Supreme Court Debunks Pseudoscience Justifications for Government Action Impinging on Fundamental Constitutional Rights

By Sanford Jay Rosen and Margot Mendelson

On June 24, 2016, the Supreme Court held that Texas restrictions on abortion providers constituted an undue burden on a woman’s constitutionally protected right to choose. The Texas law required that abortion providers possess admitting privileges at local hospitals and that facilities providing abortions meet stringent licensing requirements for ambulatory surgical centers. Justice Breyer’s majority opinion in Whole Woman’s Health v. Hellerstedtheld that these requirements unconstitutionally limited a woman’s right to choose because they failed to provide medical benefits to justify the obstacles they placed in the path of a woman seeking to terminate her pregnancy.

The decision is a tremendous victory for women in Texas and other states that have mounted sideways attacks on a woman’s right to choose through licensing and regulatory provisions that dramatically restrict access to abortion based on purported health and safety concerns. More broadly, the decision vindicates the vital role of the courts in scrutinizing health and safety rationales advanced to justify government actions that limit personal liberty. The Whole Woman’s Health decision squarely rejects the proposition that courts should defer wholly to public health claims advanced by legislatures, instead emphasizing the courts’ duty to ferret out and meaningfully evaluate dubious science where it is employed to defend laws and government actions that limit or burden core personal liberties.

Unfortunately, our courts have not always adopted such a robust approach to examining government health and safety claims. Together with the National Center for Lesbian Rights, we filed an amicus brief on behalf of a number of LGBT organizations in the Whole Woman’s Health case sketching the shameful history of American judicial deference to pseudoscience, even where fundamental liberties have hung in the balance. We rehearsed something of the history of courts’ deference to and complicity in government action repressing African Americans, LGBT people, and disabled people in the name of science and public health. Legislatures have long grounded hateful laws in empirically unsupported science. Time and again, our courts have failed to scrutinize these flimsy public health and safety claims, instead deferring to the mere facade of empiricism.

American courts’ deference to junk science is nowhere more stark than in the legal history of eugenics. For decades, eugenic ideology supplied a scientific veneer for societal projects rooted in racial and social hatred. Eugenicists couched their political agenda in the language of biology, urging for example that anti-miscegenation, gay-phobic and compulsory sterilization statutes were vital to prevent contamination of the American bloodline. In 1927, in a decision notorious for its hateful verbiage and tragic effect, the Supreme Court affirmed the forced sterilization of 21-year old Carrie Buck, who was in the custody of the Virginia State Colony for Epileptics and Feeble Minded. Buck v. Bell, 274 U.S. 200, 205. The Court rejected a challenge to the Virginia statute that provided for the forced sterilization of so-called “mental defectives,” proclaiming that “experience has shown that heredity plays an important part in the transmission of insanity, imbecility, etc.” Id. at 205-06. Unhesitatingly accepting the bogus science of eugenics and even its misapplication to Carrie Buck, the Court held, in haunting language, that the state properly possessed the authority to undertake forced sterilizations “in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring, or let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” Id. at 207. The case was later cited at the Nuremberg trials in defense of Nazi sterilization practices.

The Buck decision has been relegated to the dustbin of history, but the Supreme Court never expressly overruled it. Justice Breyer does not mention Buck in Whole Woman’s Health, but his opinion can be read as a sub silencio repudiation of it. The Whole Woman’s Health opinion emphasizes that courts may not end their inquiry about laws at the mere invocation of scientific and public health interests. Rather, the “Court retains an independent constitutional duty to review factual findings where constitutional liberties are at stake.” Whole Woman’s Health v. Hellerstedt, No. 15-274, 2016 WL 3461560, at *16 (U.S. June 27, 2016) (quotations and citations omitted).

Justice Breyer squarely rejects the dissent’s contention that the mere invocation of “medical uncertainty” should compel courts to defer to legislative assertions. See id. at *35 (Thomas, J., dissenting). According to Justice Breyer, even though legislative findings are reviewed “under a deferential standard,” “[u]ncritical deference to Congress’ factual findings … is inappropriate.” Id. at *16, quoting Gonzales v. Carhart, 505 U.S. 124, 165 (2007). At bottom, then Whole Woman’s Health holds that when assessing government action impinging on constitutional liberties, the courts must do the hard work of reviewing evidence, assessing expert testimony, and determining whether public health claims pass scientific muster—thereby vindicating their core role in the defense of constitutional rights.

The Court’s clear-eyed articulation of the role of the judiciary in constitutional jurisprudence has immediate implications for the transgender bathroom debate that is currently raging. There, too, an attack on personal liberties is cloaked as a public health and safety campaign. Politicians in North Carolina have framed HB2, which eliminates anti-discrimination protections forLGBTpeople and requires that individuals must onlyuse restrooms in government buildings that correspond to the sex on their birth certificates, as a health and safety measure. (Coincidentally, Texas’s legislative assault on abortion rights was also identified as HB2.) Proponents of the North Carolina law claim that it is designed to protect children and families, presumably from the menace of transgender predators lurking in public restrooms.

In Whole Woman’s Health, Justice Breyer observed that the State of Texas had not presented evidence of “a single instance in which the new requirement would have helped even one woman obtain better treatment.” Id. at *19. The North Carolina legislature too has enacted, and its Governor has signed into law, a purported solution in search of a problem. Our history counsels us to be skeptical of restrictive “public health” and safety measures presented without verifiable empirical evidence of the problems they seek to address, particularly where the measures would deny core freedoms to a disfavored minority. The Obama Administration’s recent directive and supporting materials concerning treatment of transgender students, including mandating that such students be permitted to use bathrooms that match their declared gender, make clear that purported health and safety concerns used to justify the North Carolina and similar laws lack empirical support.

As challenges to laws limiting transgender people’s rights to use bathrooms that match how they identify their genders make their way through the courts, the Whole Woman’s Health decision requires judicial rigor in evaluating those laws and their justifications. When the courts make those assessments, these and other laws that continue to marginalize LGBT people likely will not pass constitutional muster.