While state legislators are passing an ever growing number of laws restricting women’s access to abortion, it’s increasingly up to the courts to decide if and how these laws are enacted. Indeed, the Supreme Court decision on Whole Woman’s Health v. Hellerstedt, due any day now, has the potential to change the landscape of abortion provision and access across the United States.
The case examines the constitutionality of Texas House Bill 2, which threatens to permanently shut down approximately 26 of Texas’ 36 abortion clinics by imposing ambulatory surgical center requirements and requiring all abortion providers to have admitting privileges in hospitals no more than 30 miles away from their practice. Central to the case before the Supreme Court is the argument that, despite legislators’ claim that the law protects women’s health, there is mounting evidence that ambulatory surgical center and admitting privileges requirements do no such thing.
The current legal standard for evaluating the constitutionality of an abortion law is to examine whether the law in question places an “undue burden” on women. You might assume that there is legal agreement on what exactly constitutes undue burden, but, there isn’t. As my colleagues and I found in our review of 70 federal and district court cases, courts substantially disagree over the role that evidence should play in determining whether a law places an undue burden on women.
In 2014, before HB2 was taken to the Supreme Court, the 5th U.S. Circuit Court of Appeals (which holds jurisdiction over the Mississippi, Alabama, and Texas district courts) heard a challenge to HB2’s admitting privileges requirement. Rather than ask for supporting evidence or question the lack of evidence submitted in arguments, the court accepted the state’s unsubstantiated opinion that this law would protect women’s health. The court also asserted that “rational speculation unsupported by evidence or empirical data” is all that is required to enact a law.
Similarly, when an earlier iteration of the “Whole Woman’s Health” case was heard by the 5th Circuit, the court flagrantly ignored the legal precedent of the “undue burden” and again distanced itself from the evidence of harm imposed by HB2 on women, stating, “In our circuit we do not balance the wisdom or effectiveness of a law against the burdens the law imposes.”
When courts weigh what I call “romantic paternalism” over facts, especially where empirical evidence does exist, dignity and equality — norms that courts are expected to protect and uphold — become imaginary concepts. Romantic paternalism rests on the idea that unsubstantiated ideology about what is “good for women” is equally as important as actual evidence.
Luckily, not all courts approach evidence as the 5th Circuit has. In fact, in another admitting privileges case in Wisconsin, the 7th Circuit (which holds jurisdiction over the district courts of Illinois, Indiana, and Wisconsin) embraced the review of public health and medical data, asserting that “the feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’…”
In total, our review of existing cases reveals that even when courts consider empirical evidence, they don’t necessarily understand the evidence or incorporate it into their rulings.
As a researcher, it’s frustrating to see evidence so flagrantly ignored.
Evaluating the effects of abortion
We also found that when courts do review empirical evidence on the effects of abortion, they often do not distinguish between studies of varying degrees of quality.
For example, in a ruling from the 8th Circuit (which holds jurisdiction over the district courts of Arkansas, Minnesota, Iowa, Missouri, Nebraska, North Dakota, and South Dakota) that reviewed evidence on the risks of suicide and suicide ideation following abortion, the court found fault with a systematic review — which found that women who have abortions are no more likely to experience mental health problems than women who give birth — for not being an analysis of new data. This contradicts the common understanding that systematic reviews often provide stronger evidence than individual studies. At the same time, research that compared the prevalence and odds of suicide following abortion, miscarriage, and birth but did not control for potential confounders was endorsed by the court as evidence of an increased risk of suicide following abortion. However, in the paper itself, the study authors express concern that their findings may have been spurious.
At another point in the ruling, several additional studies that found correlations between abortion and suicide are incorrectly described by the court as having found increased relative risks of suicide among women following abortion, compared to women who gave birth or were never pregnant. Perhaps these mistakes represent the confusion that some judges experience when faced with information from another discipline, or perhaps they represent a general disregard for science, especially when it comes to an issue that so many people view in ideological terms. Either way, it’s important to understand the role that evidence on the effects of abortion continues to play in court rulings, and advocacy and communications groups need to ensure that public health methods and findings are appropriately understood and utilized by the courts.
Evaluating the impacts of restrictive laws
While our analysis points to a lack of fair consideration by courts of facts about the effects of abortion, we did find that a number of rulings have reflected the best evidence. Increasingly, data on the increased cost, wait times, travel needs, and distance associated with getting an abortion in settings regulated by restrictive laws are being considered when determining whether a law poses an undue burden on a woman. In the 7th circuit Wisconsin decision, Judge Posner included a map depicting the distances that women would have to travel to get an abortion following the closure of a clinic in the middle of the state, a hardship which would have been necessary if the state’s admitting privileges law been allowed to take effect.
Historically, evidence demonstrating abortion delays and other burdens resulting from restrictive laws has not been considered a violation of a woman’s right to abortion, and, as our analysis indicates, some courts continue to take that approach. However, the good news is that a growing number of district and circuit courts are prioritizing data on the effects of abortion laws in their rulings. When Whole Woman’s Health v. Hellerstedt reached the Supreme Court in March, oral arguments began with questions about the evidence that clinic closures in Texas are the result of HB 2. If this is any indication of what is to come, we can expect new standards to emerge from this case.
Public health researchers, practitioners and activists have an important role to play ensuring that evidence-based research does not remain in the realm of scholarship only, but is considered by legislatures and the courts and used to improve the real lives of individuals.
Emily Maistrellis, MSc, is an experienced public health and social science researcher in the fields of sexual and reproductive health and rights.