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Sage Publications, Inc.




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, 4 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. 5 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.

...This paper proceeds as follows. Part II analyzes four crucial Supreme Court decisions, Roe v. Wade, Planned Parenthood v. Casey, 18 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.19 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.

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