The most important news for Texan women yesterday was that thanks to a federal judge, its abortion clinics will stay open–for now. The judge recognized that the admitting privileges provision of the Texas abortion law wasn’t based in any actual concern for women’s health, but was simply intended to close clinics. (There are still onerous regulations under the same law that have yet to be issued, also not based in medical necessity, and a higher court may well overrule the entire decision.) But not everything in the decision was cause for celebration.
Judge Lee Yeakel conceded that according to the weight of medical evidence, the off-label protocol for medication abortion is safe, and that the original FDA protocal is more “imposing and unpleasant.” Yeakel also didn’t buy that the law would improve women’s health or safety, implicitly acknowledging that the intent of the law is to limit women’s options and make abortion more complicated and painful than it needs to be. And then he said it was OK anyway. (Yeakel did leave the door open for doctors to use their discretion if a woman’s health was at stake, but it remains to be seen what that will mean in practice.) The Supreme Court has expressed interest in hearing a similar case out of Oklahoma; the Oklahoma State Supreme Court said today the medication abortion law amounts to a ban.
If you’re confused about how the state can get away with arbitrary, unscientific restrictions on women’s health that keep abortion legal but make it arduous to get, welcome to abortion politics in the courts. Below, some lowlights in the federal courts’ refusal to engage–or even acknowledge–medical evidence when that evidence is about a uterus.
Who needs “reliable data”?
The door to the Texas decision was opened by the Supreme Court in 2007 with Gonzales v. Carhart.
The court allowed a ban on a particular later abortion procedure without any exception for women’s health, on the grounds that it might make more women sad about having an abortion, and also because other procedures were still available.
Justice Anthony Kennedy famously wrote, “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.” Justice Ruth Bader Ginsburg retorted in her dissent that the majority “tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists.” She also pointed out that in passing the law, “Congress claimed there was a medical consensus that the banned procedure is never necessary…But the evidence ‘very clearly demonstrate[d] the opposite.’” The majority didn’t care.
What is scientific truth, anyway?
The Supreme Court has said the state can present a woman who wants an abortion with “truthful, nonmisleading information” designed to talk her out of it. Then South Dakota passed a law that forced doctors to tell women that abortion carried an “increased risk of suicide ideation and suicide”–not truthful or nonmisleading, at least if you look at the data, as the American Psychological Association did. But presented with this information, as well as the fact that studies suggesting a link were broadly discredited and/or contained willful bad math, the Eighth Circuit of Appeals threw up its hands.
“It is difficult to identify a solid objective basis for the criteria employed in these reviews to identify the ‘best’ studies,” they wrote. “We express no opinion as to whether some of the studies are more reliable than others; instead, we hold only that the state legislature, rather than a federal court, is in the best position to weigh the divergent results.” The law is now in effect in South Dakota, requiring doctors to give women… untruthful and misleading information.
The fetal pain myth
A systematic, multidisciplinary review of the evidence by the Journal of American Medicine found that a fetus doesn’t feel pain before the third trimester–the pretext for bans on abortion at 20 weeks, or about six weeks earlier than that. And the Supreme Court has repeatedly said you cannot ban abortion before viability. None of that mattered to Judge James Teilborg, who claimed there was “substantial and well-documented evidence that an unborn child has the capacity to feel pain during an abortion by at least twenty weeks gestational age. Defendants presented uncontradicted and credible evidence to the Court that supports this determination.” Uncontradicted? Definitely not the case. Credible? Not by any reasonable standard of medical evidence. Luckily, the Ninth Circuit of Appeals ignored that part and simply ruled the law unconstitutional.
Irin Carmon