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Abstract:
It is traditionally assumed that the role of ascertaining and evaluating the social facts underlying a statute belongs to the legislatures. The courts in turn are tasked with deciding the law and must defer to legislative fact-finding on relevant issues of social fact. This simplistic formula, however, does not accurately describe the courts’ confused approach to legislative fact-finding. Although the courts often speak in terms of deference, they follow no consistent or predictable pattern in deciding whether to defer in a given case. Moreover, blanket judicial deference to legislative fact-finding would not be a wise general rule. Because social fact-finding plays a decisive role in constitutional analysis, blind judicial deference would undermine the courts’ responsibility to protect basic individual rights and liberties. Judicial treatment of legislative fact-finding is thus sorely in need of a coherent theory.

This Article proposes a new approach, a paradigm of selective independent judicial review of social facts. Under this model, the courts should independently review the factual foundation of legislation that curtails basic individual rights, even when those rights do not receive strict or heightened scrutiny. This approach is unique in ensuring a baseline protection for important individual rights, including emerging rights, while respecting the division of power between the branches of government. The paradigm is needed because, this Article asserts, legislatures are poorly positioned to gather and assess facts dispassionately, especially when addressing laws that restrict controversial or minority rights. The process of fact-finding in federal trial courts ensures a superior factual record when such rights are at stake. This Article illustrates the courts’ and legislatures’ contrasting capacities for fact-finding through case studies, including “partial-birth abortion,” gay parenting, and indecency on the Internet. Moreover, the Article argues, because of the courts’ traditional and vital role in protecting basic individual rights, the proposed paradigm honors constitutional structural principles.

legislative factfinding, legislative fact-finding, judicial review, social facts, deference, individual rights, factfinding, fact-finding, Gonzales v. Carhart

Abstract:
In a disturbing development, state legislatures have begun to enact social policy through laws specially designed to evade constitutional review by the courts. These laws give individuals a private right of action to seek massive damages against those who engage in constitutionally protected but controversial conduct. The coercive nature of potential, massive civil liability has the same effect as an outright ban on constitutionally protected acts. But federal appellate courts have found legal challenges to these laws barred by the doctrines of Article III standing and state sovereign immunity. The resulting legislative arrogation of power is a dangerous trend, forewarned of by the Framers of the Constitution. It contravenes federal supremacy and upsets the balance of power among coordinate branches of government. This Article argues that the courts can address this new phenomenon based on time-honored constitutional principles and a long-overdue reevaluation of the doctrine of Ex parte Young.

state legislation, constitutional law, federal supremacy, federalism, article III standing, case or controversy, sovereign immunity, eleventh amendment, ex parte young, okpalobi, abortion, legislative arrogance

Abstract:
The movement to preserve and advance reproductive freedom is suffering the consequences of a great victory. The establishment of the constitutional right to abortion in Roe v. Wade was a monumental step that changed the lives of American women. Girls grow up today under the mantle of Roe, never having known a world in which illegal, unsafe, degrading and sometimes fatal abortions were the norm. That is a cause for celebration as Roe turns 30. It is also, however, a cause of complacency. Complacency corrodes all freedoms. It is particularly dangerous to reproductive freedom because opponents of the right are single-minded and fervent to the point of fanaticism. Their crusade has fueled three decades of incremental restrictions that make it risky or burdensome to get an abortion and, for some women, block access altogether. Understandably, the prochoice movement has grown frustrated with the unending onslaught, and the public, numb. The movement's responses to this conundrum have varied over time and among its many spokespersons. Yet two recurring approaches — to jolt the public by forecasting Roe's reversal and to court reluctant supporters by steering wide of abortion altogether — are problematic. Being clear, straightforward and unabashed about the importance of reproductive freedom, and realistic about the impending threats, offers the strongest chance for rebuilding public support. This article first critiques what the authors call the apocalyptic and apologetic approaches to defending abortion rights. It then presents the most compelling reasons to support the right to abortion.

abortion, reproductive rights, Roe v. Wade, Roe, reproductive freedom

Abstract:
This Article criticizes how both sides in the abortion debate have treated the concepts of "human life" and personhood. Much legal scholarship has focused on whether abortion should be permitted, but little attention has been cast on the role of rhetoric in the debate. The Article argues that appeals to "human life" are vague and deceptive, since most conservatives would not consistently treat a fetus as a legal person. Conservatives can commit only to a "thin" conception of life (an embryo or fetus is a human organism in the process of developing into a person) even as they trade on the more emotionally compelling "thick" notions that the term "life" invokes.

In response, liberals often simply assume that "life" means "personhood" and then assert that abortion must be permitted even if the fetus is a person. Alternatively, liberals sidestep the question of fetal personhood, arguing that principles of individual autonomy do not permit any single view to be imposed upon everyone. The Article criticizes both of these responses. The first does not hold up under scrutiny, and the second is disingenuous, for if any abortions remain legal, society has not sidestepped the question but rather has rejected fetal personhood. Moreover, the standard liberal responses neglect the important role women's autonomy and dignity should play in the debate.

This Article argues that liberals and conservatives must address directly the question of fetal personhood, and that, in doing so, they must seek reflective equilibrium and satisfy the requirements of public reason. Reflective equilibrium and public reason would likely lead conservative and liberal views of abortion to converge on a gradualist view of embryonic and fetal life (an embryo is intrinsically valuable but its moral weight increases with gestation). The distracting and misleading question of embryonic or fetal personhood could then be laid aside in favor of a more honest, fruitful public conversation about the morality of abortion.

abortion, embryo, fetus, person, reflective equilibrium, liberal, conservative, Supreme Court, Roe v. Wade, Gonzales v. Carhart

Abstract:
This Article examines Planned Parenthood v. Casey and Stenberg v. Carhart to assess the state of abortion rights today. A cursory look at Casey and Carhart might lead an observer to conclude that, although the Court has renounced key aspects of Roe's framework, the right to abortion remains well-protected under the Constitution. But such a conclusion would ignore the implications of the Court's decision in Casey and place too much hope in Carhart. Casey fundamentally changed the character of abortion rights in this country, reinventing it in a form more vulnerable to continued erosion. Carhart confirmed that extreme restrictions tantamount to a ban are unconstitutional under Casey, but short of this bottom line little of Roe's protections remain. While the right to abortion thus exists in theory, many women - particularly the most politically powerless - find the cumulative burdens impossible to overcome.

abortion, women, partial-birth abortion, partial birth, webster, casey, stenberg, carhart, roe v. wade, undue burden, health exception, D&X, intact D&E, abortion procedure

Abstract:
The Roberts Court has viewed facial challenges with skepticism and hostility. The Court issued one early decision suggesting that its primary concern with facial challenges was the breadth of the remedy. More recently, however, the Court has simply denied facial challenges outright without considering the possibility of more limited relief. In these cases, the Court has focused more on the pre-enforcement and broad-ranging nature of facial challenges, expressing a preference for concrete evidence that a law has harmed, or will harm, particular classes of individuals. While placing a heavy burden on plaintiffs to demonstrate actual or likely harm, the Court has often deferred to legislative factual assertions regarding the purposes that underlie rights-infringing laws, even where those purposes are quite likely pretextual. The Roberts Court’s intolerance for facial challenges thus does more than perpetuate the Court’s longstanding confusion over the standard by which to assess such challenges; it permits the Court to withdraw from its critical role in safeguarding individual rights. This Article argues that facial challenges and facial invalidations can help to promote constitutional accountability among legislatures. When a legislature defies clearly established constitutional requirements, or when a legislature’s fact-based justifications for a rights-infringing law crumble under independent examination, a legislature repudiates its duty to uphold the Constitution. That shortcoming infects the entire law; it is not limited to some subset of potential applications. It is the courts’ duty in such cases, not to reward or accommodate the legislature’s failure, but to protect individual rights from it. Complete invalidation of the law in such circumstances satisfies constitutional norms and vindicates the courts’ critical role in protecting individual rights from majority oppression.