Wedding Cake Wars: Anti-Discrimination Laws and Religious Liberty

Cake makers who have refused to design cakes for same sex weddings have been sued under public accommodations or other anti-discrimination laws and held financially liable to the couples who sued them in several jurisdictions, most notably in Colorado and Oregon. Their defenses based on religious beliefs have been rejected as inapplicable when raised against a public accommodations or other state or local law that prohibits declining to serve same sex couples. One such case is now pending before the Supreme Court of the United States, which has listed the case for conference consideration multiple times, but has not yet acted on the cake maker’s petition for certiorari. Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, No. 16-111. That Petition raises the issue “whether  applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.”

This post suggests several general points that courts should evaluate when ruling on whether sincerely held religious beliefs are legally sufficient to justify a refusal to serve same sex couples.

1. The right to exercise religious beliefs is constitutionally protected across the entire nation under the First and Fourteenth Amendments. By contrast, public accommodations laws are statutory, and (according to the ACLU),  a majority of states do not prohibit discriminating against same sex couples in their public accommodations laws, although many local  governmental entities do so. This raises the question as to what circumstances may justify subordinating a constitutionally protected right to a statutory right.

2. In many of the wedding cake cases, the same-sex couples had ready access without additional cost to other cake makers who were willing to custom design a wedding cake for them, in at least two cases at no cost to the couples. Is it therefore legally justifiable to subordinate sincerely held and constitutionally protected religious beliefs to a same sex couple’s statutory rights when the discrimination undoubtedly creates at least psychic or dignitary harm to the couple, but is devoid of any economic impact on them, and leaves them with easy access to the product elsewhere?

3. The Masterpiece Cakeshop petition raises an additional point, contending that forcing an “artist” to create a custom piece for a prospective customer constitutes compelled speech and thus violates the artist’s First Amendment rights of free speech and freedom of expression, in addition to his right to free exercise of his religious beliefs. (It is worth noting that the Masterpiece Cakeshop owner has consistently described himself as “a cake artist,” and has written that he is “cheerfully willing” to sell one of his “ready-made” cakes to anyone.) On this point, consider the case of a commercial portrait artist who is asked to paint a portrait of either Donald Trump or Hillary Clinton, and who feels that the subject in question is either a fascist or socialist that he sincerely and violently despises. Would he or she be required to paint that portrait?

These wedding cake cases present significant issues involving the conflicting rights of both the same-sex couples and the cake makers who declined to serve them. The same or similar issues are likewise presented in other contexts, such as those involving photographers, graphic designers, florists, and even pharmacists. (See, for example, my June 28, 2016 post on the Supreme Court’s decision, over a powerful dissent, not to grant review in a pharmacist case, Stormans, Inc. v. Wiesman.)

Given the importance of the rights of both parties, the complexity of the issues presented, and the likelihood that the issues will recur in multiple contexts, the Supreme Court should accept the Masterpiece Cakeshop case for review, and resolve each of the issues outlined in this post.

References:

ACLU, “Non-Discrimination Laws: State by State Information – Map,” www.aclu.org, accessed on March 26, 2017.

Jack Phillips, “Why I’m asking the U.S. Supreme Court to protect artistic freedom,” www.denverpost.com, published on July 22, 2016.

 

 

 

 

 

 

 

 

 

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The Conversion of Saint Augustine: A Case Study in Evangelization

Today all Christian churches face the necessity of evangelizing not only non-Christians, but also nominal or cultural Christians. In facing this challenge, the churches struggle to determine how to be effective in their efforts.

As St. Augustine records in his Confessions, effective evangelization requires three elements in order to be successful. Those elements are the necessity of prayer, the requirement of kindness, and the critical importance of intelligent exposition and explanation of the Christian Faith.

Prayer. St. Augustine records that the persistent prayers of his mother, St. Monica, were instrumental in opening his heart to the possibility of conversion to the Catholic Faith. (Confessions, Book 5, Chapter 9, and Book 9, Chapter 8). This is a familiar story, repeated perennially in many conversions. To select just one example, Clotilda, the wife of Clovis, King of the Franks, prayed for the conversion of her husband, and was ultimately successful when he invoked her God to win an important battle

Kindness. While most people who study the history of Christianity are familiar with the fact that it was St. Ambrose, Bishop of Milan, who ultimately converted Augustine to the Catholic Faith, many are not aware that his kindness to Augustine was an important factor in securing that conversion. Augustine reports in his Confessions that Ambrose was first and foremost “a man who was kind to me.” (Book 5, Chapter 13).

Exposition of the Faith. This third element was particularly important in the case of Augustine, who had found many parts of the Old Testament simply incredible and impossible for him to believe. Ambrose overcame Augustine’s inability to accept such passages (those which Augustine referred to as “the obscure places of the Old Testament”)  by explaining the “spiritual” or allegorical sense of the literal passages. By doing so, Ambrose, in Augustine’s account, drew “aside the mystical veil [and opened] the spiritual sense of many things that taken literally seemed to teach something that was wrong,” or simply absurd. (Book 6, Chapters 4 and 5). Ambrose’s explanations led Augustine to realize that he had “been barking not at that which was indeed the Catholic Faith, but at fictions of carnal concepts.” (Book 6, Chapter 3).

Prayer and kindness are spiritual tools which are available to all who seek to evangelize their friends and acquaintances. The ability to explain the Faith to others is a rarer talent. This talent is dependent upon each individual deepening his or her own faith formation, frequently reading the Scriptures and commentaries, as well as a plethora of other Christian resources. One particularly valuable resource to assist in explaining the Catholic Faith is Bishop Robert Barron’s Word on Fire website, books, and videos.

St. Augustine’s conversion experience provides a valuable template for those seeking to evangelize even today.

 

 

 

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The Catholic Church on Immigration

Much of the debate regarding immigration has centered on the religious and moral obligation to welcome immigrants. Some take the position that it is immoral to restrict immigration on the grounds that the Bible teaches the imperative duty to respect the alien. Others demur, contending that the regulation of immigration raises prudential issues on which reasonable members of a religion may legitimately differ.

On this point, it is instructive to note the discussion on “The duties of citizens” in the authoritative Catechism of the Catholic Church. The Catechism was published in 1994 under the imprimatur of  Cardinal Joseph Ratzinger, who later became Pope Benedict XVI.

Initially, section 2241 of the Catechism states that “The more prosperous nations are obliged, to the extent they are able, to welcome the foreigner in search of the security and the means of livelihood which he cannot find in his country of origin. Public authorities should see to it that the natural right is respected that places a guest under the protection of those who receive him.”

While this paragraph supports a welcoming approach to immigration, “to the extent that [a country is] able,” the paragraph that follows places limitations upon the duty to welcome. It says that “Political authorities, for the sake of the common good for which they are responsible, may make the exercise of the right to immigrate subject to various juridical conditions, especially with regard to the immigrants’ duties toward their country of adoption. Immigrants are obliged to respect with gratitude the material and spiritual heritage of the country that receives them, to obey its laws and to assist in carrying civic burdens.”

This same language that appears in the second paragraph of section 2241 of the Catechism also appears in the August 2013 document, “Catholic Church’s Position On Immigration Reform,” which was published by the United States Conference of Catholic Bishops’ Migration and Refugee Services/Office of Migration Policy and Public Affairs. Under the heading, “Catholic Social Teaching,” that document adds the following language to that of section 2241: “The second duty [of government] is to secure one’s border and enforce the law for the sake of the common good. Sovereign nations have the right to enforce their laws and all persons must respect the legitimate exercise of this right: [quoting section 2241’s second paragraph].” The document goes on to state, under the heading, “Enforcement,” that “The U.S. Catholic bishops accept the legitimate role of the U.S. government in intercepting unauthorized migrants who attempt to travel to the United States. The Bishops also believe that by increasing lawful means for migrants to enter, live, and work in the United States, law enforcement will be better able to focus upon those who truly threaten public safety: drug and human traffickers, smugglers, and would-be terrorists. Any enforcement measures must be targeted, proportional, and humane.”

In contrast to the overheated rhetoric on both sides of the current immigration debate, particularly as it implicates President Trump’s Executive Order on Immigration, the position set forth in these documents as representing the position of the Catholic Church strikes a sensible balance between recognizing the legitimate expectations of immigrants, on the one hand, and acknowledging, on the other hand, the government’s duty to protect its borders and enforce its laws.

 

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Three Proposals to Address the Admission of New Refugees

As new refugees are admitted to the United States, here are three suggestions for assisting them to fully function as members of the American society:

1. Assimilation

The European experience teaches that a major issue with the admission of refugees has been their isolation into ghettos and their inability to assimilate to the culture of their new homes, leading to marginalization and often to violence. As one observer has warned, “immigration without assimilation is simply invasion.” To ameliorate this problem, attending regular classes in English and American Government should be mandatory for all refugees, and a condition for receiving any government assistance, whether federal, state, or local.

2. Sponsorship

To further assist in the assimilation of refugees, sponsor families should volunteer to either house or counsel new refugees. Churchs, synagogues, and mosques could greatly assist in aiding these new immigrants, as many have done before. Moreover, given the large number of protesters against President Trump’s Executive Order on Immigration, many of those protesters should be willing to volunteer their time and assistance to new refugees. Both the Old and New Testaments teach the importance of assisting the resident alien. For example, in the Book of Deuteronomy, 24:17, it is written that “You shall not deprive a resident alien…of justice….Remember that you were a slave in Egypt and the LORD your God redeemed you from there; therefore I command you to do this.”

3. Job Creation

Both the European and United States experiences with new immigrants demonstrate the need to create jobs for them. Lack of employment is a documented source of marginalization and of potential radicalization. To address this issue, new refugees not otherwise employed should be required to participate in a program like the New Deal’s Civilian Conservation Corps to work on maintaining public parks, roads, and forests, and on planting trees and constructing service buildings and trails. This would both provide jobs to unemployed refugees and assist in conservation efforts. Government at both the federal and state level should also consider creating tax credits or other incentives for private businesses to employ refugees who have attended the mandatory English and American Government classes mentioned above.

While these three proposals are not a panacea, they represent a modest start toward successful integration of new refugees into the fabric of our great Nation.

 

 

 

 

 

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Improving Our Infrastructure: The Trump Plans

Improvements to the nation’s infrastructure have been a major contributor to the success of American businesses throughout the course of United States history. In my new book, Politics and American Business: The Growth of Industrial America, 1860-1960, I document how three major infrastructure initiatives benefited American business. These three were the building of railroads and canals in the 19th-century, the construction of bridges, public buildings, highways, public parks, and airports under Franklin Roosevelt’s New Deals in the 1930s and 1940s, and the construction of the interstate highway system starting in the 1950s.

Given the deteriorating infrastructure in the United States today, the Trump Administration has proposed a major infrastructure initiative with potential expenditures of up to $1 trillion. While the specific parameters of the Trump Administration infrastructure plan are presently unclear, Donald Trump, while campaigning for the presidency, proposed implementing “a bold, visionary plan for a cost-effective system of roads, bridges, tunnels, airports, railroads, ports and waterways, and pipelines in the proud tradition of President Dwight D. Eisenhower, who championed the interstate highway system.” President Trump expanded on this in his inaugural address, pledging to “build new roads, and highways, bridges, and airports, and tunnels, and railways all across our wonderful nation.”

Elaine Chao, the new Secretary of Transportation, has announced plans to set up an infrastructure task force as one of her top priorities to flesh out a specific infrastructure plan. The model which is ultimately proposed is critically important. Will it be jobs-oriented, as the New Deal programs were? There is some suggestion of this in the Trump infrastructure proposal published during the election. That proposal referred to a purpose to “create thousands of new jobs in construction, steel manufacturing, and other sectors.”

Alternatively, or perhaps in combination with jobs creation, the ultimate proposal may attempt to expand business markets, as with the historical railroad and highway construction initiatives of prior centuries. Once again, there is some suggestion that any Trump Administration proposal will be sensitive to such a goal. Thus, during the campaign, candidate Trump indicated that there is a need “to build the transportation, water, telecommunications and energy infrastructure [which is] needed to enable new economic development in the U.S.”

Specifics thus become extremely important. As Rich Karlgaard of Forbes has aptly observed, there is “good infrastructure spending [and] bad spending. (Example: Road maintenance is good; bullet trains to the boonies are just dumb.”)

For another example, consider new highway construction. Constructing new highways must take into account what effect they will have on the economy. Will a new highway make it easier for businesses to transport goods to markets now difficult to reach by road? If so, such highway construction can expand business opportunities. Indeed, even the repair of older roads can assist businesses in ways which may not be immediately apparent. One good example of this comes from the testimony before the House of Representatives’ Transportation and Infrastructure Committee on February 1, 2017, by Fred Smith, the Chief Executive Officer of Federal Express. Smith testified that the present highway system is so substandard and in need of updating that drivers are paying some “$67 billion, or $324 per motorist, annually in vehicle repairs and operating costs.” Smith also testified that Federal Express is now replacing tires twice as often as it did 20 years ago because “the road infrastructure has so many potholes in it it’s tearing up tires faster than was the case before.”

These few examples are meant to underline the necessity for careful planning in any infrastructure proposal. Such planning should carefully study the successful experiences in the past with railroad construction, the New Deals’ public works programs, and the construction of the interstate highway system. Details on each of these previous successful infrastructure initiatives are documented in my Politics and American Business.

 

References:

Edward F. ManninoPolitics and American Business: The Growth of American Industry, 1860-1960 (WingSpan Press, 2016), available at www.amazon.com/books/edward f. mannino

“Infrastructure,” at www.donaldjtrump.com/policies/an-americas-infrastructure-first-plan, accessed January 22, 2017.

Rich Karlsgaard, “Trump Infrastructure Smart?,” Forbes, December 20, 2016, at 39.

Andrew Liptak, “Poor US roads mean FedEx is going through tires twice as fast,” The Verge, February 5, 2017, at www.the verge.com.

Melanie Zanona, “Trump’s infrastructure plan: What we know,” The Hill, January 13, 2017, at www.thehill.com.

 

 

 

 

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Significant Dates in New Mexico History

Many Americans are unaware of the rich and long history of New Mexico, which predates the English settlements at Jamestown and in the Massachusetts Bay Colony. Here are some of the key dates in New Mexico’s history under Spanish and Mexican rule, culminating in United States statehood:

1510 – Vasquez de Coronado Expedition

1598 – Juan de Onate takes possession of New Mexico for Spain: “La Toma”

1607 – Santa Fe established

1610 – Santa Fe becomes capital of New Mexico

1610 – Pedro de Peralta becomes Governor

1630 – Fray Alonzo de Benavides’ History of the New Mexican Missions

1680 – Pueblo Revolt; Spanish driven out of New Mexico

1688 – Diego de Vargas named Governor

1693 – de Vargas restores New Mexico to Spanish rule

1706 – Albuquerque established

1821 – Mexico receives independence from Spain; New Mexico now ruled by Mexico

1821 – Santa Fe Trail opened to American trade

1846 – United States defeats Mexico; New Mexico becomes a United States Territory; Brigadier General Stephen Kearny arrives in Territory and establishes United States territorial government

1912 – New Mexico becomes the 47th State

1939-1945 – Atomic Bomb developed at Los Alamos under the Manhattan Project

Dates taken from Thomas E. Chavez, New Mexico Past and Future (University of New Mexico Press, 2006)

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My New Facebook History Publications Page

Friends:

I have just opened a new Facebook page featuring my publications on American History.

Please take a look on Facebook at Edward F. Mannino @ManninoHistory. This describes all my books, including the just-released Politics and American Business: The Growth of Industrial America, 1860-1960.

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Fray Angelico Chavez’s My Penitente Land

Manuel Ezequiel Chavez – better known as Fray Angelico Chavez – was a Franciscan priest born in northern New Mexico in 1910. He was a genuine polymath, known not only for his artistic talents, which explain his Franciscan name (a tribute to the famous Italian painter and priest), but also a novelist, a short story writer, a poet, a genealogist, a biographer, an historian, and even (like Saint Francis) a restorer of churches. He authored 24 books, and also served as an Army chaplain in both World War II and the Korean War. In World War II, he took part in the beach landings at Guam and Leyte Gulf. As a priest, he also served several poor villages and Native American pueblos in New Mexico. He died in 1996, and today his statue stands outside the Palace of the Governor’s History Library in Santa Fe, which was renamed in his honor in the year of his death.

This post reviews Chavez’s historical survey, My Penitente Land: Reflections of Spanish New Mexico (1974) (original edition; multiple new editions available). This book gives tremendous insight into the Spanish Castilian heritage of the peoples of northern New Mexico, where Chavez was born.

Throughout the book, Chavez repeatedly points out the similarity in landscape and atmosphere among northern New Mexico, Castilian Spain, and the Holy Land, all of which are situated on the same or similar degrees of latitude. This fortunate geographical congruence made the Spanish settlers of northern New Mexico quite at home. Their rugged new Mexico landscape lends itself mainly to the raising of livestock, particularly cattle and sheep, which today still can be seen when traveling in this part of New Mexico.

Chavez consistently makes biblical references, comparing the experiences of the Spanish Castilian New Mexicans with those of the Hebrews in Israel. Thus, for example, he analogizes the flight of the Hispanic New Mexicans from Santa Fe after the 1680 Pueblo revolt as a type of “Babylonian captivity,” which only ended with the reconquest of New Mexico by Don Diego de Vargas in 1693.

My Penitente Land often refers to the Hebrew and Spanish concepts of hesed (loving kindness or compassion) and castizo (pure [blood] or genuine) in describing his forebears in northern New Mexico. He sees the Castilian world view as one which combines the contradictory approaches of “rugged realism and rigid idealism,” often referring to Don Quixote on this point. In Chavez’s view, his people are neither romantic nor logical. They rely more on symbols (consider the popular folk art in retablos and bultos), than on text. Consequently, unlike the post-Reformation “Aryan” “new peoples of the book” in Europe, they are not “text-bound.” Indeed, they are “more given to exaggerating the concrete symbols of faith,” often portraying the crucified Christ in a more bloody, and therefore more realistic, depiction that the sanitized crucifixes so often seen in other European and American countries. They starkly identify with the suffering servant Christ, emphasizing personal penitence, sometimes taken to extremes, as in the “exaggerated penitential spirit” of the Penitentes.

Chavez is critical of the American takeover of New Mexico with the arrival of General Stephen Kearney in 1846. He sees the American influence as diluting, and threatening to overwhelm, the Castilian Spanish heritage of his northern New Mexico people.

My Penitente Land  is a well-written and informative work which deserves a wider audience for its compassionate understanding of the Castilian-rooted Spanish peoples of northern New Mexico.

 

 

 

 

 

 

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Politics and American Business: Adversaries or Allies?

Are business and government allies or adversaries? What is the proper relationship between the two? These questions are important issues for the upcoming presidential, congressional, and state elections. They are also the subject of my new book, Politics and American Business: The Growth of Industrial America, 1860-1960, just published by WingSpan Press. The book is now available for orders at Amazon.com and BN.com in both soft cover and electronic versions. The electronic version is also available on other sites selling ebooks.

In researching and writing this book, I have drawn on my more than 40 years of experience representing businesses in litigation and counseling, as well as on my seven years of teaching American History at the University of Pennsylvania and Chestnut Hill College. My teaching experience showed me that the previous books typically assigned in survey courses on American History placed too little attention upon the proper relationship between politics and business, tending to demonize business and failing to appreciate its importance to the economic vitality of this country.

We outline in this book exactly how government can either assist, or hinder, the appropriate growth of American businesses. We identify five critical factors which recur over history, including alternating cycles of regulation and deregulation; the critical importance of infrastructure; the impact of armed conflicts as a business stimulant; the government role in funding and protecting technology; and the key importance of providing ready access to the courts to protect business from excessive and unwarranted regulation.

By focusing on the time period from the Civil War to the Cold War, it is possible to identify the political and other factors which contributed to the United States assuming worldwide industrial dominance in that time period. We bring this analysis up to date in the Conclusion, pointing out how, in several critical respects, current governmental policy has fallen short. As such, attention to the five key factors we identify is highly relevant to evaluating the respective platforms of the various political parties in this important election year.

The book begins with a review of how the Civil War removed the obstacles placed by the Southern Slave Power on the development of industry in the country, tracing how the Republican Administrations in the latter part of the 19th century facilitated industrial growth by imposing tariffs and building infrastructure, particularly in railroads. We then examine the opposition to business dominance of politics by the Populists, and then by the Progressive Movement, which inaugurated tighter regulation on business growth and operations.

The height of regulation of business during this time period was reached during the three full terms of Franklin Delano Roosevelt, particularly in legislation enacted in his First and Second New Deals. Roosevelt instituted what has now become the Administrative State, under which business is heavily regulated by alphabet agencies which promulgate detailed regulations constraining business operations.

The book also details how wars and defense spending have had the incidental effect of assisting industrial development by creating new markets, by facilitating technological improvements, and by increasing employment. We examine the relationship between government and business in World War I, World War II, and the Cold War, detailing how the need to enlist business in the war effort softened government regulation and greatly improved business profitability, as well as fueling government expenditures to fund research leading to development of materials to assist in prosecuting wars. These same developments would later be utilized by businesses, including IBM, Google, and Apple, to create new products and to expand operations.

Finally, the book examines in detail how legislation protecting all varieties of intellectual property, including patents and trade secrets, as well as providing ready access by business entities to the courts as a safety valve against oppressive regulation, have both been critical factors in protecting business in this country.

Politics and American Business provides a concise treatment of an important subject. It is a work written for a general audience, totaling slightly under 200 pages of text, with an additional Chronology and References for Further Reading. If you work in or own a business, or are involved in politics, you will gain new insights into the proper role of government when it legislates in areas affecting the growth and health of American businesses.

 

 

 

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Whole Woman’s Health v. Hellerstedt and the Future of Abortion Restrictions

In Whole Woman’s Health v. Hellerstedt, No. 15-274 (June 27, 2016), the Supreme Court struck down two provisions of a Texas law relating to the regulation of abortion clinics in that state. Those provisions required, first, that abortion doctors have admitting privileges at a hospital located within 30 miles from their facility, and, second, that the facilities themselves satisfy the minimum standards for ambulatory surgical centers under Texas law. By a 5 to 3 margin, the court found that both provisions placed substantial obstacles in the paths of women seeking pre-viability abortions, and thus constituted an undue burden on their access to abortion.

Whole Woman’s Health marks a notable change in emphasis in the Supreme Court’s abortion jurisprudence. In two important ways, it shifts the focus from the approach taken in Gonzales v. Carhart (2007), the court’s previously most recent abortion decision. To begin with, Justice Breyer’s opinion for the majority repeatedly refers to the need for the trier of fact to weigh the burdens imposed upon access to abortion against the benefits flowing from the regulations in question. This risk-benefit type of approach requires detailed findings of fact, and those supporting the challenged regulations will need to present detailed evidence regarding the specific benefits of those provisions. This evidence would include identifying deaths and serious injuries experienced by women attending abortion clinics in the particular state, and further indicating how the legislation at issue will address those types of incidents. Such detailed evidence will be particularly important given the fact that the majority opinion puts two thumbs on the scale against upholding any abortion regulation of the type involved in Whole Woman’s Health. Thus, the majority emphasized the safety of abortion compared to other procedures (abortion is “safer… than many common medical procedures”), and dismissed the contention that the Texas law would address the type of gruesome infanticides experienced in Kermit Gosnell’s  Pennsylvania abortion clinic. On the latter point, Justice Breyer opined that while “Gosnell’s behavior was terribly wrong…, there is no reason to believe that an extra layer of regulation would have affected that behavior.”

A second significant change from prior Supreme Court abortion decisions relates to the level of deference that should be afforded state legislation. Gonzales v. Carhart held that fact-finding is subject to a “deferential standard,” indicating that “where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” By contrast, Whole Woman’s Health substitutes a burdens versus benefits analysis, cautioning that it “is wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue.”

These changes made by Whole Woman’s Health are particularly important because of the solid five justice majority in the case, including the joinder of Justice Kennedy, author of the Gonzales opinion, in the majority opinion. As such, it makes little difference as to the jurisprudential approach to abortion regulation of the new justice who eventually replaces Justice Scalia. In light of these changes, particular emphasis in future cases will be placed upon the factual findings relating to burdens and benefits made by the trial court. Thus, it is unlikely that the Supreme Court will review more abortion cases in the near future, but will, in all probability, simply vacate and remand other cases for reconsideration under Whole Woman’s Health.

One critical question that does remain open, however, is the type of cases as to which the burdens versus benefits approach is mandatory. Thus, for example, will state legislation mandating that a woman undergo an ordinary ultrasound before she procures an abortion be subject to this standard? In addition, if that standard does apply, what are the relevant “benefits” to be weighed in such a case? Should, for example, those benefits include the benefits to both the state and woman regarding making an informed choice as to whether she wishes to abort the life she sees on the ultrasound? Thus, Gonzales v. Carhart implies that, even if the burdens versus benefits approach does apply, the state has a legitimate interest in promoting “respect for life, including life of the unborn.” Finally, is any burden imposed upon the woman by the requirement that she undergo an ultrasound a “substantial” one which also places a “burden on access to” abortion?

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