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For another thing, the division of medical opinion about the matter at most means uncertainty, a factor that signals the presence of risk, not its absence. That division here involves highly qualified knowledgeable experts on both sides of the issue.-Stenberg v. Carhart, 20001
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.-Gonzales v. Carhart, 20072
I. INTRODUCTION
Medical literature on abortion largely supports pro-choice legal claims. In turn, progressive lawyers often call for "evidence-based approaches" to lawmaking on the assumption that it will produce pro-choice legal and regulatory outcomes. This article argues that the evidence-based approach is no longer a reliable or stable strategy for pro-choice lawyering given transformations in judicial treatment of medical knowledge and a shifting evidentiary base.3
Drawing on landmark cases from 1973 to 2012, this article demonstrates how the Supreme Court and lower courts selectively utilize medical expertise and evidence to liberalize or constrain abortion access. With Roe v. Wade, 4 the Supreme Court began its engagement with medical evidence and expertise intending to liberalize abortion. The Court relied on medical knowledge that lent credibility to progressive arguments, while dismissing evidence that supported conservative claims. In doing so, the court treated evidence supporting progressive claims as objective and neutral and discounted claims that supported limiting access to abortion. This has now flipped-the Supreme Court and lower courts often treat medical evidence and expertise that supports conservative claims as objective and neutral. These newly-legitimated conservative ideas about abortion provide the foundation for the vast proliferation of informed consent laws that regulate provider-patient interaction at the most minute level- mandating that women seeking abortion look at sonograms and hear the fetal heartbeat, as well as scripting physician disclosures.5 This new reality is exemplified in Texas Medical Providers Performing Abortion Services v. Lakey, a Fifth Circuit case regarding the Texas 2011 Women's Right to Know Act, in which the court heralds conservative expert and evidentiary claims as objective while discounting progressive assertions.6
Given the transformation in the development and use of medical evidence and expertise, I argue that progressive lawyering strategies on the issue of abortion should delink legal advocacy from...