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