Medical Evidence and Expertise in Abortion Jurisprudence
American Journal of Law and Medicine, Vol. 41, No. 1, pp. 85-118 (2015)
This paper examines a key but under theorized question in constitutional law: what is the role of medical evidence and expertise in abortion jurisprudence? Drawing on landmark cases from 1973 to 2012, the article shows how the Supreme Court has selectively utilized medical expertise to liberalize or constrain abortion access. The article demonstrates how the Supreme Court began its engagement with medical evidence and expertise with the intent to liberalize abortion and in turn relied on progressive expertise as authoritative, objective, and neutral. These early decisions allowed liberal advocates to rely unquestionably on medical evidence to provide satisfactory judicial outcomes. This has now flipped – the Supreme Court and lower courts often treat conservative medical evidence and expertise as objective and neutral. In doing so, the courts support conservative claims about the impact of abortion on women’s mental health and on the fetus. These newly legitimated facts provide the foundation for the vast proliferation of informed consent laws that attempt to regulate physician-patient interaction at the most minute level – mandating that women look at sonograms, making physicians read scripts, and playing the fetal heartbeat to the woman. This new reality is exemplified in Texas Medical Providers v. Lakey, the Texas Case regarding the Texas 2011 Women’s Right to Know Act, in which the court heralds conservative rationales as objective medical knowledge and discounts progressive advocates and physicians claims that conservative medical claims are ideological. Given this transformation in the use of medical evidence and expertise, I argue for a reworking of progressive lawyering strategies on the issue of abortion that delinks legal advocacy from its reliance on “evidence based approaches.” This is a novel, transformative, and controversial recommendation in constitutional law, public health law, and reproductive rights advocacy and practice.