Science Disputes in Abortion Law

I. IntroductionDisputes over science to justify law or policy are rife in bioethical settings, as they are in many areas of law. Abortion is an especially fertile ground for such disputes. The medical context makes science relevant, and both sides in the abortion debate are strongly motivated to seek scientific support for their positions. Abortion law provides yet another occasion to examine how legal institutions develop procedures for resolving differences among experts and determining the role of scientific claims in justifying law and policy.Initially, the abortion debate concerned whether fetuses were living human beings. Opponents of abortion appealed to the science of biology, which showed that fetuses are indeed human, living, and individual. However, this biological fact did not mean that they are persons within the protection of the law.1 Here the science is not in doubt-all agree that the fetus is individual, living, and human. What is contested is whether biological status in itself confers the moral and legal rights of human persons, a distinctively nonscientific question. The Supreme Court\u0027s answer since 1973 has been consistently \"no.\" Rights as persons do not attach until a live separation from the pregnant woman. A state may choose to protect fetuses after viability, but this accords them no constitutional status as persons.Rather, the scientific disputes of concern arise from government efforts to restrict abortion in ways other than direct prohibition. These efforts arose after Planned Parenthood of Southeastern Pennsylvania v. Casey2 reaffirmed the essence of Roe v. Wade3 but opened the door to a variety of other regulations. Gonzales v. Carhart,4 in upholding a federal ban on partial-birth abortions, gave further impetus to a restrictive regulatory strategy. The resulting laws, sometimes referred to as Targeted Regulation of Abortion Providers (TRAP) laws, have used medical and social-science claims about the health effects of outpatient abortions, the need for fully informed consent, the effect on women who have to travel far to obtain abortions, the safety of medication abortions, the neurological development needed to experience pain, and the like to support their restrictions on abortion. Sometimes there are studies available, but they may report correlations, case reports, or observations rather than statistically significant scientific findings often used in environmental, criminal justice, or drugapproval contexts. Legislators and courts, however, may treat such data as if it had that authority.Regardless of the reliability of the data, scientific disputes in abortion law involve conflicts about fact-based restrictions on abortion when there are different expert views of what that medical or social-science data show. Those desiring to restrict abortion must first persuade legislatures to accept their view of the relevancy of the \"science\" which they proffer. If strictures are passed, the battle usually shifts to the judicial arena, where courts are then pressed with determining the accuracy or relevancy of the science as presented by experts on either side.The role of courts dealing with abortion challenges is not simply to act like a science court or peer advisory group to pronounce on what is the best or most accurate view of the facts. Rather, it is to answer the specific legal questions that frame and limit the judicial role in assessing those facts. The relevancy of the science will depend on the specific legal questions raised by the challenge. Depending on the statute at issue, the evidence presented, and the relevant legal standard, weak science may be sufficient to uphold a law that many expert observers believe is highly questionable on scientific grounds. Changing constitutional standards, such as a more precise elaboration of the undue burden test or rethinking the viability line, may shiftthe weight accorded to one set of experts and the standard of validity that the science must meet. …