The Medical Assumption at the Foundation of Roe v. Wade and Its Implications for Women's Health

Table of ContentsI. Introduction 829II. The Medical Premise of Roe v. Wade 833A. The Impact of Roe and Doe 835B. The Mistake that Left the Justices with No Record 836C. The Source of the Medical Mantra 838D. No Factual Record in the Abortion Cases 840E. Impact of the Medical Mantra 8441. The Public Health Vacuum 8442. The Expansion to Viability (and Beyond) and the Risks of Late-Term Abortions 8483. "Health" Considerations in Supreme Court Abortion Cases Have Been a "One-Way Ratchet" 8504. Shielding the Justices from New Medical Data and Developments 851 III. Maternal Mortality Data 852IV. International Medical Data on the Risks of Induced Abortion 860A. Increased Risk of Pre-Term Birth (PTB) After Induced Abortion 860B. Increased Risk of Mental Trauma After Induced Abortion 862C. Increased Risk of Breast Cancer from the Loss of the Protective Effect of a First Full-Term Pregnancy 865D. Placenta Previa 868V. Isaacson v. Horne, the Medical Assumption, and the Viability Rule 869VI. Conclusion 871Appendix A: List of 140+ Medical Studies Finding an Increased Risk of Pre-Term Birth After Abortion 873Appendix B: List of 99 Medical Studies Finding an Increased Risk of Mental Trauma After Abortion 883Appendix C: List of 33 Medical Studies Finding an Increased Risk of Breast Cancer After Abortion 890I. IntroductionThe Supreme Court's abortion decisions in Poe v. Wade1 and Doe v. Bolton2 have been subjected to extensive criticism over the past forty years.3 Scholars have criticized the Court's mistreatment of: common law history,4 American legal history,5 the abortion statutes of the nineteenth century,6 the use of sociological evidence that was not part of any record,7 the Hippocratic Oath,8 existing prenatal injury, wrongful death and fetal homicide law,9 existing state and federal court decisions on a right to abortion,10 precedent,11 and the unborn child's status as a human being or person in the law.12 Others have criticized the workability of the Court's doctrine13 and its impact on women.14 Recently, Professor Randy Beck has published several articles that focus on the arbitrary nature of the viability rule that the Court has never adequately justified,15 a focus shared by others before him.16 Professor Stephen Gilles has analyzed how the Court has never justified or explained its life-or-health exception after viability.17 Others have criticized the search for a new rationale for the Court's abortion doctrine, whether it is found in the Equal Protection Clause18 or the Nineteenth Amendment.19II The Medical Premise of Roe v. WadeToo little attention, however, has been paid over the past forty years to the complete lack of a factual record in Roe v. Wade and Doe v. Bolton, and to the Court's fundamental medical assumption that drove the outcome.20 The decision and opinions were driven by the medical claim that "abortion was safer than childbirth," which was raised for the first time in the briefs in the Supreme Court and without any lower court record.21 That assumption was at the very heart of the deliberations and decisions in the abortions cases. The Court in City of Akron v. Akron Center for Reproductive Health22 specifically referred to it as "Roe's factual assumption"23 and said that "the State retains an interest in ensuring the validity" of the assumption. …