Partial Birth Abortion and Scientific Uncertainty

Although my area of research is primarily environmental law, I also explore how lawmakers deal with scientific uncertainty. And so the recent decision in the consolidated partial-birth abortion cases of Gonzales v. Carhart (05-380) and Gonzales v. Planned Parenthood (05-1382) really interests me.

In these cases, Justice Kennedy states that “when medical uncertainty persists . . . The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Accordingly, the Court deferred to Congressional findings in 2003 that partial-birth abortion is never medically necessary. While this is definitely a blow for advocates of abortion rights, I can’t say (without further deeper reflection) that I automatically disagree with this approach, in which the majority deferred to Congressional findings, albeit not “uncritically.” This approach, after all, affects many areas in which Congress has made decisions to regulate in the face of scientific uncertainty, including environmental and health regulation. For example, how much can the presence of scientific uncertainty allow Congress to authorize agencies to protect the environment under the Commerce Clause?

The key, though, is how this “not uncritical” examination plays out in the future, and how “uncertainty” is defined. How much medical disagreement is necessarily to overcome a Congressional finding? If the bar is too high–which it could be, given how one could argue that all of science is “uncertain” and “unstable” to some extent–then Congress is free to entirely ignore scientific determinations. Yet if the bar is too low, then Congress would be unable to act in the face of predicted, yet “uncertain” risks.

What I would have liked to have seen, therefore, is a more thorough delineation of the nature of uncertainty and degrees of uncertainty, setting out ways for courts to inquire into its legal existence, which of course could be distinct from its epistemological existence. (This, by the way, seemed incomplete in the global-warming case of Massachusetts v. EPA as well.) Instead, it’s treated as almost an on-off thing, rather than recognizing degrees (and kinds) of uncertainty.

I would also like to have seen some recognition that scientific findings and legal findings are often intermingled. As many scholars observe, much of the science at issue in legal decisions involve “trans-scientific determinations”–determinations that involve both scientific and policy components. Because of this, a judicial determination could go either way depending on whether you look at a given determination as scientific, or legal (despite the presence of both elements). On one hand, you’ve got courts deferring to Congress when it “act[s] in areas fraught with medical and scientific uncertainties,” but you’ve also got the canon that courts apply (somewhat inconsistently) to construe statutes to avoid constitutional risks–which also involve areas of uncertainty, albeit legal uncertainty. And so without delineating how you “tell” what counts as science (for legal purposes) or law (for legal purposes), you end up with a situation where the rule of deference that one applies (or doesn’t apply) will depend heavily on a standardless characterization of the nature of a determination.

Anyway, I’m still thinking this through! So I’d really appreciate further thoughts and suggestions!

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14 Responses

  1. David says:

    I haven’t read the decision, but it seems to me that scientific uncertainty would counsel in favor of the dissent in this case. If it’s “uncertain” whether there are or will be medical situations where a late-term abortion is medically necessary for the health of the mother, isn’t it within her zone of privacy rights to allow her *doctor* to make that decision, rather than Congress?

    In other words, isn’t Kennedy’s statement an admission that the Congressional findings that late-term abortions are never medically necessary isn’t strictly true, because of the medical and scientific uncertainty in the area? How can Congress have more certainty than science?

  2. Steph says:

    In other words, isn’t Kennedy’s statement an admission that the Congressional findings that late-term abortions are never medically necessary isn’t strictly true, because of the medical and scientific uncertainty in the area?

    I think that question raises the same concern that I raised in my initial post–the treatment of “truth” (and certainty) as a binary thing: either true or not true. Suppose Congress were to enact a new environmental statute in an area where scientific knowledge is developing but isn’t certain, and there are Commerce Clause concerns raised. Would upholding it on grounds of deference to Congress in areas of scientific uncertainty mean an admission that the scientific basis isn’t “true”?

    I see what you’re suggesting, though; that privacy rights should trump when the science is uncertain. Is a reasonable restatement? My concern is that similar arguments get raised in the Commerce Clause context in the reverse: that rights (to remain unregulated by overreaching federal statutes) should trump when the science is uncertain. Which would affect a lot of natural resource regulation.

  3. David says:

    Wouldn’t it have been less disingenuous for Congress to have found something along the lines that: (1) late-term abortions are very unlikely to be medically necessary; (2) many alternative procedures will still be permitted; and (3) society’s interest in protecting the life of the fetus outweights any privacy/medical interests of the mother?

    Certainly I would not agree with the value judgment included in (3), but at least it would be above-board. Similarly, in the global warming context, rather than finding that there is no uncertainty, Congress could just say that whatever uncertainty that remains is outweighed by the countervailing evidence and the social costs of inaction.

  4. Steph says:

    I totally agree that this would be less disingenuous. I do think that Congress’s statements of certainty were more in response to the earlier Supreme Court decision, Stenberg v. Carhart. So the use of language of certainty could be seen as a sort of legal “risk-aversion.” This is not to defend it, but to suggest that its use might not be pure nefariousness or anything. And maybe one of the “positives” of this decision could be that Congress will be less hesitant about acknowledging uncertainty, if it knows that it will still get some degree of deference.

  5. Interesting questions. I don’t think the Court’s deference to Congress in this case is so straightforward. The Court acknowledged that Congress was flat-out wrong in some of its findings. And here the scientific “disagreement” was not over safe versus dangerous, it was over safe versus not-so-safe-that-other-procedures-don’t-suffice-as-substitutes. Congress’s avowed reasons for banning the procedure were not because it is dangerous but were instead based on Congress’s moral objections. (I assume for the sake of the argument the validity of the Court’s finding that the ban targets a single, discrete procedure.)

    I also think one can disagree with the Court in this case without suggesting that scientific certainty is needed before Congress may act. The question whether Congress appropriately exercises its Commerce Clause power, for example, is to me a very different question from whether, in exercising its powers, Congress intrudes impermissibly on constitutional rights. I agree with David (and the Stenberg v. Carhart majority) that, where there is medical disagreement, and where constitutional rights are at stake, we should err on the side of medical discretion. Otherwise, the implications for legislative intrusion into medical decisionmaking are far too scary. I’ve written more about this on the Reproductive Rights Prof blog.

  6. Interesting post. I’d add that the current discourse on evidence-based medicine suggests how deeply fraught with uncertainty both scientific and clinical practice are. So many of our most cherished inductive hypotheses about sound practice often turn out to be utterly mistaken in retrospect (and this is not an artifact, either, as the recent findings on the efficacy of stents and angioplasties show).

    Anyone who’s taken the time to read Hume and similar contemporary philosophers (notably Popper, Feyerabend, Kuhn, Rorty, etc.) ought to find that this uncertainty really inheres in any inductive enterprise, including science and medicine.

    There are also more than a few bioethicists and medical humanities scholars who think that a great deal of some of the thorniest problems in medicine (and science) relate to a difficulty in acknowledging the scope and the extent of the uncertainty. Jay Katz writes persuasively on this, especially in the context of breast cancer.

    I personally believe that the difficulty many Western cultures have in acknowledging and then engaging uncertainty is one of the most mischievous, if not downright harmful legacies of modernity.

  7. steph says:

    To Caitlin: These are great responses, and I appreciate your suggestions to look further into the type of deference that the Court applied (or perhaps more accurately, purported to apply.) I tried to get into that a little bit by discussing how the Court should more expressly recognize *types* of scientific agreements, and maybe even come up with types that matter “more” v. “less.” But thanks! You had a very informative post on your blog (esp. for someone like me, whose research into reproductive rights are more limited).

    To Daniel: Totally agree with you that Western cultures’ approach to uncertainty is harmful, especially its failure to recognize that all uncertainties are not the same.

  8. cosim says:

    Anthony Kennedy’s majority opinion in Carhart seems to be the latest episode indicating that at least some of the justices require basic primers in science. (I imagine that Daubert and Kumho Tire reflect other episodes).

    Congress found that the procedures it banned were NEVER medically necessary. Kennedy was persuaded by that (but apparently not, say, that violence to women (perpetrated by non-abortionists, at all events) or nearby schools has anything much to do with interstate commerce). He was so persuaded by Congress and his own dissenting opinion in Stenberg that based on the assurances of those great medical authorities – the ones that found these abortion procedures gruesome but the war in Iraq just peachy – that no exception to the law to preserve a mother’s health is necessary.

    But then Kennedy says that if the Act threatened a woman’s health it would then be unconstitutional “under controlling precedents” (which seems different than the unqualified “under precedents”, a quite apropos comment after Kennedy’s noble efforts to distinguish this case so much from Stenberg).

    But, Kennedy says following this that whether the procedures are ever medically necessary is a contested issue. On its face, this would seem more than enough to trump those playing doctor under the capitol dome, no? Not quite, replies Kennedy, “The evidence presented in the trial courts and before Congress demonstrates both sides have medical support for their positions.”

    Kennedy admits that both sides have medical support but in spite of that, on the question of what is medically necessary – a medical, not a legal, question – Congress gets not just the benefit of any doubt, but the only benefit; presumably this on the basis of Congress saying that the banned procedures are not ever medically necessary.

    Saying and showing are two different things. The end result of the opinion seems to be that if Congress says something scientific, then it is shown scientifically correct from the law’s perspective, so long as at least five justices on the Court agree with the policy Congress endorses.

  9. steph says:

    Cosim: these are very good points, and like I said, I still have a lot of thinking to do about this (because reproductive rights is somewhat outside my own area of legal experience.) It did seem to me that Kennedy rested his opinion less fully on being persuaded by the absolute “validity” of Congress’s findings, and more on a legal decision to defer to those findings even when he sees studies on the “other side” that have medical support. (I could be persuaded otherwise, though.)

    I agree, though, that if the end result is simply validation if five justices agree with the policy (rather than on any principled deference to Congress–which I agree isn’t necessarily principled when one looks at, hah, say the VAWA case), then the result is disturbing. And I think that this failure to recognize how the determination of whether something is a “scientific” finding v. a “legal” finding can lead to that result, because then courts, if they want to validate a statute they prefer policy-wise, can simply call it “scientific uncertainty,” but if they want to invalidate a result, they can call it “legal uncertainty.”

  10. Hi, Steph. Thanks for your thoughtful responses to the comments. In terms of deference in this case and elsewhere, I think we need to distinguish between deference to Congress’s findings regarding its power to act, and deference to Congress’s findings regarding whether its particular acts, although perhaps within its power, violate individual constitutional rights.

    I haven’t really looked closely at former issue, but one way of differentiating when to be deferential to Congress there would be to grant it wide latitude in exercising its power when it is acting in an individual-rights-enhancing way, for example when it sought to protect domestic violence victims through VAWA. But that might still leave you concerned as to whether there is sufficient room for Congress to act to protect the environment and in other regulatory arenas in ways that enhance the well-being of all of us but arguably impinge on other rights or interests.

    Alternatively, I’ve wondered whether it would make more sense to be very deferential to Congress’s findings about its authority to act under the Commerce Clause across the board (i.e. whether it is acting in an individual-rights-protective way or not). Then the question as to whether Congress’s particular approach violates constitutional rights would be addressed separately, where applicable. That would allow for Congress to enact measures like VAWA, as well as environmental regulation. But in cases like the federal abortion ban, the legislation should still be invalidated based on the fact that, while Congress may have had the power to act, it did so in a constitutionally impermissible way. What do you think?

  11. steph says:

    Caitlin writes: I think we need to distinguish between deference to Congress’s findings regarding its power to act, and deference to Congress’s findings regarding whether its particular acts, although perhaps within its power, violate individual constitutional rights.

    To *me*, this would be an appropriate distinction. It’s more the persuasive force of this distinction that I worry about, because there is a large subset of those who are opposed to stronger federal environmental regulations (or, say, environmental regulations in the face of “uncertainty”) as rights-restrictive decisions. On the other hand, maybe this just can’t be overcome, and that I should just treat this part of the audience as “lost.”

    Your suggestion of having a broad authority (under the Commerce Clause) approach coupled with a more searching Constitutionally permissible approach is an interesting one, and I think maybe that’s a way to get at coming up with a good judicial “test.” I think that to make that test work, though, we have to recognize how slippery the line is between the first category and the second category (or maybe not how slippery the line “is,” but rather how slippery it could be with either skilled-advocates or policy-driven judges), and to figure out ways to more principledly say what counts in each category. Does this make any sense? I didn’t get nearly enough sleep last night, so I’m not sure if I’m being clear.

  12. cosim says:

    First, thanks Steph for a pretty vibrant discourse.

    Secondly, substantively, I believe that one way out, which has had a ton of American contribution to it, is (plain old) philosophical pragmatism.

    The American Pragmatists (and not only them, but some others whose thought goes down as pragmatic, to name Ludwig Wittgenstein and Jurgen Habermas as but two examples not from our shores) like Charles Sanders Peirce, William James, and John Dewey did at least two important things.

    On the one hand, they obliterated claims of the Ideal while pursuing instead a pluralistic approach. They gave no quarter to the idea of a priori privileged knowledge. Everything had to show its usefulness in the world, not merely in the form of mere abstract propositions.

    On the other hand, against the logical positivism that would soon reign in ‘analytic’ thought, they also held that science was an archetypal right way to pursue knowledge (if a changing one, as people like Thomas Kuhn have shown). But they did not sell the methodological farm to science, despite their deep respect for it within its domain. Science is not the exclusive way saying things that make sense.

    We can’t wait for certainty before acting; we can’t stand to wait for wait for Godot, or to sit, for that matter. What pragmatists give us is a tenuous way of getting on, maybe the only ways of doing so. Very little is known for sure, but that’s a good thing.

    A pragmatic viewpoint has to be keenly aware of the world. Scientists tell us that the air and sea are getting warmer, the oceans rise over shorelines, and the storms get worse by the year. There is a problem. What we have to do can’t simply be a matter of doctrine: carbon tax or emissions caps or whatever else, for example. We have to look and see if these measures are working on the level of the world, if more is necessary. Being pragmatic means being willing to change course in the face of changing knowledge and, yes, even changing values.

    In American law, with its stare decisis and its precedents and narrow-thinking, American philosophy in the form of pragmatism hasn’t fared well in most cases. But every once in a while that attitude of what Stanley Cavell calls Emersonian Perfectionism comes through. In thinking about the environment, it’s important to recall the attitude of, say, Henry David Thoreau.

  13. steph says:

    Oh, Cosim, you’re preaching to the choir here, at least with me! I’m a big proponent of pragmatism (though perhaps more the Jamesian sort, as I understand it, rather than the Piercian sort–though as a legal scholar rather than a philosophy scholar, I’m not sure how much legal difference that would make (between those two, not between pragmatism and other philosophies.) I do think, though, that legal pragmatism is more and more popular these days, at least amongst environmental scholars.

  14. Sean says:

    A feminist immigration advocacy group called “Civil Society Helps” and attorney Martha J. Sullivan help perpetuate fraud against U.S. citizens and the United States of America for financial, ideological and political gain. Ironically, Civil Society Helps is funded by government programs such as VAWA ( Violence Against Women Act ). VAWA is frequently used as a business plan to bring funds to immigration advocacy groups and attorneys who specialize in immigration fraud to expedite a residency seeker’s immigration process. Can you say aiding and abetting?

    With false accusations from an immigrant residency seeker, a stable American citizen can be reduced to living in poverty. All of your assets can be seized and given to the immigrant even if you are not found guilty. You will immediately be forced to surrender a portion of your income to the immigrant . The courts may also order you to turn your motor vehicle over to the immigrant even if the immigrant does not have a driver’s license or insurance.

    Under VAWA and false accusations, your immigrant spouse becomes legal and you become illegal. The court system will abuse you and strip you of your rights while social programs that promote immigration fraud thrive.

    The primary motivation for these advocacy groups is of course financial gain. However, the rabbit hole goes deeper and the “green” supports the “red” femi-nazi factor. Civil Society Helps sounds nice and peachy, but their ideology is skewed towards extreme feminism and socialism. Their goals of “equality” are achieved by unconstitutionally stripping a man of his possessions and home without due process or any finding of guilt. Their support for the immigrant community buys votes for the likes of Hillary Clinton who supports VAWA and immigration which supports the likes of the Civil Society. Are you starting to see the big picture now?

    The immigration loopholes VAWA provides were purposely designed to appease the immigrant population which provides an unlimited supply and demand to fund groups like Civil Society Helps. VAWA is a billion dollar industry which oppresses men for financial, political and ideological gain. Immigration fraud is a federal crime. Groups that knowingly facilitate immigration fraud need to be held accountable.

    Some of the Players in Minnesota

    Attorney Martha J. Sullivan

    Phone: 651.438.9992

    1317 Vermillion St

    Hastings, Minnesota 55033


    Civil Society Helps

    1st National Bank Building

    332 Minnesota St, Suite E-1436

    Saint Paul, Minnesota 55101

    Phone: 651.291.0713

    Fax: 651.291.2588


    Casa de Esperanza ( Hope House )

    1515 East Lake Street

    Minneapolis, Minnesota 55407

    Phone: 651.646.5553


    VAWA gives more rights to illegals than citizens

    Carey Roberts Carey Roberts

    September 18, 2007

    Attention, ladies of the world: The U.S. Congress has now granted you the Keys to Kingdom that will unlock the door to U.S. citizenship, a good-paying job, and tons of free services. Here’s how it works.

    First, get into the United States, anyway you can. If you’re going to do it legally, a Temporary Worker visa is the easiest way. But why bother with the paperwork, just walk across the border when they’re looking the other way!

    Next, you need to find a man. Do it quickly before they can deport you. And preferably a guy who can’t afford his own lawyer — I’ll explain why in a minute.

    Tell him you came to the United States to find a new life, to start over, whatever. Use your feminine wiles. Tell him how badly your previous boss or boyfriend treated you. Move in with him. If you can get pregnant or married, that much better.

    Here’s where it gets a little dicey, but if you follow my instructions carefully, you’ll nail down that restraining order and hit the VAWA jackpot. Think of a time when he raised his voice, got angry, or told you to stop over-spending the bank account. In our abundant Land of Opportunity, all of those things are considered to be domestic violence!

    Now all you have to do is go to a judge and say the argument you had last night made you feel afraid. If you can say it with a trembling lip or misted eye, that will work wonders. Or just accuse him of trying to “control” you. All this may sound unbelievable, but judges have been to lots of classes, and they know that domestic violence is all about power and control. If that doesn’t work, just make something up about him shoving or forcing you to have sex. But don’t claim he actually slugged you, or the judge might want to see the bruises — then you’d have some explaining to do.

    Don’t worry about your illegal status, because amazingly the judge is not allowed to ask. Not only that, judges are instructed, “A denial of a protective order would be discrimination based on national origin which is specifically prohibited by law.” You can find that in the Arizona Domestic Violence Benchbook — right there on page 25: .

    That drive-through restraining order will get your husband or boyfriend kicked out of the house. Now the fun really begins.

    First, claiming to be a battered woman (it’s better to use red-meat words like “battered” rather than “abused”) makes it almost impossible for the Citizenship and Immigration Service to deport you.

    And now you can start to apply for a broad range of benefits — welfare, Medicaid, and child support. Remember, none of these programs need to know that you are an illegal immigrant — even if they ask, and don’t have to answer.

    Then you can go to the Immigration Service and “self-petition” for work authorization, permanent residency, and eventual citizenship. Form I-360 says all you need is an order of protection — so the 15 minutes you spent at the courthouse is already reaping huge dividends.

    At some point they might ask you if you are a victim of battery or extreme cruelty. Don’t worry, because if you look at the fine print, the law says your self-declaration is enough. That means whatever you say, they have to believe you. Didn’t I tell you this was going to be a blast?

    And there are loads of websites that give step-by-step instructions how to work the system, like

    If you still don’t believe me how easy this is, then go to the website of the U.S. government:

    So it all boils down to three simple steps:

    1. Get into the country

    2. Find a man

    3. Accuse him of abuse

    And remember the Violence Against Women Act guarantees you free legal help. But your husband or boyfriend won’t be eligible, so if he can’t afford a lawyer, you’ve already won the case.

    Maybe you’ve heard of men who were falsely accused of abuse, how it ruined their reputations, emptied out their bank accounts, and destroyed relationships with their children. Don’t worry about those stories. Congress put these benefits into the VAWA law, so obviously it intended for you to take advantage of them.

    You go, girl!