Sunday, June 06, 2004

Expert Testimony in Planned Parenthood v. Ashcroft

When Judge Phyllis J. Hamilton handed down her decision last week in Planned Parenthood Federation of America v. Ashcroft, No. C 03-4872 PJH (N.D. Cal. June 1, 2004), holding the Partial Birth Abortion Ban Act of 2003 to be unconstitutional, the media reported the story in the usual way. That is, they reported the story in sports page mode. The winners and losers in the most recent abortion contest were identified, the storied rivalry between the teams was briefly traced, and some thoughts were offered on what the outcome implied for each team's longer term prospects.

Abortion is a politically charged issue, and one on which most members of the public have already chosen sides, so it is understandable if reportage doesn't always dwell on the legal nuances. All the same, public debate might advance beyond mere side-picking, and the occasional mind might even be opened, if it were more broadly understood how our legal system shapes the terms of the litigious debate. To read Judge Hamilton's opinion is to be reminded that constitutional adjudication does not follow the same discursive logic as political discussion. In the litigation context, debate occurs within much narrower doctrinal confines, and there are rules that govern the forms in which each side may offer evidence in support of its position.

It is striking, in particular, how prominent a role was played by expert physician testimony in Judge Hamilton's opinion. Most members of the public probably do not form their opinions on abortion by contacting practicing physicians to gather information about the medical details. Indeed, most members of the public probably consider themselves capable of developing informed opinions with scarcely any knowledge of those details. But the courtroom is a very different arena. Planned Parenthood presented trial testimony from eight physician experts, and deposition testimony from another four. The government responded with five medical experts of its own.

Judge Hamilton's opinion delves into all of this expert colloquy rather deeply. It will be interesting to see whether the expert testimony will remain in such sharp focus as the controversy proceeds up the appellate ladder. If it does, then at least three issues seem pertinent:

(1) Judge Hamilton barred the government physicians from testifying on the techniques employed in intact dilation and evacuation ("D&E"). None of the government experts had ever performed any D&E procedures, and the court therefore confined their testimony to opinions on the procedure's general safety, based on their literature review. This might be thought to introduce some bias, because physicians who take a dim moral or medical view of the procedure would seem unlikely, in general, to have performed it very often. On the other hand, this is not the only context in which an ostensibly neutral evidentiary rule might systematically tend to produce biased results. One thinks immediately of engineering experts who testify for plaintiffs in product liability suits. Their testimony frequently founders for lack of experience in designing the relevant items. That tends to load the evidentiary dice, too, because it may be more difficult for safety-obsessed engineers to find reliable industry employment. Is there some legitimate reason to weigh the experience factor differently in these different contexts? Should it matter that abortion is a subject of especially heated political debate, or that the legal issues to be adjudicated have constitutional dimensions?

(2) Judge Hamilton felt the credibility of some government witnesses was called into question in light of their record of political advocacy. Is that legitimately a significant factor, in constitutional adjudication where the judge sits as trier of fact? No opinion is expressed here on whether the testimony from the government's experts could claim strict methodological rigor. But suppose it could. Would it be appropriate to discount it nevertheless, based on an assessment of the experts' underlying motivations? Suppose, by contrast, that it couldn't. Then is anything gained by resting decision, even in part, on the notion that the experts' testimony was ideologically driven, if the decision could be sustained in any event, strictly on the medico-scientific merits?

(3) There is debate on how much deference, if any, the courts should show to congressional "findings" supporting the legislation. Judge Hamilton's opinion concluded that the legislation would fail constitutional scrutiny even under the most deferential standard. That approach dodges the logical bullet for now. Looming in the background, though, is the question how to apply the very notion of deference, to the extent that the record before Congress differs from the one before the courts. The whole concept of deference is inherently fuzzy, but it seems natural to say that the level of deference should depend largely on the strength of the respective records. If the predicates for congressionally found facts are woefully thin, then arguably they should receive almost no deference at all. On the other hand, if congressional findings reflect the well-buttressed result of rigorous and thorough inquiry, then arguably they should receive more weight. But such an approach would already embroil the courts in an evaluation of the record before Congress, if only to determine what level of deference should apply, and it is hard to see how that inquiry would differ substantially from one in which the courts simply evaluate the evidence for themselves. Should the congressional evidence be gauged by reference to Daubert's standards for scientific reliability? If not, then by what different metric should it be assessed, and what level of rigor should be required of it?

(4) All in all, what do we think of constitutional holdings that make litigation outcomes depend heavily on recondite expert testimony? On the one hand, it is good to bring state-of-the-art medico-scientific knowledge to bear on these important issues, no? On the other hand, constitutional principles should ultimately rest on some clearer and firmer footing than the ephemeral opinions of a few expert trial witnesses, should they not?

We don't know the answers to these questions. But it will be fascinating to see whether and how the appellate courts address them in all of the various pending "partial birth abortion" cases.


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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.