Aziza Ahmed. American Journal of Law & Medicine. Volume 41, Issue 1. 2005.

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.

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, 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. 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.

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. 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. 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. Drawing on insights from constitutional legal theory, health law, feminist legal theory, and the field of science, technology, and society (STS), 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. In the 2007 Supreme Court case Gonzales v. Carhart, nearly identical evidence and expertise resulted in a conservative outcome. 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.

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. In assessing the social and political context in which evidence emerges, this paper takes a critical view of the “objectivity” of knowledge about abortion. 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. 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, 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. 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. 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.

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. 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.

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. 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, 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. The insulation of physicians and mere deference to their unbiased expertise enabled the political project of liberalizing abortion, 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.” 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.” 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.’

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 ….” 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.

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.

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. Further, the decision ignored the possibility that the evidence itself may emerge from social norms including concerns for women’s virtuousness or shifting demographics.

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. 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.

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 ….” 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. 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. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a ‘process’ over time, rather than an event, and by new medical techniques such as menstrual extraction, the ‘morning-after’ pill, implantation of embryos, artificial insemination, and even artificial wombs.

The Court instead defers to physicians supporting the liberalization of abortion laws, delegitimizing physicians who expressed an opinion against abortion:

As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes ‘viable,’ that is, potentially able to live outside the mother’s womb, albeit with artificial aid.

In aligning themselves with progressive doctors the Court did not cite to the progressive physician briefs. The Court did, however, cite to Williams Obstetrics, the leading obstetrics textbook at the time. The authors of the textbook include Louis Hellman and Jack Pritchard, two physician signatories to the ACOG amicus brief.

The Court actively worked to establish the medical independence of physicians aligned with liberalizing abortion and then deferred to them. The Court portrayed the physician as a neutral arbiter, and medical authority as objective and independent from the courts. The decision ended on this note:

For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician…. For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

Medical science emerged as an objective authority on questions of viability, mental health, and abortion procedure. This enabled the Court’s decisions to appear apolitical even in the context of competing claims.

4. Ignoring Conservative Claims: Abortion and Mental Health

Unlike the later cases on abortion, the Roe majority ignored arguments placed before it on the issue of negative mental health consequences of the procedure. The Court faced conflicting claims on mental health and abortion. The brief by the (pro-life) Certain Physicians of ACOG stated:

A World Health Organization scientific group concluded that “There is no doubt that the termination of pregnancy may precipitate a serious psychoneurotic or even psychotic reaction in a susceptible individual.” Some investigators have indeed noted lasting psychiatric reactions. However, there has been much variation in the medical literature regarding the incidence of psychological sequelae to induced abortion.

Instead of heeding the assertion that abortion has negative mental health consequences, the Roe majority understood mental health concerns to be a factor necessitating an abortion rather than as an outcome of abortion:

Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

The Court’s unwillingness to give way to the argument that abortion causes psychological harm is a signal of the Court’s desire to embolden the argument that abortion should be liberalized. In Roe, it was Blackmun who played an important role in ensuring that medical expertise was shielded from scrutiny in the course of the decision. We can see the complex boundary work performed by Blackmun as he isolated, insulated, and deferred to the medical authority that supported liberalizing abortion. The Court analytically moved physicians and medical experts outside of the politics of the abortion debates. In Roe, the insulation of evidence, and in turn the Court, had strategic purpose: it allowed the Court to code its own political project in terms of expertise, and reified the idea that medical practitioners and experts are apolitical. In doing so, the Court was able to reach its own goal of rationalizing the decision in a manner “free of emotion and predilection.”

Each of the abortion decisions that follow reveals how the Court manages the relationship between the Court and medical expertise to accomplish the broader political aim of increasing or decreasing access to abortion.

B. Casey v. Planned Parenthood

1. Medical Authority in the Casey Court

Twenty years later, the Court reconfigured the Roe rule in Planned Parenthood v. Casey. In Casey, the Court examined the constitutionality of five amendments to the Pennsylvania Abortion Control Act of 1982: an informed consent requirement; a twenty-four hour waiting period between the provision of certain information and the abortion; parental consent for minors; spousal notification; and reporting requirements for clinics. Three of these requirements had a “medical emergency” exception. The Casey Court was clear on its desire to maximize the ability of the state to regulate pregnancy. Casey discarded Roe’s trimester framework for regulating access to abortion and replaced it with the “undue burden” standard. In Casey, the Court made a slight move away from Roe’s protection of medical evidence that had shielded liberalizing abortion from scrutiny. The Court deferred to progressive medical authority on viability and medical emergencies, yet accepted conservative ideas on abortion and mental health.

Several issues necessitated medical inquiry in Casey: When is a fetus viable? What constitutes a medical emergency? Moreover, Casey became a pivot point for the Supreme Court on an important and controversial question: Are there negative mental health implications for abortion? The transition from Roe (abortion has no mental health consequences) to Casey and onwards (abortion has mental health consequences) was the outcome of the social and political organizing focused on mental health beginning in the 1980s—the period between Roe and Casey.

2. Deference to Medical Evidence and Expertise: Viability and Medical Emergencies

Viability remained a key consideration in Casey. The Court clearly articulated an unwillingness to renounce the central principle of Roe: a woman should be allowed to terminate her pregnancy before viability. After viability, however, the state has a legitimate interest in the “life of the unborn” and thus the ability to restrict access to abortion. In Casey, the Court acknowledged that viability is a shifting line determined by medical progress in the field of neonatology, marked, in part, by the ability of prematurely born fetuses to survive. In 1973, the date of the Roe decision, the earliest point of viability was twenty-eight weeks. By the time of Casey, the point of viability was found to be twenty-three or twenty-four weeks.

We have seen how time has overtaken some of Roe’s factual assumptions: advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973, and advances in neonatal care have advanced viability to a point somewhat earlier.

The Court saw shifting viability as an outcome of advances in medical practice. The Court therefore deferred fully to medical evidence and expertise on the question of viability, insulating itself from scrutiny on this question.

The Court treated “medical emergencies” similarly. In Casey, three of the provisions examined by the Court provide exceptions for medical emergencies: informed consent with a twenty-four hour waiting period; spousal consent for married women; and parental consent for minors with the possibility of judicial bypass. A “medical emergency” is defined as a:

[A] condition which, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.

In the context of the Pennsylvania act at issue, the Court stated that medical emergencies are contingent on a physician’s good faith clinical judgment. However, just as in Roe, this reasoning ignores the possibility that clinical judgment is often variable—depending on the politics and beliefs of the individual physician.

3. Breaking from Progressive Medical Expertise and Evidence: Abortion and Mental Health

Casey is a pivotal moment in the Court’s treatment of abortion and psychological harm. The Casey Court moved away from the Roe Court’s assertion that psychological harm may be caused by unwanted pregnancy. According to the Casey Court, the abortion itself is what could psychologically harm a woman, if she is not adequately informed:

It cannot be questioned that psychological wellbeing is a facet of health. Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.

This major shift represents a substantial victory for pro-life activism that had been building outside of the courtroom. Beginning in the 1980s, these anti-choice efforts sought to tie abortion to negative mental health outcomes. The oft-cited moment marking this tension was the 1987 directive from Ronald Reagan to his surgeon general Everett Koop asking for a comprehensive report on the psychological and medical impact of abortion on women. Betraying his reputation as a “pro-life” Surgeon General, Koop responded by stating that there was not enough rigorous evidence to make the case that abortion causes negative mental health outcomes.

Taking a stronger position against the argument that abortion has negative mental health outcomes, the American Psychological Association (APA) amicus brief to Casey stated that it is the informed consent requirements that may produce negative mental health effects. Rejecting the APA’s proposition, and implicitly rejecting the Surgeon General’s analysis, the Casey Court chose to support the argument offered by pro-life briefs: it is a lack of information about the abortion procedures and its consequences that has negative mental health consequences post-abortion. This “protectionist” position advocates that women require additional time in order to give well thought-out consent. The Court’s deference to the pro-life advocates in Casey betrayed its normative project and legitimized the pro-life position that abortion can have mental health consequences.

Rather than bolstering the progressive legal and medical claims regarding abortion, the Court’s reliance on conservative claims justified a new standard: undue burden. The Court in Casey finds that the regulations did not constitute an undue burden, and that they are justified by the state’s interest in protecting the would-be mother. In doing so, the Court set the stage for laws driven by conservative rationales to enter into the courtroom discussion on abortion.

C. Stenberg v. Carhart

1. Medical Authority in the Stenberg Court

In 2000, eight years after Casey, the Court heard Stenberg v. Carhart. Stenberg concerned a Nebraska statute banning “partial-birth abortion,” a procedure defined by the statute as:

[A]n abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.

The statute contained an exception for the life of the pregnant woman, but not for the health of the woman. Leroy Carhart, a physician who performed clinical abortions, challenged the law. The first contested medical question before the Court focused on the partial-birth abortion procedure itself, specifically comparing the intact Dilation and Extraction (“Intact D&X”) and the non-intact Dilation and Extraction (“D&X”). A D&X procedure may involve disarticulation of the fetus prior to its excavation. During an Intact D&X procedure, the physician does not disarticulate the fetus prior to removing it from the uterus, but rather collapses the skull either to bring the fetus feet first through the cervix or to bring the skull out first followed by the rest of the fetus intact. The Court grappled with whether Intact D&X is ever necessary and, in turn, whether a health exception was required. The Court declared the statute unconstitutional on two grounds: first, the law lacked an exception for the “preservation of the health of the mother”; and second, it imposed an undue burden on a woman’s ability to choose the necessary abortion procedure, “thereby unduly burdening her right to choose abortion itself.”

2. Conflicting Expertise: Intact versus Non-Intact Dilation and Extraction

The Stenberg Court relied heavily on medical testimony and expertise to understand the procedures and risks they pose to women. Immediately, however, the Court had to find a way to adjudicate between numerous competing sources of opinion, each deemed to be medically and scientifically authoritative, but providing differing advice, guidance, and knowledge on the actual procedure. In the face of conflicting data, the Court became an arbiter of medical and health knowledge.

The Court had before it, for example, competing expert testimony and evidence from the district court as well as amicus briefs submitted by numerous organizations including the Association of American Physicians and Surgeons (AAPS) and the American College of Obstetrics and Gynecology (ACOG). The AAPS sought to prevent a health exception while ACOG supported a health exception. In each case, the physician claims filter through differing political and moral viewpoints of each organization. The AAPS submitted its brief alongside many pro-life physicians organizations. Each pro-life medical organization validated its own medical expertise through the claim that its physicians engaged in medical practice and by referencing a larger moral and ethical frame—Christianity or the Hippocratic Oath. Together the amici argue that they represent “medical realities” of “partial-birth abortion.” These amici do not recognize the intact D&X procedure, and proffer that it is not the standard or preferred method under any circumstance.

Unlike prior cases, the Court implicitly placed these two physician positions (those who seek to liberalize abortion versus those who seek to limit access) on par with one another by simply acknowledging the differing medical opinions as holding equal potential influence and legitimacy. Rather than insulating one set of ideas as medically factual and discounting the other with near silence, as the Roe Court did, the Stenberg Court’s equalization of divergent expert positions made it necessary for the Court to arbitrate medical expertise and experience. In doing so, the Court legitimized the arguments of physicians who sought to limit access to abortion and placed them on par with physicians that sought to liberalize abortion. This had several outcomes: First, the Court recalibrated the field to include the range of scientific and medical argumentation produced by each group of physicians; and second, the Court legitimated the arguments put forward by the anti-choice physicians:

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. Where a significant body of medical opinion believes a procedure may bring with it greater safety for some patients and explains the medical reasons supporting that view, we cannot say that the presence of a different view by itself proves the contrary. Rather, the uncertainty means a significant likelihood that those who believe that D & X is a safer abortion method in certain circumstances may turn out to be right. If so, then the absence of a health exception will place women at an unnecessary risk of tragic health consequences. If they are wrong, the exception will simply turn out to have been unnecessary.

This explicit acknowledgement of a divided body of literature is important as we approach Gonzales v. Carhart, in which the Court cited to non-medical anecdotal evidence partly due to a perceived lack of clarity amongst medical experts.

3. Recalibrating the Stage: All Evidence is Objective Evidence

Because the majority opinion never fundamentally questioned the idea of medical objectivity on either side of the case, Stenberg Court laid the foundation for pro-life physicians to gain legitimacy in the eyes of the Court and the public.

The Stenberg majority saw the split in medical evidence as a signal to err on the side of caution:

But where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health, Casey requires the statute to include a health exception when the procedure is “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

Despite the progressive outcome of the case, the Court made a radical shift that has changed the terrain of assertions of medical fact and evidence: the Court treated opposing physician perspectives on abortion as equally legitimate. This has reset the discussion of medical expertise and evidence and evened the playing field for conservative and progressive voices. It has allowed for a complete transformation at the state level: now rather than insulating progressive medicine as apolitical and rigorous, the door has been opened for a full normative debate coded in credible scientific expertise on both sides.

D. Gonzales v. Carhart

1. Medical Authority in the Gonzales Court

Gonzales v. Carhart examined the constitutionality of the federal Partial-Birth Abortion Ban Act of 2003 (“PABA”) and revisited the issues initially presented in Stenberg. Amongst the key issues in the case was whether the late-term abortion procedure ban was unconstitutional because it lacked a health exception for the mother. The Court ruled that the ban was not unconstitutional because the legislation should be read narrowly as only barring Intact D&X, and thus did not place any woman at immediate health risk because other late-term abortion procedures could be performed instead. Further, the Court rationalized that the scienter requirement for physicians allowed performance of the procedure where absolutely necessary if the physician had not begun the procedure with the intent to perform Intact D&X.

The Gonzales decision reflected the new post-Stenberg terrain of medical expertise. Even though the Stenberg opinion produced a progressive outcome from the standpoint of pro-choice activists and advocates, it also rewrote the boundaries of “reliable” and “objective” medical evidence by legitimizing conservative medical expertise and evidence Stenberg reset the terms of the conversation: pro-life and pro-choice medical testimony and expertise could legitimately be treated as equal. This was a dramatic shift from the early abortion jurisprudence that discounted pro-life medical assertions almost entirely. Now, all evidence and expertise was equal, and all was subject to interrogations of ideological bias and all were equally capable of being deemed objective.

2. Conflicting Expertise: Intact versus Non-Intact Dilation and Extraction

There are several key questions requiring scientific and medical expertise in the Gonzales decision that recall the deliberations in Stenberg. First, the Court grappled with the procedure itself, raising questions about the safety and efficacy of the Intact D&X procedure. If the Court found the Intact D&X to be safer and more efficacious, the Court could consider granting a health exception that would allow Intact D&X to be performed when necessary.

Justice Kennedy began his opinion in Gonzales by citing testimony from Congressional hearings, including that of a nurse testifying before the Senate Judiciary Committee. The nurse attended a late term procedure and described what she observed:

The baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall.

The Court treated the testimony as a description of the methodology of the medical procedure. After describing the nurse’s testimony, Kennedy’s language shifted from a discussion on Intact D&X to a discussion on the various methods of “killing the fetus.”

The Court, however, still had to distinguish Gonzales from Stenberg in order to find the PABA constitutional. After all, the Stenberg Court erred on the side of a cautionary exception for women’s health in the face of what it considered to be conflicting medical evidence. As in Stenberg, the parties in Gonzales made competing factual claims about the safety, efficacy, and necessity of the Intact D&X. The Court once again acknowledged these contradictions when the Gonzales majority stated that “there is documented medical disagreement whether the Act’s prohibition would ever impose significant health risks on women.”

The Court’s discussion of conflicting medical opinions stemmed partly from the physicians who filed opposing briefs. For example, ACOG stated:

The medical advantages of [Intact D&Xs] are now widely acknowledged. As reflected by hearings before Congress and in the courts, the safety advantages of the intact variant are recognized by an array of skilled physicians with impeccable credentials and vast clinical experience. These safety advantages are confirmed by leading medical texts and peer-reviewed studies; the curricula of leading medical schools; and even some of the Act’s supporters—including the Government’s own witnesses. Indeed, as medical practice has evolved in the nine years since ACOG first formulated its policy on [Intact D&X], and in the six years since this Court decided Stenberg, the medical consensus about these safety advantages has grown. Against this backdrop, the consequences of the Act’s failure to include an exception for procedures necessary to protect a woman’s health are clear.

ACOG depoliticizes its argument for a health exception by highlighting the expertise of the individuals reviewing the medical facts and literature on the Intact D&X procedure.

A task force convened by the Executive Board reviewed the medical facts surrounding the issue and drafted a proposed policy statement. The task force consisted of practicing obstetrician-gynecologists, who were “carefully select[ed] … based on their expertise and viewpoint” — ACOG “chose task force members from diverse backgrounds.” Members included, among others, specialists in treating high-risk pregnancies and physicians who regularly performed or oversaw abortions, including [Intact D&Xs]. The task force also included at least one physician who opposed abortion.

… [T]he task force concluded that [Intact D&X] could be the safest or most appropriate procedure for a given patient, and that the decision whether to choose such a procedure should be left to a woman and her physician. The task force presented this conclusion to ACOG’s Executive Board in a draft Statement of Policy.

The Executive Board includes, among others, nationally elected officers, and elected representatives from each of ACOG’s nine geographic districts and one district made up of members of the Armed Forces….

The expert group compiled by ACOG produced the following statement:

A select panel convened by ACOG could identify no circumstances under which [Intact D&X] … would be the only option to save the life or preserve the health of the woman. An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based on the woman’s particular circumstances can make this decision. The potential exists that legislation prohibiting specific medical practices, such as intact D&X, may outlaw techniques that are critical to the lives and health of American women.

A similar display of expert knowledge legitimized pro-life physician organizations. In a move that mimicked progressive strategies for discounting conservative science, conservative physicians suggested that ACOG relied on physician’s subjective experiences rather than rather than going through a proper peer-review process. For example, in arguing that the Intact D&X is never required, the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) and congressmen who support the “partial birth abortion ban” stated the following:

The absence of empirical evidence to support the safety of D&X is reflected in the three papers on which Respondents rely for all their “data” to support D&X: Haskell’s (not peer-reviewed), McMahon’s (not peer-reviewed), and Chasen’s. Haskell’s 1992 paper was neither peer-reviewed nor controlled; it was simply a compiled series of his own personal experience.

The pro-life argument that physicians favoring a women’s health exception fail to proffer objective empirical evidence spurred a reaction from other amici. For example, the amicus brief of the Women’s Medical Association and Medical Students for Choice attempts demonstrate why and how peer-reviewed studies are not always possible in the surgical context:

Surgery, by its nature, does not fit the randomized control trial (“RCT”) paradigm. When a new technique is first developed, there is simply no way to create a sufficient number of “trials” to conduct a controlled study. Even after a new surgical technique has reached a level of acceptance in the surgical community, circumstances often continue to preclude such evaluation. However, despite substantial impediments to controlled studies, the level of knowledge and skill in the surgical profession has exploded in the past century because the surgical community has developed a field-specific approach: it engages in widespread communication regarding common problems, theoretical approaches and ultimately practical solutions. When a surgeon finds a technique that represents an improvement over prior techniques, he or she records the results and shares them with others, who then begin to perform the new technique and share their experience.

This is the way numerous now familiar procedures were introduced and evaluated when they were new and untested. The safety and health benefits of [Intact D&X] have been demonstrated in the same manner. Accordingly, as each of the lower courts to have addressed Congress’s findings has concluded, “credible medical evidence” does, in fact, exist to show that [Intact D&X] is not only safe and effective, but it is often safer than alternative methods of terminating pregnancy in the second trimester.

Two aspects of the debate in the briefs are worth noting. First, the arguments by amici are familiar in public health literature, and they signal a sophisticated engagement of conservative physicians and activists in scientific and medical discourse. In other words, in a debate about a contentious public health issue, one group will typically argue that there is one form of evidence, more likely than not the randomized control trial, that is the only rigorous, objective, and generalizable form of data—the gold standard for public health evidence on the contested issue. The responding side, unable to produce this evidence for a variety of reasons, argues that it is impossible to collect data in the requested form. For example, in the late-term abortion context randomized control trials are not the standard utilized by surgeons to assess the efficacy of new procedures.

This back-and-forth frames how we understand some forms of medical evidence as more legitimate than others in the law and policy making process. Typically, it is progressives demanding more rigorous evidence, undermining the research upon which conservative claims are made. Interestingly, in the abortion context, however, this familiar debate puts progressives on the defensive, arguing that it is impossible to produce the evidence demanded of them. This defensive posture is the opposite of how progressive advocates on health imagine themselves. In other words, progressives tend to imagine themselves as having the good, rigorous evidence on their side and conservatives as manufacturing ideologically oriented data. The debate in the late-term abortion context, however, reveals that, at least in some cases, it is conservatives who successfully make accusations of weak evidence against progressives. Second, a careful study of evidence put forward by both sides reveals that both pro-life and prochoice advocates betray their own demands for “rigorous data” by consistently invoking “lower standards” of evidence as legitimate.

The Court shows deference to congressional fact-finding surrounding PABA. Congress asserted the following facts in the PABA: first, partial birth abortions pose serious risks to women undergoing the procedure; second, there is no credible evidence that partial birth abortions are safer than other procedures; third, a “prominent medical organization” has found that partial birth abortions are not a medically accepted procedure; fourth, partial birth abortion is never necessary to preserve the health of a woman; fifth, partial birth abortion is never medically necessary according to the doctor who developed the medical procedure; and sixth, banning the procedure is good for a woman’s health. These factual findings led Congress to conclude that:

[P]artial-birth abortion is never medically indicated to preserve the health of the mother; is in fact unrecognized as a valid abortion procedure by the mainstream medical community; poses additional health risks to the mother; blurs the line between abortion and infanticide in the killing of a partially-born child just inches from birth; and confuses the role of the physician in childbirth and should, therefore, be banned.

Further, Congress weighed in on the quality of the evidence available:

There is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures. No controlled studies of partial-birth abortions have been conducted nor have any comparative studies been conducted to demonstrate its safety and efficacy compared to other abortion methods. Furthermore, there have been no articles published in peer-reviewed journals that establish that partial-birth abortions are superior in any way to established abortion procedures. Indeed, unlike other more commonly used abortion procedures, there are currently no medical schools that provide instruction on abortions that include the instruction in partial-birth abortions in their curriculum.

The Court validated these congressional assertions. Unlike in Stenberg, where the Court and Congress took the conflicting evidence as a sign to err on the side of a woman’s health exception, in Gonzales, the Court deferred to Congress’ ability to legislate in the face of medical uncertainty.

The reality, that no body of evidence on late-term abortion meets the rigorous evidentiary standards of the randomized control trial, opens the door to a greater range of evidence. In Roe and Casey, where the Court portrayed the medical establishment as objective and neutral, the Justices were able to defer to medical expertise and evidence. In the post-Stenberg context, however, because the Court leveled the playing field, judges must now arbitrate medical evidence and expertise. Courts pick and choose which facts are relevant, continuing to draw and redraw the boundaries of what is rigorous medical evidence and what is not.

3. The Psychological Impact of Abortion

Once again in Gonzales the psychological impact of abortion was on the table. In the post-Stenberg environment, divergent expertise provided an opportunity to make new findings of fact and legitimate new truths about abortion. In Gonzales, the court promulgated the idea that women experience negative mental health consequences because of their abortions. In making this assertion, the Court cited to the Sandra Cano Brief. The Cano Brief began by elucidating the expertise the amici bring—expertise largely driven by personal experience:

Amici Sandra Cano is the “Doe” of Doe v. Bolton. It was Doe v. Bolton which provided for the health exception and led to partial-birth abortion and abortion on demand. While it is unusual for a successful litigant to file an amicus brief opposing the health exception which was the heart of her case, Mrs. Cano in fact never wanted an abortion in Doe v. Bolton and fraud was perpetrated on the Court. Her Affidavit is Appendix A…

Other amici are 180 post-abortive women who have suffered the adverse emotional and psychological effects of abortion. Congress in its findings only discussed the physical health consequences of abortion. However, other health consequences not stated in Congress’ findings would be helpful to the Supreme Court in making its decision. The women attest to the fact that there are adverse emotional and psychological health effects that have affected their lives. All of the women have used their full name in the original Affidavits, but some have requested that only their initials be used publicly to protect their confidentiality.

Although the Supreme Court only made non-evidence based assumptions in Roe v. Wade and Doe v. Bolton because abortion was generally not legal or widespread, the post-abortive women amici provide this Court with their real life experiences and attest that abortion in practice hurts women’s health. Post-abortive women were asked, “How has abortion affected you?” …

Importantly, the Cano brief stated, amongst other points, that abortion is a cause of negative mental health experiences. Kennedy cited to the brief to make a new finding of fact in the abortion context:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. 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.

Kennedy’s citation to the Cano Brief is particularly interesting for scholars attempting to understand the Court’s use of medical expertise. Rather than grapple with conflicting evidence, Kennedy detoured around the literature and cited to a brief filled with first person anecdotes about women’s health. The briefs were collected in part by the Justice Foundation, an organization that collects testimonies of women about their experiences with abortion through its “Operation Outcry” ministry. The ministry’s explicit goal is to end “the pain of abortion by expositing the truth about its devastating impact on women, men, and families.”

In her dissent, Justice Ginsberg reacted strongly to Kennedy’s assertion:

Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the [Intact D&X] procedure.

Ginsberg’s dissent acknowledged that the academic literature actively contests the growing data on abortion and negative mental health consequences. The dissent cited numerous studies demonstrating that a vast majority of the literature did not support Kennedy’s conclusions about abortion’s negative mental health consequences. Interestingly, however, the dissent’s citation contains a “but see” citation to academic work claiming that abortions can have negative mental health consequences. Although it is found in Ginsberg’s dissent, we can read this “but see” citation as a validation of a literature on abortion and negative mental health consequences. It is a signal that this literature can no longer be ignored despite an enormous amount of criticism with regard to methodology.

The debates on abortion and mental health are contentious—with both sides drawing on evidence that is often, but not always, published in mainstream medical and public health journals. The pushback featured in the Gonzales dissent took the classic form of debates in public health law research — accusations of infidelity towards rigorous research against a claim based on anecdotes. Although these critiques are often successful when progressives levy them, in Gonzales it was the anti-choice advocates who successfully put pro-choice advocates on the defensive by mobilizing first person narratives to generate widespread support and create an opening for the literature on mental health and abortion to enter. The Court’s treatment of conservative advocacy, emanating from both physicians and activists, as on par with that evidence supporting liberalizing abortion, contributes to the legitimation of conservative ideas about abortion. In other words, the Court plays a central role in resetting the playing field on expertise and evidence in the abortion debates.

III. From the Supreme Court to the State: Texas Medical Providers Performing Abortion Services v. Lakey

With the Court shaping and producing ideas about abortion, and legitimating conservative claims, we see an increase in regulations that limit abortion access. In other words, this new “knowledge” about abortion, legitimized by the Court, now structures access to abortion services. The litigation surrounding the 2011 Texas Women’s Right to Know Act (WRKA) is an example of how newly minted facts impact the regulatory environment and impede access to abortion services. While informed consent pertaining to public health has a long history in U.S. common law, the discussion on informed consent in the abortion context largely emerged from attempts to prevent access to abortion.

In 2011 Texas passed House Bill 15, which requires:

the physician “who is to perform an abortion” to [perform and] 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.

A woman may choose not to receive verbal explanation of the results of the sonogram if she falls into one of three exceptions: (1) if the woman is pregnant as a result of rape or incest that “has been reported or not reported because the woman fears retaliation resulting in serious bodily injury”; (2) if she is a minor utilizing judicial bypass procedures “to avoid parental notification”; or (3) if she has a fetus with an “irreversible medical condition or abnormality.”

In Lakey, the Court of Appeals for the Fifth Circuit overturned the lower court’s decision enjoining enforcement of WRKA, acting on Gonzales’s assertion that abortion’s negative mental health consequences justify heightened informed consent standards. The Lakey court reproduced the entirety of the Gonzales passage on abortion having negative mental health effects, making these negative health effects a “fact” that has traveled from conservative assertions outside the judiciary in the 1980s, to the Supreme Court’s holdings in both Casey and Gonzales, and finally into state laws on abortion. This new “fact” helped the circuit court justify the increased informed consent requirement because it could prevent, amongst other harms, psychological risks to the mother. The Fifth Circuit also found that the actual information conveyed to the patient did not constitute an undue burden given that it is the conveyance of medical knowledge from the provider to the patient.

The Fifth Circuit was not naïve to the political projects that undergird the production of evidence. In fact, the court sought to distinguish between the “medical” and the “ideological”:

H.B. 15 requires the taking and displaying of a sonogram, the heart auscultation of the pregnant woman’s fetus, and a description by the doctor of the exams’ results. That these medically accurate depictions are inherently truthful and non-misleading is not disputed by Appellees, nor by any reasoned analysis by the district court.

The Fifth Circuit cited to the Merriam-Webster definition of “ideological” in order to defend what it saw as medically factual (and thus non-ideological) information:

At times, the district court characterizes these disclosures as “ideological,” but the court misunderstands the term. Speech is ideological when it is “relating to or concerned with ideas” or “of, relating to, or based on ideology.” … The distinction the court there sought to employ was between factual information and moral positions or arguments. Though there may be questions at the margins, surely a photograph and description of its features constitute the purest conceivable expression of “factual information.” If the sonogram changes a woman’s mind about whether to have an abortion – a possibility which Gonzales says may be the effect of permissible conveyance of knowledge – that is a function of the combination of her new knowledge and her own “ideology” (“values” is a better term), not of any “ideology” inherent in the information she has learned about the fetus.

The court’s reliance on “truthful” medical information resonates with the early medical cases on abortion, albeit with a different outcome. By isolating medical knowledge, the Lakey court drew a boundary between fact and ideology. This time, however, the conservatives benefit from the fact/ideology distinction while the progressive position is dismissed.

This decision exemplifies how after Gonzales, and given today’s political climate surrounding abortion, we must read Blackmun’s defense of medicine differently in Roe. Over thirty years later, the insulation of medicine does not support the progressive cause, but the conservative one. Rather than insulate medical knowledge for the sake of increasing access to abortion, we are now insulating medical knowledge to limit access to abortion and forward a conservative political project.

IV. A Return to Feminist Skepticism

Can the reproductive justice movement, emerging from the history of the feminist women’s health movement, return to critique of medical evidence and expertise? In the face of an increasingly destabilized medical evidence and evidentiary base, I argue that this change is necessary to recalibrate reproductive justice lawyering and activism. In this section I offer a background to the feminist women’s health movement and offer suggestions for a new style of regulatory engagement.

A. The Women’s Health Movement: Skeptics, Believers, and Experts

The current political environment demands rethinking the feminist reproductive rights mantra that a woman’s health is “between the woman and her doctor.” In this contemporary feminist imaginary about the physician-patient space, the physician is equipped with objective, neutral, apolitical medical and scientific evidence about the woman’s body. The doctor conveys this knowledge to the woman in an unbiased manner at which point she makes a decision about her care. This framing assumes the neutrality of medical practitioners and the evidence they draw on. The current posture of the reproductive justice movement betrays the critical feminist impulse towards evidence and expertise that began the feminist women’s health movement. Conservative organizations, including anti-choice groups, however, have long seen through this ideation of the physician-patient relationship. In fact, some of the most effective means to prevent access to abortion are not based on an assumption that the physician-patient space is unregulated, but rather on a recognition that it is highly regulated. In the informed consent context alone, the state regulates a wide range of interactions between providers and patients. For example, the state mandates reading scripts about abortion and the fetus to patients, waiting periods between patient counseling and abortion services, displaying ultrasounds to the pregnant woman, discussing negative psychological consequences of abortion, and performing transvaginal ultrasounds. In some jurisdictions regulations also require that the physician display ultrasounds and sonograms and that the woman must look at the image unless there is a “look-away” exception in effect. In other words, these laws seek to regulate the physical movement of the woman and her physician in the clinic. In acknowledging this high level of regulation, anti-choice activists have effectively worked to shift the clinical environment by shaping the information physicians give to their patients. Progressives should mobilize regulatory interventions to further liberalize access to abortions. This counter strategy will not be based on a belief that evidence-based approaches will lead to determinate outcomes, but rather will find its foundation in feminist skepticism towards knowledge production.

A return to feminist skepticism necessitates a consideration of how feminist organizing related historically to ideas of medical expertise and evidence.

The feminist women’s health movement began in the 1960s and 1970s, and was premised on second-wave feminist ideas. In short, and at the risk of understating the movement’s complexity, feminist women’s health activists saw scientific knowledge as knowledge by and about men. The feminist women’s health movement was pivotal in generating expert knowledge of women’s bodies and women’s health. Women’s health activists historically mobilized two simultaneous and contradictory positions in the context of advocating for greater attention to women’s health issues. First, there was the position that the establishments that produce knowledge about health are not objective. Instead, these knowledge producers—scientists, doctors, and epidemiologists—exist in patriarchal structures that conceptualize health through the male body. The activists promoted a politics of “difference and inclusion,” and women sought to be included in medical research and knowledge. Second, paradoxically, women’s health activists appeared to support the idea that knowledge could be objective, as long as it was inclusive of women. In other words, at its root, the women’s health movement did not seek to undermine entirely the institutions against which they fought. The activists primarily sought to make medical and scientific knowledge more complete, more thorough, and more accurate. The women’s health movement sought to do so as it engaged with the various disciplinary streams of science, medicine, and epidemiology. In arguing for the inclusion of women’s bodies in scientific and medical research as a means to get accurate information about women’s health, feminist health activists reified the idea that scientific evidence can be produced in an objective, neutral manner. This was so even while the very act of challenging the public health, medical, and scientific establishments through legal and broader activism signaled an underlying distrust in the ability of these institutions to produce objective and determinate knowledge.

There are several oft-cited victories of the women’s health movement, including the liberalization of abortion law. First, there was Roe v. Wade. While the women’s health movement advocated for abortion, Roe marked an important moment in which the broader feminist sex-equality movement took up the women’s health agenda. Other major victories came in the realm of HIV and at the National Institutes for Health (NIH) in the 1990s. In 1993 Congress passed the NIH revitalization act, which required the inclusion of women and minorities in all NIH-funded research. In the 1990s feminist lawyers also demanded the inclusion of female-specific identifiers amongst the list of AIDS defining illnesses. This became another feminist victory when the Centers for Disease Control amended its list to include female-specific AIDS defining illnesses.

A deeper critique of evidence and expertise began as post-modernist strains of feminist engagement took hold amongst feminist activists and scholars. The post-modern turn inside of the women’s rights movement questioned the objectivity and determinacy of science itself. Would the inclusion of women’s bodies result in a more rigorous knowledge of women’s bodies? Or, must the production of knowledge itself be deconstructed? Feminist philosopher of science Donna Haraway famously critiqued the idea that there is a privileged view of science. This move in feminist understandings of science, the move toward seeing the knowledge produced from studies as “situated” and open to critique, would subject even the most inclusive studies to interrogation. Although the internal feminist debates continue, two key lessons can be extracted from the posture of feminist health activists towards knowledge production that can continue to shape the contemporary women’s health movement. First, the production of knowledge itself is situated. We cannot treat medical evidence and expertise as inherently objective and neutral. Second, we should interrogate the institutions that engage in the production of knowledge about women’s health including courts and clinics. Revisiting these feminist critiques provides a new way forward for the reproductive justice movement and for rethinking abortion advocacy.

B. Rethinking the Strategy for Reproductive Justice: Regulatory Reform Proposals

Contemporary feminist health activists seem reticent to accept the thesis that feminists historically championed in the context of feminist health advocacy: that evidence is the product of the social and political environment from which it emerges—and law plays a role in shaping this evidence. Similarly, rather than view institutions—for example, hospitals—as products of legal regulations informed by the political evidentiary landscape and thus central to the attainment of reproductive justice, feminists today view institutions and the individuals that comprise them as capable of functioning apolitically and neutrally. I argue that a new vision of reproductive justice must recognize the clinical space as highly regulated and work to shape it for progressive purposes. We must take into account how knowledge, when created and deployed, orders access to abortion.

Unlike feminists, anti-choice activists have become incredibly effective at regulating the doctor-patient relationship in the abortion context. Coded in the language of safety and risk, the informed consent regulations and the shifting evidentiary base on mental health and abortion show a deep understanding operationalized by the anti-choice movement—that institutions, expertise, and evidence can be influenced from the inside out. The resistance of feminist legal activists to truly deconstruct the political formations that comprise institutions has undermined the reproductive justice movement.

Understanding that institutions, such as clinics, are shaped by regulations provides the necessary foundation for a new reproductive justice framework. This understanding moves us beyond thinking that a clinic in any way can be a regulation-free zone. Further, it requires us to pay attention to how regulations of institutions are justified through the invocation of medical and scientific expertise and knowledge. Perhaps most demanding, it requires us to see how the law is not necessarily driven by evidentiary claims, but rather helps produce them.

By viewing the sites of abortion and other pregnancy-related services as structured by the regulatory environment, we can rethink the reproductive justice strategy with regard to regulation. This view challenges the feminist refrain: “between a woman and her doctor.” That refrain seeks to establish a zone of privacy in the medical clinic or hospital setting in which women can get information about abortion free from politics. Abortion rights activists, for example, critique abortion “scripts” on the ground that they interfere with the sanctity of the space between women and their physicians. It is necessary to dismantle the idea of public/private divide that is built into this conception of the physician-patient relationship. Dismantling this dichotomy is crucial because it animates political projects and underpins legal strategy while foreclosing the possibility of social and regulatory reforms that will enable access to abortion services.

Instead, advocates can derive legal reform strategies by viewing the clinic as a highly regulated space. New strategies for reproductive justice could not only counter pro-life regulations but could also make the clinical environment safer for women seeking abortion. Conceptualizing the clinic as a space that can be regulated generates a range of legal strategies that are otherwise foreclosed by the current ironic feminist faith in institutions as neutral, objective, and apolitical.

New regulatory interventions designed to improve abortion access could build out of the current political, regulatory, and evidentiary climate. These suggestions are not foolproof. They may even fail given our current political environment, in which courts are arguably more conservative, medical evidence and expertise supporting a progressive perspective has been destabilized by counter literature, and anti-choice groups wield enormous amounts of financial and political power. They are worth considering, however, because these suggestions move the reproductive justice movement head on into the regulation debates.

I propose three suggestions for regulatory intervention. First, states could mandate disclosure by all pregnancy-related providers of the types of services that are available—including whether abortions are available and accessible at the given facility. This mandate will target non-abortion providers, such as Crisis Pregnancy Centers (CPCs), who misleadingly suggest that abortions are provided in order to draw women in and then dissuade them from getting an abortion. Second, progressive activists could offer modified scripts for providers given the contested domain of “facts” regarding abortion. Third, states could mobilize their health care licensing regulations to regulate all abortion counselors (borrowing from a successful strategy to improve HIV counseling and care). These recommendations move the focus of abortion legal advocacy away from privacy, towards regulation as a new way of addressing access to abortion services. This new focus on regulation avoids wading into the newly controversial territory of medical evidence and informed consent. Given the political and social context in which abortion lawmaking occurs, one cannot guarantee that these strategies would necessarily withstand the scrutiny of a court or public ideologically opposed to abortion. The strategies do, however, take into account the concerns raised by this paper about the Court’s treatment of medical evidence and expertise.

1. Mandatory Disclosure of Services for All Pregnancy-Related Service Providers—Including Those That Do Not Provide Abortions

The first proposal is to make mandatory the disclosure of available (and non-available) services at all facilities providing pregnancy-related services. This proposal builds on ongoing advocacy.

Women seek abortion-related services in clinics or in abortion specific servicing centers. These can include a hospital or a stand-alone abortion clinic. CPCs are pregnancy service providers that do not provide abortion despite the misleading nomenclature of “crisis pregnancy center.” CPCs are designed to look like abortion clinics but have the goal of deterring women from abortion through “pro-life” counseling. In this manner, the CPCs are actually roadblocks for women attempting to access abortion services.

The existence of clinics that provide services and are forced to disclose state-mandated information about abortion, alongside CPCs, creates a confusing environment, where it may be difficult for women seeking to end pregnancies to navigate their options. Reproductive health and justice organizations are reticent to join the battle over regulating provider speech fearing that it would backfire. This concern is now outdated—regulations, including informed consent standards, largely operate to block abortion access. To counter this, progressive health lawyers should propose regulations that mandate physicians and service providers to disclose services provided to enable access to quality abortion care. For actual abortion providers, this would mean stating to women that an abortion can be obtained at the facility. For CPCs, this requirement would mandate clarifying that abortions will not be provided.

This proposal addresses the concerns raised by this paper by sidestepping the debate on medical “facts” that has produced conservative victories, and instead focusing on making clinical and provider environments transparent to the women accessing services.

2. Offer Moderated Language on Abortion Consequences

Aware of the politics of the “facts” in the abortion context, a second strategy is to offer a moderated statement of abortion’s potential consequences rather than the current script that is meant to scare or dissuade women from abortions. For example, in accordance with the Texas WRKA, a woman is offered the following information in a booklet:

You should know that women experience different emotions after an abortion. Some women may feel guilty, sad, or empty, while others may feel relief that the procedure is over. Some women have reported serious psychological effects after their abortion, including depression, grief, anxiety, lowered self-esteem, regret, suicidal thoughts and behavior, sexual dysfunction, avoidance of emotional attachment, flashbacks, and substance abuse. These emotions may appear immediately after an abortion, or gradually over a longer period of time. These feelings may recur or be felt stronger at the time of another abortion, or a normal birth, or on the anniversary of the abortion.

In contrast, guidelines from the United Kingdom Royal College of Obstetrics and Gynecologists (RCOG), provide that “[w]omen with an unintended pregnancy should be informed that the evidence suggests that they are no more likely to suffer adverse psychological sequelae whether they have an abortion or continue and have the baby.” Further, the guidelines instruct, “[w]omen with an unintended pregnancy and a past history of mental health problems should be advised that they may experience further problems whether they choose to have an abortion or to continue with pregnancy.”

While equivocal, the RCOG deemphasizes the shock value of the litany of consequences required by the Texas law. Further, given the current political environment, the RCOG moderates the pro-life assertions of gross harm post-abortion. Most importantly, the RCOG reports the current state of information on mental health without embellishment. A moderated script might also state clearly the politically contentious environment in which that abortion evidence is produced.

3. Regulate All Abortion Service Providers—Including Pregnancy Counselors

A final proposal would be to regulate all abortion counseling under health care or other licensing and regulation statutes. Currently, many individuals who provide private abortion-related counseling services are not deemed to be health care providers. Thus a vast amount of abortion counseling is not regulated and the individuals providing counseling are not licensed. Licensing, even when largely regulated by the profession, could have the effect of moderating extreme statements in the context of pregnancy services.

This is not a novel approach. HIV counseling guidelines, for example, may advise or require particular counseling and testing protocols. By defining “provider” broadly in the context of HIV testing, states have brought a range of actors under regulatory oversight. Similarly, broadening regulation of abortion counseling would bring CPCs into the purview of state control and oversight by public health agencies. This regulatory oversight may moderate the statements made by CPCs.

V. Conclusion

In order to see how the evidentiary terrain of abortion is legitimized, validated, and co-produced by the courts, we must analyze the political, economic, and social forces that structure courts and clinics. Reproductive justice and rights advocates must re-assess the reliability of public health, scientific and medical expertise as the basis for a determinate strategy for progressive abortion reform. In other words, progressive lawyers cannot presuppose the stability of public health, scientific, and medical expertise and evidence as a foundation for pro-choice activism.

Rethinking how our current knowledge environment shapes regulations in the abortion context requires us to look beyond clinics as a private space and towards the idea that the clinic is a vulnerable institution. Rather than decry the regulation of clinics, progressives should take up the regulation of provider-patient interaction with consideration of the current political and evidentiary climate. Progressive lawyers must think beyond “between a woman and her doctor” to reveal new strategies for improving abortion access.