On Thursday, June 13, the Supreme Court unanimously ruled in FDA v. Alliance for Hippocratic Medicine that plaintiffs, a group of doctors who oppose elective abortions, lacked standing to challenge the FDA’s regulation of the abortion medication mifepristone. The trial court judge originally suspended the FDA’s approval of mifepristone in an opinion that has been roundly criticized by the scientific and medical communities for cherry-picking outdated and inaccurate studies (some of which have since been retracted) while ignoring decades of evidence of safe use. While the Supreme Court did not address substantive issues raised by the case, Alliance for Hippocratic Medicine invokes a long-standing tension in the way courts use science in abortion litigation.
Abortion court cases often turn on questions that are part law, part science—questions such as when a fetus becomes viable or what constitutes a threat to the health or life of a mother. Litigation had increased since the Supreme Court overruled the half-century right to abortion in Dobbs vs. Jackson Women’s Health Organization.
Judges’ Reliance on Scientific and Medical Evidence
Judges receive no formal training in scientific and medical literacy and few students with STEM backgrounds attend law school. Yet, judges play central roles in gatekeeping what science gets brought into the courtroom and, eventually, into a judicial opinion. Rules of evidence (a standard set of federal rules that govern how criminal and civil cases are litigated) make judges the deciders of whether an expert witness will be a helpful and reliable source of facts for a jury.
And while judges are not supposed to engage in independent research, these standards are not obligatory in all states, nor do they apply when the judge is seeking out “general information” to decide matters of law and policy that are not specific to the parties in the litigation. For example, judges should not be permitted to use internet searches to find out personal details about a particular plaintiff or defendant in a court case. By contrast, researching well-established and uncontested scientific evidence, such as how fetal viability has been defined in the medical community over the last century, should be permitted under the rules of evidence. Ultimately, the quality of science and medicine examined in court hinges on the lawyers on both sides, their experts, and ultimately the judge.
Judges receive no formal training in scientific and medical literacy and few students with STEM backgrounds attend law school. Yet, judges play central roles in gatekeeping what science gets brought into the courtroom and, eventually, into a judicial opinion.
We recently examined whether there is any correlation between judges who rely on scientific and medical evidence and the outcomes they reach in judicial opinions about abortion. We examined all Supreme Court cases pertaining to abortion or birth control and addressed medical concepts such as medical necessity of abortions or fetal viability.
The vast majority of cases that cited scientific evidence expanded abortion rights.
One case relied on CDC abortion surveillance, medical textbooks and scientific articles to declare a state ban on partial birth abortion unconstitutional because the ban lacked an exception for the health of the mother. In contrast, almost all cases that failed to cite scientific evidence resulted in contracted abortion rights.
In a case where the Court upheld a federal ban on “intact” dilation & extraction (D&E) abortion procedures, the Court referenced no scientific and medical literature, instead deferring to politics, specifically a Congressional finding in the statute that “partial-birth abortion is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.”
Unique Cases that Cite Science and Restrict Abortion Rights
There were two outliers where the Court cited scientific evidence but contracted abortion rights. Notably, in Dobbs, Justice Alito cited scientific evidence, but that medical and scientific information was hundreds of years old. The Court took an originalist approach in interpreting of the law. This is an approach to constitutional and statutory interpretation where judges look for the meaning of law at the time the law was passed. In Dobbs, this left the justices looking to the state of medicine and science in the age of the Founding Fathers, rather than examining the medical evidence on abortion today. A second case ultimately upheld a number of abortion restrictions but limited its use of science to determining whether the law comported with standards of medical practice.
Women’s health advocates rightly may be skeptical of judges’ ability to interpret science in the abortion space, especially given the improper use of outdated or incorrect science in cases like Dobbs and Alliance. At the end of the day, judges are not scientific experts and decisions on medical care would ideally be left in the hands of patients and their medical professionals.
The vast majority of cases that cited scientific evidence expanded abortion rights. … In contrast, almost all cases that failed to cite scientific evidence resulted in contracted abortion rights.
Moving Forward With Evidence Based Abortion Science
Still, our findings suggest that when judges engage with modern medical evidence, abortion rights expand and when judges do not, abortion rights contract. Of course, our findings show only correlation, not causation. The failure of judges to appreciate science is likely not driving the current state of abortion law and policy. But since judicial involvement in abortions is likely here to stay unless Congress acts, judges making decisions with the aid of evidence based medicine and science is better than the alternative.
The open-mindedness of judges to consider science, and a willingness to learn, are important issues for people to consider when they take themselves to the polls.
This suggests important areas of focus in the future for advocates of women’s health. The education and training of lawyers and judges to understand and apply modern science and medicine to the practice of law is paramount. So too, greater involvement of medical and scientific experts early in abortion litigation may improve outcomes. Additionally, federal and state research on abortion issues is necessary to ensure sufficient evidence to inform law and policy.
But what can non-lawyers do about this issue? Remember that judges are often elected, and if not elected, then appointed by other elected officials. The open-mindedness of judges to consider science, and a willingness to learn, are important issues for people to consider when they take themselves to the polls. Bad science can be retracted, but court cases, once decided at the highest level, cannot.
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