Investigations Science

How Shoddy Evidence Finds Its Way From State Legislatures to the U.S. Supreme Court

Sharona Coutts & Sofia Resnick

Once a legislature accepts bogus facts, a larger problem can arise: Courts will frequently defer to the factual findings of state legislatures, which provides a gaping loophole for junk science to wend its way into judicial decisions all the way up to the Supreme Court.

To view the full False Witnesses gallery, click here.

If you were a South Dakota legislator looking for expert evidence on how abortion affects women, the obvious choice would be an electrical engineer based in Illinois.

Right?

It may sound absurd, but that is precisely who lawmakers cited in 2005, when they gathered testimony for a report by the South Dakota Task Force to Study Abortion.

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The legislators relied on evidence from David C. Reardon, one of the people who in the early 1980s helped concoct a faux mental illness that he calls “post-abortion syndrome.” But, as detailed in Rewire’s False Witnesses series, Reardon lacks any credentials as an authority on reproductive health care, and to call him such would be specious, to be polite.

Reardon has a degree in electrical engineering from the University of Illinois at Urbana-Champaign, and according to his public LinkedIn profile, he focuses on IT. Some of his patents have been used by a Texas-based firm called NovelPoint Security LLC, which claims that major tech companies have violated his patents, conduct also known as patent-trolling.

In addition to his electronics degree, Reardon used to claim that he had earned a Ph.D. in biomedical ethics from Pacific Western University-Hawaii, but that “school” was shuttered by the state in 2006 after an investigation concluded that it was a diploma mill. Reardon makes no mention of that credential on his current LinkedIn profile.

Yet, testify he did, along with Vincent M. Rue, Priscilla Coleman, and Joel Brind—all members of the False Witnesses group whose work has since been thoroughly discredited.

The South Dakota report concluded that abortion leads to serious mental illness, as well as risk of suicide and breast cancer—claims that have all been debunked by reputable professional research organizations. Those “findings” helped frame a 2005 South Dakota law that requires doctors to give women warnings about depression and suicidal ideation, despite the fact that medical evidence does not support any of those claims. This and other laws based on Reardon’s bogus notions have transformed South Dakota into a state where the constitutional right to choose whether to carry a pregnancy to term now hangs by a filament.

It’s a pattern that is all too familiar in state legislators around the United States, said Caitlin Borgmann, a law professor at the City University of New York who is an expert in the role of courts and legislatures in protecting constitutional rights.

“There’s a risk of this whenever you have a hot-button social issue because advocates know that social science matters,” Borgmann told Rewire. “You’re always at risk that they’re going to try to find evidence that support their position, even if it’s not based on sound methods or from someone who has the right example to give that opinion.”

Once a legislature accepts these bogus facts, a larger problem can arise: Courts will frequently defer to the factual findings of state legislatures, which provides a gaping loophole for junk science to wend its way into judicial decisions all the way up to the U.S. Supreme Court.

“Unfortunately it is true that the courts sometimes do look to the legislative record, and in fact they did that when they looked at the partial-birth abortion ban, in Gonzales v. Carhart,” Borgmann said. “The effect of that is that you can have decisions that affect people’s constitutional rights being made on very shoddy factual findings.”

Experts in One Area, Testifying in Another

Of the many uses for a law degree, Teresa Stanton Collett has developed a new one: She is frequently called upon to testify in favor of forced pregnancy laws, yet her evidence has trampled into the terrain normally left to sociologists, psychologists, and, well, people who understand data.

In 2012, Collett testified before the U.S. House Judiciary Committee Subcommittee on the Constitution and Civil Justice and suggested that pregnant minors are often pressured into having an abortion by their older boyfriends. Collett cited figures from a report by the Centers for Disease Control and Prevention, “suggesting that there is [sic] in fact differences in power and status between the sexual partners.”

Collett has also testified in Alaska, in two lawsuits challenging restrictions on minors’ ability to obtain abortions without the involvement of their parents. Since 2010, Collett has earned $176,000 from just two states—Alaska and Oklahoma—that hired her to support laws intended to strip away the right to choose whether to carry a pregnancy to term.

In her testimony in these cases, Collett assessed data from a wide range of sources, which she used to bolster claims that requiring minors to obtain parental consent in order to have an abortion affects the rates of teen pregnancy and teen abortions.

While there’s nothing wrong with lawyers citing statistics, Janet Crepps—senior counsel for the Center for Reproductive Rights, which represented the plaintiffs, Planned Parenthood of Alaska, in these cases—told Rewire that the problem was that Collett went beyond citing statistics, and used them to do her own analysis and draw her own conclusions.

“What she did was she went onto the website where there is publicly available information, like how many births there were to a certain age group, how many abortions there were, and she offered testimony that the parental involvement requirement in Texas had had a certain impact,” Crepps said. “Our objection was that she was not qualified to offer that kind of information, because she’s not a social scientist and she couldn’t take into account confounding variables, such as a reduction overall in the abortion rate throughout the country, whether there had been a change in sex education or access to birth control. And she was just offering raw numbers the way you or I could go to the website and say, ‘Oh, look, here’s how many abortions that were before the law, and here is how many that were after the law, so the law must be having X effect.’”

“We objected again because she’s not a social scientist, and the fact that she’s read a bunch of studies doesn’t in my opinion make her an expert,” Crepps concluded. “But the judge let that testimony in.”

When Ideological Bias Trumps Expertise

One member of the False Witnesses group who does have expertise in statistics is Michael J. New, an assistant professor of political science at the University of Michigan-Dearborn, who holds a master’s in statistics and a Ph.D. in political science, both from Stanford University, according to his official online biography.

New has also testified before Congress in favor of anti-choice laws. In March 2012, for example, he testified before the House Judiciary Committee in support of the Child Interstate Abortion Notification Act (CIANA), which would prohibit the act of transporting a minor across state lines in order to obtain an abortion. In his testimony, New told the committee, “I am confident the Child Interstate Abortion Notification Act would lead to both fewer abortions and better public health outcomes for teen girls.”

New claimed that “the knowledge that their parents will be involved with an abortion decision provides teen girls with a strong disincentive to engage in unprotected sexual activity,” based on a 2003 Journal of Health Economics study, which he says found that parental involvement laws reduced the pregnancy rate of 15- to 17-year-olds by 4 to 9 percent.

However, New’s true intention is not simply to provide objective evidence of how laws will affect women and girls. As he has publicly admitted, his real goal is to effectively ban abortion.

In 2012, New spoke on a panel at the socially conservative Values Voter Summit, an annual conference in Washington, D.C., sponsored by the Family Research Council. During his PowerPoint presentation, New explicitly stated that laws often cloaked in the pretense of protecting women are in fact intended to make abortion impossible to access.

“The best thing you can do when you get home is support a variety of state pro-life bills, and essentially, if your state has them, they can be strengthened,” New said. “Require the woman to see an ultrasound, or require two trips to the clinic. That raises the costs; that stops the abortion from happening.”

Borgmann, of the City University of New York, said that ideology is highly relevant, as it can affect an expert’s credibility. And while legislative hearings are not bound by the same rules as courts, it’s still important for lawmakers to ask tough questions to discover if ideology is trumping the objective view of experts appearing at legislative hearings.

“You can’t compare legislatures to courts or expect them to have the same procedures because they serve a very different function,” she said. “The most you could hope for is that legislators would recognize the flaws in the process and take things with a grain of salt, and take a look at the background of the people testifying.”

Judges Wise Up to Some False Witnesses

Courts, said Borgmann, are a different forum: They should view factual “findings” by legislatures with a heavy dose of skepticism, especially given that anti-choice activists have clearly realized that state legislatures provide a gaping loophole in the otherwise strict rules about what judges will allow as expert evidence.

In certain cases, judges are already calling out these experts for their failure to disclose the fact that they are anti-choice zealots, or that their research has been discredited.

In September and October 2014, judges lambasted both Texas and Alabama for hiring a collection of so-called experts to testify in favor of repressive abortion laws. The experts in question were John M. Thorp and James C. Anderson—both members of the False Witnesses group. Their testimony was orchestrated by a third False Witness, Vincent M. Rue.

According to Molly Redden’s report about the Alabama case in Mother Jones, U.S. District Judge Myron H. Thompson obliterated Anderson’s claims about the risks of abortion:

“Either [Anderson] has extremely impaired judgment; he lied to the court as to his familiarity with Rue; or he is so biased against abortion that he would endorse any opinion that supports increased regulation on abortion providers. Any of these explanations severely undermines Anderson’s credibility as an expert witness.”

This type of scrutiny is not only welcome, but is in fact the way that courts are supposed to operate, said Borgmann. Recent studies have found that some appellate courts have broken their own rules about evidence, and have gone so far as to do their own online research—a step that opens the judicial process up to the influence of propaganda, especially in contentious areas such as reproductive rights.

A better approach, said Borgmann, would be for lower courts to cast a doubtful eye over any findings from state legislatures, and to aggressively test the qualifications and biases of any purported expert testimony.

“Courts should be very careful when they are looking at laws where the legislature has limited constitutional rights,” she said. “Testimony that happens in court has a much better chance of revealing problems like that someone doesn’t even have an education in the area they’re talking about, or that their theories are widely discredited. These things should come out in trial.”

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