Portside

On Jan. 7, the U.S. Court of Appeals for the 5th Circuit heard oral arguments in a Texas case challenging the constitutionality of an abortion law, H.B. 2, that has shuttered half the abortion clinics in the state. The doctors bringing the lawsuit argue that the law’s restrictions on abortion facilities and providers make it more onerous for women seeking to end their pregnancies and provide no medical benefits.

In previous rulings, the 5th Circuit had refused to consider whether H.B. 2 has any medical benefit. So it was a pleasant surprise when Judge Catharina Haynes—who voted to uphold other portions of H.B. 2 in an earlier challenge—questioned whether the law was medically justified. “You can kind of find an expert to say anything,” she told the state’s attorney. “Are we saying if you can find someone in the world to say we need marble floors in an abortion clinic, then that would be good enough to allow the Texas legislature to pass that?”

In fact, lawyers are not permitted to use experts to “say anything,” because they have a duty of candor to the court. But in recent abortion cases across the country, that is indeed what state attorneys are doing when they hire Vincent Rue, the pioneering junk scientist behind “post-abortion syndrome.”

Rue, discredited by courts decades ago, has since made a career as a behind-the-scenes litigation consultant. I first met Rue when he tried to hold himself out as an “expert in the areas of problem pregnancy decision-making, marital family relationships, and psychological effects following an abortion” in the trial court phase of Planned Parenthood v. Casey, the 1992 case that reaffirmed Roe v. Wade. I was co-counsel in the case and argued on behalf of the abortion clinics before the Supreme Court. After a full trial, District Court Judge Daniel Huyett found that Rue’s testimony, “which is based primarily, if not solely, upon his limited clinical experience, is not credible. His testimony is devoid of ... analytical force and scientific rigor. ... Moreover, his admitted personal opposition to abortion, even in cases of rape and incest, suggests a possible personal bias.” When examining a study that Rue had co-authored titled the Psychological Aftermath of Abortion, Huyett specifically found:

After submission for peer review by scientists with the Center for Disease Control, the National Center for Health Statistics and other scientific institutions, his study was found to have “no value” and to be “based upon a priori beliefs rather than an objective review of the evidence.” The Board of Directors of the American Psychological Association, after review of all of the scientific literature, has determined that there are no scientific studies which support the existence of a “post abortion syndrome” as suggested by Dr. Rue (citations omitted).

Certainly, attorneys of all stripes are inclined to engage experts whose views are in accord with their clients’ positions, but the coordinated use of unqualified and discredited witnesses presenting junk science crosses the line. In other contexts, in criminal cases or civil disputes, state attorneys would consider it shameful and unethical to fabricate evidence or stretch the truth in this way. They feel no similar remorse nor hesitancy to do so when the issues involved are labeled “controversial” and involve highly charged ideological views or religious orthodoxy. But it is precisely such circumstances that require lawyers and courts to base arguments on real evidence—not conjecture or faux science. Without that check, we give government unlimited power to mandate harmful laws, with no recourse for those whose lives or health are jeopardized.

In an unusual turn of events at the Texas trial now under appeal, the state was caught red-handed: Four of the state’s five expert witnesses were forced to change their testimony on the stand when confronted with emails showing they had lied about who had written their reports.

Just how extensive and improper Rue’s contributions had been wasn’t known until a 2:30 a.m. document dump during the trial. That’s when the state’s lawyers finally turned over to the clinics’ attorneys emails they had withheld, despite a court order requiring them to turn over all the witnesses’ communications with Rue. The emails show that Rue sent drafts of rebuttals to expert reports to the purported rebuttal authors before the authors had ever seen the reports they were meant to be rebutting. Deborah Kitz, a witness testifying as an expert in the management of medical facilities, claimed under oath that no one else had contributed to the writing of her rebuttal. But she wrote to Rue, “I see ‘my’ report that you returned to me yesterday references my review of a report from a Dr. Layne-Farrar. I’ve never seen that report.” Similarly, Mayra Thompson, an OB-GYN, failed to review the sources she purported to rebut. Thompson admitted that she was unfamiliar with eight of the nine studies relied upon by the expert she claimed to critique, and she could not identify a single published study to support the opinions expressed in her own report.

There’s more. Sociologist Peter Uhlenberg, the author of a book claiming that scientific material must be tested against the Bible and “some findings must be rejected as contrary to a Christian understanding of reality,” denied ever discussing his opinions with Rue. Yet emails show him asking Rue what he should do about contradictory evidence. Rue helpfully suggested leaving the most recent data out of Uhlenberg’s report.

James Anderson, another state witness, also was confronted on the stand with his correspondence with Rue and was forced to admit that he had not read a number of the sources he cited in his expert report. This was not the first time Anderson was willing to let Rue put words in his mouth. In a recent Alabama case, District Court Judge Myron Thompson explained he had not credited Anderson’s testimony due to “concerns about his judgment or honesty” and in a supplemental opinion found “inexplicable” that Anderson had submitted a report to the court as his own that had been drafted entirely by Rue without even verifying its accuracy or learning whether Rue had any qualifications.

Thankfully, Judge Lee Yeakel, who presided over the Texas trial, was “dismayed by the considerable efforts the State took to obscure Rue’s level of involvement with the experts’ contributions,” and we hope that the 5th Circuit and other appellate courts will closely examine the evidence on appeal.

Opponents of legal abortion have misled legislatures, the public, and the courts about the safety of abortion and the intent of these laws as they attempt to regulate an extremely safe procedure out of existence. We may live in an age of anti-science, in which scientific consensus on issues like climate change or the safety of vaccinations does little to move the public. But courts are tasked with evaluating evidence and credibility. They must not shirk that responsibility by simply saying experts disagree when “someone in the world” disagrees with the consensus among experts. It should not take witnesses actually being caught lying on the stand for courts to recognize the overwhelming evidence that these restrictions serve no medical purpose. Pretending these laws are intended to do anything other than make it more difficult for women to get legal abortions makes a farce out of judicial review.

Kathryn Kolbert, the Constance Hess Williams ’66 Director of the Athena Center for Leadership Studies at Barnard College, argued Planned Parenthood v. Casey before the Supreme Court.