Abstract

The most important lessons are taught by example. Children learn the fundamental values that guide them throughout their lives from the examples set by their parents, especially their mothers. Even before they understand a language, they learn by observing and imitating the actions of their parents. For almost fifty years Roe v Wade guaranteed pregnant women the freedom to determine whether to carry their pregnancy to term. The right to obtain a safe abortion prior to viability is the most significant and controversial aspect of this freedom. The Supreme Court is now poised to overturn what it previously described as the central holding of Roe and allow state governments to restrict abortions prior to viability. If this occurs, it will not be because of an erosion of precedential authority. Instead, it will result from decades of concerted efforts to pack the Supreme Court with Justices who reject the premise that the substantive due process guaranteed by the Fourteenth Amendment limits the power of the states. Whether the Fourteenth Amendment independently restricts the power of states to regulate abortion, however, is not the focus of this essay. Instead, this essay argues that parallel developments in First Amendment law not only reinforce the traditional justification for safeguarding a woman’s freedom to determine whether to continue the course of a pregnancy, but provides an independent justification for subjecting abortion restrictions to heightened judicial scrutiny. Over the past fifty years, Justices that would restrict the Fourteenth Amendment’s role in guaranteeing individual liberty have successfully argued for a greater role for the First Amendment. Government regulation of conduct, especially commercial conduct, previously not recognized as protected speech have increasingly been subject to heightened judicial scrutiny and, in some cases, categorical protection. This essay examines two recent cases, Masterpiece Cakeshop v. Colorado Civil Rights Comm. and Sorrell v. IMS Health, Inc., in which the Justices were required to consider whether the First Amendment and its protection of speech applied to conduct that would not traditionally have been considered speech. These cases highlight both the substantive and strategic value of (re)considering the myriad ways in which conduct is expressive or otherwise integral to expression and the nature of judicial review. When applied to abortion, this line of reasoning illuminates the expressive values at stake with pregnancy and childbirth; why abortion restrictions must be carefully scrutinized to ensure that they do in fact promote a legitimate interest in protecting the welfare of mother and child; and to prevent governing majorities from using childbirth to endorse and celebrate moral beliefs that are not shared by the pregnant woman and may be antithetical to her interests and the interests of a child.

Keywords

First Amendment, expressive conduct, abortion, Masterpiece Cakeshop v. Colorado Civil Rights Comm., Sorrell v. IMS Health, Inc.

Publication Date

2021

Document Type

Article

Publication Information

43 Cardozo Law Review (forthcoming 2021)

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COinS Raymond Shih Ray Ku Faculty Bio