roe court in an Amicus Brief submitted in 1971 by “Certain Physicians, Professors, and Fellows of the American College of Obstetrics and Gynecology.”  Instead, Ginsberg’s “but see” cite demonstrates that a new “fact” is taking hold: that abortion causes negative mental health consequences.

To understand the production of new facts about abortion requires, first, an understanding about how courts aid in the production and legitimation of knowledge about abortion, and second, how this knowledge has an impact on access to abortion.  With a new fact about women’s negative mental health consequences to abortion taken as a given, the courts have been able to roll out a host of other speech requirements for physicians to protect a woman’s mental health.  The 2011 Fifth Circuit decision on the Texas Women’s Right to Know Act (WRKA) is a case in point.  Texas House Bill 15 requires that a physician performing an abortion display “a sonogram of the fetus, make audible the heart auscultation of the fetus for the woman to hear, and explain to her the results of each procedure and to wait 24 hours, in most cases, between these disclosures and performing the abortion.”

Reproducing the entirety of the Carhart passage on regret, the Fifth Circuit takes Carhart’s assertion that abortion causes negative mental health consequences as a truth. Purported concern for the “life within a woman” and the mental health risk for the patient, propels the Fifth Circuit to determine that the requirements of the WRKA do not constitute a First Amendment violation: physicians can be compelled to provide this information to women seeking abortions because the WRKA mandates disclosures that are truthful, non-misleading, and relevant as part of the reasonable regulation of medical practice.  According to the court, this is simply factual information. 

Can “facts” be ideological?  This is the hard question that progressive advocates must take into consideration in making legal claims.  Taking note of the court’s role in legitimating assertions about abortion, while paying attention to the social and political environment from which evidence emerges, demonstrates the contingent nature of “facts.”  The production and ordering of these facts has material consequences, as the current environment for abortion access demonstrates all too clearly.  

Aziza Ahmed is Associate Professor of Law at Northeastern University School of Law. You can reach her at

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