Science disputes in abortion law

Texas Law Review

Volumn 93, Issue 7, 2015, Pages 1849-1883

  Robertson, John A ^a  

^a UNIVERSITY OF TEXAS SCHOOL OF LAW   (United States)

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EID: 84938543920     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (250)

1. As Justice Blackmun famously said in Roe v. Wade, 410 U.S. 113 (1973), referring to when human life deserved protection, "We need not resolve the difficult question of when life begins. When those trained in … medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.".
2. 505 U.S. 833 (1992).
3. 410 U.S. 113 (1973).
4. 550 U.S. 124 (2007).
5. As Alta Charo put it, "Science doesn't limit the scope of legal interventions. Rather, it is the nature of legal standards that limit the scope of relevant science." Personal conversation (Jan. 30, 2015). As other Articles from this Symposium show, however, even that seemingly accurate statement has its own complexities.
6. Sheila Jasanoff, Serviceable Truths: Science for Action in Law and Policy, 93 Texas L. Rev. 1721 (2015).
7. 505 U.S. at 876.
8. 550 U.S. at 163 (explaining that states have significant leeway to pass legislation where there is "medical and scientific uncertainty").
9. The state also has an interest in protecting or promoting prenatal life. Casey, 505 U.S. at 871-73.
10. 505 U.S. at 876.
11. For an example of how this standard upheld abortion restrictions in other cases, Gonzales v. Carhart upheld a ban on partial-birth abortion because it did not prevent women from having an abortion, just the use of a particular technique that was not necessary to protect her life or health in all circumstances.
12. 550 U.S. 124, 164-67 (2007).
13. Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 576 (5th Cir. 2012).
14. Stuart v. Camnitz, 774 F.3d 238, 242 (4th Cir. 2014).
15. Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502, 505-06 (6th Cir. 2006).
16. Isaacson v. Horne, 716 F.3d 1213, 1217-18 (9th Cir. 2013).
17. Jackson Women's Health Org. v. Currier, 760 F.3d 448, 450 (5th Cir. 2014).
18. Whole Woman's Health v. Lakey (Whole Woman's Health II), 769 F.3d 285, 289-90 (5th Cir. 2014).
19. Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 573, 584 (5th Cir. 2012) (upholding an informed consent statute that required physicians to give patients a detailed explanation of the abortion procedure, provide auditory proof of fetal heartbeat, describe ultrasound images to the patient, and wait twenty-four hours before performing the procedure).
20. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878 (1992).
21. Edwards v. Aguillard, 482 U.S. 578, 610-19 (1987) (Scalia, J., dissenting) (disagreeing with the premise that legislative motive is enough to invalidate a law under the Establishment Clause and disagreeing with the Court's determination of legislative motive).
22. Palmer v. Thompson, 403 U.S. 217, 224-25 (1971) (asserting that it is "difficult or impossible" for a court to determine legislative motive).
23. Paul Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 Sup. Ct. Rev. 95, 119-24 (1971) (dissecting the Court's assertion that legislative motive is unascertainable and suggesting that it is not a legitimate reason to refuse to engage in judicial review of legislative motive).
24. 539 U.S. 558 (2003).
25. 133 S. Ct. 2675 (2013).
26. 403 U.S. 217 (1971).
27. Palmer, 403 U.S. at 225-26 (holding no equal protection violation where a swimming pool was closed because many considerations other than discrimination influenced a governmental decision to close swimming facilities).
28. Priscilla J. Smith, If the Purpose Fits: The Two Functions of Casey's Purpose Inquiry, 71 Wash. & Lee L. Rev. 1135, 1145-46 (2014) (explaining that the purpose requirement set out in Casey functions to eliminate illegitimate purposes of abortion regulation).
29. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877 (1992).
30. Whole Woman's Health II, 769 F.3d 285, 297 (5th Cir. 2014) (comparing cases decided in the Fourth, Fifth, Sixth, and Eight Circuits, where the rational basis view is employed, with cases decided in the Seventh and Ninth Circuits, where a balancing test is used instead).
31. Heller v. Doe, 509 U.S. 312, 320 (1993) explaining that legislation may be based on "rational speculation unsupported by evidence or empirical data".
32. FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 315 (1993) (internal quotation marks omitted).
33. This is the loose, hands-off test of Williamson v. Lee Optical Co., 348 U.S. 483, 486-87 (1955).
34. Heller v. Doe, 509 U.S. 312, 319-20 (1993).
35. FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313-15 (1993).
36. Whole Woman's Health II, 769 F.3d at 296-97 (discussing whether a law requiring abortion facilities to meet ambulatory-surgical-center standards placed an undue burden on women seeking an abortion).
37. Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 913-14 (9th Cir. 2014).
38. Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 798 (7th Cir. 2013).
39. 379 F.3d 531 (9th Cir. 2004).
40. Humble, 753 F.3d at 912.
41. Eden, 379 F.3d at 542.
42. Humble, 753 F.3d at 913.
43. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878 (1992).
44. What is "necessary"-whether indispensable or conducive to-has been contested since McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 336-37 (1819), which rejected an indispensable view of the Necessary and Proper Clause.
45. Humble, 753 F.3d at 913.
46. Casey, 505 U.S. at 877 (internal quotation marks omitted).
47. Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 788-89 (7th Cir. 2013).
48. Noting-in the context of analyzing the plaintiff's likelihood of success on the merits-that the state has not shown any evidence of a health benefit to the hospital-privilege requirement.
49. "The feebler the medical grounds, the likelier the burden, even if slight, to be 'undue' in the sense of disproportionate or gratuitous. It is not a matter of the number of women likely to be affected.".
50. 9 F. Supp. 3d 1272 (M.D. Ala. 2014).
51. Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786 (7th Cir. 2013).
52. Van Hollen, 738 F.3d at 798-99. The parties had earlier objected to such an expert.
53. Discussing statistical likelihood of abortion complications.
54. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
55. Van Hollen, 738 F.3d at 799.
56. Gonzalez v. Carhart, 550 U.S. 124, 141, 168 (2007).
57. H.R. Rep. No. 107-604, at 2-3 (2002).
58. Planned Parenthood Fed'n of Am. v. Ashcroft, 320 F. Supp. 2d 957, 964 (N.D. Cal. 2004).
59. Gonzales, 550 U.S. at 178 (Ginsburg, J., dissenting).
60. Public Hearing on LB1089, LB847, LB1043, and LB1103 Before the S. Judiciary Comm., 101st Leg., 2d Sess. 52 (Neb. 2010) (statement of Mary Spaulding Balch, director of the department of state legislation for the National Right to Life Committee).
61. 530 U.S. 914 (2000).
62. Jarrett Murphy, Bush Signs 'Partial Birth' Ban, CBS News (Sept. 18, 2003, 7:42 AM), http://www.cbsnews.com/news/bush-signs-partial-birth-ban/.
63. archived at http://perma.cc/9LPYA3R2.
64. Nat'l Abortion Fed'n, 330 F. Supp. 2d at 480.
65. Gonzales, 550 U.S. at 163.
66. Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 760 (1986).
67. The requirement that doctors personally inform the patient was found not to violate the doctors' free speech rights, an issue of importance in other medical settings.
68. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844-87, 893-94 (1992).
69. City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 444-45 (1983).
70. Chinué Turner Richardson & Elizabeth Nash, Misinformed Consent: The Medical Accuracy of State-Developed Abortion Counseling Materials, Guttmacher Pol'y Rev. Fall 2006, at 6, 7-10.
71. Casey, 505 U.S. at 882.
72. Chinué Turner Richardson & Elizabeth Nash, Misinformed Consent: The Medical Accuracy of State-Developed Abortion Counseling Materials, Guttmacher Pol'y Rev. Fall 2006, at 6, 7-10.
73. For weaknesses in required disclosure of fetuses feeling pain during abortion.
74. Harper Jean Tobin, Confronting Misinformation on Abortion: Informed Consent, Deference, and Fetal Pain Laws, 17 Colum. J. Gender & L. 111, 140-51 (2008).
75. 686 F.3d 889, 892 (8th Cir. 2012) (en banc).
76. The Eighth Circuit acknowledged that the record supported an inference that there is a correlative link between abortion and suicide. However, the South Dakota law required only that women hear that abortion is associated with an increased risk of suicide, not that it causes it. As used in its scientific sense, association does not imply causation.
77. "It is a typical medical practice to inform patients of statistically significant risks that have been associated with a procedure … even if causation has not been proved definitively.".
78. Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 726 (8th Cir. 2008) (en banc).
79. Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 573 (5th Cir. 2012) (discussing a challenge to such a statute in Texas).
80. ("The amendments challenged here are intended to strengthen the informed consent of women who choose to undergo abortions.").
81. Stuart v. Camnitz, 774 F.3d 238, 256 (4th Cir. 2014) (affirming a North Carolina district court's grant of a permanent injunction against enforcement of North Carolina's law requiring display of the fetal sonogram before performing an abortion).
82. Tex. Med. Providers, 667 F.3d at 584 (reversing a Texas district court's grant of a preliminary injunction against enforcement of Texas' law requiring display of the fetal sonogram and fetal heartbeat before performing an abortion).
83. Mary Gatter et al., Relationship Between Ultrasound Viewing and Proceeding to Abortion, 123 Obstetrics & Gynecology 81, 84 & tbl.1 (2014) (finding no relation between viewing ultrasound images and deciding not to terminate a pregnancy amongst women who already had a high degree of certainty about their decision to abort, a group that made up 85.4% of the sample population).
84. The district court in Texas Medical Providers Performing Abortion Services v. Lakey found such a right.
85. 806 F. Supp. 2d 942, 975 (W.D. Tex. 2011).
86. 667 F.3d 570 (5th Cir. 2012).
87. After being reversed by the Fifth Circuit, the district judge "respectfully" restated his views about the illogic of the higher court's analysis.
88. Tex. Med. Providers Performing Abortion Servs. v. Lakey, No. A-11-CA-486-SS, 2012 WL 373132, at *2 (W.D. Tex. Feb. 6, 2012).
89. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992) (plurality opinion).
90. Tex. Med. Providers, 667 F.3d at 575, 580 ("[R]equiring disclosures and written consent [is] sustainable under Casey, [is] within the State's power to regulate the practice of medicine, and therefore do[es] not violate the First Amendment.").
91. 774 F.3d 238 (4th Cir. 2014).
92. Robert Post, Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, 2007 U. Ill. L. Rev. 939 (examining First Amendment implications of compelled physician speech within the context of a North Dakota law requiring physicians to give specifically worded disclosures prior to performing an abortion).
93. James Trussell et al., Reduction in Infection-Related Mortality Since Modifications in the Regimen of Medical Abortion, 89 Contraception 193, 193 (2014) ("In 2012, 132,653 women received medical abortions, representing ~ 40% of first-trimester abortions in Planned Parenthood health centers.").
94. Steven Greenhouse, A New Pill, A Fierce Battle, N.Y. Times Mag., Feb. 12, 1989, at 22, 24, available at http://www.nytimes.com/1989/02/12/magazine/a-new-pill-a-fierce-battle.html.
95. archived at http://perma.cc/FEP6-9HVE (noting that RU-486 was developed by Roussell Uclaf in 1980).
96. Lars Noah, A Miscarriage in the Drug Approval Process?: Mifepristone Embroils the FDA in Abortion Politics, 36 Wake Forest L. Rev. 571, 575 (2001) (noting that RU-486 was approved by France, China, the United Kingdom, Sweden, and twelve other European countries between 1988 and 1999).
97. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott I), 951 F. Supp. 2d 891, 902 (W.D. Tex. 2013).
98. For an explanation of the numerical designations this Article uses for the Abbott line of cases.
99. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott I), 951 F. Supp. 2d 891, 902 (W.D. Tex. 2013).
100. For an account of the tortured history of this process.
101. Lars Noah, A Miscarriage in the Drug Approval Process?: Mifepristone Embroils the FDA in Abortion Politics, 36 Wake Forest L. Rev. 571, 575 (2001) (noting that RU-486 was approved by France, China, the United Kingdom, Sweden, and twelve other European countries between 1988 and 1999).
102. It is an example of the FDA making a drug-approval decision initially on nonscientific grounds.
103. (Suggesting that ideological considerations influenced the FDA's approval of RU-486). A similar process occurred with over-the-counter access to Plan B and other postcoital forms of contraception.
104. Roseann B. Termini & Miranda Lee, Sex, Politics, and Lessons Learned from Plan B: A Review of the FDA's Actions and Future Direction, 36 Okla. City U. L. Rev. 351, 355-58 (2011) (describing the history of Plan B's FDA approval process and concluding that it "illustrates a marked deviation by the FDA from the agency's usual practices and procedures"). In the case of Plan B, the strong scientific evidence showed that drugs prevented fertilization, while opponents argued that they prevented attachment of fertilized eggs to the wall of the uterus or were abortifacients in that they interrupted pregnancies that had already begun.
105. Jed Miller, The Unconscionability of Conscience Clauses: Pharmacists' Consciences and Women's Access to Contraception, 16 Health Matrix 237, 246-53 (2006) (explaining the difference between contraception and abortion and the arguments surrounding each).
106. Abbott I, 951 F. Supp. 2d at 902-03. The drug had been used extensively in other countries.
107. Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 907 (9th Cir. 2014).
108. Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502, 505 (6th Cir. 2006).
109. As for all abortions performed in states requiring a twenty-four hour waiting period, yet another visit would be required before the procedure for the doctor to provide required disclosures and a sonogram and audition of fetal heartbeat, making four doctor visits necessary for a medical abortion, instead of two for a surgical one.
110. Humble, 753 F.3d at 907.
111. In addition, doctors performing medical abortions in states with requirements like those enacted in Texas would also have to have staff privileges at a hospital within thirty miles of their office and would be subject to the more expensive requirement that they be licensed as ambulatory surgical centers.
112. Whole Woman's Health II, 769 F.3d 285, 289-90 (5th Cir. 2014).
113. Humble, 753 F.3d at 907-08.
114. The American College of Obstetricians and Gynecologists (ACOG) reviewed this experience and issued guidelines that deviated from the FDA protocol.
115. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott I), 951 F. Supp. 2d 891, 902 (W.D. Tex. 2013).
116. Humble, 753 F.3d at 907.
117. Planned Parenthood Ariz., Inc. v. Humble, 13 F. Supp. 3d 1017, 1022-23 (D. Ariz. 2014).
118. Cline v. Okla. Coal. for Reprod. Justice, 313 P.3d 253, 258 (Okla. 2013) (per curiam). FDA approval imposed restrictions on mifepristone's marketing and distribution, but its use under the FDA's Subpart H regulations did not require doctors to administer mifepristone according to the on-label regimen.
119. Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 496 (6th Cir. 2012).
120. Am. Coll. of Obstetricians & Gynecologists, Medical Management of FirstTRIMESTER Abortion 11-12 (2014), available at http://www.acog.org/Resources-And-Publications/Practice-Bulletins/Committee-on-Practice-Bulletins-Gynecology/Medical-Management-of-First-Trimester-Abortion.
121. archived at http://perma.cc/8U84-LN9H.
122. Okla. Coal. for Reprod. Justice, 313 P.3d at 258 (discussing Oklahoma's statute that restricted the prescription of RU-486 to its FDA-approved purpose).
123. Jessica Bulman-Pozen & David E. Pozen, Uncivil Obedience, 115 Colum. L. Rev. (forthcoming May 2015). The term refers to a punctilious adherence to law as a way to force legal authorities to change policy, such as when truck drivers band together to drive fifty-five miles per hour to change the official speed limit or union workers "work to rule" to gain leverage. A law requiring adherence to the FDA protocol might both protect women's safety and deter women who dislike or fear surgical abortions from having them.
124. Am. Coll. of Obstetricians & Gynecologists, Medical Management of FirstTRIMESTER Abortion 11-12 (2014), available at http://www.acog.org/Resources-And-Publications/Practice-Bulletins/Committee-on-Practice-Bulletins-Gynecology/Medical-Management-of-First-Trimester-Abortion.
125. archived at http://perma.cc/8U84-LN9H.
126. Citing at least one study conducting a meta-analysis and comparison of 59 different in-depth studies of various medical-abortion protocols.
127. Okla. Coal. for Reprod. Justice, 313 P.3d at 262.
128. Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 918 (9th Cir. 2014).
129. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott III), 748 F.3d 583, 604 (5th Cir. 2014).
130. 769 F.3d 330 (5th Cir. 2014).
131. The designation Abbott III refers to the second disposition of the case in the Fifth Circuit, which was based on the merits of the case.
132. This Article also references the first disposition in the Fifth Circuit as Abbott II, Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott II), 734 F.3d 406 (5th Cir. 2013), a decision granting Texas's motion to stay the district court's entry of a permanent injunction, pending the disposition of the appeal on the merits. Fifth Circuit opinions referencing these decisions refer to the decision of the Fifth Circuit's preliminary injunction panel as Abbott I and the Fifth Circuit's merits decision as Abbott II but do not give a numerical designation to the opinion of the district court.
133. Abbott III, 748 F.3d at 604-05.
134. Cline v. Okla. Coal. for Reprod. Justice, 133 S. Ct. 2887, 2887 (2013).
135. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott I), 951 F. Supp. 2d 891, 902 (W.D. Tex. 2013).
136. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992).
137. Gonzales v. Carhart, 550 U.S. 124, 163 (2006).
138. As Gonzales held, the government has broad discretion to regulate medical practice even if it subjugates physician or patient preference, so long as a safe, medically-accepted, and actual alternative exists.
139. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott I), 951 F. Supp. 2d 891, 902 (W.D. Tex. 2013).
140. Note that the court is not saying that the FDA protocol in other respects is harmful to women, only the post-forty-nine-day restriction.
141. Roe v. Wade, 410 U.S. 113, 165 (1973) (internal quotation marks omitted).
142. The court went on to find that the Texas medication-abortion law is not unconstitutional because another section of the law recognizes that the law does not "apply to abortions … to avert the death or substantial and irreversible physical impairment of a major bodily function of the pregnant woman.".
143. Abbott III, 748 F.3d 583, 604 (5th Cir. 2014). Specifically, it found that the conditions said to require medication abortions from forty-nine to sixty-three days were vaguely stated and not supported by scientific findings in the record.
144. Abbott III, 748 F.3d at 604.
145. Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 914-15, 918 (9th Cir. 2014).
146. Se. Pa. v. Casey, 505 U.S. 833, 895 (1992).
147. Tucson Women's Clinic v. Eden, 379 F.3d 531, 543 (9th Cir. 2004).
148. Ala. Code § 26-23B-5 (Supp. 2012).
149. Ariz. Rev. Stat. Ann. § 36-2159 (2014).
150. Ark. Code Ann. § 20-16-1405 (2014).
151. Del. Code Ann. tit. 24, § 1790 (2011).
152. Ga. Code Ann. § 16-12-141(c) (Supp. 2014).
153. Idaho Code Ann. § 18-505 (Supp. 2014).
154. Ind. Code Ann. § 16-34-2-1(a)(3) (Supp. 2014).
155. La. Rev. Stat. Ann. § 40:1299.30.1.E (Supp. 2015).
156. Miss. Code Ann. § 41-41-137 (Supp. 2014).
157. Mo. Ann. Stat. § 188.030 (West Supp. 2015).
158. Neb. Rev. Stat. §§ 28-3,104,-3,106 (2010).
159. N.C. Gen. Stat. §§ 14-44 to-45.1 (2013).
160. N.D. Cent. Code § 14-02.1-05.3 (Supp. 2013).
161. Okla. Stat. Ann. tit. 63, § 1-745.5 (West Supp. 2015).
162. Tex. Health & Safety Code Ann. § 171.044 (West Supp. 2014).
163. Kan. Stat. Ann. § 65-6703 (West 2014) (restricting the abortion of a viable fetus over twenty-two weeks).
164. Teresa S. Collett, Previability Abortion and the Pain of the Unborn, 70 Wash. & Lee L. Rev. 1211, 1218-19, 1218 nn.30-32 (2014).
165. (Discussing the development of and reasoning behind abortion bans after twenty weeks of gestation).
166. John A. Robertson, Abortion and Technology: Sonograms, Fetal Pain, Viability, and Early Prenatal Diagnosis, 14 U. Pa. J. Const. L. 327, 365-67 (2011) (citations omitted).
167. Neb. Rev. Stat. §§ 28-3,102 to-3,111, with Ala. Code § 26-23B.
168. Ariz. Rev. Stat. Ann. § 36-2159.
169. Ark. Code Ann. §§ 20-16-1401 to-1410.
170. Del. Code Ann. tit. 24, § 1790.
171. Ga. Code Ann. § 16-12-141(c).
172. Idaho Code Ann. §§ 18-501 to-510.
173. Ind. Code Ann. § 16-34-2.
174. Kan. Stat. Ann. § 65-6703.
175. La. Rev. Stat. § 40:1299.30.1.
176. Miss. Code Ann. §§ 41-41-131 to-145.
177. Mo. Ann. Stat. § 188.030.
178. N.C. Gen. Stat. Ann. §§ 14-44 to-46.
179. N.D. Cent. Code § 14-02.1-05.3.
180. Okla. Stat. Ann. tit. 63, § 1-745.
181. Tex. Health & Safety CODE Ann. §§ 171.044 to-048.
182. Although the Court in Gonzales has taken the position that the state's evaluation of the validity of scientific evidence will control when there is a difference of opinion among doctors and scientists, as long as its stance leaves reasonably safe and effective alternatives available, the issue of whether it will stick to that position with regard to fetal pain will not arise unless the Court is willing to reopen that now apparently firm line. Even if it did, however, the alternative would be to anesthetize the fetus prior to previability abortions.
183. 716 F.3d 1213 (9th Cir. 2013).
184. Se. Pa. v. Casey, 505 U.S. 833, 846 (1992).
185. Casey, 505 U.S. at 860-61.
186. Internal quotation marks omitted.
187. Colautti v. Franklin, 439 U.S. 379, 396 (1976).
188. Internal quotation marks omitted. Colautti also held that "neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability-be it weeks of gestation or fetal weight or any other single factor-as the determinant of when the State has a compelling interest in the life or health of the fetus.".
189. Colautti, 439 U.S. at 388-89.
190. Isaacson, 716 F.3d at 1225. The court went on to find invalid the district court's basis for upholding the twenty-week ban on the grounds that it was a regulation and not a ban, that it did not create an undue burden, and that an exception for the life and health of the mother, other state interests, and the rarity of such abortions validated it.
191. Abbott III, 748 F.3d 583, 587 (5th Cir. 2014) (discussing a challenge to a Texas law requiring hospital staff privileges for abortion providers).
192. The expert was referring to a study by the Joint Commission on Accreditation of Health Care Organizations that included several top hospitals.
193. Stating that the joint commission of hospitals that prepared the report he referred to included Johns Hopkins, Mayo Clinic, and New York Presbyterian. It is unknown how frequent such communication errors, if any, arose in the relatively few cases of abortion complications requiring hospitalization.
194. Abbott II, 734 F.3d 406, 411 (5th Cir. 2013).
195. This study, however, does not show how many abortion patients then require referral to a hospital and then admission.
196. Daniel Grossman et al., Routine Follow-Up Visits After First-Trimester Induced Abortion, 103 Am. Coll. Obstetricians & Gynecologists 738 (2004).
197. Abbott III, 748 F.3d at 593-94 (5th Cir. 2014).
198. Heller v. Doe, 509 U.S. 312, 320 (1993).
199. Internal quotation marks omitted.
200. FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 315 (1993).
201. Beach Commc'ns, 508 U.S. at 315.
202. It is commonly recognized that about 70,000 abortions occur annually in Texas. at 591 n.10. No data, however, was provided as to the number of abortions in Texas or the number of women seeking hospitalization after abortion who required specialist care beyond the emergency-room doctor.
203. (Recounting the evidence provided to the trial court by the parties).
204. The court referenced the specter of Dr. Kermit Gosnell. Gosnell was a notorious Philadelphia abortion provider who had been convicted of murder and other crimes for his shoddy and incompetent practices.
205. Jon Hurdle & Trip Gabriel, Philadelphia Abortion Doctor Guilty of Murder in Late-Term Procedures, N.Y. Times, May 13, 2013, http://www.nytimes.com/2013/05/14/us/kermit-gosnell-abortion-doctor-found-guilty-of-murder.html?_r=0.
206. archived at http://perma.cc/VFP8-Y9WL.
207. The court cited Eighth and Fourth Circuit cases upholding staffprivilege requirements and distinguished the Seventh Circuit decision upholding a preliminary injunction against a Wisconsin law on the ground that it only permitted three days for a clinic doctor to comply.
208. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott III), 748 F.3d 583, 604 (5th Cir. 2014).
209. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott III), 748 F.3d 583, 604 (5th Cir. 2014).
210. In addition, Texas exempts from the twenty-four-hour waiting period after informed consent women who must travel more than 100 miles to an abortion facility. Tex. Health & Safety Code Ann. § 171.012(a)(4) (West Supp. 2014).
211. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott III), 748 F.3d 583, 604 (5th Cir. 2014).
212. Planned Parenthood of Se. Pa. v. Casey, 744 F. Supp. 1323, 1352 (E.D. Pa. 1990).
213. Abbott II, 734 F.3d 406, 415 (5th Cir. 2013).
214. Abbott II, 734 F.3d at 416.
215. Plaintiff Hagstrom-Miller's testimony about the difficulties that she had in retaining current physicians or recruiting new ones was explained by factors other than the staff-privileges requirement.
216. An undue burden on "a large fraction" of women seeking an abortion is arguably the standard required by Casey and confirmed in Gonzales to uphold a facial attack.
217. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 895 (1992).
218. Gonzales v. Carhart, 550 U.S. 124, 167-68 (2007).
219. If that is the standard, it is less demanding than the usual "no set of circumstances" requirement for a facial attack held by.
220. United States v. Salerno, 481 U.S. 739, 745 (1987).
221. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott III), 748 F.3d 583, 604 (5th Cir. 2014).
222. Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 787 (7th Cir. 2013).
223. Planned Parenthood Se., Inc. v. Strange, 9 F. Supp. 3d 1272, 1287 (M.D. Ala. 2014).
224. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott III), 748 F.3d 583, 604 (5th Cir. 2014).
225. This appears to be the case, at least on an as-applied basis. Van Hollen, 738 F.3d at 791, 798.
226. The medication-abortion and hospital staff-privileges requirements had gone into effect on October 31, 2013, when the Fifth Circuit motions panel granted a stay of the district court's order enjoining enforcement of the law. Abbott III, 748 F.3d at 588.
227. Whole Woman's Health v. Lakey (Whole Woman's Health I), 46 F. Supp. 3d 673, 677, 682 (W.D. Tex. 2014).
228. Whole Woman's Health II, 769 F.3d 285, 305 (5th Cir. 2014).
229. Whole Woman's Health v. Lakey, 135 S. Ct. 399 (2014).
230. Whole Woman's Health II, 769 F.3d at 291-92 (noting confusion over the basis of the district court's opinion, but deciding to address the injunction against the ASC requirements from both a facial and an as-applied perspective).
231. Whole Woman's Health II, 769 F.3d at 296.
232. Whole Woman's Health I, 46 F. Supp. 3d 673, 681 (W.D. Tex. 2014).
233. Whole Woman's Health II, 769 F.3d at 296.
234. Oral Argument at 6:54, Whole Woman's Health II, 769 F.3d 285 (5th Cir. 2014) (No. 14-50928), available at http://www.ca5.uscourts.gov/OralArgRecordings/14/14-50928_1-7-2015.mp3.
235. David Faigman's Article for the Symposium is helpful.
236. David L. Faigman, Where Law and Science (and Religion?) Meet, 93 Texas L. Rev. 1660, 1673-76 (2015) (examining the Court's Daubert jurisprudence and the ways in which Daubert forces courts to grapple with the validity and reliability of expert scientific evidence).
237. Jennifer Laurin and Robert Truog explore this issue in different subject areas.
238. Jennifer E. Laurin, Criminal Law's Science Lag: How Criminal Justice Meets Changed Scientific Understanding, 93 Texas L. Rev. 1749, 1751-54 (2015) (examining the way in which the criminal justice system "grapple[s] with the implications of scientific change for its truth-finding functions").
239. Robert D. Truog, Defining Death: Getting It Wrong for All the Right Reasons, 93 Texas L. Rev. 1891, 1891-92 (2015) (arguing that legal standards for organ donation no longer comport with medical knowledge about the nature and definition of death).
240. Elizabeth Fisher, Pasky Pascual & Wendy Wagner, Rethinking Judicial Review of Expert Agencies, 93 Texas L. Rev. 1679, 1679-82 (2015).
241. Wendy Wagner, Assessing Asymmetries, 93 Texas L. Rev. 91, 92 (2015).
242. Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 20-21 (1972).
243. "[Rational basis with bite] would have the Court assess the means in terms of legislative purposes that have substantial basis in actuality, not merely in conjecture.".
244. 348 U.S. 483, 487-88 (1955) ("[T]he law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.").
245. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (suggesting that legislation which "appears on its face to be within a specific prohibition of the Constitution" may be subject to stricter judicial scrutiny).
246. I say "can be justified" because that proposition is not inconsistent with assessing whether there are real health benefits that make the law a "necessary" regulation despite incidental burdens. If there is so little contribution to health or other valid state interests, then burdens that do not substantially block access to abortion may still be "undue.".
247. Carolene Prods. Co., 304 U.S. at 154.
248. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984).
249. Thomas O. McGarity, Science and Policy in Setting National Ambient Air Quality Standards: Resolving the Ozone Enigma, 93 Texas L. Rev. 1781, 1794-95 (2015).
250. Mississippi v. EPA, 744 F.3d 1334, 1342 (D.C. Cir. 2013), in which the D.C. Circuit deferred to the Environmental Protection Agency's 2008 National Ambient Air Quality Standard, finding that the standard was neither arbitrary nor capricious.