Rather than eliding the workability or necessity of bright-line rules in certain domains, this Essay is a rallying cry for epistemic humility regarding what biological criteria can and cannot say. Policymakers sometimes lean on the biosciences to offer “objective” solutions to thorny moral and legal issues. But descriptive biological data cannot answer normative questions on their own. Cloaking the theoretical, normative scaffolding in biological criteria is a disingenuous but common phenomenon I refer to as the “bio-legal mismatch.”
In this Essay, I discuss various abortion-restrictive statutes and cases to elucidate the problems with the bio-legal mismatch. Specifically, I explore the rigid use of gestational age, definitions of medical emergency, fetal anomalies, fetal pain, and the perversion of informed consent. In each case, related policies advance biologically naive, black-and-white thinking to reinforce gender norms and dehumanize pregnant people and the complex reasons they terminate. After explaining how black-and-white thinking relies on cognitive distortions and triggers tribalism, I conclude with a nonexhaustive list of factors that legislators and judges should examine when developing policy based on biological criteria—such as in the highly contested context of abortion. The factors are geared at assessing whether the biological criteria are reliable and connected to legally and normatively relevant events, or whether they are being exploited to mask ideological extremism.
Teneille R. Brown is the James I. Farr Professor of Law and Director of the Center for Law and the Biomedical Sciences (LABS) at the S.J. Quinney College of Law, and a faculty member in the Center for Health Ethics, Arts, and Humanities at the University of Utah.
Copyright 2024 by Teneille R. Brown
Cite as: Teneille R. Brown, Abortion and the Extremism of Bright Line Rules, 119 Nw. U. L. Rev. Online 1 (2024), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1338&context=nulr_online.