Monday, November 13, 2017
I've recently posted on SSRN my forthcoming article, "A Putative Right in Search of a Constitutional Justification: Understanding Planned Parenthood v Casey's Equality Rationale and How it Undermines Women's Equality." In the article, I argue that women's equality is the key interpretative lens through which to understand Casey's controversial reaffirmation of Roe but one that has not been understood adequately by those most critical of Casey. The article aims to fill the void - and specifically critiques the "reliance" arguments made in Casey. It could be understood as a companion to my 2011 HJLPP article, "Embodied Equality."
The Federalist Society at Harvard and Yale law schools have had me to campus to speak on the article in recent months. I'll be out at Stanford in February doing the same.
Also, happy to announce I am beginning a year-long fellowship at Harvard Law School in February as a Visiting Scholar, under the faculty direction of Mary Ann Glendon. I am working to complete a book on women's rights that most prominently features her work.
Monday, October 30, 2017
I will be at Yale Law this Thursday, speaking on "Revisiting 'Reliance Interests' in Planned Parenthood v Casey: Does 'Relying' on Abortion for Equality Actually Serve Women's Equality?" The talk is sponsored by the Yale Law chapter of the Federalist Society and will take place in Room 120 from 12:10-1:30pm.
Friday, October 20, 2017
Arizona State University has just launched the School of Civic and Economic Thought and Leadership under the direction of the wise and learned Paul Carresse, former professor of political science at the Air Force Academy and author, most recently, of Democracy in Moderation: Montesquieu, Tocqueville, and Sustainable Liberalism. The school aims to steep its students in the study of America's founding principles. Check out these courses and this upcoming speaker series.
The school's moto: "Inspiring Leadership and and Statesmanship for the Common Good." The timing of this new initiative is impeccable. May it attract many students and bear much fruit.
Friday, October 6, 2017
Harvard Law Students for Life hosted a standing room only panel yesterday at noon, featuring Mary Ann Glendon, Robbie George, and Jacqueline Rivers. Their common topic: "Why We Are Pro-Life: Dignity, Equality, Human Rights."
Mary Ann Glendon was up first, leaning on her well-known gifts as a raconteur to describe the various ways in which growing up in a small New England town influenced her views. (Her town was "a town much like those described a century earlier by Tocqueville...a town of 5000, the ideal size of a polis, according to Aristotle.")
First, small town life allowed a young person to experience and appreciate the ebbs and flows of human life -- births, deaths, disability, dependency--and allowed one to recognize how the decisions that individuals and families make in such circumstances have a cumulative impact over time. Choices matter and have long-ranging effects. Second, as Tocqueville observed, nearly everyone in a vibrant small town is engaged in some sort of civic activity. For her mother, that meant conservation, for her father, the Democratic Party (which stood for the working man, lending a hand to one another). When she arrived at college, those habits of civic engagement turned to the civil rights movement. Once abortion rights came around as a "cause" -- the 1970s -- Mary Ann assumed that the Democratic Party would be the obvious home for the pro-life movement, as yet the next phase of "expanding the beloved community," as MLK had inspired so many a decade before. It came as a frightful surprise then to find the Democratic Party abandon this basic principle. She concluded: "I began to worry that we were drifting toward a philosophy that I'd thought had been put to rest at the end of WWII: that some lives are more worthy than others, that some lives are not worthy at all."
Jacqueline Rivers spoke next, beginning with a firm statement that her pro-life views are rooted in her Christian faith: human life is sacred, science indicates that human life begins at conception, and all lives--regardless of race, gender, social condition, stage of development--are created in the image of God. As an African American woman, she said that she had a special concern for abortion's impact upon the African American community (black women make up 14% of the female population but have 40% of the abortions). She spoke at good length about the intersection of poverty, abortion, out-of-wedlock childbearing, and the retreat from marriage. Her work seeks to challenge the ecumenical black church - the most religious ethnic group in the country - to create a movement that is pro-poor, pro-life, pro-family. The Seymour Institute -- and her courageous work on the streets of Boston for decades now -- does just that. She testified last week against the assisted suicide bill that is (yet again) before the MA State House. I wiill post her powerful testimony in the days to come. Here is a re-up of my reporting on another excellent panel contribution - on religious liberty.
Robbie concluded the panel with a "biographical, biological, and philosophical" account of his views (all that in 15 minutes). The last two are familiar to MOJers, but the biographical aspect was new to me. Robbie said the single greatest influence on his views was his mother ("who is still alive and still a force of nature") who taught unequivocally that every person was the bearer of profound dignity. These were not mere words: she lived this creed profoundly and sacrificially, actively reaching out and caring for women in difficult situations, especially those who lived with abusive husbands or boyfriends. Through his mother's inspiration, he became active in the nascent pro-life movement when he was 13 (in the years before Roe came down), and through the movement met university students who were reasoning through the issue philosophically. Thus, one of our time's most gifted philosophers was born.
All three sought to encourage members of the audience to decouple the pro-life cause from its current association with the Republican Party. This is merely a historical happenstance, and a dramatic change from prior times (when so many of the most well-known Democrats were pro-life, namely Jesse Jackson, Bill Clinton, Al Gore, Ted Kennedy, and some of the most libertarian Republicans were pro-choice).
Wednesday, October 4, 2017
Scalia Speaks: Reflections on Law, Faith, and Life Well Lived was released from Crown Forum today. The late justice's son, Christopher Scalia, co-edits the volume, alongside former Scalia clerk and EPPC president (and my boss), Ed Whelan.
It is a remarkably funny collection of speeches, culled by the editors for a lay audience. Ever intelligent and witty, Justice Scalia's levity enchants almost every page (granted, I haven't yet read the chapter on the Holocaust). The speech "Games and Sports" begins: "I have been asked many, many times to what do I attribute my well-known athletic prowess." His response unfolds as an amusing narrative of the neighborhood pastimes of his youth, from marbles to roller skating to Ringalevio (about the last, he writes: "I don't know how to spell it; I actually don't think it has ever been written down.") In his deeply moving introduction to the book, Christopher quips that his father wasn't all that sure how to pronounce his own name either...
Justice Ginsburg writes the foreword to the book, sharing her gratitude for their mutual friendship over the decades they served on the bench together. Yesterday, CBS News released an interview of Justice Ginsburg together with the late justice's widow, Maureen Scalia. The two recounted how important the justices' friendship was, as puzzling as it may have seemed to the wider world. They lamented the loss of the time when "across the aisle" friendships were more common. In a tribute to Ginsburg included in the book, Justice Scalia refers to the working relationship they developed as a "mutual improvement society," admiring Ginsburg's propensity to want to improve rather than correct. ('Not, 'this is wrong, Nino,' but 'the point would be even stronger if.'")
Both justices are celebrated as icons by opposing camps in the legal world today. The sharp vision of each seemed to have been honed by the other. Would that younger generations of Americans would learn the lessons of this remarkable friendship.
All Catholic lawyers will want to read Scalia Speaks for its substance alone. Chapters include "Catholic Higher Education; Church and State; Faith and Judging; Nature Law; and Judges as Mullahs." But all of us would benefit from spending more time with this great man, whose good will - and great humor - ingratiated him to one of his greatest adversaries on the Court, and to untold audiences over the course of his lifetime.
Wednesday, September 20, 2017
A few posts ago, I recommended Matthew Crawford's book, The World Outside Your Head. To convince MOJers to pick it up, I wanted to offer an excerpt. From the book's final chapter, in a section called "The Dialectic with Tradition," I pull here the lessons from Crawford's study of organ-makers. (This is transcribed from the audio, so excuse formatting or other mistakes.)
We moderns have inherited a view that pits the technical spirit versus tradition. Partisans of the first will say it embodies reason and that the latter amounts to little more than inherited prejudice. For their part, partisans of tradition often see in technology a spirit of vandalism that can only destroy meaningful human activity. But to be in conversation with a tradition is a kind of rationality, a mode of thinking that helps us get at the truth about things....
The dialectic between tradition and innovation allows the organ-maker to understand his own inventiveness as a going-further in a trajectory he has inherited. This is very different from the modern concept of creativity which seems to be a crypto-theological concept: creation ex nihilo. For us, the self plays the role of God and every eruption of creativity is understood to be like a miniature Big Bang coming out of nowhere. This way of understanding inventiveness cannot connect us to others or the past. It also falsifies the experience to which we give the name creativity by conceiving it to be something irrational, incommunicable, unteachable....
According to the Enlightenment concept of knowledge we explored [earlier in the book], the exemplary sort of knower is a solitary figure and his knowing happens always in the present tense. He is not encumbered by the past nor does he recognize the kind of authority that operates in communities. His arguments are demonstrative... they float free of any particular historical circumstances or set of lived experiences. Tradition is thus disqualified as a guide to practice. Tradition may convey some truths, it will be conceded. But to be ratified as such, the truths in question must be scrutinized by a mode of reasoning that is independent of what came before. To be rational is to think for oneself. For the most part, this Enlightenment understanding views tradition as a darkness that grips men's minds and a habit of inflexibility to be rooted out. But this view gets a lot wrong.
As we saw also in the case of scientific apprenticeship [earlier in the book], in the development of any real competence, we don't judge everything for ourselves, starting from scratch each morning. Rather we have to begin by taking a lot on faith, submitting to the authority of our teachers, who learn from their teachers. The individualist conceit that we do otherwise - and the corresponding discredit that falls on tradition - makes people feel isolated. As we learned from Tocqueville, this isolation brings with it a certain anxiety which we try to relieve by looking around to see what others - our contemporaries - are thinking and feeling. The rugged individualist becomes the statistical self....
In the book, Crawford dives deep again and again into various sorts of expertise (e.g., short order cook, hockey player, glass-maker, motorcyclist, engineer) to show, among other lessons, the reality of the human person as a situated, embodied self who develops competency and independent judgment within the tradition within which he or she works, "going-forward from" but always dependent upon it. In a word, we are only capable of independent judgment - of thinking for ourselves and innovating anew- when we've appropriated the traditions from which we come. Only then can we look back with reasoned critique. But in making our critique, we best be wary of tearing out root and branch that which has given us the capacity to do so.
[Sept 24 update: Thanks to a reader, original typo corrected.]
I am not on social media much, but from what I gather the vitriol that seems often to characterize the medium has heated up on religious matters. Whether it's with regard to the unconstitutional treatment of judicial nominee Amy Barrett, Fr. Martin's new book, Building a Bridge, or Pope Francis (always Pope Francis), online religious warfare is apparently at its zenith. This should concern all who care about faith - but even more broadly, all who care about reason. After all, it is the capacity to offer coherent reasons for one's perspective, as well as the capacity to listen and civilly engage those who differ, that makes constitutional democracy possible--and well, we live in one.
The founders of our republic took a great risk in presuming human beings could engage in public-spirited dialogue about matters of the common good. But to them, the historical alternative was not all that appealing. And we might be reminded of that from time to time. Religious warfare - even of the increasingly digital variety - leads neither to changed hearts nor minds, and it certainly does not lead to peace among people. It degrades the human person - who by his capacity to reason most distinguishes him from the animals - and it degrades the common life we live together.
So I was happy to see Bishop Barron's address to employees at Facebook earlier this week. Bishop Barron, like Pope Benedict and others before, does even more good in his defense of reason than even in his defense of the faith. His talk, "How to Have a Religious Argument," brings together many of his recurring themes, but most especially that faith is opposed to neither reason nor science. The talk is outstanding as a matter of apologetics. There is simply no one better.
But perhaps the talk is most instructive in its final minutes when he walks the audience through the medieval method of disputation as best exemplified by the great St. Thomas Aquinas. Thomas formulates arguments for atheism far better than the modern atheists, Barron tells his audience; perhaps you might go and read them. No argument is off the table; best to know your interlocutor's argument better than even they do, noting points of agreement when you see them; treat each person with whom you disagree with the respect he or she deserves.
None of us is Thomas Aquinas, and few of us can treat an opposing argument with the charity and dexterity Bishop Barron does, but we can all seek to improve along these lines. As Catholic lawyers, we have an obligation to do so. For if not us, who else will?
Bishop Barron offers a way forward, but not just for religious argument. The medieval approach to dialogue, disagreement, and debate that Barron recommends would do our republic a whole world of good. If we cannot restore the capacity for reason-giving, if all disagreement becomes a battle of the will to power, we have seized to be a republic. I, for one, am not ready to give up on that project yet.
Monday, August 7, 2017
I had the opportunity earlier this summer to speak at the Portsmouth Institute Summer Conference, "Being Human: Christian Perspectives on the Human Person." I was asked to present on human ecology and, in the main, spoke from prior writings on this topic, some of which I'd published in Public Discourse earlier this year.
Relying on Pope John Paul II (and others), I made the claim in both the PD piece and at the Portsmouth Institute that perhaps "human ecology" could serve as a better analogue to the reality classically understood as natural law. Here's some from the original piece in Public Discourse:
For these recent popes, “the ecology of man” seems to approximate what would have been described classically as natural law: the idea that the human person possesses a nature that must be understood and nurtured for his full flourishing (eudaimonia, for the Greeks; beatitude, for the Christians). But the modern connotations of both nature and law are, without a great unlearning, too fixed or static to represent the dynamism of the human person in an authentic way. Consequently, natural law as a concept today is greatly misunderstood. For most, it is almost unintelligible.
But I wanted to dig a bit deeper at the Portsmouth Institute than I had in the PD piece about why "natural law" had become unintelligible to modern ears. Perhaps this was too complex to get at sufficiently as a sidebar (and may have taken my presentation too far into the weeds!), but I thought MOJers may find it of some interest. Here's some of that sidebar:
The natural law of course requires that good is to be done and evil to be avoided. But it emerges more fully from reflections upon man’s natural inclinations to goodness, truth, and beauty, to self-preservation and intimate union, and to living in community. It is organically discovered (and discoverable) from within, we might say, not artificially (or arbitrarily) imposed from without.
But (sadly) “human nature” and natural “law” are concepts that have become reified over time (that is, these terms, to the modern mind, inaptly connote something fixed or static and, yes, imposed artificially and arbitrarily). The ecological analogue may better allow that same mind to reflect then, with fewer intellectual stumbling blocks perhaps, upon the dynamic and complex internal structure of the human person and of human experience.
For the inner intelligibility that informs the natural world—that which allows scientists to study it, to understand it, to promote methods of protecting it—that same intelligibility informs all of creation, man no less. As Bishop Robert Barron reminds us, it is intelligibility itself, the capital ‘L’ Logos that is at the heart of, is that which makes possible, every quest for human understanding-- every small “L” logia (from ecology to biology to psychology).
And so, the intelligible dynamic structure of the human person ought not be confined within concepts that have lost their capacity to ignite insight into the reality of things themselves, the reality, most essentially, of the transcendent yearning for truth, goodness, and beauty that God has placed in each and every human heart.
So, for instance, the term “law” now inaptly conjures for many a kind of Hobbesian command, a fixed statute borne of the arbitrary will of the legislator (to which each solitary individual owes his obedience)--with little sense of the reasoning, principles, and concrete particularity by which and from which it was derived. (This, we should be reminded, is a far cry from the more organic, reason- , virtue-, and tradition-dependent, common law understanding in which the jurist, accompanied by the accumulated wisdom and experience of the precedents before him, employed his reasoning capacity to ‘discover’ rather ‘create’ or ‘invent’ (or ‘rationalize away’) the way in which enduring legal principles might inform new circumstances. …And so we can begin to see how this older understanding of law would have properly served as a strong analogue to natural law in prior days).
And so, with the loss of law as a really good referent, the analogy to “ecology” may more readily represent to the modern mind the complex reality of human contingency, human agency, and human interdependence: that the human person is created, and he is endowed with a dynamic internal structure by which he desires, knows, and wills, and yet, by his choices, he creates himself; that he is deeply influenced by and, in turn, influences others; that he is conditioned by the environment in which he finds himself and yet is capable of transcending it.
Now, we should of course continue to work to recover the authentic meanings of natural law and of human nature in our post-modern age (and great philosophers such as Servais Pinckaers, Bernard Lonergan, and Karol Wojtyla have helped us begin to do just that). But in the meantime, those of us engaging others in the world can work to reach them by speaking in the tongues of our current culture.
Moreover, translating natural law insights not only affords a potential bridge to our fellow man; it also inspires those of us doing so to re-appropriate for ourselves the tradition anew so that we do not, in Russell Hittinger’s words, simply “regurgitate truisms,” without ever penetrating these ancient truths for ourselves. This inauthenticity is rejected immediately today, as well it should be...
Human ecology, as used by the popes then, implicitly assumes the existence of the moral law written on the heart of every human person, that when nurtured through love, cultivated in virtue, and protected from moral toxins, affords each of us an internal guide toward happiness. But “ecology” is also better able than “law” today to help conjure in the modern mind’s eye the social influences that may either support or undermine the development of that internal guide. In John Paul the Great’s words: "Man receives from God his essential dignity and with it the capacity to transcend every social order so as to move towards truth and goodness. But he is also conditioned by the social structure in which he lives, by the education he has received and by his environment. These elements can either help or hinder his living in accordance with the truth."
What the great saint was urging us toward, of course, is a more dignified culture, a social ecology worthy of the dignity of the human person. [It was to that topic I then turned.]
For more on how thinking ecologically can assist in the assimilation of ancient truths with scientific discoveries --and how all this can help get us beyond the (destructively) false modern idea of freedom as autonomy, I cannot recommend enough Matthew Crawford's brilliant book, The World Beyond Your Head: Becoming an Individual in an Age of Distraction. You may have seen reference to the book in John Water's must-read First Things piece, "Back to Work."
In case you needed any more summer reading...
Thursday, June 1, 2017
This week, the Wall Street Journal published an op-ed by Bret Weinstein, a biology professor at Evergreen State College. Weinstein tells the now familiar tale of irascible student protests (responding to his pleas for reasoned debate about race on campus). This portion of his piece is especially noteworthy as a general critique of the structure of the modern university and what it has wrought for today's students (emphasis mine):
[T]he protests resulted from a tension that has existed throughout the entire American academy for decades: The button-down empirical and deductive fields, including all the hard sciences, have lived side by side with “critical theory,” postmodernism and its perception-based relatives. Since the creation in 1960s and ’70s of novel, justice-oriented fields, these incompatible worldviews have repelled one another. The faculty from these opposing perspectives, like blue and red voters, rarely mix in any context where reality might have to be discussed. For decades, the uneasy separation held, with the factions enduring an unhappy marriage for the good of the (college) kids.
One could get discouraged as this news becomes the new normal at college and universities around the nation. So, in these final days of Easter, I wanted to pass along reasons for hope: new—and old—voices, offering not critique of the current climate so much as alternatives ripe for revitalization. (I well acknowledge that I spend much of my day alone in my home study, entirely free of university shenanigans or the pressures that come with tenure-seeking, etc. And, happily, the latter part of my days is spent with my children who are blessed to be receiving a first-rate classical education at St. Benedict's outside of Boston - where we were recently encouraged by George Weigel's remarks on these topics at our annual auction.)
In The Idea of the University, Cardinal Newman beautifully articulates the very purpose of such an institution, implicitly devastating the silo-ing of disciplines about which Weinstein insightfully casts much of the blame for today's woes:
It is a great point then to enlarge the range of studies which a University professes, even for the sake of the students; and, though they cannot pursue every subject which is open to them, they will be the gainers by living among those and under those who represent the whole circle. This I conceive to be the advantage of a seat of universal learning, considered as a place of education. An assemblage of learned men, zealous for their own sciences, and rivals of each other, are brought, by familiar intercourse and for the sake of intellectual peace, to adjust together the claims and relations of their respective subjects of investigation. They learn to respect, to consult, to aid each other. Thus is created a pure and clear atmosphere of thought, which the student also breathes, though in his own case he only pursues a few sciences out of the multitude. He profits by an intellectual tradition, which is independent of particular teachers, which guides him in his choice of subjects, and duly interprets for him those which he chooses. He apprehends the great outlines of knowledge, the principles on which it rests, the scale of its parts, its lights and its shades, its great points and its little, as he otherwise cannot apprehend them. Hence it is that his education is called "Liberal." A habit of mind is formed which lasts through life, of which the attributes are, freedom, equitableness, calmness, moderation, and wisdom; or what in a former Discourse I have ventured to call a philosophical habit. This then I would assign as the special fruit of the education furnished at a University, as contrasted with other places of teaching or modes of teaching. This is the main purpose of a University in its treatment of its students.
In recent years, Bishop Barron has explored with characteristic intelligence and aplomb just how the intelligibility that grounds all reality makes the search for knowledge and truth even possible, across all disciplines. I'd especially recommend this 2011 lecture at the University of St. Michaels, but all of his lectures are top-shelf.
The Lumen Christi Institute has recently made available online a lecture at the University of Chicago by Professor Jared Ortiz. It is an admirably clear exploration of classical liberal education, especially as he compares the traditional approach with the more recent Great Books revival. Ortiz recounts his own transformation at Chicago under the tutelage of Leon and Amy Kass (who “trained his loves”), as well as Paul Griffiths. Ortiz, like Bishop Barron, points to Christ the Logos as the principal of all intelligibility, and thus suggests, in conclusion, that the liturgy ought to properly be at the 'heart' of the 'core' curriculum.
Finally, I'm about half way through Senator Ben Sasse's book, The Vanishing American Adult. It's excellent - but what is especially encouraging to me is that this learned statesman, en route (one hopes) to a presidential bid in coming years, would pen a book devoted entirely to the rearing and education of young children. A topic once considered essential by the most influential thinkers in history (Plato, Aristotle, and Rousseau come immediately to mind) was strangely downgraded more recently. Sasse, a Yale-trained historian, well understands that the intellectual and moral formation of the young is the most crucial work of a civilization that hopes to persist (and thrive!). Here’s a taste of the book in an interview with Bill Kristol. But read the book – and be heartened that a man concerned about these important matters sits in the upper chamber of Congress. I am.
Thursday, April 27, 2017
Last week I had the great honor of receiving the Susan B. Anthony Award for Commitment to Life from the Harvard Law Students for Life. (I'm pictured below with the incoming president of the organization, Steven Obiajulu.) The organization was founded by a merry band of students in 2016, advised by the ever courageous Mary Ann Glendon and fellow MOJer Adrian Vermuele. The students presented the inaugural SBA award last year to Robert George.
Over lunch, I gave a lecture to the law school community, co-sponsored by the HLS Federalist Society. My topic, "Revisiting Planned Parenthood v Casey: Does 'Relying' on Abortion for Equality Actually Serve Women's Equality?" was a summary of a law review article I've written for a symposium on the 14th Amendment and abortion, convened by Steve Gilles at Quinnipiac University School of Law. The symposium, inspired by Steve's recent pro-life legal scholarship, took place at Quinnipiac this past Saturday and included contributions from Michael Stokes Paulsen and Charles Camosy (as well as Steve and myself). The articles will be published in the Quinnipiac Law Review's late summer issue. (NB: The dean of the law school, Jennifer Brown, participated in symposium in its entirety, offering incisive questions and important critique. Her support of Steve's work -- and her engaged and thoughtful participation in the Symposium -- are an admirable example of an institutional commitment to intellectual diversity. Bravo!)
For those who haven't read Gilles' pro-life work, Why The Right to Elective Abortion Fails Casey's Own Interest-Balancing Methodology -- and Why It Matters, 91 Notre Dame L. Rev. 691 (2015) is a good place to start. His forthcoming article is a much-needed critical analysis of Whole Women's Health v Hellerstadt, and specifically, Justice Breyer's failure to be faithful to Casey. With characteristic surgical precision, Gilles explores the Casey compromise, and why Hellerstadt could be a bigger blow than some might realize.
My forthcoming article argues that Casey has been inadequately understood by those most critical of it. Specifically, I argue that concerns about women's equality are the interpretative lens through which to read the substantive due process discussion (re women's "unique liberty"), the attempted (and I think failed) comparison of the contraception cases with Roe and its progeny, and finally the stare decisis holding (wherein the oft-quoted 'reliance' language makes its debut). (Much too could be said about the spousal notice discussion but I give it only a footnote, perhaps to return to it more fully some other day.) Here's a bit from my HLS talk:
Many have ably critiqued the Court’s use of stare decisis in Casey both as a general constitutional matter and by taking each of the considerations the Court reviews one by one...most notably the late Justice Scalia in his Casey dissent and eminent constitutional law professor Michael Stokes Paulsen. But when, in the Joint Opinion, the Court declared that “a terrible price would be paid for overruling [Roe],” both Scalia and Paulsen understand the Court to be concerned primarily with the legitimacy and integrity of the Court itself. Though it’s probably not so prudent to argue against these two constitutional giants, I think the text of the Joint Opinion indicates that the Court was actually primarily concerned with something else: the impact reversal would have upon women’s enhanced status in society. This is not to say that the voiced concern for the court’s legitimacy and institutional integrity expressed in Part III of the Casey decision was not important to the justices in the plurality, for surely the space afforded and the sheer energy manifest in that part reveal that it was.
It is to say, however, that by its own terms, Casey indicates that women’s constitutionally protected "liberty" to access abortion to “participate equally” in the “economic and social developments” of the nation is the key concept undergirding the controversial reaffirmation. Now perhaps the Court’s concern about its own institutional integrity may have gone hand in hand with worries about how the Court would have been perceived had it upended the constitutional right to abortion--what had become, over the intervening nineteen years, the sine qua non of the modern day women’s movement. My point here is not to disturb others’ critiques of the stare decisis or institutional integrity arguments; my point is only that critics of Casey have not taken the underlying concerns about women’s equality seriously enough.
I spend some time exploring and then critiquing the reliance arguments concerning the interplay between abortion and contraception (arguing, most fundamentally, that the moral hazard effects of abortion as a back up to failed contraception has made this interplay far more complex than the Casey plurality assumes). I then look at the reliance arguments concerning women's equal participation in social and economic life. Here's some from the presentation, where I borrow from Justice Holmes' dissent in Lochner to shape my point:
[W]hen Holmes wrote in his Lochner dissent that "a constitution is not intended to embody a particular economic theory,” I would suggest that these words are equally applicable to Roe, and more explicitly to Casey, if one replaces “economic theory” with “feminist theory.” For by constitutionalizing the right to abortion in Roe, and reaffirming it through equality reasoning in Casey, that is precisely what the Court was doing: it illicitly appropriated a particular feminist theory, newly popularized in the 1970s, into the Court’s interpretation of the 14th amendment --with social consequences that remain salient for women today....
Just as the Lochner court chose to constitutionalize one particular theory of how to respond to the asymmetries in the employer/employee relationship after the cultural upheaval of the Industrial Revolution, Casey doubled down on a particularly inhumane way of securing women’s increased social status in society after the Sexual Revolution. In so doing, Casey thwarted more humane responses to the asymmetries that naturally exist—and socially persist—due to women’s disproportionate role in human reproduction.
I'll post when the issue comes out.