Abstract
Junk science has been a longstanding feature of antiabortion legislative and litigation strategy. But after the Supreme Court’s opinion in Whole Woman’s Health required courts to independently evaluate scientific evidence, rather than defer to a legislature’s factual findings, antiabortion experts took on greater importance in litigation. This Article examines three theories of antiabortion junk science, which, despite overwhelming scientific evidence establishing their falsity, have been repeatedly litigated in federal and state courts. The current tool for addressing dubious evidence in litigation is the standard created by the Supreme Court in Daubert and adopted by Federal Rule of Evidence 702. However, the current procedure for Daubert motions does not solve the problems created by junk science in abortion litigation. This Article reviews abortion litigation between Whole Woman’s Health and Dobbs, which is the period that saw the highest court engagement with these theories. The review shows that when abortion rights litigants devoted significant time and resources to disproving junk science, district court judges typically made the correct assessment. But the antiabortion expert simply moved on to the next case, requiring abortion rights litigants to disprove their false evidence again and again. This phenomenon impacted the abortion rights movement’s overall effectiveness and entrenched antiabortion junk science in the courts and in public opinion. This Article argues that our legal system does not effectively manage litigants who continue to promote false evidence despite repeated rejection. It suggests three solutions: resolving disputes over pseudoscientific expert evidence in a preliminary injunction decision that binds the rest of the litigation; centralizing discovery in a multidistrict litigation; and moving for Rule 11 sanctions against those litigants that repeatedly rely on junk science. These solutions are considered in the context of abortion litigation but may also be applicable to other areas of litigation.
Recommended Citation
Tyrrell, Kirby
(2025)
"Addressing Junk Science in Abortion Legislation,"
University of Memphis Law Review: Vol. 55:
Iss.
1, Article 2.
Available at:
https://digitalcommons.memphis.edu/um-law-review/vol55/iss1/2