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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
Caitlin E. Borgmann*
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
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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