In December of 2013, when the U.S. Court of Appeals for the Seventh Circuit upheld a temporary injunction blocking a requirement that doctors performing abortions in the state have admitting privileges at nearby hospitals, the court did an usual thing: It urged the trial court to appoint its own expert to give testimony on the need and impact of the proposed regulations. Now, with trials over admitting privileges laws coming to a close in both Wisconsin and Alabama, that request could prove to be even more significant—it could be the difference between one court upholding the requirement and the other striking it.
Normally in litigation, the parties hire expert witnesses to help explain their case to the court, and the federal rules of evidence spell out exactly how the court is to consider that testimony, and piles of case law further clarify when an expert is to be considered qualified and when they are not. Generally speaking, if some kind of scientific, technical, or other specialized knowledge will assist the court in understanding the evidence, and if a witness is qualified based on their knowledge, skill, experience, training, or education, then that witness can offer testimony—so long as that testimony is based on enough facts or data, the result of the expert using reliable principles and methods, and the expert has applied those principles and methods reliably in the case at hand.
In the lawsuits challenging the constitutionally of admitting privileges requirements in Alabama and Wisconsin, this means experts testified on the purported health and safety rationale and the impact the requirements would have on the delivery of reproductive health care to patients in the state. Butthe case for admitting privileges depends on biased junk science to confuse otherwise settled issues of medical opinion, and that is exactly what state attorneys general offered in these trials.
As reported by The Isthmus, both of the expert witnesses relied on by attorneys for the State of Wisconsin were brought into the case by discredited psychotherapist Vincent Rue. Rue is best known for coining the phrase “post-abortion syndrome,” which purports to link abortion to various mental health issues like depression. Rue first invented the condition in the early 1980s, but the condition is not recognized by either the American Psychological Association or the American Psychiatric Association.
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Rue is no stranger to serving as an expert in abortion restriction litigation and has a well-deserved reputation for biased testimony. Rue’s testimony in what would become the landmark Planned Parenthood v. Casey case was rejected because his “admitted personal opposition to abortion, even in cases of rape and incest, suggests a possible personal bias.”
As The Isthmus reported, the State of Wisconsin plans to pay Rue approximately $48,000 for his work as an expert consultant on the case and for serving as a “liaison” between the state and the experts its attorneys planned to call as witnesses to defend the law. Both witnesses, Dr. James Anderson and Dr. James Linn, testified that they became involved in the case after being contacted by the state. Anderson testified that Rue helped him “wordsmith” his expert report submitted to the court, while Linn admitted during cross examination that he was not aware Rue was discredited by the medical community.
Anderson also testified for the State of Alabama in the legal challenge to that state’s admitting privileges requirement and is also serving as an expert consultant for the state in the case.
Was this precisely the scenario the Seventh Circuit saw unfolding when it suggested the trial court in Wisconsin appoint its own expert? It seems to be. Here’s Judge Richard Posner, writing for the majority in the Seventh Circuit in the Planned Parenthood of Wisconsin v. Van Hollen opinion, making the case for an independent, court-appointed expert to testify on the need and impact of the admitting privileges requirement:
And so the district judge’s grant of the injunction must be upheld. But given the technical character of the evidence likely to figure in the trial—both evidence strictly medical and evidence statistical in character concerning the consequences both for the safety of abortions and the availability of abortion in Wisconsin-the district judge may want to reconsider appointing a neutral medical expert to testify at the trial, as authorized by Fed.R.Evid. 706(a), despite the parties’ earlier objections. Given the passions that swirl about abortion rights and their limitations there is a danger that party experts will have strong biases, clouding their judgment. They will still be allowed to testify if they survive a Daubert challenge, but a court-appointed expert may help the judge to resolve the clash of the warring party experts. And the judge may be able to procure a genuine neutral expert simply by directing the party experts to confer and agree on two or three qualified neutrals among whom the judge can choose with confidence in their competence and neutrality. If either side’s party experts stonewall in the negotiations for the compilation of the neutral list, the judge can take disciplinary action; we doubt that will be necessary.
Ultimately, Judge William Conley took the Seventh Circuit’s suggestion and appointed Dr. Serdar Bulun, chair of obstetrics and gynecology at Northwestern University’s Feinberg School of Medicine, to serve as the court’s unbiased expert on the admitting privileges law. The Milwaukee-Journal Sentinel reported that while the three experts in the case—one for the state, one for Planned Parenthood, and Bulun—did not reach agreement on the need for the admitting privileges law, they did agree that abortion is a safe procedure and is about as risky as colonoscopies and other outpatient procedures.
That may not seem like much, but in a case built entirely on the false premise that requiring abortion providers to have admitting privileges protects the safety of patients, an admission by the state that abortion is a generally safe procedure akin to a colonoscopy either means the law does unconstitutionally target abortion providers, or it’s time to start heavily regulating proctologists.
Unlike the court in Wisconsin, the court in Alabama did not appoint its own independent expert, and with a decision in both cases still pending and appeals likely regardless of the outcomes, we can’t say for certain that the presence of the court-appointed expert in the Wisconsin case made any difference in the cases’ outcomes or not. But, given the often lackadaisical method some federal courts have used in evaluating the credibility of the “evidence” offered to support anti-abortion restrictions like admitting privileges requirements, and the proliferation of junk science promoted by anti-choice advocates, Judge Posner may have offered reproductive rights and public health advocates an important opportunity to guide federal courts away from confusion intentionally induced by anti-abortion advocates and toward a more rational review of the law.