A New Paradigm

There's an old saying that goes"what you see is what you get". In the national front, the subject of abortion provides an interesting variation on that topic. Instead of that perspective, one gets a "what you don't see, you get" analysis from none other than the U.S. Supreme Court as a rationale for imposing restrictions on the right of a woman to choose to abort. One would naturally expect a scientific rationale as a basis for imposing restrictions on this scientific procedure. Particularly when the Court that imposes the restrictions has attempted to set a standard in the past fifteen years as to the criteria upon which scientific evidence must be assessed in order that it may deemed to be permissibly used in American courtrooms. In a ways, these requirements are the scientific paraphrasing of the "what you see is what you get" paradigm.

Justice Anthony M. Kennedy, writing the majority opinion in the Supreme Court case last month, approvingly cited a friend-of-the court brief filed by the Justice Foundation. The foundation, a nonprofit public interest litigation firm that has handled an array of conservative causes, has increasingly focused on abortion through its project called Operation Outcry. The group began hearing from women in the late 1990s who considered themselves victims of legalized abortion — physically and emotionally — and wanted to tell their stories. Operation Outcry, which grew to include a Web site, a national hot line and chapters around the country, eventually collected statements from more than 2,000 women, officials said. In its friend-of-the-court brief, the group submitted statements from 180 of those women who said that abortion had left them depressed, distraught, in emotional turmoil. “Thirty-three years of real life experiences,” the foundation said, “attests that abortion hurts women and endangers their physical, emotional and psychological health.”

The case before the Supreme Court involved a specific type of abortion, occasionally used after the first trimester, that involves removing a fetus intact after collapsing its skull. Justice Kennedy upheld that ban on narrower, legal grounds, but he used the Justice Foundation brief to write more broadly about the emotional impact of abortion on women.

“While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained,” Justice Kennedy wrote, alluding to the brief. “Severe depression and loss of esteem can follow.”

Given those stakes, the justice argued, “The state has an interest in ensuring so grave a choice is well informed.”

As a trial lawyer (now retired) I spent the better part of fifteen years advocating the role of the drug Bendectin in causing serious limb defects in children born of mothers who ingested the drug during critical periods of pregnancy. I did not rely on anecdotal evidence, such as Justice Kennedy has in the case under discussion, although there was certainly plenty of it. I instead relied upon hard science from a multitude of scientific disciplines to demonstrate that, scientifically speaking, it was more likely than not when the drug was ingested during critical periods of limb development, it could cause limb malformations. Every federal court in the country rejected that evidence, as well as jury findings that the drug caused birth defects, by setting a standard which obviously, now that Justice Kennedy has tipped his hand, was intended to accomplish a different purpose; i.e., to throw the cases out so that corporate America doesn't have to bear the financial burden of accepting responsibility for its misdeeds.

What you don't see, you get. The new standard for justice in the United States.