The Role of Science in the Constitutional Interpretation of Gender-Related Rights: Science For and Against the Risk of Populist Drifts?

Abstract

Populism, gender-related rights and science – The use of medical and scientific concepts and data vis-à-vis populist agendas – Science-related and science-based populism – Science as constitutional bulwark – The role of constitutional review and constitutional interpretation – Science as tool or object of constitutional review – The idea of scientific reasonableness of laws and policies

The (ab)use of science and the risk of populist drifts: some preliminary remarks

During the Covid-19 crisis, there was an unprecedented focus in public and academic debate on science and its relationship with politics and law. The veil that previously obscured the relationship between politics, law and science as a physiological element within constitutionalism was finally lifted during this period.¹ This increased attention on the relationship is not expected to fade with the end of the pandemic. The relationship represents a factor that must be understood, from an epistemological, legal and institutional perspective, within the structures of the various forms of government. As we shall explore in this study, this relationship can be politically or ideologically influenced, based on different conceptions of science and different views of the legal and social order that characterise contemporary societies.

The different conceptions of the role of science and technical-scientific knowledge, on the one hand, and the role of law and politics within contemporary societies, on the other, are bound to have a decisive impact on the concrete expression of the established relationship between the technical-scientific and legal dimensions. What space may science legitimately occupy within contemporary decision-making processes? What role, if any, can legitimately be attributed to scientific expertise in defining regulations and policies? And how are the relevant medical-scientific data, expertise and evidence selected? Eventually, there is also the question of how to define – and limit – the influence these elements can have in orienting – and limiting – the political discretion of decision-makers.

Answering the above questions goes beyond the scope of this article. Its goal is to understand how two variables, populism² on the one hand, and gender on the other, assumed to be the domain in which a possible ‘populist’ use of science occurs, fit into this dynamic. Drawing on Rubio-Marin’s taxonomy of possible constitutional tactics used by anti-equality movements, reference is made to the concept of constitutional erosion, understood as the strategy of ‘overturning or narrowing precedents through judicial interpretations that would limit previously recognised rights in favour of women and sexual/gender minorities’.³ Within this conceptual framework, the role of medical-scientific knowledge and data will be included in order to propose a descriptive systematisation of the functions that these can play in populist policies that aim to limit or eliminate the exercise of rights in the area of procreation and gender affirmation.

Specifically, the article aims to propose a taxonomy of the possible uses of science in contexts characterised by the emergence of forms of political populism by analysing some paradigmatic legislative and jurisprudential cases. Within the existing theoretical framework, a tripartition will be proposed in order to detect different functions that the medical-scientific sphere can alternatively perform. As will be shown by the analysis in the following paragraphs, science may represent: (a) a mere context where populist agendas are implemented, without the use of medical or scientific data or criteria playing a direct role in the implementation of the latter (‘science-related’ populism); at the same time, science can turn into (b): an active tool for the implementation (‘science-based’ populism) or legitimation (in the sphere of constitutional adjudication) of policies and regulations that can be qualified as populist in the sense of constitutional erosion proposed by Rubio-Marin, where the reference made at legislative level to medical or scientific criteria or concepts in constitutional decision-making may turn science into a ‘picklock’ that can facilitate the erosion of gender-related rights; and finally, it may represent: (c) a tool of resistance (a bulwark) against such policies, acting as a barrier against the process of constitutional erosion of gender-related rights, when medical and scientific elements are integrated in the policy-making process or adopted as parameters within constitutional review.

Within this framework, science, understood here in a limited sense as data, notions, and standards within a medical-scientific context, can be normatively relevant at two levels. First, science can be assigned normative relevance at the legislative level, through its inclusion in laws governing the exercise of reproductive rights, such as those relating to abortion or medically-assisted procreation. In such cases, data and concepts of a medical-scientific nature can be functional for legislation that may be associated with populist agendas.⁴ Second, medical-scientific data and concepts can also be relevant to the constitutional review of legislation, both as parameters of assessment (e.g. before laws attributable to the phenomenon of constitutional erosion) and as an object of interpretation by the courts (e.g. the concept of viability in the case law of the Supreme Court of the United States).

The article is structured in three sections. First, we explore whether it is possible to identify a unique expression of populism in the scientific context that sets it apart from populism in general. Next, the gender variable is discussed to examine whether and how a populistic attitude in the scientific field, particularly in healthcare, can influence the recognition and implementation of gender-related rights, such as those concerning abortion, assisted reproductive technologies and gender realignment. Within this framework, the taxonomy described above will then be tested by analysing specific case studies.

Science-related populism: how to assess the possible populist use of science in constitutional terms? The ‘scientific reasonableness’ of the law as a variable

The first step in this analysis is to provide an overview of the existing literature on the relationship between populism and science. Two major concepts are commonly used to characterise the perspective of populist ideologies on the techno-scientific context.

Science-related populism is the main concept proposed to explain the intertwining of political and scientific populism.⁵ This concept is based on three elements: political populism; the ‘participatory turn’; and alternative epistemologies. Science-related populism is defined as ‘a set of ideas suggesting an antagonism between (allegedly) virtuous ordinary people and an (allegedly) unvirtuous academic elite – an antagonism that is due to the elite illegitimately claiming and the people legitimately demanding science-related decision-making sovereignty and truth-speaking sovereignty’.⁶

Mede further clarifies that science-related populism gains conceptual autonomy from both political populism and distrust in science.⁷ Science-related populism is based on the ‘perceived illegitimacy of decision-making and knowledge claims of experts beyond policy-making processes’. In addition, science-related populism not only challenges scientists’ sovereignty over knowledge production processes but also proposes the alternative embodied in ‘civic participation or even authority within these processes’.⁸

A second concept that has been used to describe the relationship between populism and science is medical populism.⁹ Medical populism is defined as ‘a political style that constructs antagonistic relations between “the people” whose lives have been put at risk by the “establishment”’. Its classification as a political style, as populism is tied to a sentiment, reflects both ‘a distrust of evidence-based policy interventions and the denigration of professional-technocratic expertise, often promoted via social media’. While medical populism shares similarities with science-related populism in its distrust of evidence-based policies and the dismissal of medical and scientific expertise, it is characterised by three elements: appeals to ‘the people’; an emphasis on portraying healthcare issues as a crisis, usually through the creation of ‘folk devils’, moral panic and apparent threats to collective values and interests, amplified through inflammatory rhetoric and emotional appeals; and the promotion of ‘common sense’ solutions, dismissing political bargaining and compromise as unnecessary and weak.¹⁰ According to Crulli, medical populism is essentially ‘contingent’ and not structural, as it represents a specific type of response to health emergencies. Thus, it cannot be conceived as a ‘“variant” of populist ideology’.¹¹

The coronavirus pandemic has definitively contributed to blurring the line between the community of scientific experts and the elite,¹² to which populism – both in terms of style and ideology – is traditionally opposed.¹³ As scientific expertise becomes more involved in political decision-making processes, the concept of evidence-based policies¹⁴ is increasingly viewed with suspicion from a populist perspective. In this context, there is a common thread, in epistemological terms, between medical populism and the struggle for decision-making and truth-speaking sovereignties that are characteristic of science-related populism.¹⁵

More generally, some scholars have identified common ideological paths that link the political and scientific dimensions of populist attitudes. Kennedy states that ‘scientific populism is driven by similar feelings to political populism – i.e. profound distrust of elites and experts by disenfranchised and marginalised parts of the population’.¹⁶ Tomasi has developed this correlation further by identifying a ‘circular relationship’ between political and scientific populism. From one perspective, ‘political populism, born out of a deep distrust of traditional politics, may have extended to influence people’s attitudes to the scientific and medical community’, but, conversely, ‘distrust in science’ and ‘technological populism’ (which denies scientific experts any role in public policy debates) may have been one of the factors that led to ‘the rise of populist parties’.¹⁷ Another connection between political and science-related populism can be found in the notion of ‘post-truth populism’, which is defined as a ‘phenomenon in which scientific facts take a back seat to emotionally charge[d] populist rhetoric’; accordingly, objective facts become less important in shaping public opinion than political appeals to emotions and ‘alternative facts’.¹⁸

Three distinct paths can be identified through which populism can express and instil distrust in science during political and social debates. Bellolio categorises these paths as follows: (i) the ‘moral objection’, which ‘contends that scientific elites have been corrupted by foreign interests and therefore are enemies of the people’; (ii) the ‘democratic objection’, which ‘is directed against the technocratic claim that scientific experts should rule regardless of the popular will’; and finally (iii) the ‘epistemic objection’, which ‘targets scientific reasoning as such, which is said to be inferior to commonsensical reasoning in the production of valid knowledge claims’.¹⁹ It is important to note that the democratic objection and the epistemic objection appear to align with what Mede and Schafer refer to as ‘decision-making’ sovereignties and ‘truth-speaking’ sovereignties. These are presented as two variations of the struggle for sovereignty over the creation of ‘true knowledge’, or of the struggle for epistemic authority between what Mede and Schafer define as ‘ordinary people’ and the ‘academic elite’.²⁰

Thus, the phenomenon of the correlation between science and populism, relevant for this analysis, must be seen as a structural, not just a temporary, method of integrating scientific and medical knowledge into political decision-making processes. The term ‘science-related populism’ therefore seems most appropriate to describe this method. It can further develop into forms of science-based populism, as suggested in the classification proposed above, where the selection and use of medical and scientific concepts contribute directly to the definition or implementation of populist policies or laws. It does not involve automatically rejecting the role of science in public debate or, more importantly, the political decision-making process; instead, it may involve selecting medical-scientific elements that are most useful for a specific political-normative project, rather than choosing them based on their scientific appropriateness. In this sense, the scientific adequacy of a law, in terms of selecting medical-scientific concepts or affecting their applicability, can be a parameter for evaluating the constitutionality of political decisions made in scientifically related contexts.

More specifically, constitutional review could play a role in assessing the constitutional legitimacy of regulatory options that risk limiting the protection of gender-related rights, particularly in the reproductive sphere, based on medical-scientific elements, in addition to the typical reasonableness and proportionality review. In this sense, the Italian Constitutional Court has, over time, consolidated the principle that the legislature must exercise political discretion in the light of ‘the constantly evolving findings of medical research which must guide it in the exercise of its choices in this matter’.²¹ In fact, intervention in these areas cannot be the result of a purely political discretionary assessment by the legislature itself, but should be based on the examination of the state of scientific knowledge and of the experimental evidence acquired, by institutions and bodies – normally national or supranational – designated for that purpose.²² The Court may also review the medical-scientific nature of the elements on which the legislature bases its choices. The review then concerns the consistency of the legislation with the scientific data provided, as well its non-unjustified and proportionate nature.²³

The consideration of medical-scientific elements within the constitutional process is especially important when looking at the taxonomy discussed above regarding the different ways populism and science can interact. This perspective brings together the legislative use of medical-scientific information and the potential roles it can play in constitutional adjudication. It can serve as either a factor contributing to, or a bulwark against the constitutional erosion of, gender-related rights resulting from populist policies, whether overt or subtle. As regards the latter: in order to verify the compatibility of the normative choices made with the constitutional framework, it would not be so much the allegedly populist nature of the normative choices made that would be decisive, but rather their reasonableness, also from a medical-scientific point of view. Evidently, the greater the margin of discretion left to the legislature, as has happened in the US legal system since the Dobbs ruling,²⁴ the less rigorous and pervasive any possible constitutional review will be. This will inevitably have consequences for the safeguards of the rights concerned (of the woman, in the case of abortion²⁵), for the decision-making autonomy of the health professionals involved in each specific case, and also for the robustness of the embankments against constitutional erosion. In the following paragraphs, concrete examples are presented to test this hypothesis.

The analysis will be developed in the context of gender-related rights.²⁶ Abortion, reproductive rights and autonomy in defining one’s gender or sexual identity have become specific ‘targets’ of populist narratives and policies. These rights risk being redefined – narrowed or even erased – in terms of their constitutional relevance.²⁷ In the following sections, the interferences between populism, constitutional interpretation and gender-related rights are analysed from the perspective of the role that science and scientific expertise may play as a tool to either channel the populist agenda or act as a defence against the risk of populist drifts. In this landscape, anti-majoritarian mechanisms such as constitutional courts are of pivotal importance. They can fulfil their traditional role within the system of checks and balances, but there is also a risk of them becoming constitutional enablers of populist-led policies.

Constitutional interpretation facilitating gender-right constitutional erosion: science as a ‘carrier’ of populist agendas

When gender rights are considered, abortion almost inevitably becomes the context in which all the variables discussed in the previous section interact and can reveal the different functions that science may perform within political contexts characterised by a tendency toward the constitutional erosion of gender-related rights. ‘The warfare against women’s abortion rights in the United States’²⁸ is one of the earliest expressions of this erosion. Scholars have referred to the US Supreme Court’s judgment in Dobbs v Jackson Women’s Health Organization as an expression of an ‘illiberal war over reproductive rights’²⁹ that substantially shifts the focus of the struggle against reproductive rights away from ‘the value of pre-birth life’ to ‘the regulation of women’s ability to control their reproduction’.³⁰

Populist narratives and political strategies appear to converge on the common premise that the law should recognise the different social roles of men and women, rooted in anatomical and biological differences between the sexes.³¹ It is important to note that this perspective on the social and normative role of women and their bodies does not imply a denial or rejection of the relevance of scientific and medical evidence from a legal standpoint. Rather, it aims to selectively use medical and biological concepts or data that serve a specific political agenda. It is therefore a manifestation of the ongoing struggle for control over decisions and truth.

In the context of the US, there is a well-established trend where laws following Roe v Wade ³² have focused ‘less on the protection of the foetus and more on the supposed protection of women from the “harms of abortion”’.³³ The underlying aim of this tactic, as noted by the quoted author, was ‘to hollow out the constitutionally granted right to abortion even without the court overturning it’.³⁴ This is evident in the implementation of the so-called Targeted Regulations on Abortion Providers (TRAP) laws, which ‘impose on abortion providers burdensome health and safety regulations not imposed on other medical practices of similar or even greater risk’.³⁵ These regulations often target clinic licensing, clinician qualifications, the regulation of telemedicine, admitting privileges, off-label drug prescriptions and zoning restrictions for abortion clinics.³⁶

Another strategy employed by some states is to enact laws explicitly promoting a pro-life stance, using medical or scientific criteria as justification. For example, some laws prohibit the termination of pregnancy once a foetal heartbeat is medically detectable, typically around six weeks after conception.³⁷

In the US context, state laws have been used by parliamentary majorities to propel their populist ideologies by incorporating medical criteria or requirements with the aim of enhancing the protection of foetal life while diminishing women’s autonomy in such situations. A prime example of this is the Texas Heartbeat Law,³⁸ which determines the legality of abortion based on the detection of a foetal heartbeat. This law significantly reduces the timeframe in which a woman can exercise her right to abortion,³⁹ prompting questions about how to preserve the essential core of abortion rights.⁴⁰ Although the biological standard utilised in the legislation can be scientifically disputed,⁴¹ it is important to note that the Texas Heartbeat Act justifies its use of the heartbeat criterion by citing recent medical achievements.⁴² From a clinical point of view, foetal heart activity has long been a key factor in assessing life expectancy at birth. The deliberate choice to severely restrict and hinder access to abortion for women living in Texas is veiled in medical reasoning, indicating a hidden intention to reinforce the ideological foundation of the law using a scientific perspective.

The Texas Heartbeat Act demonstrates how, when political and science-based populism converge at the legislative level, the utilisation of scientific or medical concepts as a means for the design of policies that aim to curtail the scope of the right to abortion becomes more evident. In such instances, or in the context of the Hungarian regulation that obliges women seeking abortion access to listen to the heartbeat of the foetus,⁴³ ex post constitutional review becomes essential for the protection of established rights and may include a scientific reasonableness review⁴⁴ that specifically examines the science-based aspects of the legislation.⁴⁵

Two judgments related to abortion rights paradigmatically show the complexity of constitutional review in such context: the already mentioned US Supreme Court judgment overruling Roe (Dobbs v Jackson) and the ruling of the Polish Constitutional Tribunal K 1/20 that confirmed the constitutionality of the removal of the exception to abortion in the event of severe and irreversible foetal impairment. To begin, it should be emphasised that the difference, in conceptual and normative terms, between considering these as an expression of science-related populism or, by contrast, as a specific interpretation of the Constitution, is very subtle and difficult to identify. This difficulty is merely an example of the broader challenge of identifying and assessing the compatibility between populism and the constitutional system of reference.⁴⁶

The analysis will focus on two elements. First, it will examine the relevance of medical-scientific elements, such as the criterion of viability or the determination of the biological moment at which the constitutional duty to protect human life begins, within the respective lines of reasoning. Second, it will seek to understand the potential impact on the effectiveness of the counter-majoritarian role played by constitutional review of a reductionist conception of the role of constitutional courts in relation to legislation passed by temporary parliamentary majorities.⁴⁷ If such a reductionist conception is adopted, the discretion of each parliament in selecting and using medical-scientific concepts and data, such as the number of weeks of foetal development within which an abortion may be legitimately pursued, or the criteria based on heartbeat, will inevitably increase significantly. This in turn could lead to a progressive erosion of women’s fundamental rights.

Viewed from the perspective of science-related populism, the two cases – especially Dobbs – do not diminish the relevance of the technical-scientific aspect in evaluating the legitimacy of the laws being examined. However, they seem to selectively incorporate scientific norms and data and interpret medical or biological concepts in a manner that aligns with a specific interpretation of the Constitution.⁴⁸

In Dobbs, viability, which was the cornerstone of the Roe doctrine on abortion, is being questioned from medical, ethical and legal perspectives.⁴⁹ The opinion of the Court does not exclude the legal relevance of medical-scientific elements but challenges the criteria established in Roe for their scientific, ethical and legal consistency. The US Supreme Court highlights various factors, such as the changing nature of viability over time and the presence of independent variables that may impact viability, which make the criteria seem arbitrary and meaningless from medical, philosophical, ethical and thus legal standpoints. In Dobbs, viability loses its scientific and legal significance. However, it is not replaced by an alternative criterion. The authority to determine such criteria and regulate the scope of abortion is given to democratic representative bodies.⁵⁰

In the ongoing struggle between elected bodies and unelected constitutional judges, as evidenced in Dobbs, it is clear that the former have emerged victorious. At stake in this conflict is control over the power to regulate access to abortion, as well as the authority to assess and apply medically or scientifically relevant standards and evidence. This struggle mirrors the broader struggle for sovereignty in political decision-making in general and the quest to establish scientific truth, both key components of science-related populism.

The Court’s perspective in Dobbs appears to align with a minimalist or deferential approach to reviewing policy choices in the light of the medical-scientific data.⁵¹ Specifically, the Court emphasises that, when weighing the protection of women’s rights against the potential life of the foetus, the principle that ‘courts defer to the judgment of legislatures in areas of medical and scientific uncertainty’⁵² must prevail. Additionally, the Court argues that Roe ‘provided no cogent justification for the lines it drew’⁵³ with respect to viability, and thus unlawfully restricted the scope of state legislative discretion.⁵⁴

The existence within the Supreme Court of irreconcilable approaches to the evaluation of the medical and scientific data on which laws are based is not without precedent. In the case of Whole Woman’s Health,⁵⁵ the majority and the dissenting justices within the Court had different approaches regarding the intensity of scrutiny when applying the undue burden test introduced by the Supreme Court in Casey.⁵⁶ The dissenting opinion argues that the Court tends to give ‘broad discretion to State and Federal legislatures to enact laws in areas of medical and scientific uncertainty’.⁵⁷ Therefore, it should limit itself to rational basis review, as endorsed in Dobbs, when assessing how the State legislature protects the legitimate and substantial interest in preserving and enhancing foetal life.⁵⁸ Conversely, the majority in the case of Whole Woman’s Health advocated for applying strict scrutiny, even in scientifically characterised areas of uncertainty. To assume that ‘legislatures, not courts, must resolve questions of medical uncertainty’⁵⁹ would be inconsistent with precedent, in particular Casey, given that the Court’s case law has established the principle that, even when using a deferential approach to legislative fact-finding, the Court ‘retains an independent constitutional duty to review factual findings when constitutional rights are at stake’.⁶⁰

So what happens to the scope and depth of scrutiny after Dobbs, when there is no longer a constitutional right at stake? It is at this point that the connection with the reasoning in Dobbs becomes apparent. In the pre-Dobbs constitutional framework, a questioned medical parameter – that of viability – was the balancing point between the protection of the woman and that of the foetus. After Dobbs, when the constitutional nature of the right to abortion and the viability ‘line’ have dissolved, other medical or biological parameters and standards can legitimately replace these (e.g. the heartbeat of the foetus or the number of weeks since the beginning of the pregnancy). The scientific reliability of these new parameters will likely be assessed through a weaker and more deferential scrutiny, such as the rational basis test.

At the same time, the rejection of viability as a pivotal criterion and the denial of women’s right to abortion both serve to shift the power of deciding whether to regulate or prohibit abortion back to the people and their representatives.⁶¹ The reasoning of the Supreme Court in Dobbs leads to a disconnect between protecting a woman’s autonomy in her reproductive choices and the constitutional guarantee of that autonomy, established by Roe.⁶² The former no longer stems directly from the Constitution. According to the Dobbs majority, abortion rights are now dependent on the political decisions of ruling parliamentary majorities, seen as the only reliable voice of the (real) people in this context. Ultimately, returning decision-making power to the people will limit and weaken the Court’s future reviews. This process of limiting the scope and depth of review will also impact the potential review of science-related factual findings in state or federal laws that reference medical or biological criteria.⁶³

While in Dobbs the denial of the scientific reliability of viability paves the way for the Supreme Court to overturn the constitutional framework established in Roe, the Polish Constitutional Tribunal performs a qualitatively different action. It qualifies, from an ethical and normative perspective, a legislative choice that was also based on medical facts. The reference to medical-scientific facts is of relatively minor significance. Instead, the concrete acceptability of the statutory exception in ethical and philosophical terms is fundamental. Therefore, the medical content of the provision under examination only represents the context of the expression of a constitutional interpretation (science-related populism) that consolidates the populist political agenda of the the parliamentary majority, and does not assume a direct and explicit importance in the Court’s reasoning. If it did, it would have been an example of science-based populism.

In Judgment K 1/20, the exception to the prohibition of abortion, which is related to the condition of the foetus (i.e. severe and irreversible foetal impairment), is qualified as an expression of ‘liberal eugenics’. This exception would authorise a eugenic assessment of the deservingness of the life of the unborn child.⁶⁴ Thus, the Polish Tribunal operates ‘a political assessment of this exception without strict reliance on the legal text or legal arguments, reflecting the populist entanglement of law and politics’.⁶⁵ Political considerations took precedence over strictly legal ones: ‘[t]he Tribunal chose not to draw a line to demarcate the political system from the legal one’; on the contrary, ‘it followed the qualification made within the political system and transposed it directly into the legal system, making the concept of liberal eugenics a part of constitutional jurisprudence’.⁶⁶ The ‘capture’ of the Constitutional Tribunal by the political majority leading Poland evidently represents a relevant factor.⁶⁷

The European Court of Human Rights ruled that Poland had violated the right to respect for the privacy of a woman who had to travel abroad to have an abortion, which she underwent on the basis of the provision in the K 1/20 ruling.⁶⁸ This was because abortion on grounds of the condition of the foetus (i.e. the severe and irreversible impairment of the foetus) was no longer lawful under Polish law following the Constitutional Tribunal ruling K 1/20. The European Court of Human Rights found the interference with a woman’s right to be contrary to the rule of law. It recalled the illegality of the appointment procedure and the composition of the Constitutional Tribunal, which had already been established by an earlier ruling of the same European Court of Human Rights (see Xero Flor v Poland ⁶⁹). According to the European Court of Human Rights, in light of the principle of the rule of law, any interference with Article 8 rights must emanate from a body which is itself lawful, otherwise it lacks the legitimacy required in a democratic society.⁷⁰ Therefore, ‘given that the irregularities in the election procedure of the above-mentioned judges compromised the legitimacy of the Constitutional Court’s bench which introduced the impugned restriction as a “tribunal established by law”, its ruling fell short of what the rule of law required’.⁷¹ The Polish Constitutional Court therefore cannot be considered, in the view of the European Court of Human Rights, to be ‘a body compatible with the rule of law requirements’.⁷² For this reason, Judgment K 1/20 ‘interfered with the medical procedure for which the applicant had qualified and which had already been put in motion, thus creating a situation where she was deprived of the proper safeguards against arbitrariness’.⁷³

To conclude (provisionally): by endorsing a deferential and weak interpretation of the Supreme Court’s role, Dobbs seems to have paved the constitutional way for a progressive erosion of abortion rights, both in terms of legitimising pro-life legislative initiatives and weakening the scope and depth of constitutional review.⁷⁴ It recalls Rubio-Marin’s definition of the tactic of constitutional erosion. The Polish case is considered a paradigmatic case of ‘instrumental abuse of constitutional courts’ by populist movements delegating the concrete fulfilment of their political and cultural projects to counter-majoritarian and formally independent judicial bodies⁷⁵ and ‘a perfect exemplification of the “populist anti-constitutional backsliding”’.⁷⁶ Thus, according to Rubio-Marin’s taxonomy,⁷⁷ the Polish case, as analysed above, can be properly qualified as a case of constitutional entrenchment tactics.⁷⁸

Constitutional interpretation revealing constitutional erosion of gender-related rights: science as an embankment against populist drift

The reference made by political decision-makers and constitutional judges to the medical-scientific dimension can also act as a defence against the risks of a populist drift. In fact, decision-making processes that incorporate scientific expertise and evidence may contribute to maintaining the connection between populist policies in the medical sphere – especially when they can impact the scope and effectiveness of gender-related rights – and the constitutional framework.

According to Carrozza, evidence-based policy-making refers to a process utilised by parliamentary, governmental and administrative bodies. This process is rooted in a scientific methodology that relies on measurable and – to the greatest degree possible – verifiable data.⁷⁹ This approach is closely tied to the concept of ‘rational law’, which is the ‘product of a complex intellectual process which makes use of tools to seek and analyse information with certain boundaries and to draw decision from this assessment which is justifiable on the basis of present information and context and adaptable to changes in insights or techniques’.⁸⁰

Although political choices cannot be solely driven by scientific expertise, scientific advice can bring into the regulatory environment ‘knowledge that can help to provide evidence to the policy-making process and improve the quality for generating, selecting, assessing and evaluating policy options’.⁸¹ Evidence-based policy-making is a process in which ‘all evidence is considered but not used by default as the sole basis for decision-making’.⁸² The agenda of the Biden administration is particularly relevant in this respect, as one of its transversal objectives was ‘to make evidence-based decisions guided by the best available science and data’.⁸³ This approach serves as an alternative to the populist stance in the battle for sovereignty over decision-making and truth speaking. It upholds the principle that ‘policy-making must be informed by the best available evidence without it being distorted, concealed or otherwise deliberately miscommunicated’, while it aims to avoid the risk – which is typical of post-truth populism – of ‘the politicization of science, particularly the overriding of evidence and advice from public health officials and derision of government scientists’.⁸⁴ Accordingly, ‘when scientific or technological information is considered in policy decisions, it should be subjected to well-established scientific processes, including peer review where feasible and appropriate, with appropriate protections for privacy’.⁸⁵

The agenda of the Biden administration also highlights the connection between evidence-based policies and promoting more equitable outcomes. It is important to note that the Office of Science and Technology Policy released an Equity Action Plan in 2022 with the declared aim of ‘advancing both equity in science and technology, and science and technology for equity’.⁸⁶ The ultimate objective is to encourage the idea of reflective science, that is, building a professional scientific community that represents the total diversity of American society and recognises the role of science and technology in addressing societal inequalities. In addition, the plan aims to ensure that the achievements of this community and their applications are available to all people.

At the statutory level, it is appropriate to mention the recent Spanish Organic Law 1/2023 as an example of a virtuous alliance between political will, affirmation of women’s rights and the scientific dimension. This law amends Organic Law No. 2/2010 on sexual and reproductive health and the voluntary interruption of pregnancy. The law provides that competent public authorities promote, within their respective policies, ‘[t]he investigation, generation and diffusion of scientific and specialized knowledge respecting health, sexual and reproductive rights, with general, intersectional and human rights’ (Law No. 2/2010, Article 5). Furthermore, it states that medical interventions related to abortion should always be based on scientific evidence (Law No. 2/2010, Article 24). The law consistently refers to scientific evidence as a parameter for the legitimacy of regulatory and administrative interventions. Of particular interest is the inclusion of the gender perspective in the fundamental principles to which public administrations involved in the application of the law should adhere. The law emphasises a gender-focused approach, which is grounded in an understanding of gender stereotypes and relations, their origins and their effects on the application and evaluation of the impact of its provisions. It also aims to promote and effectively implement policies for gender equality and the empowerment of women and girls (Law No. 2/2010, Article 3).

An approach grounded in science does not dismiss the relevance of cultural and social developments in constitutional interpretation, especially when it comes to phenomena and practices surrounding individual self-determination in reproductive and gender-related spheres. For instance, the Italian Constitutional Court tends to endorse the evolving and pluralistic nature of the legal system. For example, it considers the Italian law on the rectification of gender attribution (Law No. 164/1982) as the product of an evolving legal civilisation that is increasingly sensitive to human freedom and dignity.⁸⁷

In light of this approach, the Italian Constitutional Court reiterated that the judicial rectification of a person’s sex represents the culmination of a cultural and legal evolution aimed at recognising the right to gender identity as a constitutive element of the right to personal identity. This falls fully within the scope of the fundamental rights of the person. Indeed, the Court ruled that surgical treatment cannot be understood as a mandatory condition for access to the rectification procedure, but only as a possible means to achieve the full psycho-physical well-being of the individual.⁸⁸ The prerogative to determine the modalities of transition rests with the individual, with the support of healthcare professionals. The legislature is not allowed to impose specific methods of transition, as this would infringe on the individual’s right to autonomy and health protection, especially with surgical interventions. Surgical intervention is merely one potential tool – an aid – to ensure that the individual achieves full mental and physical well-being by aligning their somatic characteristics with the gender they identify with.⁸⁹ Therefore, the procedure for gender reassignment in Italian law reflects a view of medicine and science as functional for the effective fulfilment of the individual’s gender identity and psycho-physical well-being.

From an evidence-based perspective, it is insufficient for a political or regulatory act to simply mention scientific data or evidence. To be considered adequate, it is imperative that the representativeness, completeness and reliability of the scientific data or evidence are also guaranteed. This adequacy could potentially be judicially reviewed. This would prevent medical-scientific data from being entirely at the mercy of political decision-makers and instead establish it as an additional criterion for assessment.

The Italian Constitutional Court has repeatedly affirmed the existence of ‘limits placed over legislative discretion based on scientific and experimental findings, which are constantly evolving and on which medicine is based’.⁹⁰ This principle was also applied to legislation concerning reproductive rights, particularly in the area of medically assisted procreation. In this context, the Constitutional Court declared a provision unconstitutional that prohibited doctors from creating more embryos than were strictly necessary for a single and simultaneous implantation, and in any case not more than three (Law No. 40/2004, Article 14). According to the Court, this provision did not allow doctors to assess each case based on the most up-to-date technical and scientific knowledge to determine the appropriate number of embryos for implantation, ensuring that a serious attempt at assisted reproduction is made and reducing to a minimum the risk to the health of the woman and the foetus.⁹¹ This failure to empower medical professionals to assess each patient on the basis of the most recent and accredited medical evidence infringed on women’s rights to equality and health. This observation highlights the potential of review of the scientific adequacy of laws to serve as a counter-majoritarian tool, capable of nullifying political decisions that unjustly restrict the rights of individuals, especially women, through unreliable medical or scientific standards.

In such perspective, medical and scientific evidence should be an integral component of both the law-making process and judicial reasoning. In the context of legislation that poses a threat to the effective implementation of rights, this evidence may serve to protect their scope and reinforce their legal safeguards. According to the Italian Constitutional Court, in the exercise of the traditional review of proportionality, reference to medical evidence enables courts to verify whether the legislature, in the exercise of its discretion, has remained within the bounds of scientific reliability in light of the most advanced scientific knowledge available at the time. This determination is made by the relevant medical-scientific authorities, in relation to the stated objectives. Even when the objective of the legislation is not to ensure the absolute protection of the potential life of the in vitro embryo, as in the case of Italian law, but rather to ensure a higher level of protection of women’s health in abortion procedures, the importance of medical-scientific data in judicial review of legislation is evident.

Prior to Dobbs, the Supreme Court used medical evidence to evaluate the scientific reliability of state laws that impose unduly substantial impediments to abortion.⁹² In the aforementioned Whole Woman’s Health case,⁹³ the Supreme Court found the requirements of the Texas law, such as admitting privileges and surgical centre requirements, to be unnecessary,⁹⁴ unreasonable⁹⁵ and almost arbitrary,⁹⁶ after a thorough review of the data and medical and statistical evidence. The Supreme Court determined that these requirements did not benefit the health of the patients, particularly the admitting privileges, placing significant obstacles in the path of a woman’s choice. The law did not consider the unique aspects of abortion compared to other surgical procedures. Based on this evidence, the Court concluded that the statutory requirements provided few, if any, health benefits to women, posed a significant obstacle to women seeking abortions, and constituted an ‘undue burden’ on their constitutional right to choose.⁹⁷

The cases under consideration illustrate how, in the face of the risks of a drift that endangers rights in the procreative sphere, the recognition of an adequate space for medical-scientific elements has the potential to strengthen constitutional bulwarks. Accordingly, by extending both the scope and the range of criteria on which constitutional adjudication can be based, it can help to broaden and deepen the assessments made. It is up to the courts to endorse this approach in their decision-making process, by way of constitutional interpretation.

Beyond science-related populism: science as a necessary constitutional variable

If there is a scientific dimension of political populism, it is difficult to identify it in its original and normative form. However, it is clear that the use of scientific and medical data and standards can serve various purposes and have different impacts at both the legislative and judicial level in contexts where populist rhetoric or agendas are present. Overall, this analysis demonstrates that a populist approach to science can significantly influence the interpretation of both the nature of truth-speaking sovereignty and the role of scientific data and evidence in the struggle for decision-making sovereignty within a society and its legal system, and that this can be relevant from the perspective of constitutional interpretation and adjudication.

Science-related populism does not automatically reject the role of science in public debate or, more importantly, political decision-making. Rather, it involves selectively filtering medical-scientific elements that are most beneficial to a specific political-normative project or assessing their suitability from a scientific point of view. Instead of integrating the most rigorous scientific knowledge into political and legal discourse, there is a tendency to selectively choose, without adequate judicial review, the elements that are most useful for the implementation of a specific political project, potentially populist and more generally aimed at eroding established gender-related rights.

Is Dobbs or the ruling of the Polish Constitutional Tribunal an expression of science-related populism? In light of the above analysis, the question probably needs to be redefined. The fundamental issue pertains to the extent to which the scope and depth of the judicial review may be affected by the constitutional interpretations endorsed by the presented rulings. The analysis has demonstrated that the medical-scientific aspect can play a crucial role in this dynamic, either as a possible object of or as a tool for the exercise of constitutional adjudication. Concurrently, the potential role of science in judicial review coexists alongside a trend of courts having a reduced propensity to constitutionally review ‘populist’ laws or policies that may find in medical and scientific data and standards a context (science-related populism) or a tool (science-based populism) of expression. The approach endorsed in the present article is aimed at assessing the function developed by medical and scientific concepts at the legislative level and its assessment made by constitutional courts. It can be regarded as innovative and effective for understanding and coping with current populist tendencies regarding reproductive and gender-related rights and safeguards, as it can provide an additional tool for assessing the constitutional sustainability of populist-driven legislation or policies.⁹⁸

The distinction between seeing science as a legitimising factor or as a bulwark against populist tendencies and the constitutional erosion of gender rights seems to go hand in hand with different theories of the role of constitutional adjudication and constitutional interpretation adopted from time to time by legislatures and courts. As revealed by the above analysis, constitutional interpretations that cannot be categorised as populist per se have the potential to endorse laws or policies that are aligned with populist agendas. These populist agendas are likely to be subject to a less rigorous and more deferential judicial scrutiny, even in instances where the assessment of their scientific soundness might be appropriate.