September 30, 2014

Two types of distortions often arise in abortion jurisprudence. The first is distortion of scientific fact. Too often abortion opponents distort medical facts, and courts accept those distortions as true. Take, for example, the claim that abortion makes women depressed and suicidal.1 In fact, no
reputable study supports any such causal link. Nonetheless, this unfounded assertion has been used to justify laws requiring that women seeking abortion be provided with certain information lest they later suffer from post-abortion trauma. In particular, some states now require that doctors read to their abortion patients a state-scripted message describing their pregnancy as a “whole, separate, unique living human being.”

Equally without scientific foundation is the claim that morning after pills like Plan B act as abortifacients. They do not. This is not my personal opinion but medical consensus. Nonetheless, certain corporate employers who view abortion as a sin disregard the science and argue that it violates their religious beliefs to provide Plan B in their company’s insurance
plan. Accordingly, these corporate employers argue that they should be exempted from the new requirement that health care plans provide morning after contraception without any
additional charges to the employee.

The second kind of distortion that occurs in abortion jurisprudence is that the normal doctrine does not apply. Whether it be substantive due process, equal protection, or the focus of this Article—the First Amendment—the rules are different when the claim involves abortion. Thus, despite the fact that compelling someone to articulate the government’s ideology is anathema in free speech jurisprudence, courts have upheld mandatory abortion counseling laws that force doctors to serve as mouthpieces for the state’s viewpoint. Similarly, despite the fact that for-profit corporations have never been held to have religious rights, several courts have stayed application of the new contraception mandate on the grounds that it might violate the corporation’s “conscience.”

This abortion exceptionalism12 is problematic for women and First Amendment jurisprudence. People are entitled to their own religious beliefs but not to their own facts. Blatant distortions of science ought to be rejected outright. Furthermore, overlooking First Amendment values only when women’s reproductive rights are at stake not only harms women but also delegitimizes the entire jurisprudence.