Earlier this month, as the Supreme Court heard oral arguments over Mississippi’s restrictive abortion law in Dobbs v. Jackson Women’s Health, the justices gave serious consideration to dubious science. This was not the first time.
Our research suggests that the investment in the politics of doubt has also been aimed at the courts. Rather than investing in replicable scientific inquiry, various organizations fight science by peddling doubt and discord.
Science and the courts
For years, partisans have been fighting over whether accepted science should guide decisions on thorny policy issues such as climate change, vaccines, contraception and partisan gerrymandering. Conservative policymakers regularly dismiss scientific findings as “fake news.” When battles over laws touching on these subjects reach the courts, judges aren’t necessarily equipped to discern which scientific claims are reliable and which are disreputable assertions.
For instance, in Gill v. Whitford, a case about partisan gerrymandering, Chief Justice John G. Roberts Jr. dismissed a statistical method for calculating the democratic costs as “sociological gobbledygook.” During her nomination hearings, Amy Coney Barrett similarly disregarded climate science when asked about her views on climate change. “I’m certainly not a scientist,” she answered, later saying, “I will not express a view on public policy, especially one that is politically controversial.”
Science and the ‘viability line’
Roe v. Wade, the landmark abortion rights case, established a woman’s right to abortion before “viability” — the point at which a fetus could survive outside the uterus, which is generally considered to occur at 23 or 24 weeks. Mississippi’s law bans abortion after 15 weeks. In the Dobbs oral arguments, attorneys and justices debated over whether viability was an objectively meaningful line. Arguing for abortion clinics that are challenging the law, attorney Julie Rikelman called viability a “principled line” because it is “objectively verifiable and doesn’t require the court to resolve the philosophical issues at stake.”
But Mississippi Solicitor General Scott Stewart argued that science wasn’t relevant. When Justice Sonia Sotomayor questioned whether there was any evidence documenting viability before 23 or 24 weeks, Scott argued that the “problem with viability” isn’t the “science so much.” Rather, for the court, “it’s that viability is not tethered to anything in the Constitution, in history or tradition.”
The court’s conservative majority seemed to agree. Roberts, for instance, downplayed the 15-week ban because it was not “a dramatic departure” from viability, although considerable developmental milestones separate a 15-week-old fetus from one able to survive on its own. Justice Samuel A. Alito Jr. suggested that if any “secular philosophers and bioethicists” believed “the rights of personhood” began before viability, those opinions should help guide the court’s decision.
Fetal pain and ‘fringe’ science
In response to the argument that viability can be objectively established, antiabortion advocates have championed marginalized science. Stewart argued that it was time to reassess abortion law given “the last 30 years of advancements in medicine, science, all of those things.” When asked which medical advancements he meant, he offered fetal pain.
Sotomayor quickly noted that the claims of fetal pain lack scientific rigor and professional acceptance. “Obviously … a gross minority of doctors who believe fetal pain exists before 24, 25 weeks, it’s a huge minority and one not well founded in science at all. … That a small fringe of doctors believe that pain could be experienced … doesn’t mean that there’s been that much of a difference” in the past 30 years.
Stewart eventually abandoned the claim after a prolonged dispute, leaving Sotomayor’s question about “what has changed in science” unanswered. Nevertheless, Stewart and the conservative justices continued downplaying the science of viability as “arbitrary” and beyond the court’s concerns.
Can courts save science, or can science save the courts?
Such arguments suggest that American judges may find it difficult to oversee political questions when science is increasingly politicized. Judges are generalists on anything outside the law, and the judicial system asks lawyers on competing sides to offer their own experts and evidence. The theory is that through this clash of ideas, neutral judges will find the truth. Social science suggests that may not work as envisioned, especially in the most politically contentious cases.
As legal scholar Mary Ziegler writes, the antiabortion movement is fostering a “jurisprudence of uncertainty.” Activists have learned that they do not need to conclusively refute established scientific consensus. They need only to cite “sympathetic researchers” who can summon some doubt, giving sympathetic legislatures and courts the backing needed to ignore the scientific mainstream.
New groups such as the American College of Pediatricians — a conservative answer to the American Academy of Pediatrics — and the Witherspoon Institute partner with more-established organizations to offer a veneer of scientific respectability in legal and legislative proceedings. The Heritage Foundation, the Alliance Defending Freedom and other conservative groups use these experts to contest any references to scientific consensus and to activate judicial ambivalence toward science.
Political science research has found that such support structures for litigation can revolutionize politics and law. Conservatives have built effective means of organizing lawyers, coordinating litigation campaigns and reshaping the federal judiciary. Producing doubt and destabilizing science in the courtroom is part of this conservative strategy. While judges may have the official power to decide fact and law, the jury is out on whether they can consistently and accurately evaluate science.
Alison Gash (@AlisonGash) is associate professor of political science at the University of Oregon and author of “Below the Radar: How Silence Can Save Civil Rights” (Oxford University Press, 2016).
Joshua C. Wilson (@jcwilson98) is a professor and the chair of the political science department at the University of Denver and author, most recently, with Amanda Hollis-Brusky, of “Separate but Faithful: The Christian Right’s Radical Struggle to Transform Law and Legal Culture” (Oxford University Press, 2020).