Expert Evidence in Constitutional Adjudication
A Fourth Circuit panel has affirmed a lower court's decision that a Virginia statute banning "partial birth abortion" is unconstitutional, without reaching the district court's rulings excluding much of the expert evidence offered by the statute's defenders. See Richmond Med. Ctr. for Women v. Hicks, No. 03-1821 (4th Cir. June 3, 2005).
The panel's majority opinion (Judges Michael and Motz) holds that under the Supreme Court's decision in Stenberg v. Carhart, 530 U.S. 914 (2000), there is a per se requirement that statutes banning partial birth abortion must include an exception for the health of the mother. There was therefore no need, according to the majority, for the district court to consider evidence on the need for a maternal health exception. That need, says the panel majority, was already resolved in Carhart.
In dissent, Judge Niemeyer disagrees that Carhart established a per se rule, and therefore addresses (and takes issue with) the lower court's evidentiary rulings. Those can be found in Richmond Med. Ctr. for Women v. Hicks, 301 F. Supp. 2d 499 (E.D. Va. 2004) (Williams, J.). The district court excluded evidence from one of the Commonwealth's physician witnesses because it found his experience with D&E procedures to be minimal, his opinions to be unsupported by published medical literature, and his testimony to be internally inconsistent. For good measure, the trial court's opinion included a string cite listing four published decisions from other abortion litigation in which fault was found with the expert's testimony. The district court also excluded testimony from a second expert for the Commonwealth because he admitted he was not an expert on the D&E procedures at issue, nor indeed on abortions.
There may or may not be some merit to Judge Niemeyer's arguments that the lower court held the Commonwealth's witnesses to higher standards than it did plaintiffs', or to his point that an OB-GYN physician need not be an expert on the specific subject of abortions to offer helpful and reliable testimony on such subjects as complications during pregnancy. We don't intend to wade into that dispute. We are more reluctant still to state any views on whether Carhart did or did not create the per se rule espoused by the Richmond Medical Center majority -- it's not our area. Nor, finally, do we take issue with the majority's view, apparently shared by Judge Niemeyer, that if a maternal health exception is a per se requirement, the district court's evidentiary rulings need not have been reached.
Perhaps we should add that we are unfamiliar with the proceedings at the district court level and therefore do not intend to second-guess Judge Williams.
With that underbrush cleared away, we do want to wonder more generally (as we have before) how far it is prudent or wise, when district courts adjudicate politically freighted constitutional issues, to follow procedural paths that make outcomes dependent on discretionary rulings about the admissibility of expert evidence. Such a course risks creating the impression that the district judge has stacked the evidentiary deck, and may cloud appellate review to a degree that is undesirable in the context of constitutional adjudication. It may also introduce undue variability of outcome as between cases where fact patterns are otherwise similar. In a bench trial, where no jury is involved and where the judge will enter detailed findings of fact in any event, in which the merits of the expert testimony may be assessed, it seems gratuitous to incur those risks.
Postscript: The views expressed in the last paragraph may suggest an answer to questions we posed on 5/30/05 about the admissibility of testimony on "intelligent design" in the pending dispute over the teaching of evolution in a Pennsylvania school district. They may suggest, that is, that the trial judge in that case should consider admitting the testimony and appraising it on its merits. On the other hand, a federal judge might be understandably reluctant to decide the merits of "intelligent design" theory. Nor, we suppose, should litigants in constitutional cases simply be required to acquiesce in the admissibility of expert testimony of high dubiety. So just for the record, we're still uncertain about that case.
The panel's majority opinion (Judges Michael and Motz) holds that under the Supreme Court's decision in Stenberg v. Carhart, 530 U.S. 914 (2000), there is a per se requirement that statutes banning partial birth abortion must include an exception for the health of the mother. There was therefore no need, according to the majority, for the district court to consider evidence on the need for a maternal health exception. That need, says the panel majority, was already resolved in Carhart.
In dissent, Judge Niemeyer disagrees that Carhart established a per se rule, and therefore addresses (and takes issue with) the lower court's evidentiary rulings. Those can be found in Richmond Med. Ctr. for Women v. Hicks, 301 F. Supp. 2d 499 (E.D. Va. 2004) (Williams, J.). The district court excluded evidence from one of the Commonwealth's physician witnesses because it found his experience with D&E procedures to be minimal, his opinions to be unsupported by published medical literature, and his testimony to be internally inconsistent. For good measure, the trial court's opinion included a string cite listing four published decisions from other abortion litigation in which fault was found with the expert's testimony. The district court also excluded testimony from a second expert for the Commonwealth because he admitted he was not an expert on the D&E procedures at issue, nor indeed on abortions.
There may or may not be some merit to Judge Niemeyer's arguments that the lower court held the Commonwealth's witnesses to higher standards than it did plaintiffs', or to his point that an OB-GYN physician need not be an expert on the specific subject of abortions to offer helpful and reliable testimony on such subjects as complications during pregnancy. We don't intend to wade into that dispute. We are more reluctant still to state any views on whether Carhart did or did not create the per se rule espoused by the Richmond Medical Center majority -- it's not our area. Nor, finally, do we take issue with the majority's view, apparently shared by Judge Niemeyer, that if a maternal health exception is a per se requirement, the district court's evidentiary rulings need not have been reached.
Perhaps we should add that we are unfamiliar with the proceedings at the district court level and therefore do not intend to second-guess Judge Williams.
With that underbrush cleared away, we do want to wonder more generally (as we have before) how far it is prudent or wise, when district courts adjudicate politically freighted constitutional issues, to follow procedural paths that make outcomes dependent on discretionary rulings about the admissibility of expert evidence. Such a course risks creating the impression that the district judge has stacked the evidentiary deck, and may cloud appellate review to a degree that is undesirable in the context of constitutional adjudication. It may also introduce undue variability of outcome as between cases where fact patterns are otherwise similar. In a bench trial, where no jury is involved and where the judge will enter detailed findings of fact in any event, in which the merits of the expert testimony may be assessed, it seems gratuitous to incur those risks.
Postscript: The views expressed in the last paragraph may suggest an answer to questions we posed on 5/30/05 about the admissibility of testimony on "intelligent design" in the pending dispute over the teaching of evolution in a Pennsylvania school district. They may suggest, that is, that the trial judge in that case should consider admitting the testimony and appraising it on its merits. On the other hand, a federal judge might be understandably reluctant to decide the merits of "intelligent design" theory. Nor, we suppose, should litigants in constitutional cases simply be required to acquiesce in the admissibility of expert testimony of high dubiety. So just for the record, we're still uncertain about that case.
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