by Jeremy Leaming
Federal and state judges are not immune to falling for dubious studies passed off as science when ruling against gay couples in marriage or adoption cases. Wobbly science backing up outlandish state restrictions on abortions is just as troubling, if not as common.
Salon’s Irin Carmon highlights a recent ruling by U.S. District Judge James Teilborg, appointed to the bench by President Clinton, to uphold an Arizona law that outlaws abortions before viability. It’s one of the few state laws to ban pre-viability abortions and Teilborg’s opinion runs counter to the U.S. Supreme Court precedent that forbids states from banning abortions before viability.
But beyond Teilborg’s failure to grasp precedent, Carmon notes his reliance on the “suspect science of ‘fetal pain,’ a first in the federal courts ….”
The ACLU and the Center for Reproductive Rights challenged the constitutionality of the Arizona law, but as Carmon notes did not delve into the suspect science because of the clear precedent on laws banning pre-viability abortions.
The judge, however, claimed that there is “substantial and well-documented evidence that an unborn child has capacity to feel pain during an abortion at least 20 weeks gestational age.”
Carmon notes that leading medical organizations, such as the Journal of American Medical Association and the Royal College of Obstetricians have found otherwise.
That ruling, which can be appealed to the U.S. Court of Appeals for the Ninth Circuit, follows a recent one from a federal appeals court upholding a South Dakota law that orders physicians to tell women seeking an abortion that abortions cause an increased risk of suicide and suicidal thoughts. The U.S. Court of Appeals for the Eighth Circuit claimed there is “extensive evidence” of such risks.
But two Eighth Circuit judges who dissented in an earlier opinion in the case sharply challenged such evidence.
Circuit Court Judge Diana E. Murphy wrote, “The record clearly demonstrates, however, that suicide is not a known medical risk of abortion. Suicide is caused instead by factors preexisting an abortion such as a history of mental illness, domestic violence, and young age at the time of pregnancy.”
Planned Parenthood’s Sarah Stoesz told Bloomberg, “Every reputable researcher and medical organization has determined that there is no sound scientific evidence that shows a cause and effect relationship between abortion and suicide.”
Instead of respecting precedent, or rejecting pseudoscience, these judges have helped propel for the moment a ramped-up effort by a slew of states to dictate the healthcare concerns of women. Over the past two years states controlled by rightwing policymakers have enacted onerous restrictions on abortion. Several states have implemented laws forcing women to undergo invasive ultrasounds or sit through state-mandated lectures on the supposed dangers of abortions, such as South Dakota’s crackpot claim that abortion heightens the possibility of suicide.
During an ACS Convention, former Solicitor General Walter Dellinger took a shot at heavy-handed efforts by the states to take apart reproductive rights. Dellinger’s comments were given in the context of a discussion about the Obama administration’s landmark healthcare reform law, which requires some people to obtain health care insurance starting in 2014.
“It is really ironic and disturbing to hear that liberty lecture come from people talking about [a] government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods, government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures,” Dellinger said.
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