In the Supreme Court ruling striking down contested provisions in Texas' omnibus antiabortion-rights law (HB 2), "Justice Stephen Breyer signaled to legislatures and judges that it is constitutionally unacceptable to rely upon junk science when evaluating restrictions on abortion care," Noel León, an If/When/How Reproductive Justice Fellow at the Reproductive Health Technologies Project, writes in an opinion piece for Rewire.
León explains that Breyer's opinion "validated what advocates have known for years: Legislative efforts used to justify abortion restrictions do not reflect reasonable disagreement over science." In overturning abortion restrictions based on medically unproven claims of protecting women's health, the high court "has now finally stated unequivocally that courts cannot let these sham laws based on false scientific claims stand without judicial scrutiny," León writes.
León addresses complaints lodged by abortion-rights opponents claiming that "courts are an improper place for evaluation of science," noting, "This concern misunderstands the role of courts and the way that scientific evidence is evaluated in courts, and also fails to recognize how rudimentary the Court's ruling in Whole Woman's Health actually is."
According to León, "Our judicial system is built on an adversarial process in which two opposing parties present evidence to create a factual record." Since "courts are not experts on science, scientific evidence is generally presented through expert testimony," León explains, adding, "Judges serve as the gatekeepers of that testimony and must evaluate the legitimacy of expert testimony before it can be included in the record." All of the "courts must follow a basic standard" in evaluating expert content for admission, she continues, and "then base final decisions on the record created at trial."
León explains that rulings at the trial court level "can be appealed, reviewed, and overturned if an appellate court thinks the trial court did a poor job managing the development of the factual record, including improper admission of expert testimony without sufficient factual basis." According to León, "Officers of the court -- judges, attorneys, etc. -- are therefore charged with engaging in careful and thorough admission and interpretation of evidence to arrive at findings of fact, a standard intended to be enforced on appeal."
León writes that "[c]ourts generally follow a principal of deference to legislative findings of fact" that "is rational, especially where reasonable minds can disagree on the evidence upon which those findings are based." As a result, according to León, "when the views of the most powerful political voices go against the weight of the evidence, the importance of the judiciary's role as gatekeeper and evaluator of evidence becomes starkly clear."
León cites the ruling in the 2007 Supreme Court case Gonzales v. Carhart, in which the justices wrote "that where 'evidence presented in the District Courts contradicts' some of the legislative findings ... '(u)ncritical deference to (the legislature's) factual findings ... is inappropriate.'" León writes, "In this scenario judicial fact-finding is not only legitimate, it is crucial."
The decision "does not argue that courts be the only or even the primary evaluators of scientific evidence," León writes, but it "should be interpreted as a directive to legislatures just as much as it is to courts, signaling to lawmakers that if they pass scientifically unsubstantiated laws that infringe on fundamental rights those laws will strongly risk being overturned." She adds, "This is not a controversial new idea. It is merely a requirement that courts and legislatures do their jobs in the ways they were designed to."
According to León, "Justice Breyer's call [in Whole Woman's Health] for basic judicial scrutiny and the acknowledgement that scientific evidence is critically relevant to decisions about human dignity and fundamental constitutional rights come as an enormous relief to reproductive rights, health, and justice advocates who have grown despondent over the way that courts have simply deferred to legislative fact-finding based on unsound or nonexistent evidence." She concludes, "Going forward, advocates hope courts and legislatures will heed the Supreme Court's call to ensure that scientific integrity undergirds lawmaking and will thereby strive toward equal access to safe and dignified reproductive health care" (León, Rewire, 8/5).
