University of Chicago Law School
The COVID-19 pandemic, and the overturning of Roe v. Wade,1 has intensified the fight for access to medication abortion. 2 As state governors put emergency orders into place limiting health care provisions to essential services, some also limited access to abortion, designating it a nonessential service. 3 In the face of these challenges, women's health advocates, in keeping with prior advocacy, have called for greater access to medication abortion.4 The increased reliance on telemedicine during the COVID-19 pandemic provides new possibilities for the provision of abortion medication that do not rely on a patient engaging in-person at a clinic for a physician's visit or to pick up medication. 5 While feminist health advocates and physicians began to advocate for a change in FDA rules that would allow for the provision of medication abortion via telemedicine, conservatives demanded the opposite: that the FDA enforce existing and unnecessary regulations on medication abortion and pass laws to ban medication abortion via telemedicine. 6
In tracking these recent fights, and in conversation with a growing literature on law and expertise,7 I argue that conservative and progressive advocacy over medication abortion are windows into how courts legitimize and delegitimize different types of expertise in the service of political goals. Courts deploy arguments about expertise to lay the groundwork for a separation of powers analysis and institutional arguments about when they should act vis-a-vis as administrative agencies. By relying on a tried and true mode of institutional reasoning, these arguments help the court retain the perception of neutrality. 8 Yet, even as courts purport to act in a neutral manner, their decisions have the capacity to legitimate the claims of some experts over others and impact the ability of people to access abortions. I argue in this essay that, in the aggregate, like the law, these expert claims form the background norms and assumptions that shape how we believe abortion should be regulated. It is important to acknowledge the politics of expertise, how it is deployed for the sake of institutional preservation, and the way expertise and law are co-constitutive. Seeing expertise as situated and operationalized for political and distributional gains could allow reproductive rights advocates the ability to open up new doors for political advocacy and help advocates remain agile to the use and deployment of legal arguments rooted in expertise.
This paper proceeds as follows. First it will set the stage for our cotemporary moment by telling the political history of medication abortion. Then the paper will turn to contemporary debates on medication abortion as they have played out in the courts in the context of COVID19 with a focus on how expertise has been mobilized to advocate for and against access to mifepristone. Finally the paper will offer a new way to begin to think about the co-constitutive relationship between law and expertise in the medication abortion context. Understanding the interaction of law and expertise in the context of abortion is important for understanding how the court deploys expert ideas to arrive at holdings that have specific political and material distributional consequences.
University of Chicago Legal Forum
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3491