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INTRODUCTION 1335 I. ABORTION RIGHTS 1336 II. GAY RIGHTS 1345 INTRODUCTION The poet laureate Robert Pinsky wrote that "[a] country is the things it wants to see." (1) But a [...], Walter Dellinger's scholarship, litigation, and popular writing were marked by a distinctive combination of doctrinal sophistication, strategic sagacity, and deep humanity. One theme that informed his work was the "normative power of the actual": the idea that "what is already in place, seems right." Dellinger saw that while that concept can produce unthinking acceptance of an existing, and unfair, legal order, it need not always be so. Sometimes, the normative power of the actual can bend the legal order to accommodate social change that has already occurred. Dellinger's work on abortion rights and on gay equality illustrates this point. Dellinger offered a powerful critique of abortion laws that rested on blinkered accounts of history and present-day conditions. And his embrace of the normative power of the actual anticipated the nation's reaction to the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization. Similarly, Dellinger harnessed the normative power of the actual to help achieve marriage equality for same-sex couples.

Table of Contents Introduction I. The Legal Landscape A. The Emergence of State RFRAs B. Post-Dobbs Abortion Bans 1. Kentucky 2. Indiana 3. Florida C. Abortion Bans Create Major Conflicts [...], After Dobbs, religion, commonly seen as an argument against abortion, has been used to argue for the right to choose. In July 2022, a synagogue sued Florida, asserting that its ban on abortion after fifteen weeks violated Article 1, Section 3 of the Florida Constitution, which prohibits the penalization of free expression of religion. In September 2022, the ACLU argued that the state's abortion ban violated Indiana's Religious Freedom Restoration Act. And in October 2022, three Jewish women sued the state of Kentucky, alleging that its abortion ban violated the Kentucky Religious Freedom Restoration Act. This Note provides a guide to the merits and challenges of the argument that an abortion ban violates a state Religious Freedom Restoration Act (RFRA). Although this Note focuses on how Jewish plaintiffs can raise such claims, the arguments outlined could be raised by individuals of multiple faiths. This Note contributes to a growing debate about religious arguments for the right to an abortion. And it is the first paper to outline how religious freedom claims to obtaining an abortion might fare under state RFRAs. The approach to RFRA outlined in this paper lays the groundwork for a rights- advancing framework of religious exercise.

CONTENTS CONTENTS ABSTRACT INTRODUCTION I. JUSTICE GINSBURG'S DEVELOPMENTAL CONSTITUTIONALISM A. Developmental Constitutionalism Beyond VMI i. The Eighth Amendment Punishments Clause ii. The Sixth Amendment Assistance of Counsel Clause iii. The [...], In a 1992 speech, delivered one year before her elevation to the Supreme Court, Ruth Bader Ginsburg criticized Roe v. Wade for the comprehensiveness of the framework it adopted. "A less encompassing Roe, one that merely struck down the Texas law [at issue in the case] and went no further that day," Ginsburg remarked, "might have served to reduce rather than fuel controversy." Two decades later, by then a member of the Court, Ginsburg renewed her criticism of Roe. In comments she made at a gathering commemorating Roe's fortieth anniversary, Ginsburg faulted the Court for having pre-empted the political process. The Supreme Court shouldn't have acted as "the single decision-maker," she remarked. Instead, there should have been "much more dialogue ... among people who play the political game." These comments don't indicate that Ginsburg was opposed in principle to the possibility of a constitutionally protected right to elective abortion. Rather, they establish that she viewed Roe as premature--that she reasoned in terms of a developmental framework of constitutional interpretation, one in which new rights emerge over time through the interplay of latent semantic possibilities contained in the constitutional text and alterations in national practice that are registered in state legislation before they ultimately secure recognition by the Court through its exercise of the Marbury power. This Article relies on the developmental framework Ginsburg employed throughout her career to assess cases unrelated to abortion and also to analyze the Court's opinion in Dobbs v. Jackson Women's Health Organization, the case that overruled Roe. The right announced in Roe (and affirmed in Planned Parenthood v. Casey) is problematic on developmentalist grounds, the Article suggests. On the other hand, given developmental reasoning, it must be recognized that Roe relied on a nascent movement in American life and that its conclusion having become law, Roe (in conjunction with Casey) generated legitimate reliance interests concerning reproductive freedom. The Roe-Casey framework thus should have been pared back, the Article suggests, but it shouldn't have been completely set aside. No claim is made here that Ginsburg would have reached this conclusion. The Article's aim is different. Rather, it defends, with only modest qualifications, the developmental approach to constitutional interpretation Ginsburg employed over the course of a quarter century on the Court; explains how this interpretive method has produced enduring, non-originalist conclusions in branches of law unrelated to abortion; and (in the case of abortion rights) explains how attention to reliance interests calls for preservation of an abortion option that, while less extensive than the one recognized in either Roe or Casey, is nonetheless sufficiently robust to preserve the right to reproductive freedom that has existed for the last half-century.

TABLE OF CONTENTS ABSTRACT 399 TABLE OF CONTENTS 400 I. INTRODUCTION 401 II. THE OBJECTIVES OF THE LEGAL-LINGUISTIC STUDY 403 III. THE SUPREME COURT'S JURISPRUDENCE ON THE CONSTITUTIONALITY OF ABORTION [...], The amicus briefs filed in landmark abortion cases before the U.S. Supreme Court serve as a barometer revealing how various constituencies talk about abortion, women, fetuses, physicians, rights, and harms over time. This article conducts an interdisciplinary legal-linguistic study of the amicus briefs that were filed in the milestone abortion cases of Roe v. Wade, Doe v. Bolton, Planned Parenthood v. Casey, and Dobbs v. Jackson Women's Health. As the first large-scale study of all amicus briefs submitted in these key cases, this article identifies the roles of amicus briefs, analyzes their rhetorical strategies, and describes how their authors engage with the Court. Using quantitative and qualitative methods, the study reveals how the discursive construction of the pregnant person, fetus, physician, and abortion as a right have evolved over fifty years and shows why these shifts matter. In so doing, this study offers historical perspectives into evolving arguments in abortion litigation, contemporaneous insights into the status of polarized abortion politics, and future implications for amicus activity and abortion advocacy.

INTRODUCTION 701 I. THE RELATIONSHIP BETWEEN INTIMATE PARTNER 703 VIOLENCE, REPRODUCTIVE RIGHTS, AND ACCESS TO FIREARMS A. Pregnancy and Intimate Partner Violence 705 B. Reproductive Rights and Intimate Partner Violence [...], The central focus of this Article is to posit that the approach of courts in invoking notions of privacy to largely ignore intimate partner violence throughout most of American history continues to eclipse the full ramifications of both reproductive rights and Second Amendment case law. Homicide is a leading cause of death for pregnant women, more prevalent than any medical condition, and a majority of pregnancy-related homicides are committed by an intimate partner of the deceased. Intimate partner violence has been a constant presence throughout American history, yet courts have routinely ignored or cast aside this violence, considering it part of the private sphere. In Dobbs v. Jackson Women's Health Organization and New York State Rifle & Pistol Ass'n v. Bruen, the Supreme Court held, respectively, that abortion is not a constitutional right, and that states cannot ask gun owners to show a need for their weapons to obtain a concealed carry license. Those decisions ignore how intimate partner violence interacts with reproductive rights and access to firearms, despite the reality that the decisions' combined effects are likely to be particularly acute for those vulnerable to intimate partner violence. Pregnancy is the risk factor most likely to lead to death for a victim of intimate partner violence, and fewer gun restrictions can enable abusers to wield an incredibly lethal weapon. The lack of consideration afforded to victims of intimate partner violence (estimated to include more than one in four Americans) in Dobbs and Bruen is particularly remarkable in light of the probable effect that decreased access to abortion and freer firearm possession will each have on this population, and especially given the long-term (and possibly lifelong) consequences and potential danger of child-rearing and co-parenting with an abusive partner or ex-partner. This Article argues that the legal system's current acknowledgement of intimate partner violence as a problem that merits state intervention should change how case law approaches access to abortion and access to firearms. Part I examines the relationship between reproductive rights and intimate partner violence, and between firearms restrictions and such violence. Part II traces the history and evolution of case law surrounding intimate partner violence, reproductive rights, and firearms restrictions, analyzing the unique way in which courts treated intimate partner violence as a private phenomenon largely unworthy of state intervention until the latter half of the twentieth century, and examining how the Supreme Court has either ignored or highlighted intimate partner violence depending on which approach best serves its jurisprudential agenda in a given case. Part III discusses recent case law on reproductive rights and firearms--including Dobbs, Bruen, and the Fifth Circuit's decision in United States v. Rahimi--and the likely impacts of those decisions on victims of violence. Part IV of this Article grounds case law in the realities of intimate partner violence and, in doing so, provides alternative reasoning by which to conceive of reproductive rights and Second Amendment jurisprudence.

I. INTRODUCTION 201 II. FEDERAL ABORTION LAWS 202 III.OVERTURNING ROE V. WADE 203 A. THE DOBBS V. JACKSON DECISION 204 B. LEGISLATIVE PROTECTIONS OF ABORTION 206 C. BANS BASED ON [...]

I. INTRODUCTION 259 II. THE CONGRESSIONAL RESPONSE TO CLINIC PROTESTS: FREEDOM OF 261 ACCESS TO CLINIC ENTRANCES ACT OF 1994 III. ABORTION PROTESTS AND THE COURTS: STATE INTERESTS AND THE [...]

Table of Contents Introduction I. Defining Severe Fetal Abnormalities A. Identifying Fetal Anomalies B. Defining Severe Fetal Abnormality II. How Dobbs Changed the Legal Landscape for Abortion Based on Severe [...], In the wake of Dobbs v. Jackson Women's Health Organization, legal scholars have proposed countless innovative strategies to secure reproductive autonomy, largely by circumventing the holding in Dobbs. This Note, however, takes a different approach. Rather than concluding that Dobbs has entirely foreclosed the pathway to constitutional abortion access, this Note considers the marginal case of severe fetal abnormality. It argues that, even under Dobbss framework, there exists a robust constitutional right to abortion of severely abnormal fetuses, defined as fetuses whose congenital malformations make their death inevitable in utero or shortly after birth. Part I of this Note explains modern reproductive technology's emergence over the past century and defines severe fetal anomalies. Part II explains the substantive holding of Dobbs and identifies the question left open in Dobbs regarding abortion on the basis of severe fetal anomaly. Part III argues that an originalist-informed understanding of the Constitution demands the right to abortion on the basis of severe fetal anomaly because such abortion decisions uniquely implicate two deeply rooted, fundamental rights: the right to protect one's health and the right to parental autonomy. Each year, more than 100,000 people become pregnant with severely abnormal fetuses, and the constitutional rationales for a right to abortion on the basis of severe fetal abnormality are particularly compelling. By considering severe fetal anomaly, a marginal case that Dobbs entirely overlooked, this Note serves both short- and long-term ambitions. It contends that the Constitution affords an abortion right to hundreds of thousands of pregnant people currently experiencing dire medical emergencies, and it strives to limit Dobbss central holding--that states can freely regulate abortion--by paving a pathway to abortion access rooted in rights other than privacy.

"Language is a tool to convey meaning; language is also sometimes the meaning itself... . Language gathers to itself ideas and, as used in legislation, creates 'laws' sometimes beyond those [...], Many scholars study Supreme Court decisions, but few are attentive to the rhetoric the Court uses to articulate its holdings. This omission is perplexing: the Court's rhetoric literally becomes law, but scholars typically fixate on the substance, rather than the rhetoric, of its communications. In this Article, I argue that legal scholars should take more seriously the Court's role as a rhetorical actor. To illustrate this, I analyze the rhetorical effects of the language the Court uses to describe women and mothers in three contexts: gender discrimination, immigration, and abortion. I begin by describing the "inherited language" of motherhood--that is, the narratives, themes, and connotations that are traditionally associated with the idea of motherhood. I then use close readings and discourse analysis of landmark decisions in each substantive area to consider whether and how the Supreme Court engages with that inherited language. My analysis reveals that the Court's relationship with the inherited language of motherhood varies across contexts. In cases dealing with gender discrimination, the Court anxiously distances itself from traditional narratives about motherhood. In immigration cases, it both embraces and rejects the inherited language. And in abortion cases, its approach has shifted: initially, the Court strongly disavowed inherited narratives, but in its most recent abortion case, Dobbs v. Jackson Women's Health Organization, it says very little about mothers at all. My analysis also suggests the Court's attitude toward the inherited language of motherhood may be correlated with the substantive legal outcome in a case: the Court seems to most emphatically reject the inherited language in decisions that protect and reaffirm women's rights. These findings illustrate why legal scholars should be more attentive to the Supreme Court's rhetoric. The correlation between the Court's language and substantive outcomes suggests that in some cases, the Court's rhetorical decisions might influence or even determine its legal analysis. If that is true, then scholars who are interested in case outcomes should study the Court's language. But the Court's rhetoric does not just shape case outcomes; it also alters the way we understand, engage with, and view one another. When the Court uncritically invokes traditional narratives about women and mothers, it may--for better or for worse--perpetuate and reconstitute a world where certain assumptions govern. When it actively distances itself from traditional narratives, as it does in gender discrimination cases and early abortion cases, it creates legal and rhetorical space for women to enact various modes of motherhood and womanhood. And when the Court ignores the inherited language of motherhood, it frames legal debates as if women's interests are not at stake and, in doing so, obscures women's perspectives, needs, and lived experiences. Scholars interested in the ways law shapes relationships and facilitates identity formation should pay attention to these constitutive effects.

INTRODUCTION 1 176 I. BACKGROUND & HISTORY OF THE LAW 179 A. HISTORY OF THE FUNDAMENTAL RIGHT TO INTERSTATE TRAVEL 179 1. The Passenger Cases 180 2. United States v. [...], This Note explores the tension between the fundamental right to interstate travel and state abortion restrictions limiting out of state travel for abortions. Legal scholars long contemplated what would happen if Roe and Casey were overturned. That day has come, and states are now free to regulate abortion subject to rational basis review... unless another fundamental right is implicated. In his Dobbs concurrence, Justice Kavanaugh cited the fundamental right to interstate travel as justification for barring states from banning out of state travel for abortions. Although he cited no precedent for his statement, he seemed to believe this was an open-and-shut question. This Note will seek to examine whether the fundamental right to interstate travel can protect the ability to travel between states for an abortion. If it does, then state abortion restrictions should still be subject to strict scrutiny. Even still, states may be able to put forth compelling justifications to support their laws. To test this argument, this Note will examine Idaho's HB 242--the nation's first law limiting interstate travel for abortions. Though this law has not yet been challenged, we can expect that it will soon make its way before the courts. Even though HB 242 regulates abortions, its impact on interstate travel will likely still make it subject to strict scrutiny.

For years, federal courts have recognized the sexual victimization of inmates as cruel and unusual punishment under the Eighth Amendment. (1) But it is unclear what relief inmates who experience [...]

INTRODUCTION 80 I. BACKGROUND 83 A. RIGHTS OF THE PREGNANT PERSON AND THE FETUS 83 B. BURDENS OF THE CURRENT APPROACH ON THE RIGHTS OF PREGNANT PERSON AND THE FETUS [...]

INTRODUCTION Abortion is a highly divisive issue in the United States. It always has been, and it likely always will be. Regardless of if an individual is pro-choice or pro-life, [...], A source of seemingly endless controversy, the legal status of abortion is of great importance, particularly for low-income women. Anti-abortion measures have consistently proven to disproportionately effect low-income women; one example of this is the Hyde Amendment passed in 1977, just three years after Roe v. Wade was decided. The Hyde Amendment barred the use of federal dollars for abortion services except in limited circumstances. except for when the life of the mother would be endangered by carrying the pregnancy to term. This Note highlights that the effects of the Hyde Amendment, combined with state restrictions on abortion services, results in significant consequences for low-income women seeking essential reproductive healthcare. Moreover, this Note focuses on how Texas Senate Bill 8 ("SB 8") disproportionately affects low-income women in all aspects of life. For instance, the costs of taking off work, traveling, and making the necessary arrangements to obtain an abortion are often affordable for middle- and upper-class women but the same cannot be said for a low-income woman choosing between securing needed reproductive healthcare and paying rent. The Author argues that because SB 8 is the most restrictive abortion law post Roe v. Wade, more low-income women will be forced to give birth to children for whom they may not be in a financial position to care, contributing further to the pernicious force of cyclical poverty. Furthermore, the Author proposes that Roe v. Wade be codified into federal law to break the cycle of poverty perpetuated by restrictive abortion bans such as SB 8. Disclaimer: This analysis was done in 2021 before the Supreme Court decided Dobbs v. Jackson Women's Health in June of 2022 wherein Roe v. Wade was overturned. It is important to note that regardless of the Dobbs decision, this note focuses on the economic impact that restricted access to reproductive healthcare has on low-income women. In states where abortion is banned outright, that financial burden has since only grown.

TABLE OF CONTENTS ABSTRACT 811 TABLE OF CONTENTS 812 I. INTRODUCTION 813 II. NEW YORK TIMES CO. V. SULLIVAN 816 III. TODAY'S ASSAULTS ON SULLIVAN 821 IV. A DUTY TO [...], The conservative legal establishment is waging war on modern liberalism with Dobbs v. Jackson Women's Health Organization marking its most recent victory. Against this backdrop, this Article contends that attacks from the right on New York Times Co. v. Sullivan--the Court's defining First Amendment decision that places political speech at the center of free speech doctrine--are motivated not by bona fide doctrinal disagreements but rather the cynical belief that the specter of defamation liability unrestrained by Sullivan will silence political opponents and, in turn, hasten the end of modern liberalism. So while the battle over Sullivan may not have the same partisan salience as attacks on Roe v. Wade, the political implications of overruling Sullivan are nevertheless vast. This Article confronts this troubling development. First, it tracks the politicization of defamation law in recent years, contextualizing it within the right's broader war on modern liberalism and cataloging the likely consequences of overruling Sullivan. Second, it asserts that claims from the right that Sullivan is un-American and ahistorical are nothing more than self-serving projection meant to detract from the undemocratic and historically unsupported principles that underlie the right's assault on Sullivan. In fact, this Article contends that Sullivan is quintessentially American--both ideologically and historically. Specifically, it asserts that Sullivan is the result of a long-recognized duty of a citizen in this country to impeach public officials through critical political speech and, when necessary, even defamatory speech. In all of this, the fight over Sullivan is not about defamation law, but the basic right to govern ourselves at all.

INTRODUCTION Dobbs v. Jackson Women's Health Organization held that no constitutional right to abortion exists, (1) overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. (2) After [...]

Introduction 868 I. Relevant Background 873 A. Abortion Jurisprudence Through History 873 1. Roe v. Wade 874 2. Planned Parenthood of Southeastern Pennsylvania v. Casey 876 3. Gonzales v. Carhart [...]

Introduction I. Circumstances Surrounding Dobbs v. Jackson Women's Health A. The Growing Divide Between Red States and Blue States Before Dobbs B. The Dobbs Decision C. Resulting Chaos and Further [...], In the Supreme Court's highly anticipated decision, Dobbs v. Jackson Women's Health Organization, the Court overturned Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, discarding the constitutionally protected right to access abortion and turning access over to the states to legislate as they see fit. In doing so, the Court threw reproductive rights into complete disarray, endangered pregnant people's health and lives, limited their ability to participate fully in society, and undermined the Court's own legitimacy. In short, the repercussions and reverberations of this decision will be felt nationwide and much more broadly than most realize. This Article seeks to predict and explore the reproductive and economic consequences of Dobbs. First, it examines future anti-abortion legislation, including the realistic possibility of a federal abortion ban, increased criminalization of pregnancy, and threats to contraception. Second, it describes much of the unnecessary pregnancy-related suffering caused by restrictive abortion laws, including unforeseen threats to fertility treatment, the physical and economic consequences of being denied a wanted abortion, challenges in treating pregnancy loss, and the empty promise of "life of the mother" and "medical emergency" exceptions. In short, the Dobbs decision has opened the door to a parade of reproductive and economic horribles that most people did not expect or consider when thinking about abortion access. Some of these consequences are starting to come to the forefront. This Article seeks to enlighten and encourage the United States' pro-choice majority to make abortion access a voting priority, as that is the only way to reverse course.

I. Introduction II. Background A. Separationism and the Establishment Clause B. Accommodationism and the Establishment Clause C. Historical Interplay of Separation and Accommodation 1. Founding Fathers' Intentions--An Inconclusive Review 2. [...], The debate surrounding reproductive health rights in the United States reached a fever pitch over the summer of 2022 when the United States Supreme Court overruled Casey and Roe in a devastating, but not unexpected, opinion. Under this new ultra-religious regime, residents in the United States have limited options for pursuing reproductive healthcare, one of which may be attempting to preserve the right to abortion as a religious ritual like The Satanic Temple is arguing. This Note examines the history of Free Exercise Clause and Establishment Clause jurisprudence and demonstrates a now over-powered Free-Exercise Clause with a distinct favor for Christian values. This Note argues that shifting the legal argument surrounding abortion from a substantive due process analysis to an Establishment Clause analysis will help avoid a slippery slope of Christian enmeshment with the United States government and will preserve a more just approach to reproductive healthcare in the country.

I. INTRODUCTION 201 II. FEDERAL ABORTION LAWS 202 III. OVERTURNING ROE V. WADE 203 A. THE DOBBS V. JACKSON DECISION 204 B. LEGISLATIVE PROTECTIONS OF ABORTION 206 C. BANS BASED [...]

I. INTRODUCTION 253 II. THE CONGRESSIONAL RESPONSE TO CLINIC PROTESTS: FREEDOM OF ACCESS TO CLINIC ENTRANCES ACT OF 1994 255 III. ABORTION PROTESTS AND THE COURTS: STATE INTERESTS AND THE [...]

TABLE OF CONTENTS INTRODUCTION 447 I. THE END OF ROE AND ITS PRIVACY RATIONALE 450 A. Dobbs and Substantive Due Process 450 B. Roe's Logic of Privacy in the Body [...], With the demise of Roe v. Wade, the survival of abortion access in America will depend on new legal paths. In the same moment that Dobbs v. Jackson Women's Health Organization has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe's vision of the private zone of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing unwanted pregnancies. This Article maps out the constitutional paths of reproductive justice in a world without Roe. Constitutional democracies around the world that have progressed from banning most abortions to legalizing many of them have embraced the public dimensions of childbearing and childrearing. Laws protecting abortion access have recently emerged from strong pro-life constitutional baselines in several jurisdictions, including the notable example of Ireland. Rather than constitutionalizing the individual's privacy interest in unwanted pregnancy, many constitutional orders recognize the social and public value of reproducing the community, and the disproportionate role played by people who stay pregnant and raise children in the production of these public goods. Banning abortion effectively coerces people to contribute disproportionate sacrifices to the State, without properly valuing these contributions. This Article shows how this insight from global abortion law norms can be pursued in U.S. constitutional law. The formulation of takings- and Thirteenth Amendment-based challenges to abortion bans would focus on just compensation for the risks, burdens, and sacrifices of compelled motherhood, beyond the enjoining of abortion restrictions. Global experience also points to the importance of incrementally establishing reasonable, expanded definitions of medical necessity exceptions to abortion bans. Such avenues for reestablishing abortion access, as well as public support for pregnancy and parenting, imagine a broader world of reproductive justice than the one defined by Roe.

INTRODUCTION 1652 I. THE PERCEIVED TENSION BETWEEN ABORTION AND PREGNANCY LOSS 1657 II. THE SURPRISING OVERLAP BETWEEN ABORTION AND PREGNANCY LOSS 1662 A. Race and Class 1663 B. Physical Experiences [...], Long-standing dogma dictates that recognizing pregnancy loss threatens abortion rights--acknowledging that miscarriage and stillbirth involve the loss of something valuable, the theory goes, creates a slippery slope to fetal personhood. For decades, antiabortion advocates have capitalized on this tension and weaponized the grief that can accompany pregnancy loss in their efforts to legislate fetal personhood and end abortion rights. In response, abortion rights advocates have at times fought legislative efforts to support those experiencing pregnancy loss and, more recently, remained silent, alienating those who suffer a miscarriage or stillbirth. This Article argues that this perceived tension can be reconciled through the concept of subjective and relational fetal value. The Article derives this concept from pregnancy loss research, which demonstrates that a pregnant person's attachment to their fetus is based on myriad individualized factors. Attachment in pregnancy is neither fixed nor biological and therefore does not support the antiabortion concept of personhood-at-conception. We suggest that tort law offers a way forward: a model of recognizing subjective, relational fetal value that does not collapse into personhood-at-conception. Thus, abortion rights advocates can recognize and support those experiencing pregnancy loss without ceding ground on abortion rights. Most importantly, this Article proposes that recognition of pregnancy loss within abortion narratives will better position the abortion rights movement for a post-Roe America in which abortion and pregnancy loss are inexorably intertwined. Without legal abortion access, women will turn to self-managed abortion. But because complications from self-managed abortion are indistinguishable from miscarriage, investigation and criminalization of pregnancy loss will increase as a mechanism to enforce abortion laws. Further, restrictions on abortion will limit medical treatments for pregnancy loss. Looking forward, we argue that an abortion rights narrative that can join forces with the pregnancy loss community by acknowledging subjective fetal value will be less alienating to many Americans and reflect nuanced views on the meaning of pregnancy. Last, appreciating the blurriness between abortion and pregnancy loss will help normalize and destigmatize all pregnancy endings that do not result in a live birth--abortion, stillbirth, and miscarriage--benefitting all pregnant people.

INTRODUCTION Discussions regarding bodily autonomy in the United States have always been contentious. Ideas about agency, religion, and privacy have fueled impassioned responses to court decisions and legislation regulating the [...]

For me, the annual Book Review issue is a time for reflection. It provides an opportunity to take stock of scholarly trends, reassess conventional wisdom, and gather new insights to [...]

INTRODUCTION 1146 I. EMOTION IN THE INDIVIDUAL 1153 A. Appetite and Apprehension 1156 B. A clivation of the Appetites 1162 C. Reason, Emotion, and the Will 1164 D. Contra Aquinas [...], Although the role of emotion in law has become a major field of scholarship, there has been very little attention paid to the role of emotion in constitutional theory. This Article seeks to fill that gap by providing an integrated account of the role of emotion within the individual, how emotion affects constitutional culture, and how constitutional culture, properly understood, should affect our evaluation of major constitutional theories. The Article begins by reconstructing one of the most important and influential accounts of emotion in the philosophical literature: that of Thomas Aquinas. Because Aquinas's description of the nature of emotion accords with modern science and the insights of many law-and-emotion theorists, it provides a firm foundation for an analysis of emotion in constitutional theory. Having laid that foundation, the Article examines the role of emotion in constitutional culture, the subset of national culture concerned with a constitution. Constitutional culture combines a society's ideas about, and emotional attachments to, its constitution. Here, the Article develops a novel synthesis between Aquinas's model of emotion and Edmund Burke's sophisticated exploration of the importance of emotion in constitutional culture. Burke argues that theories of constitutional legitimacy shape constitutional culture and must accord with it. If a theory of legitimacy is at odds with a society's constitutional culture, the society risks the instability of the regime. This insight--which is consistent with Aquinas's model of emotion--is the primary basis for understanding the role of emotion in constitutional theory. Finally, the Article turns its attention to constitutional theory. Observing that popular sovereignty is the theory of legitimacy endorsed by our constitutional culture, the Article argues--based on the synthesis of the Thomistic and Burkean accounts--that emotion should play an important role in evaluating the contours and viability of theories of legitimacy. Theories of legitimacy that accord with popular sovereignty have a stronger argument in their favor because they reinforce the emotional attachments that lend stability to our Constitution. Theories of legitimacy that reject popular sovereignty, by contrast, must be modified or abandoned or, alternatively, must explain why attempts to change our constitutional culture will avoid the instability that the Thomistic and Burkean accounts would predict. The Article therefore has particular relevance to assessing radical constitutional theories--whether from the political right or the political left--that are critical of American constitutional culture. The Article concludes by exploring the implications of emotion for constitutional doctrine, focusing on stare decisis and the examples of"Roe v. Wade, 410U.S. 113(1973), and Miranda v. Arizona, 384 U.S. 436 (1966).

INTRODUCTION "For you formed my inward parts, you knitted me together in my mother's womb. I praise you, for I am wondrously made." - Psalm 139:13-14 In 2019, the United [...]

I. INTRODUCTION 279 II. CONSTITUTIONAL ABORTION RIGHTS 282 III. REGULATION OF ABORTION 292 A. LEGISLATIVE BANS ON ABORTION 292 1. Bans on Fetal Development 293 2. Bans Based on the [...]

I. INTRODUCTION The issue of abortion has been passionately debated in this country for many years. For decades, our legal system has recognized that legitimate interests in the subject lie [...]