Monday, June 11, 2018
Mary Ziegler, The Jurisprudence of Uncertainty: Knowledge, Science & Abortion, 2018 Wisconsin L. Rev. 316 (2018)
While the outcome of abortion cases seems to depend exclusively on the undue-burden standard, we have mostly missed the linchpin of recent decisions: conclusions about who has the authority to resolve uncertain scientific or moral questions. Using original archival research, this Article traces the history and present-day impact of the law and politics of uncertainty doctrine in abortion law.
The Article makes sense of the inconsistency running through the Court’s abortion jurisprudence: that the Court has not applied a single, coherent definition of uncertainty. Specifically, the Court has confused objective uncertainty, involving gaps in knowledge that can theoretically be closed through research, and subjective uncertainty, involving moral, ethical, or philosophical questions. Conflating these two kinds of uncertainty has led the Court to inject moral disapproval and disgust into what theoretically are questions of fact.
The Article proposes that the Court should formally distinguish between objective and subjective uncertainty. In cases of subjective uncertainty, the Court should generally defer to legislatures’ views on matters like the value of fetal life or equality for women, balancing them against the constitutional liberty recognized in Casey and Roe. When dealing with objective uncertainty, the Court should look for evidence on the purpose and effect of a law as the Court recently explained in Whole Woman’s Health v. Hellerstedt. Disentangling the two forms of uncertainty will make abortion jurisprudence more coherent, consistent, and faithful to the balance of competing constitutional values that Casey and Whole Woman’s Health command.