How judges adjudicate scientific claims-making in challenges to abortion restrictions

Introduction: State legislatures are increasingly using scientific arguments to justify abortion regulations. In the prior two years over 100 laws have passed limiting how abortion care is provided or funded. Abortion rights supporters have challenged many of these laws in either state or federal courts. Judges have issued decisions in which they adjudicate the science involved in these challenges. Methods: Four predominately scientific-based regulations were selected: gestational bans based on presumed fetal pain, suicidal risk counseling requirements, ultrasound viewing mandates, and protocol specifications for mifepristone/misoprostol use. Content analysis is conducted of lower, appellate, and state supreme court decisions for the 12 legal cases challenging these regulations between 2007-2012. Results: Both abortion rights opponents and supporters make scientific claims in legal challenges. Across decisions, the same scientific studies are adjudicated differently suggesting there are no consistent standards for how science is or is not incorporated into legal decisions. In some cases, one set of scientific studies is seen as better or worse and judges use the conclusions of those studies to justify their decisions. In other cases, judges point to the existence of scientific disagreements as reasons to not using science in the decisions and instead defer to legislative authority. Discussion: Scientists hope their research will have a positive influence on public policy. However in politically-contested fields such as abortion, adjudication over science is often conducted by judges untrained in scientific methods or medical practice. This research suggests that ideology often substitutes for science in court decisions regarding abortion restrictions.