Not Even Leading Anti-Choice Group Could Help Arizona Defend Its ‘Abortion-Reversal’ Law

What the Arizona attorney general’s anti-choice-expert-witness fishing episode highlights is that, for many of these so-called expert witnesses, their ideology outweighs their expertise when it comes to the fundamental scientific questions that many abortion-related policies raise.

Mark Brnovich, Attorney General of Arizona Gage Skidmore / Flickr

To view the full False Witnesses gallery, click here.

Arizona needed a medical expert, stat.

For several months, the Grand Canyon State had been fighting a legal challenge against a controversial new abortion law. The law was controversial because it effectively injected pseudoscience into the Arizona Constitution.

In Arizona, when a woman decides to have an abortion, she has to listen to state-directed counseling about the risks of abortion and then wait 24 hours before she can get an abortion. The new law required abortion providers to additionally communicate to patients that, “It may be possible to reverse the effects of a medication abortion if the woman changes her mind, but that time is of the essence.”

Rather than credible scientific data, this assertion was based on little more than a collection of anecdotes co-authored by two doctors with ties to the anti-choice movement.

Planned Parenthood Arizona Inc., Desert Star Family Planning, and three individual doctors sued the state, asserting the law violated health-care providers’ First Amendment rights, by requiring them to give patients misleading or irrelevant information. Plaintiffs also argued the law violated patients’ 14th Amendment rights by requiring them to receive misleading or irrelevant information.

As the lawsuit progressed, the state argued that the abortion-pill-reversal claim was based in sound science. The problem, however, was that the state could not find expert witnesses with the research background and experience to vouch for this medical claim, other than the two authors of the case report: Dr. George Delgado and Dr. Mary Davenport. The state eventually removed Delgado as its legal expert and determined Davenport was also unqualified as an expert witness, as their case study report did not constitute adequate evidence.

That left Arizona with exactly zero experts to verify the “science” behind this new law.

So, the Arizona Attorney General’s Office started fishing for experts. Emails obtained by Rewire through a public records request show that staff attorneys reached out to anti-choice political groups to find qualified medical experts to defend the law.

We discovered that several of the experts recommended to the state are known as outspoken anti-choice advocates who use their medical or academic credentials to further discredited or baseless scientific theories into public policy. Some of them are featured in Rewire’s newly updated False Witnesses series, which identifies the tight-knit group of anti-choice activists and advocates who have succeeded in putting forth myths and bogus science that have made their way into statute and legal precedent.

In general, many of the False Witnesses’ credentials are valid but are often irrelevant to the topics on which they present evidence. Often, a little digging reveals that some of their claims and work have been discredited by peers, as well as by state and federal judges.

What the Arizona attorney general’s anti-choice-expert-witness fishing episode highlights is that, for many of these so-called expert witnesses, their ideology outweighs their expertise when it comes to the fundamental scientific questions that many abortion-related policies raise.

Public email records show that in October 2015, Aaron Baer, a former policy adviser to Arizona’s attorney general, reached out to the Susan B. Anthony (SBA) List, a lobbying group in Washington, D.C., that works to help elect politicians with anti-choice agendas. The group spearheaded the so-called Pro-Life Court Coalition organized in February to support President Trump’s Supreme Court nominee, Judge Neil Gorsuch.

The SBA List forwarded the request to David Prentice, who heads up the research department at the Charlotte Lozier Institute, the self-described education and research arm of the SBA List.

The Charlotte Lozier Institute houses a cabinet of associate scholars who pen papers for the organization on subjects ranging from abortion-funding restrictions to medically assisted suicide. False Witnesses Byron Calhoun, Maureen Condic, Jacqueline Harvey, Donna Harrison, and Michael New are all Charlotte Lozier associate scholars.

Prentice is a professor of molecular genetics. Prior to taking his role as the vice president and research director for the Charlotte Lozier Institute in 2015, Prentice spent the better part of a decade as the senior fellow and director for life sciences at the conservative Family Research Council, lobbying on issues related to stem cell research and cloning.

During the last two years, he has become one of the leading voices advocating a dubious theory that fetuses have the capacity to feel pain before the third trimester.  

He has testified in favor of policies that restrict abortion at 20 weeks, even though many scientists who have studied this question say a 20-week-old fetus’ nervous system is not developed enough to experience pain. Additionally, members of Congress tapped him to, in their words, “tutor” U.S. House members on issues related to fetal-tissue research, which Prentice not only opposes, but insists is not valuable to medical research—in contradiction to other scientists.

Prentice promised to help the Arizona Attorney General’s Office find a qualified steroid biochemist—the relevant expertise required to testify in support of the abortion-reversal law. Specifically, Baer asked Prentice in an October 9, 2015 email to help him find “someone who can discuss the interaction between mifepristone and progesterone.” Prentice ultimately informed the office that he couldn’t find a steroid biochemist to recommend for their case. He did, however, recommend New and the Family Research Council’s Henry Potrykus, both statisticians, who could potentially provide a meta-analysis of available research for the state.

Neither Prentice nor the Arizona Attorney General’s Office responded to Rewire’s requests for comment.

On October 13, 2015, Prentice wrote to Baer, saying he had contacted two more potential expert witnesses. That day, Dr. John Thorp Jr.‘s office reached out to Baer with his curriculum vitae, according to the documents we obtained.

Later, in February 2016, Baer contacted Minnesota law professor Teresa Collettalso featured in Rewire’s False Witnesses gallery—again looking for an expert witness in the abortion-reversal lawsuit. Collett, an attorney who sometimes works with the conservative Alliance Defending Freedom on abortion cases, recommended Condic, who agreed to meet with the AG’s office. As with New and Thorp, Condic never testified in the case.

Perhaps unsurprisingly, the two doctors who proposed the abortion-reversal protocol on which Arizona based its law do not have backgrounds in steroid biochemistry either.

Delgado is a family practitioner in the San Diego, California, area whose Catholic faith informs his medical practice. Davenport is an OB-GYN based in El Sobrante, California. (Rewire chose to profile Delgado in the updated False Witnesses gallery as he has become the face of the abortion-pill-reversal movement. The Arizona law actually mandated doctors direct patients to his organization, Culture of Life Family Services, for abortion-reversal services.)

Few medical doctors or scientists have vouched for this protocol, which formed the basis of the Arizona law, and those subsequently passed in at least two other states. The protocol involves telling a patient to stop the medication abortion regimen after the first drug and intramuscularly injecting them with high levels of progesterone.  

Opponents of Arizona’s law objected to the fact that Delgado showed no real evidence to support his theory. They argued that only taking the first abortion drug in the regimen would likely have the same effect as also receiving progesterone injections, whereas Delgado was claiming he could “reverse” abortions. The American Congress of Obstetricians and Gynecologists has denounced Delgado’s protocol, arguing that it is not evidence-based and potentially carries health risks.  

But upon codifying Delgado’s unproven theory as scientific fact, the state inadvertently accepted the onus to show that this theory passed scientific muster, which it ultimately could not do—at least not with Prentice’s help.

Arizona lawmakers eventually repealed the law, and a federal judge dismissed the lawsuit challenging it.

However, abortion-pill-reversal laws remain in Arkansas and South Dakota. Similar bills have been introduced in California, Colorado, Georgia, Idaho, Indiana, North Carolina, and Utah.