The recent comment by Representative Todd Akin (R-MO), that women don't get pregnant from "legitimate" rape because "the female body has ways to try to shut that whole thing down" provoked an unusual outcry, but the strategy he is using is not unique. The use of bad science is part of a long-term effort to limit - or eliminate - women's access to abortion and it has been effective in legislatures and encouraged by the courts.
The roadmap for passing legislation based on questionable science that will then be upheld in court is clear. Find someone with a scientific background to make an "Akin argument" - proclaim a scientific fact that justifies the conclusion that abortion is bad for women's health. Repeat the "Akin argument" over and over as fact. Write it into legislation and then tout the proposal as being good for women's health. When challenged in court by the real science, point to the initial scientific conclusion you made up, demonstrating medical uncertainty. Then note that the state's interest is helping women. You've just secured a law that harms women in the name of helping them.
The legislative efforts are on-going. For example, a bill in Kansas earlier this year included a requirement that the physician tell a woman seeking an abortion that it will bring "risk of breast cancer and risks to the woman's reproductive health." The National Cancer Institute and others have solidly rebutted this proposition. Yet if this bill passes, Kansas will become the sixth state requiring doctors to inaccurately assert that there is a link between abortion and breast cancer. Similarly, five states require women to be told about an invented connection between abortion and future fertility.
The courts' stamp of approval continues as well. Just this past July, the 8th Circuit Court of Appeals upheld a South Dakota law that requires abortion providers to inform a woman seeking an abortion that she may be at risk of an "[i]ncreased risk of suicide ideation and suicide." This ruling came despite overwhelming medical evidence to the contrary.
The 8th Circuit was not acting alone, it was relying on precedent from the Supreme Court. In 2007, the majority on the Court put its stamp of approval on using bad science to restrict access to abortion in Gonzales v. Carhart. In upholding a ban on a particular abortion procedure without a health exception, the majority gives deference in regards to medical decisions -- not to science nor to a woman and her doctor, but to legislatures. The majority purports to be helping women with this decision, stating, "[w]hether to have an abortion requires a difficult and painful moral decision. 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."
An article in the New England Journal of Medicine says it best. In Gonzales, "[f]or the first time, the Court permits congressional judgment to replace medical judgment."
Promoting abortion restrictions by arguing that they are being imposed for the woman's own health and well-being, when in fact the opposite is the case, is one of the most cynical and unfortunately very effective strategies that opponents of abortion rights choose to deploy. In a recent piece, American's United for Life President Chairmaine Yoest states, "it's very important to establish... this foundational argument that there really are harms for women...It rounds out the pro-life position by putting a marker down to say, here's why being pro-life is a pro-woman position."
These distortions of medical facts should be rejected and should never become the basis for laws. We cannot let "Akin arguments" be used to undermine women's health care. Neither courts nor politicians should impose their judgment, but instead should let women and their doctors make their own personal medical decisions, informed by evidence-based science.
This blog post was published in conjunction with Repro Health Watch, an exciting new edition of the Women's Health Policy Report, which compiles and distributes media coverage of proposed and enacted state laws, ballot initiatives and litigation affecting women's access to comprehensive reproductive health care.