1 Stenberg v. Carhart, 530 U.S. 914, 937 (2000).

2 Gonzales v. Carhart, 550 U.S. 124, 159 (2007).

3 I use the term “progressive” to describe lawyers and public health practitioners that support the liberalization laws. I use pro-choice and progressive interchangeably. I use conservative to describe lawyers and public health practitioners that support limiting access to abortion. I use pro-life and conservative interchangeably.

4 Roe v. Wade, 410 U.S. 113 (1973).

5 See Guttmacher Inst., State Policies in Brief: Counseling and Waiting Periods for Abortion (2015), http://www.guttmacher.org/statecenter/spibs/spib_MWPA.pdf (discussing state laws requiring counseling and/or waiting periods prior to receipt of abortion services). For abortion clinic closures, in general, see Esme E. Deprez, Abortion Clinics Close at Record Pace After States Tighten Rules, Bloomberg Bus. (Sept. 3, 2013, 8:52 AM), http://www.bloomberg.com/news/2013-09-03/abortion-clinics-close-at-record-pace-after-states-tighten-rules.html; Stephanie Lucero, Abortion Clinics Start Closing Across Texas, CBS DFW (Nov. 1, 2013, 6:35 AM), http://dfw.cbslocal.com/2013/11/01/abortion-clinics-start-closing-across-texas/; Darrel Rowland & Alex Felser, More Ohio Abortion Clinics Closing, Columbus Dispatch (Oct. 16, 2013, 6:48 PM), http://www.dispatch.com/content/stories/local/2013/10/16/1016-abortion-clinics-closing.html.

6 Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th Cir. 2012).

7 See, e.g., Leslie J. Reagan, When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973 (1997).

8 See e.g., Kennedy, Duncan, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. Legal Educ. 518 (1986)Google Scholar; Post, Robert & Siegel, Reva, Originalism as a Political Practice: The Right's Living Constitution, 75 Fordham L. Rev. 545 (2006)Google Scholar; Siegel, Reva B., The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument, 57 Duke L.J. 1641 (2008)Google ScholarPubMed.

9 See Sheila Jasanoff, States of Knowledge: The Co-Production of Science and Social Order 2-3 (2007). Jasanoff defines co-production as:

Id.

10 For an example of feminist legal theory scholarship, see Fineman, Martha Albertson, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 Yale J.L. & Feminism 1 (2008)Google Scholar. Martha Fineman's work on vulnerability provides a particularly helpful lens by which to understand institutions as vulnerable. In this paper, the idea of institutional vulnerability allows us to see the clinic as a vulnerable institution. Fineman defines the institutional vulnerability:

11 For an example of STS scholarship, see Haraway, Donna, Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective, 14 Feminist Stud. 575 (1988)CrossRefGoogle Scholar.

12 See Stenberg v. Carhart, 530 U.S. 914 (2000).

13 See Gonzales v. Carhart, 550 U.S. 124 (2007).

14 See Post & Siegel, supra note 8, at 556.

15 For an example of the feminist critique of science, see Haraway, supra note 11.

16 The idea that science is socially constructed emerges from a long lineage of scholarship on the production of knowledge in society. In recent history, these ideas are traced back to the 1962 publication of Thomas Kuhn's The Structure of Scientific Revolutions. In his book, Kuhn argues, amongst other points, that the people who produce scientific knowledge (the scientists) should be understood contextually, allowing an interrogation of the production of scientific ideas. See generally Thomas S. Kuhn, The Structure of Scientific Revolutions (1962). Kuhn's book helped to pave the way for sociologists and historians to begin to study the nature of science as well as the specific sociological study of science and technology. Since 1962, the critical study of science can be found in law, economics, sociology, gender studies, and public health, amongst other disciplines. In its contemporary form, this perspective often falls under the heading of “science, technology, and society” or “science and technology studies” (STS). For a history of STS, see, generally, Sheila Jasanoff, A Field of Its Own: The Emergence of Science and Technology Studies, in The Oxford Handbook of Interdisciplinarity 191-205 (Robert Frodeman & Julie Thompson Klein eds., 2012). For examples of work drawing on STS in law as well as economics, see, generally, Andrew Lang, Governing ‘As If’: Global Subsidies Regulation and the Benchmark Problem, in 67 Current Legal Problems 135 (Robert Chambers et al. eds., 2014); Haraway, supra note 11; Sally Engle Merry, Measuring the World: Indicators, Human Rights, and Global Governance, 52 Current Anthropology S83 (2011).

17 See Steven Epstein, Inclusion: The Politics of Difference in Medical Research 54-73 (2007) (discussing the role of the women's health movement and the AIDS movement in the context of a broader politics of inclusion-and-difference in state policy making).

18 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

19 Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 576 (5th Cir. 2012).

20 Legal realism thinks about law in social context. See generally Oliver Wendell Holmes, The Common Law (1881). The social studies of science have also sought to understand science in social context. See, e.g., Kuhn, supra note 16. More recently, scholars have attempted to understand the role of expertise and experts on broader questions, including economics. See, e.g., James R. Hackney, Under the Cover of Science: American Legal-Economic Theory and the Quest for Objectivity (2007).

21 See Haraway, supra note 11, at 591.

22 Indeterminacy is a contested idea in scholarship on legal reasoning. In this paper, I utilize the idea of indeterminacy put forward in Karl Klare's chapter, Critical Perspectives on Social and Economic Rights, Democracy and Separation of Powers. Klare suggests that indeterminacy emerges from legal realism. Indeterminacy allows an exploration of the embeddedness of knowledge and thus the limits of reason. However, indeterminacy “does not entail the death of reason” nor does it suggest that ideology trumps all else. Karl Klare, Critical Perspectives on Social and Economic Rights, Democracy and Separation of Powers, in Social and Economic Rights in Theory and Practice: Critical Inquiries 3, 11-12 (Helena Alviar García et al. eds., 2015).

23 Roe v. Wade, 410 U.S. 113, 164-66 (1973).

24 Reagan, supra note 7.

25 In Roe, the physician appears as several characters: a complainant in the case, a practicing doctor, and an expert that is part of a professional body governed by a code of ethics.

26 See Paula A. Treichler, How to Have Theory in an Epidemic: Cultural Chronicles of Aids 15-39 (1999).

27 “[Justice] Blackmun saw medicine not only as a source of authority and expertise, but also as a model of compassion, increasingly in a specifically political way…. He became an impatient critic of those who sought to undercut reproductive rights … chastising his fellow Justices for their blindness to ‘another world out there.’” Hunter, Nan D., Justice Blackmun, Abortion, and the Myth of Medical Independence, 72 Brook. L. Rev. 147, 189 (2006)Google Scholar (quoting Justice Harry J. Blackmun, Third Draft of Planned Parenthood of Missouri v. Danforth 3 (June 6, 1976) (on file with The Library of Congress, Manuscript Division, The Harry A. Blackmun Papers, Box 220, Folder 9))) (internal quotation marks omitted).

28 See Roe, 410 U.S. at 116.

29 See id. at 142.

30 See id. (quoting 22 Transactions Am. Med. Ass'n 38-39 (1871)).

31 See id. at 142-43 (citing Therapeutic Abortion, 116 Proc. Am. Med. Ass'n H.D. 40-51 (1967)).

32 See id. at 143-44 (citing Steen, William B. et al., Resolution 31: Reaffirmation of AMA Official Policy on Abortion, 24 Proc. Am. Med. Ass'n H.D. 220 (1970)Google Scholar).

33 Id. at 148-49.

34 See, e.g., D.A. O'Donnell & W.L. Atlee, Comm. on Criminal Abortion, Am. Med. Ass'n, Report on Criminal Abortion, 22 Transactions Am. Med. Ass'n 239, 256 (1871).Google Scholar

35 For example, the report highlights shifting demographics in America as well concern for the role of women as mothers. Id. at 243-244; see also Beisel, Nicola & Kay, Tamara, Abortion, Race, and Gender in Nineteenth-Century America, 69 Am. Soc. Rev. 498 (2004)CrossRefGoogle Scholar (Beisel and Kay argue that contestation around abortion in the nineteenth century was primarily about control over the reproductive capacity of Anglo-Saxan women.)

36 Cf. Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey 90 (2005) (discussing Justice Blackmun's reliance on the medical history of abortion while writing his draft opinion).

37 Supplemental Brief for Planned Parenthood Federation of America, Inc. and American Ass'n of Planned Parenthood Physicians as Amici Curiae Supporting Appellants, Roe, 410 U.S. 113 (1973) (Nos. 70-18, 70-40), 1972 WL 126043, at *10-11.

38 Brief of the American College of Obstetricians and Gynecologists et al., Roe, 410 U.S. 113 (1973) (No. 70-18), 1971 WL 128053, at *3.

39 Motion and Brief Amicus Curiae for of Certain Physicians, Professors, and Fellows of the American College of Obstetrics and Gynecology Supporting Appellees, Roe, 410 U.S. 113 (1973), 1971 WL 128057, at *2 [hereinafter Brief of Certain Physicians].

40 Id.

41 Roe, 410 U.S. at 161.

42 For a progressive physician viewpoint, see Motion for Leave to File a Brief and Brief as Amici Curiae for the American College of Obstetricians and Gynecologists et al., Roe, 410 U.S. 113 (1973) (No. 70-40) 1971 WL 126685. Many physician amici emphasized anti-abortion legislation's restriction not only on patient choice, but also physician autonomy:

Id. at *38.

43 For a pro-life physician viewpoint, see Brief of Certain Physicians, supra note 39, at *8 (“From conception the child is a complex, dynamic, rapidly growing organism.”).

44 Roe, 410 U.S. at 160.

45 Id. at 164.

46 Brief for Certain Physicians, supra note 39, at *55-56.

47 Roe, 410 U.S. at 153 (emphasis added).

48 Justice Blackmun asserts, “We need not resolve the difficult question of when life begins. When those trained in … medicine … are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.” Id. at 159. “Nevertheless, the question simply reemerged in a different way…. Blackmun effectively had to decide when the life of the fetus ‘began,’ at least to the extent of deciding when the state's interest in protecting the fetus became compelling.” Jack M. Balkin, Roe v. Wade: An Engine of Controversy, in What Roe Should Have Said 3, 9 (Jack M. Balkin ed., 2005).

49 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 833 (1992).

50 Id. at 844.

51 See id. at 872 (“A [trimester] framework of this rigidity was unnecessary and in its later interpretation sometimes contradicted the State's permissible exercise of its powers.”).

52 Id. at 837 (“An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”).

53 Id. at 871 (“The woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.”).

54 Id. at 869 (“The woman's liberty is not so unlimited, however, that from the outset the State cannot show its concern for the life of the unborn, and at a later point in fetal development the State's interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted.”).

55 Roe v. Wade, 410 U.S. 113, 160 (citing Louis M. Hellman & Jack A. Pritchard, Williams' Obstetrics 493 (14th ed. 1971)).

56 Casey, 505 U.S. at 860 (discussing the progression of science).

57 Id. (internal citations omitted).

58 The Court discusses the informed consent requirement in detail:

Id. at 881 (citing 18 Pa. Cons. Stat. § 3205 (1990)).

59 Id. at 879 (quoting 18 PA. CONS. STAT. § 3203 (1990)) (emphasis added).

60 Once again, the Court is faced with competing expert opinions about the questions at hand. As in Roe, this is explicitly acknowledged in the physician briefs. In arguing for a reversal of Roe, the American Association of Prolife Obstetricians and Gynecologists (AAPLOG) write that the fetus should be “rightfully considered and treated as our second patient.” Brief for the American Ass'n of Prolife Obstetricians and Gynecologists (AAPLOG) and the American Ass'n of Prolife Pediatricians (AAPLP) as Amici Curiae Supporting Respondents, Casey, 505 U.S. 833 (1992) (Nos. 91-744, 91-902), 1992 WL 12006428, at *6 [hereinafter Brief of AAPLOG] (quoting Pritchard & Macdonald, Williams' Obstetrics vii (16th ed. 1980)). To justify this position on medical grounds, the brief argues that “fetal diagnosis and therapy” is a tool that obstetricians must posses. Id. The brief sets out to “provide the Court with a better understanding of the true nature and risks of pregnancy, childbirth and abortion as they are viewed in modern obstetrical practice…. [and] to correct many of the erroneous ‘medical facts’ set forth in petitioners' brief and that of ACOG.” Id. at *2.

While acknowledging that doctors come from a variety of perspectives on abortion, ACOG argues that state laws “should not interfere” with medical judgment:

Brief of the American College of Obstetricians and Gynecologists et al., Casey, 505 U.S. 833 (1992) (Nos. 91-744, 91-902), 1992 WL 120006402, at *1. In making this argument, ACOG relies on the validation of only progressive medicine in Roe. Interesting to note is that the pro-life expert groups attempt to gain legitimacy through their association with the larger entities from whom they break with ideologically. See, e.g., Brief of AAPLOG, supra at *1. The physicians explicitly highlight that AAPLOG members are also members of ACOG and that the Pro-Life Pediatricians are also members of the American Academy of Pediatrics (AAP).

61 Casey, 505 U.S. at 882.

62 Adler, Nancy et al., Psychological Factors in Abortion: A Review, 47 Am. Psychologist 1194, 1194 (1992)CrossRefGoogle ScholarPubMed.

63 Id. at 1195.

64 Brief for Amicus Curiae American Psychological Ass'n in Support of Petitioners, Casey, 505 U.S. 833 (1992) (Nos. 91-744, 91-902), 1992 WL 12006399, at *4. The APA argues in its brief that:

Id. Prompted by the increasing attention paid to the intersection of mental health and abortion by the courts and in political discourse about abortion, the APA first began filing amicus briefs in 1983, filing a brief for Akron v. Akron Center for Reproductive Health. See id. at *1.

65 Siegel, supra note 8, at 1642-43 (arguing, while relying on dignity arguments, that the Supreme Court is shifting from fetal-protective arguments to woman-protective arguments. However, the Court's current mobilization of women's protective arguments based on a stereotypical idea of women's roles do not forward a women's rights agenda.) Id.

66 The Court does not cite to physician briefs, but rather to pro-life advocates such as the Feminists for Life and Legal Action for Women. See Brief of Feminists for Life of America et al., as Amici Curiae in Support of Respondents & Cross Petitioners, Casey, 505 U.S. 833 (1992) (Nos. 91-744, 91-902), 1992 WL 12006409, at *8-9 (“In addition to the obvious physical complications, abortion has a profound psychological impact upon many women that can be found in the testimonies of women who have undergone abortion. Since the absolute safety of abortion, whether in the first trimester or thereafter, cannot be established, there is no justification for complete deregulation of the procedure. The Commonwealth of Pennsylvania must be allowed to protect the woman considering abortion by requiring that she be given an opportunity to give a meaningful consent.”).

67 The only amendment found to constitute an undue burden by the Casey Court is the “husband notification” provision. See Casey, 505 U.S. at 837-38.

68 Stenberg v. Carhart, 530 U.S. 914, 922 (2000) (quoting Neb. Rev. Stat. § 28–326(9) (Supp. 1999)).

69 Neb. Rev. Stat. § 28–328(1) (Supp. 1999).

70 Stenberg, 530 U.S. at 922.

71 Throughout this paper, I will use “Intact D&X” for a procedure in which the fetus is left largely intact through the abortion procedure. “D&X” will be used for an abortion procedure that requires disarticulation prior to removal of the fetus.

72 Stenberg, 530 U.S. at 927.

73 Id.

74 See generally id. at 931-37 (examining the medical evidence regarding the advantages and possible necessity of a D&X procedure).

75 Id. at 930 (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874, 879 (1992)).

76 Id. at 935 (“We do not quarrel with Nebraska's argument, for Nebraska is right. There are no general medical studies documenting comparative safety.”). See also Perry, Michael J., Religion, Politics, and Abortion, 79 U. Det. Mercy L. Rev. 1 (2001)Google ScholarPubMed (discussing contestation between frames, particularly religious, mobilized in constitutional debates on abortion).

77 In doing so, they authorize their own expertise and validate their membership as a group of experts. See, e.g., Brief Amici Curiae of Ass'n of American Physicians and Surgeons et al. in Support of Petitioners, Stenberg, 530 U.S. 914 (2000) (No. 99-830), 2000 WL 228448, at *3 (“Amicus Curiae New Jersey Physicians Resource Council (“NJPRC”) is an association of 45 New Jersey physicians which provides insight on medical, ethical and social issues for policymakers, medical professionals and the public. NJPRC does not believe that partial birth abortion is ever medically indicated to save the life of the mother or to protect her future fertility.”)

78 Id.

79 Id.

80 Further adding to the complexity of the Court's role in utilizing medical expertise is the statement of the American Medical Association:

Health & Ethics Policies of the AMA H.D. § H-5.982(2).

81 Stenberg, 530 U.S. at 937.

82 See infra Part D.

83 Id. at 938 (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (1992)).

84 Language plays an important role in the decision. The use of particular words codes the political leaning of the Justices. In Stenberg, the language is chosen carefully, in line with what has been deemed medical standard language by the AMA and ACOG. In other words, the language itself betrays the political outcome of the decision. In Stenberg, the words “partial-birth abortion” appear only in the majority decision in quotes and the word “dismemberment,” signaling the tearing apart of a human, is replaced with “disarticulation,” a word that signals a medical procedure. The dissenting Justices from Kennedy to Scalia, however, code their decision in line with the language used by the conservative AAPS that uses the language of partial-birth abortion without quotations in turn signaling the dissent's political positioning. For example, Kennedy states immediately in the context of his dissent that “[t]he Court's failure to accord any weight to Nebraska's interest in prohibiting partial-birth abortion is erroneous and undermines its discussion and holding.” This is remarkably apparent in his call for allowing laws that promote the life of the “unborn.” Stenberg, 530 U.S. 957 (“The political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential.”).

The actual language of the decision and the words to describe the procedure change as each Justice makes his or her statement on abortion. These politics encoded in the language used in the decision and the dissent signal the political positions taken by the justices in Stenberg as the language of the AAPS and anti-choice groups find its way into the majority decision.

85 Gonzales v. Carhart, 550 U.S. 124, 133 (2007).

86 See id. at 161-63 (discussing the contradictory opinions concerning the medical necessity of a D&X procedure).

87 Id. at 165.

88 See id. at 155.

89 Id. at 136.

90 Id.

91 Id. at 138-39.

92 Id. at 139.

93 Id. at 144 (“The Court of Appeals for the Ninth Circuit agreed. Like the Court of Appeals for the Eighth Circuit, it concluded that the absence of a health exception rendered the act unconstitutional. The Court interpreted Stenberg to require a health exception unless ‘there is consensus in the medical community that the banned procedure is never medically necessary to preserve the health of the woman.’”).

94 Id. at 162.

95 Brief of the American College of Obstetricians and Gynecologists as Amicus Curiae Supporting Respondents, Gonzales, 550 U.S. 124 (2007) (No. 05-380), 2006 WL 2867888, at *2-3.

96 Id. at *8-9.

97 Id. at *10.

98 Brief for American Association of Pro Life Obstetricians and Gynecologists (AAPLOG) et al. as Amici Curiae Supporting Petitioner, Gonzales, 550 U.S. 124 (2007) (No. 05-380), 2006 WL 1436688, at *21-22.

99 Brief for American Medical Women's Ass'n et al. as Amici Curiae Supporting Respondents at *3, Gonzales, 550 U.S. 124 (2007) (No. 05-1382).

100 Compare, e.g., id. at *22 (arguing that the procedure does not fit into standard randomized control trials, but that there is still evidence from clinicians regarding its safety), with Brief for AAPLOG, supra note 98, at *22-23 (arguing that there is a lack of empirical data to support the procedure's safety and necessity).

101 Brief for American Medical Women's Ass'n et al., supra note 99, at *22.

102 See, e.g., Brief of AAPLOG, supra note 98.

103 See Gonzales, 550 U.S. at 165-66 (discussing how to consider congressional findings).

104 Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108-105, § 2, 117 Stat. 1201, 1201-06 (2003).

105 § 2, 117 Stat. at 1206.

106 Id.

107 This is exemplified by reading Ginsberg's dissent:

Gonzales, 550 U.S. at 179-80 (Ginsburg, J., dissenting) (citations omitted).

108 Brief of Cano et al. as Amici Curiae Supporting Petitioner at 1, Gonzales, 550 U.S. 124 (2007) (No. 05-308).

109 For a discussion of competing narratives about women's experiences with abortion See Linda McClain, Equality, Oppression, and Abortion: Women Who Oppose Abortion Rights in the Name of Feminism, in Feminist Nightmares: Women at Odds 159, 160-61 (Susan Ostrow Weisser & Jennifer Fleischner eds., 1994).

110 Gonzales, 550 U.S. at 159.

111 About, Operation Outcry, http://www.operationoutcrystories.org/about/who-we-are/ (last visited Feb. 18, 2015).

112 Gonzales, 550 U.S. at 183 (Ginsburg, J., dissenting).

113 Id. at 184 n.7 (Ginsburg, J., dissenting).

114 In the Gonzales decision it is relevant to note that the language Kennedy uses actively signals the politics of the opinion: to uphold restrictions on abortion procedures. For example, the “some doctors” may “kill the fetus”; in another instance Kennedy expresses that “[i]t is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State.” Gonzales, 550 U.S. at 159. Kennedy also often utilizes the language of “dismemberment” rather than “disarticulation.” The latter was utilized by the Stenberg majority and the former by its dissent. Thus the very language of the decision betrays the political outcome, signaling to the lawyers and advocates the political persuasion of the decision.

115 See Guttmacher Inst., supra note 4 (discussing state laws requiring counseling and/or waiting periods prior to receipt of abortion services).

116 For a discussion of a similar phenomenon in the area of gay rights, see Adler, Libby, Just The Facts: The Perils of Expert Testimony and Findings of Fact in Gay Rights Litigation, 7 Unbound: Harv. J. Legal Left 1 (2011)Google Scholar; Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 Stan. L. Rev. 503 (1994).

117 Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 573 (5th Cir. 2012). See also Tex. Health & Safety Code Ann. § 171.012(a)(4)(B)-(D) (2011).

118 Lakey, 667 F.3d at 578 n.6. “A woman may decline to view the images or hear the heartbeat, but she may decline to receive an explanation of the sonogram images only on certification that her pregnancy falls into one of three statutory exceptions.” Id. at 573 (citing Tex. Health & Safety Code § 171.0122(b)-(d) (2011)).

119 See id. at 576 (quoting Gonzales, 550 U.S. at 157-59).

120 See id.

121 Id. at 577.

122 Id. at 577 n.4.

123 See generally Goldenberg, Maya J., On Evidence and Evidence-Based Medicine: Lessons from the Philosophy of Science, 62 Soc. Sci. & Med. 2621 (2006)CrossRefGoogle ScholarPubMed.

124 See id.

125 But cf. Fineman, supra note 10 (articulating the problem of viewing institutions as objective and argues that we must instead see institutions as vulnerable).

126 See generally Wendy Kline, Bodies of Knowledge: Sexuality, Reproduction, and Women's Health in the Second Wave (2010).

127 This list is simply illustrative and not comprehensive. For a comprehensive list of state regulations, see Guttmacher Inst., supra note 5.

128 See Guttmacher Inst., State Policies in Brief: Requirements for Ultrasound (2015), http://www.guttmacher.org/statecenter/spibs/spib_RFU.pdf.

129 See Kline, supra note 126, at 12-14.

130 See id.; Michelle Murphy, Seizing the Means of Reproduction (2012).

131 See Kline, supra note 126, at 12-14.

132 See Epstein, supra note 17, at 56-57.

133 See id. The founding of the Our Bodies Our Selves collective and 1973 publication of the Our Bodies Our Selves played an important role in generating information about women's bodies. Kline, supra note 126, at 1-5. This was the start of a new line of thinking about women's health: that alongside the male scientific medical establishment, it was women who could speak to their own bodies. Id.

134 For a description of “feminist epidemiology,” see Inhorn, Marcia & Whittle, K. Lisa, Feminism Meets the “New” Epidemiologies: Toward an Appraisal of Antifeminist Biases in Epidemiological Research on Women's Health, 53 Soc. Sci. & Med 553, 563-64 (2001)CrossRefGoogle ScholarPubMed.

135 Greenhouse, Linda & Siegel, Reva, Before (and After) Roe v. Wade: New Questions About Bacdash, 120 Yale L.J. 2028, 2042 (2011)Google Scholar (arguing that mainstream feminist mobilization of abortion issues began with Betty Friedan moving the National Organization of Women (NOW) to take on abortion as a sex-equality issue).

136 Epstein, Steven, Bodily Differences and Collective Identities: The Politics of Gender and Race in Biomedical Research in the United States, 10 Body & Soc'y 183, 183-84 (2004)CrossRefGoogle Scholar.

137 Ahmed, Aziza, “Rugged Vaginas” and “Vulnerable Rectums”: The Sexual Identity, Epidemiology, and Law of the Global HIV Epidemic, 26 Colum. J. Gender & L. 1, 28-29 (2013)Google Scholar.

138 Id. at 29.

139 See Haraway, supra note 11, at 581; Kuhlmann, Ellen & Babitsch, Birgit, Bodies, Health, Gender: Bridging Feminist Theories and Women's Health, 25 Women's Stud. Int'l F. 433, 434-35 (2002)Google Scholar (arguing that Judith Butler and Donna Hawaray, amongst other scholars, pushed the limits of feminist understandings of the body, moving beyond binary frames).

140 Haraway coined the term “situated knowledge” to refer to the importance of context in the creation of scientific knowledge. See Haraway, supra note 11.

141 Post-modern feminist legal theorists also posited that the law has a role in producing the woman's body. For instance, Mary Jo Frug argued that sex differences are semiotic—“constituted by a system of signs that we produce and interpret” as “anatomically determined and psychologically predictable.” Mary Jo Frug, A Postmodern Feminist Legal Manifesto (An Unfinished Draft), Harv. L. Rev. 1045, 1046 (1992). For feminist critique in the context of health activism See Gillian Einstein & Margrit Shildrick, The Postconventional Body: Retheorising Women's Health, 69 Soc. Sci. & Med. 293, 294 (2009) (arguing that post-modernism has something to offer women's health practitioners, despite its “unalign[ment] with current women's health practice” in its present state).

142 While calling for the regulation of patient-physician interaction in abortion critiques mainstream activism on reproductive justice, it is not uncommon in other areas of health activism. For example, HIV activists long called for the regulation of patient-physician interaction in the context of HIV testing and counseling. See, e.g., Kitty Grant & Anneke Meerkotter, S. African Litigation Ctr., Protecting Rights: Litigating Cases of Hiv Testing and Confidentiality of Status (Priti Patel ed., 2012), available at http://www.southernafricalitigationcentre.org/1/wp-content/uploads/2012/11/Litigating-Cases-of-HIV-Testing-and-Confidentiality-of-Status-Final.pdf.

143 See generally Michel Foucault, The Order of Things: An Archeology of the Human Sciences 345 (1971) (“It was indeed necessary, given these conditions, that the knowledge of man should appear, in its scientific aims, as contemporaneous and of the same origin as biology, economics, and philosophy … ”); Klare, Karl, The Public/Private Distinction in Labor Law, 130 U. Pa. L. Rev. 1358 (1982)CrossRefGoogle Scholar; Olsen, Frances E., The Family and the Market: A Study of Ideology and Legal Reform, 96 Harv. L. Rev. 1497, 1498 (1983)CrossRefGoogle Scholar (“The vision of the market and the family as a dichotomy - the perception that social life comprises two separate though interdependent spheres - can be described as a structure of consciousness. By structure of consciousness, I mean a shared vision of the social universe that underlies a society's culture and also shapes the society's view of what social relationships are “natural” and, therefore, what social reforms are possible.”).

144 Cf. 20 Week Ban, Planned Parenthood, http://www.plannedparenthoodaction.org/issues/abortion-access/20-week-ban (last visited Feb. 18, 2015) (advocating the traditional feminist view); Abortion Opponents Put Politics Between a Woman and Her Doctor, Quad-City Times (Oct. 9, 2013, 1:13 AM), http://qctimes.com/news/opinion/editorial/abortion-opponents-put-politics-between-a-woman-and-her-doctor/article_dbd21b70-7eff-5c0e-b5d8-0a99dcc57ead.html.

145 This proposal raises First Amendment concerns. Attempts to regulate CPCs have been met with mixed success. See e.g., Evergreen Ass'n v. City of New York, 740 F.3d 233 (2nd Cir. 2014) (holding that requiring CPCs to disclose whether they have a licensed medical provider on staff does not violate the First Amendment, whereas requirements that CPCs disclose: (1) whether or not they provide referrals for abortion, emergency contraception, or prenatal care; and (2) that the city encouraged pregnant women to consult with a licensed medical practitioner, violates the First Amendment); Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, 721 F.3d 264 (4th Cir. 2013) (reversing summary judgment in favor of CPC challenging requirement to disclose whether or not they provide or make referrals for abortion or contraception services); Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th Cir. 2012).

For further discussion of First Amendment concerns raised by this proposal and related litigation, see Ahmed, Aziza, Informed Decision Making and Abortion: Crisis Pregnancy Centers, Informed Consent, and the First Amendment, 43 J.L. & Med. Ethics 51 (2015)CrossRefGoogle ScholarPubMed. Keighley, Jennifer M., Can You Handle the Truth? Compelled Commercial Speech and the First Amendment, 15 J. Const. L. 539 (2012)Google Scholar.

146 Staff of H. Comm. On Gov't Reform, 109TH Cong., False and Misleading Health Information Provided by Federally Funded Pregnancy Resource Centers 1-2 (2006), available at http://www.chsourcebook.com/articles/waxman2.pdf; Nat'l Abortion Reprod. Rights Action League [NARAL], The Truth About Crisis Pregnancy Centers (2015), http://www.prochoiceamerica.org/media/fact-sheets/abortion-cpcs.pdf.

147 Tex. Dep't of Health, A Woman's Right to Know 16 (2003). See also Carolyn Jones, “We Have No Choice”: One Woman's Ordeal with Texas' New Sonogram Law, Tex. Observer (Mar. 15, 2012, 8:03 AM) http://www.texasobserver.org/we-have-no-choice-one-womans-ordeal-with-texas-new-sonogramlaw/, (detailing a story of one woman's experience receiving a second term abortion in Texas).

148 Royal Coll. of Obstetricians and Gynecologists, The Care of Women Requesting Induced Abortion: Evidence-Based Clinical Guideline No. 7 § 5.13 (2011).

149 Id. § 5.14.

150 See Md. NARAL Educ. Fund & NARAL Found., Crisis Pregnancy Center Investigation Summary 5 (2002).

151 Rhode Island Rules and Regulations Pertaining to HIV Counseling, Testing, Reporting, and Confidentiality, R23-6.3-HIV, § 2.0 (2012).

152 See e.g., Del. Code Ann. tit. 16, § 714(18) (2010 & Supp. 9 2014) (defining “provider” as any nurse, physician, dentist or other dental worker, optometrist, podiatrist, chiropractor, laboratory or blood bank technologist or technician, phlebotomist, dialysis personnel, emergency healthcare provider (including any paramedic, emergency medical technician, law-enforcement personnel or firefighter), others whose activities involve contact with patients, their blood or corpses, and other public or private providers as defined by the Division.”).