While a great deal of public scrutiny has focused on how information circulates through online outlets including Twitter and Facebook, less attention has been devoted to how more traditional institutions traffic in factual assertions for the sake of setting a particular distributional agenda into motion.1 Of these more traditional institutions, courts play a central role in legitimating legal and factual claims in the process of applying and clarifying legal rules. In public health-related adjudication, courts play at least two important roles: first, judges and juries make decisions between competing sets of public health and medical claims and second, courts legitimate one set of these assertions over the other. Distributional consequences flow from their decisions, not only for the parties but also for others who are represented in the case before the court and those who will bargain in the shadow of the decision.
For this Symposium issue on the Future of Critical Legal Theory, I argue that it is necessary for legal scholars, lawyers, and activists to understand the relationship between how courts adjudicate public health and medical claims (or scientific evidence more broadly) and how this relates to the distribution of material goods and services. This Essay is a call for a deeper interrogation about the production of knowledge, one common in the social science and humanities but less common in legal scholarship. The call for a deeper interrogation is not simply a question of theory. A critical relationship to the production of knowledge-a position that used to be commonplace among progressives, especially gender and race activists-reflected a deep awareness that how knowledge is made is central to how resources are distributed. I argue that we should return to this place of skepticism in order to bring about greater equality in access to public health services.
In this Essay, I will use abortion jurisprudence as an example to show how facts are made and legitimated through the court adjudication process and how this process increases and decreases access to abortion services. This challenges the assumption that courts are simple arbitrators of fact. Rather, courts are involved in tipping the scales toward what we begin to think of as a truth by legitimating claims, including those that are considered deeply contentious. Finally, I turn to the question of how politically conflicting groups on the issue of abortion progressives and conservatives-position themselves vis-à-vis the production of knowledge and how this relates to the distribution of material resources.
The Future of Facts: The Politics of Public Health and Medicine in Abortion Law,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol92/iss4/13