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17 J.L. & Pol'y 15 (2008-2009)
Judicial Evasion and Disingenuous Legislative Appeals to Science in the Abortion Controversy

handle is hein.journals/jlawp17 and id is 19 raw text is: JUDICIAL EVASION AND DISINGENUOUS LEGISLATIVE APPEALS TO SCIENCE IN THE ABORTION CONTROVERSY Caitlin E. Borgmann* INTRODUCTION As John Rawls proclaimed, Justice is the first virtue of social institutions, as truth is of systems of thought.' Justice and truth are pillars of the good society, and the courts play a vital role in ensuring both. The courts' primary responsibility is for the norms of justice, but implementing justice depends upon factual truth. Laws founded upon untruths subvert justice. Thus, when courts address laws that implicate individual rights like the right to abortion, they must ensure that these laws are based on a sound factual foundation. In the abortion context, the Supreme Court has increasingly shirked its duty to ensure both justice and truth. First, in Planned Parenthood v. Casey, the Court undermined the fundamental right to abortion by inviting laws premised on moral opposition to abortion. Yet its decision was dishonest, denying the conflict it created and purporting to leave the right to abortion intact; the decision has thus caused mischief and confusion in 2 abortion regulation. Second, in Gonzales v. Carhart, the Court shunned its responsibility for truth, signaling its readiness to grant extraordinary deference to disingenuous legislative attempts to * Associate Professor of Law, CUNY School of Law. B.A., Yale University; J.D., New York University School of Law. I am grateful for the opportunity to present an earlier version of this paper at the Brooklyn Law School Symposium, The 'Partial-Birth Abortion' Ban: Health Care in the Shadow of Criminal Liability. 1 JOHN RAWLs, A THEORY OF JUSTICE 3 (revised ed. 1999). 2 See infra notes 75-85 and accompanying text.

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