For decades, Big Tobacco peddled junk science to convince Americans that smoking is good for you. Since the 1990s, Big Oil has peddled junk science to convince Americans that climate change isn’t real.
But junk science has also played a crucial role in the effort to restrict women’s access to abortion—and it will be center stage at this term’s Supreme Court case that could overturn or limit Roe v. Wade.
At issue in the case, Whole Woman’s Health v. Cole, is whether Texas’s extensive medical requirements for abortion clinics—requiring abortion doctors to have admitting procedures at a hospital and clinics to have full “ambulatory surgical center” facilities—are necessary to protect women’s health or not.
If so, then it’s OK that the regulations would close 32 of the state’s 42 abortion clinics. If not, then the regulations may place an “undue burden” on women’s rights and be unconstitutional—especially since clinics must also install high-grade security systems such as the one that saved lives last week in Colorado.
So which is it? Of course, Texas Republicans have their scientists and women’s organizations have theirs. But the pro-choice scientists are real, and the pro-life ones aren’t.
On the pro-choice side, the American Medical Association and American College of Obstetricians and Gynecologists have filed an amicus brief stating that “there is simply no medical basis for requiring that abortion facilities meet the standards for ambulatory surgical centers… or for enforcing a local admitting privileges requirement against abortion providers.”
In particular, the brief states, citing a raft of scientific studies, abortion is “one of the safest medical procedures performed in the United States” with a .00006 percent risk of death. In Texas, there were zero deaths in 296,210 abortions performed between 2009 and 2012, during which time 84 percent of abortions were performed in outpatient clinics without ASC equipment. And as for admitting privileges, the brief notes that, these days, admitting privileges are often restricted to a hospital’s own staff and faculty, making such privileges impossible for outside practitioners, and irrelevant to their work.
Meanwhile, both the AMA/ACOG brief and another filed by the American Public Health Association pointed out that reducing the number of abortion clinics would, itself, pose a public health risk, since women might be compelled to seek dangerous, illegal abortions rather than drive hundreds of miles to obtain a legal one.
What about the pro-life side?
In its brief, Texas’s lawyers state simply that “The Texas Legislature here sought to ‘increase the health and safety’ of abortion patients and provide them with ‘the highest standard of health care.’” The admitting-privileges requirement, for example, “ensures doctors are qualified, promotes continuity of care in the case of complications that require hospitalization, and reduces communication errors and time delays when a patient must be treated at a hospital.”
These assertions are made without citation to scientific studies, and Texas’s experts have not, as yet, submitted an amicus brief of their own. But a review of the Texas legislative history and the case history in Whole Woman’s Health shows that key scientific testimony was provided by shills who have worked closely with the pro-life movement for years, and who lack specific expertise in women’s health.
For example, Texas’s leading expert was Virginia doctor James Anderson, who has similarly testified in Alabama, Alaska, Mississippi, North Dakota, and Wisconsin. Anderson is a board-certified emergency physician, but not an ob/gyn. He is also a longtime pro-life activist, chairman of Virginia Physicians for Life, and adviser to the far-right Virginia Christian Alliance, which believes in creationism, women “obeying” their husbands, and the usual far-right issues.
Since 1997, Anderson has worked with Vincent Rue, a non-physician who has been working in the pro-life movement since at least 1981. Rue’s research has been formally discredited by peer-review and his testimony was expressly dismissed by the Supreme Court in Casey as being “not credible.”
Rue either wrote, co-wrote, or “wordsmithed” Anderson’s reports in Texas. In fact, as revealed by confidential emails obtained in a FOIA request by RH Reality Check, Rue told some Texas’s expert witnesses exactly what to say, and even filed reports on their behalf without their having even seen them.
This is not the first time Rue and Anderson have worked together. In a 2014 case in Alabama, Anderson admitted under questioning he had not even read one of his own filed reports, which, in fact, Rue had written.
As a result, the federal district court in Alabama wrote that it “discredits Dr. Anderson’s testimony on this point due to concerns about his judgment or honesty…. The court was struck by the flimsiness of Anderson’s basis for reliance on Rue and by his failure to obtain basic information about the affiliations, credentials, or employment of the consultant whose report he submitted as his own…. [E]ither he has extremely impaired judgment; he lied to the court as to his familiarity with Rue; or he is so biased against abortion that he would endorse any opinion that supports increased regulation on abortion providers. Any of these explanations severely undermines Anderson’s credibility as an expert witness.”
Others of Texas’s experts were found to have similar ties to the pro-life movement in general and Rue in particular.
Meanwhile, Rue raked in over $45,000 from Wisconsin, according to data obtained by Wisconsin local press, and $50,000 from Texas. Rue’s work is also supported by the national pro-life organization Susan B. Anthony List, and, it appears, the national right-wing organization Alliance Defending Freedom. The specific provisions in the Texas law came from model legislation created by Americans United for Life.
While Rue, Anderson, and others were provided discredited junk science to Texas politicians, Texas’s own Health and Human Services Commission provided them, in June 2013, with 1,136 pages of evidence describing the extensive regulations, annual inspections, regular monitoring, and penalties to violators that strictly governed Texas abortion facilities prior to the new law’s enaction.
The disparity is striking: on one side, the AMA, ACOG, the Texas Health and Hman Services Commission, and a host of actual experts, and on the other, two non-qualified pro-life activists who have each been discredited in official court opinions.
Will the Supreme Court pay attention?
The problem is that, as a matter of policy, courts defer to legislatures when it comes to questions of fact. If a legislature has decided that, say, seatbelts don’t save lives and needn’t be required, then a court will not usually overrule its judgment. Here, if the Court simply defers to the Texas legislature’s collective judgment, it may not matter that that judgment is based on the word of liars.
The court will also set an important precedent, since Texas is hardly the only Republican-controlled state to rely on dubious science. On the contrary, “we are seeing junk science all over the place,” says Jodi Jacobson, editor in chief of RH Reality Check, which fact-checks the claims made by abortion foes. “Anti-choice activists have created an alternative universe, with its own scientific institutes and scientific journals—but I use the term ‘scientific’ loosely, because what they present is against peer-reviewed science.”
Still, Jacobson told The Daily Beast, “My hope is that the Supreme Court justices, given that they are the most critical arbiters of fact and law, will see through this.”