This week, a panel of the 8th U.S. Circuit Court of Appeals blocked North Dakota’s so-called fetal heartbeat bill. At first glance, this appears to be a clear victory for abortion rights. The statute—one of the strictest abortion bans in the nation—prohibited, with narrow exceptions, abortions as soon as a fetal heartbeat is detected, which is often six weeks post-fertilization, sometimes before a woman knows she is pregnant. The law had been pushed through by a Republican state legislature in 2013 but was almost immediately blocked by a federal district court, which found that it clearly violated the constitutional protections afforded in Roe v. Wade.
Roe established that abortions were permissible pre-viability (currently at about 24 weeks into a pregnancy). As the district court originally determined two years ago, “[a] woman’s constitutional right to terminate a pregnancy before viability has consistently been upheld by the United States Supreme Court for more than forty years since Roe v. Wade.” The district court also determined that “H.B. 1456 clearly prohibits pre-viability abortions in a very significant percentage of cases in North Dakota, thereby imposing an undue burden on women seeking to obtain an abortion.”
The North Dakota legislation was openly styled as a challenge to the continued legitimacy of Roe. Republican Gov. Jack Dalrymple expressly described the law as “a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade.” MSNBC’s Steve Benen described this whole enterprise as North Dakota taxpayers “financing an experiment of sorts—the state would create a dubious law, knowing it would likely fail, as a political test.” Had the law gone into effect, it would also have probably resulted in the closing of the state’s last abortion clinic, the Red River Women’s Clinic in Fargo. It can now be appealed to the full 8th Circuit or on to the Supreme Court.
Most news accounts noted that the federal appeals court permanently struck down the heartbeat law because the three-judge panel arrived at a similar conclusion to the district court: “Because there is no genuine dispute that [North Dakota’s law] generally prohibits abortions before viability—as the Supreme Court has defined that concept—and because we are bound by Supreme Court precedent holding that states may not prohibit pre-viability abortions, we must affirm the district court’s grant of summary judgment to the plaintiffs.” Some accounts also pointed out that the Red River Women’s Clinic can now remain open and that challenges to several 20-week abortion bans are working their way through the courts.
Oddly, what virtually all accounts of the ruling left out was the lengthy section in which the three federal appeals court judges—using a clutch of affidavits and statements and strongly worded declarations—urged the Supreme Court to overturn Roe, since the Court of Appeals could not.
The resulting opinion is a sort of paean to states’ rights and to bad science. It is an astonishing document to emerge from a federal appellate court. The Court of Appeals—contending that both Roe and Planned Parenthood v. Casey have been seriously weakened by the Supreme Court—first bemoans the fact that “the Court has yet to overrule the Roe and Casey line of cases. Thus we, as an intermediate court, are bound by those decisions.”
The original claim proffered by the state of North Dakota was that an unborn child is “viable” from conception, because in vitro fertilization “allow[s] an embryonic unborn child to live outside the human uterus (womb) for 2 - 6 days after conception.” The 8th Circuit reluctantly determines that “we agree with the district court that [this] definition of viability differs from the Supreme Court’s and thus does not create a genuine dispute as to when viability occurs.” Plaintiffs win.
But then the court appends a lengthy discussion onto the opinion, explaining to the Supreme Court that “good reasons exist for the Court to reevaluate its jurisprudence” from Roe and Casey. And the reasons appear to be as follows:
The Court’s viability standard has proven unsatisfactory because it gives too little consideration to the “substantial state interest in potential life throughout pregnancy.” … By deeming viability “the point at which the balance of interests tips,” the Court has tied a state’s interest in unborn children to developments in obstetrics, not to developments in the unborn.
The appeals court concedes that “the Supreme Court has posited there are ‘logical and biological justifications’ for choosing viability as the critical point” but then insists that “this choice is better left to the states, which might find their interest in protecting unborn children better served by a more consistent and certain marker than viability. Here, the North Dakota legislature has determined that the critical point for asserting its interest in potential life is the point at which an unborn child possesses a detectable heartbeat.” And then the appellate judges go on to scold, federalismishly: “To substitute its own preference to that of the legislature in this area is not the proper role of a court.”
The court then turns to “declarations from women who have had abortions” in order to debunk the central tenets of Roe and Casey. These declarations include claims that “women may receive abortions without consulting the physician beforehand and without receiving follow-up care after, that women may not be given information about the abortion procedure or its possible complications, and that the abortion clinic may function ‘like a mill.’ ”
There’s more. The court cites a declaration from an obstetrician who contends that “coercion or pressure prior to the termination of pregnancy occurs with frequency.” And that “one woman declared her husband threatened to kick her out of the house and take her children away forever if she did not abort a pregnancy that was the product of an affair.”
Despite (and without reference to) years of scientific research showing that such claims are flatly untrue, the court goes on to bemoan the regrets of the women who abort without the state stepping in to stop them: “One woman reported that ‘[t]he negative effects of my abortion resulted in ten years of mental and emotional torment.’ … Another reported she ‘suffered for years from depression, anxiety, panic attacks, low self esteem’ and ‘suicidal ideation.’ ” For good measure the court notes that the same state expert who alleged that viability begins at conception “also explained some studies support a connection between abortion and breast cancer.”
Finally, the appeals court feels impelled to note that both Norma McCorvey, the “Jane Roe” of Roe v. Wade, and Sandra Cano, the “Mary Doe” of Doe v. Bolton, came to regret their abortions.
For readers of the opinion wondering where, if anyplace, actual medical science appears in this symphony of assertions and debunked feints at science, well, the answer is, nowhere. There are no citations to the myriad serious studies debunking claimed links between abortion and breast cancer, showing no links at all between the two; data exhaustively marshaled by the National Cancer Institute, the American Cancer Society, and the American College of Obstetricians and Gynecologists, all of which have refuted this association. Similarly, there is no data on the debunked claims about links between abortion and suicide and suicidal ideation or the myth of rampant “post-abortion syndrome.” It’s nowhere. This judicial opinion is where actual clinical science and testing have gone to die. The shorter version of this opinion could simply be titled, “I know a guy who had a cousin, and this happened to her friend.”
As Jessica Mason Pieklo was quick to point out about the court’s argument that medical and scientific advances should force a re-examination of Roe: “This is a particularly audacious argument to make in the face of the ongoing and heavily orchestrated smear campaign against Planned Parenthood’s biomedical research. The advances in medical and scientific technology that have ‘greatly expanded our knowledge of prenatal life’—so that infants born at 23 weeks can sometimes survive, for example—are possible thanks to fetal research like the kind under attack in the anti-Planned Parenthood campaign happening now.”
Last winter Kathryn Kolbert, who argued Planned Parenthood v. Casey in 1992, pointed out in Slate that one of the nation’s foremost experts on “post-abortion syndrome” had not only been widely discredited in the trial courts but had actually been caught in the Texas abortion clinics case improperly coordinating with other experts putting forth the same discredited junk science in the Texas case; and that “four of the state’s five expert witnesses were forced to change their testimony on the stand when confronted with emails showing they had lied about who had written their reports.”
This is about so much more than the willingness of courts to accept discredited science as fact: As Kolbert wrote at the time, “We may live in an age of anti-science, in which scientific consensus on issues like climate change or the safety of vaccinations does little to move the public. But courts are tasked with evaluating evidence and credibility. They must not shirk that responsibility by simply saying experts disagree when ‘someone in the world’ disagrees with the consensus among experts.”
What the 8th Circuit panel did yesterday goes far beyond admitting evidence from a discredited “expert” or two, willing to testify to conclusions that have been long debunked by serious scientific and medical organizations. This court actually used that faux science—without testing or weighing it or even allowing it to be evaluated at trial—to advance their argument that Roe and Casey are bad law because they just don’t like them. They would just take the assertions of “one doctor” and “one woman” as proof that abortions are bad and states should regulate them however and whenever they see fit. For all their alleged faults, Roe and Casey represented judicial attempts to calibrate the complex and competing interests of medical science, state interests, pregnant women, and the unborn fetuses they carried. They were not a series of Post-it notes from one side of the abortion debate.
Nobody disputes that a case testing the core holdings of Roe and Casey is headed to the Supreme Court. But if we are going to revisit the concepts of “viability” and “undue burdens” and what it means to shutter the last clinics in state after state, let’s hope that the justices at least rely on facts and evidence presented in actual trials, and not just the booming soundtrack of judicial distaste.