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The ‘Invent-Your-Own-Facts Approach’: Many Abortion Laws Use Medically Incorrect Language

Appeals to pseudoscience have undermined true reproductive autonomy on all sides.

November 9, 2021
View the entire Abortion Rights Are Essential to Democracy series

In early Septem­ber, the Supreme Court declined to block Texas law S.B. 8 that effect­ively bans abor­tions as early as six weeks into preg­nancy—or as the law puts it, if a doctor detects a so-called “fetal heart­beat.” This bill is the latest in a series of restric­tions on repro­duct­ive health­care based on pseudos­cience and part of a distu­birng nation­wide trend that subverts evid­ence-based poli­cy­mak­ing—and, ulti­mately, demo­cratic account­ab­il­ity of govern­ment.

This partic­u­lar preoc­cu­pa­tion with heart­beats is an example of the sort of junk science lawmakers across the coun­try are using to stig­mat­ize abor­tion and justify rolling back repro­duct­ive rights. In this case, the term is mislead­ing at best because an embryo does not have anything resem­bling a heart at such an early stage of gest­a­tion; rather, the “heart­beat” is a group of cells emit­ting elec­trical signals.

Texas is one of at least eight states that have passed laws banning abor­tions using the false, fabric­ated vernacu­lar of “fetal heart­beats.” Other restric­tions are based on unsup­por­ted claims that a fetus can exper­i­ence pain prior to viab­il­ity—which are roundly rejec­ted by lead­ing medical author­it­ies and contra­dicted by evid­ence-based research.

Recent legis­la­tion in North Dakota requires health­care providers to inform patients that they are termin­at­ing “the life of a whole, separ­ate, unique, living human being”—a state­ment of belief, not a proven scientific fact—and to claim that medic­a­tion abor­tions can be reversed, which is false.

Mandat­ory coun­sel­ing laws have passed in several states, requir­ing providers to perpetu­ate the base­less lie that abor­tion is linked to long-term health complic­a­tions like breast cancer.

And an Ohio bill intro­duced in 2019 would compel doctors to reim­plant ectopic preg­nan­cies—which are not viable and can be life-threat­en­ing—in the uterus, even though this medical proced­ure does not exist; fail­ure to do so could result in charges of a wholly made-up crime, “abor­tion murder.”

This invent-your-own-facts approach has also occurred through federal exec­ut­ive branch poli­cy—un­der both Demo­cratic and Repub­lican admin­is­tra­tions. For instance, during the Obama admin­is­tra­tion, the secret­ary of Health and Human Services publicly over­ruled the Food and Drug Admin­is­tra­tion’s determ­in­a­tion that over-the-counter emer­gency contra­cept­ives were safe for minors, ques­tion­ing the under­ly­ing research despite her lack of scientific train­ing. A judge found the secret­ary’s action “polit­ic­ally motiv­ated, scien­tific­ally unjus­ti­fied, and contrary to agency preced­ent.”

And as part of an ongo­ing assault on science-based poli­cy­mak­ing, the Trump admin­is­tra­tion required patients seek­ing medic­a­tion abor­tion to have in-person visits with their health­care providers during the height of the pandem­ic—des­pite the risk of Covid-19 trans­mis­sion and the fact that stud­ies have found the drug to be safer than other medic­a­tions that are widely avail­able.

Creat­ing pseudos­cientific bases for restrict­ing or outlaw­ing repro­duct­ive health­care allows abor­tion oppon­ents to create confu­sion that conceals their ideo­lo­gic­ally driven goals—­val­ues that are not shared by most Amer­ic­ans. A solid major­ity believe that abor­tion should be legal in all or most cases. The specific provi­sions of the Texas ban are highly unpop­u­lar, includ­ing among Repub­lic­ans.

This is a strategy with a long history. In the late 19th century, the Amer­ican Medical Asso­ci­ation success­fully campaigned to crim­in­al­ize abor­tions on the pretense of science, when instead it was based on discrim­in­at­ory motives—­like those of Dr. Hora­tio Storer, who wanted to prevent white Prot­est­ant women from obtain­ing abor­tions because of a xeno­phobic and racist fear about popu­la­tion growth among immig­rants, Cath­ol­ics and people of color.

Other anti-abor­tion advoc­ates claimed they sought to outlaw abor­tion and other repro­duct­ive care like midwifery (often prac­ticed by Black women) in order to protect women’s health, when their true goal was to cement white male doctors’ control of the medical profes­sion while restrict­ing women’s autonomy.

And some early 20th century proponents of birth control harbored racist beliefs in eugen­ics, which were also the basis for state-sponsored forced ster­il­iz­a­tion programs. Appeals to pseudos­cience have under­mined true repro­duct­ive autonomy on all sides.  

Manip­u­la­tion of scientific research in govern­ment poli­cy­mak­ing is not solely the domain of anti-abor­tion ideo­logues. The federal govern­ment’s response to the Covid-19 pandemic has been hampered by repeated abuses by polit­ical actor­s—who have pres­sured govern­ment experts to promote unproven and inef­fect­ive treat­ments like hydroxy­chloroquine, manip­u­lated public health guid­ance, and censored the recom­mend­a­tions of govern­ment scient­ists.

Similar abuses have occurred at the state level, as well. For instance, when top polit­ical aides to former New York Governor Andrew Cuomo changed data in a report about deaths at nurs­ing homes in the state, redu­cing the number repor­ted by about 50 percent, nine public health experts resigned to protest the side­lin­ing of science. The polit­ical assault on public health research and guid­ance during the pandemic is in turn part of a larger anti-science play­book employed by several pres­id­en­tial admin­is­tra­tions, most prom­in­ently to under­mine climate science research and envir­on­mental regu­la­tions.

At the same time, the Supreme Court and state courts have become increas­ingly will­ing to defer to or even adopt pseudos­cience, under­min­ing science-based policies. For example, during the pandemic, courts have struck down the Centers for Disease Control and Preven­tion’s evic­tion morator­ium, which sought to minim­ize expos­ure to COVID-19, and inval­id­ated Michigan Governor Gretchen Whit­mer’s public health exec­ut­ive orders, while refus­ing to check the junk science and verbiage that under­gird anti-abor­tion legis­la­tion. 

Poli­cy­mak­ing informed by rigor­ous scientific research is crit­ical to build­ing a demo­cratic system that responds to people’s needs for health, safety and economic stabil­ity. Fortu­nately, there is bipar­tisan legis­la­tion pending in Congress—the Scientific Integ­rity Act—that would safe­guard against the types of manip­u­la­tion, censor­ship and other science-related abuses that have become common­place in the federal govern­ment. Similar safe­guards are needed at the state and local levels, as well.

More funda­ment­ally, we need to hold poli­cy­makers at all levels of govern­ment account­able, through legis­la­tion, the courts and public opin­ion, for their use, and abuse, of pseudos­cience to justify policies that are ideo­lo­gic­ally driven and lack popu­lar support. Demo­cratic account­ab­il­ity, public health and repro­duct­ive autonomy are all at stake.