Published on February 7th, 2018 | by Josiah Batten0
Strict Scrutiny and the Ethics of Roe V. Wade
Abortion is a moral evil that every biblical Christian should abhor. As part of my apologetics program at Luther College and Seminary I wrote the following paper addressing important legal and ethical issues regarding abortion. I am not a lawyer, as you all should know. But law is a major factor in issues of abortion, and I made every effort to faithfully understand the legal reasoning at play in Roe V. Wade, and to argue that the application of strict scrutiny in favor of abortion rights amounts to begging the question against the right to life. Any inadequacies in the understanding of law (or in the paper as a whole) are my own.
This paper is scholarly in nature, and not the normal style of writing I use on WV4G. But this is a Gospel issue, and I want Christians to be equipped with every tool possible in the fight against abortion.
II. STRICT SCRUTINY AND THE ETHICS OF ROE V. WADE
A. A Brief History of Strict Scrutiny
B. The Tests of Strict Scrutiny
1. Burden of Proof
2. Compelling Interest
3. Narrowly Tailored
C. Strict Scrutiny and Abortion Laws
1. The Right to Privacy
2. Major Abortion Cases
D. Ethical Analysis
- Ethical Assumptions and Strict Scrutiny
- Strict Scrutiny and Pro-Life Arguments
IV. SELECTED BIBLIOGRAPHY
Roe v. Wade is one of the most controversial Supreme Court decisions in the history of the United States. This decision struck down state laws prohibiting abortion by utilizing strict scrutiny and ruling that a pregnant woman’s right to privacy guarantees her the freedom to procure abortion. In response the pro-life movement has advocated for the right to life of the unborn and sought to overturn the Court’s decision in Roe. This paper argues that the application of strict scrutiny in Roe v. Wade resulted in begging the question against the unborn’s right to life, and that strict scrutiny would be appropriately applied in defense of the right to life.
This is shown first by examining what strict scrutiny is, how it developed as a legal concept, and the tests it utilizes when applied in court. Following this attention is given to how strict scrutiny as a legal concept has been utilized in court decisions regarding abortion, particularly in how the right to privacy was a major impetus for utilizing strict scrutiny in the Roe decision. Consideration is then given to the ethical assumptions and implications of this use of strict scrutiny, and it is argued that strict scrutiny must be applied in defense of the right to life and never utilized against that fundamental liberty.
STRICT SCRUTINY AND THE ETHICS OF ROE V. WADE
A Brief History of Strict Scrutiny
Central to the establishment of a legal right to abortion in the United States was the Supreme Court’s 1973 Roe v. Wade ruling.1 Central to the majority opinion in the Roe v. Wade ruling itself was the application of strict scrutiny to the Texas law (and by extension all state laws) prohibiting abortion that was challenged. In essence, it is probable the Supreme Court would not have struck down state bans on abortion apart from the application of the standard of strict scrutiny. In challenging the alleged legal right to abortion, it is necessary to understand what strict scrutiny is and how it was instrumental to establishing said right.
The phrase “strict scrutiny” itself originates in state supreme courts addressing creditor and debtor cases.2 At issue was the possibility that a debtor might transfer property to a friend or family member shortly before that property would be seized by a creditor.3 The prospect that a debtor might avoid fulfilling a financial obligation in this way caused state supreme courts to apply a strict standard of evaluation toward such transfers of property when creditors argued that the transfer was made only to avoid the seizure of the property in fulfillment of the debt.
Strict scrutiny was first used by the U.S. Supreme Court (SCOTUS) in its decision in Skinner v. Oklahoma, a case regarding the right of the state to sterilize people guilty of certain crimes.4 The Supreme Court connected strict scrutiny to cases that involve the violation of basic and fundamental rights by the state, noting:
We are dealing here with legislation which involves one of the basic civil rights of man. … strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.5
Thus the phrase “strict scrutiny” originated in American law and was connected to state violations of fundamental rights. The concept has developed since this origin. As it exists today strict scrutiny is the result of a coalescing of three concepts or tests, the first shifts the burden of proof to the state when a fundamental right is infringed upon by legislation, the second demands the state must be pursuing a compelling interest, and the third requires said compelling interest be pursued in the narrowest possible way to attain it.6 The first and third concepts existed prior to the concept of strict scrutiny itself.7 The second test in strict scrutiny, the requirement of compelling interest, has a fairly recent origin. It was only the addition of the requirement of compelling interest that permitted the modern concept of strict scrutiny to flourish.
Compelling interest was first employed by the Supreme Court in Sweezy v. New Hampshire, a Cold War-era case in which a professor suspected of being a communist was held in contempt of court in New Hampshire for not answering certain questions pertaining to his lectures.8 In a concurring opinion Justice Frankfurter was joined by Justice Harlan and made a strong argument for academic freedom, noting “Political power must abstain from intrusion into this activity of freedom, pursued in the interest of wise government and the people’s well-being, except for reasons that are exigent and obviously compelling.”9 With this decision, the final concept necessary for the modern requirement of strict scrutiny was definitively incorporated in legal reasoning.
The Tests of Strict Scrutiny
With the historical origin of the concept of strict scrutiny in place, it is necessary to define more fully each element of it and to examine how the tests of strict scrutiny actually function in legal settings.
Burden of Proof
The first element of strict scrutiny is the shift of the burden of proof. This is a broad concept, with popular, philosophical, as well as legal meanings. In law itself the burden of proof is held to different standards depending on whether it is applied in a criminal or civil case.10 The legal burden of proof is composed of two separate elements, the burden of persuasion and the burden of production.11 The burden of persuasion requires convincing the determiner of issues of fact (the judge or jury) that one’s position is true or likely true.12 The burden of production entails furnishing enough evidence to support a prima facie case.13
While normally the burden of proof is on the plaintiff in a civil case or on the prosecutor in a criminal case, the application of strict scrutiny in a civil case shifts the burden of proof. That is, a private citizen seeking to challenge a particular law normally bears the burden of proof as the plaintiff. However, when a law seems to infringe on a fundamental right and a court applies strict scrutiny, the burden of proof itself shifts to the government in defending its challenged law. This is the case whether the government in question is a local, state, or federal government.
Because strict scrutiny shifts the burden of proof from the plaintiff to the government, the natural question turns to what the government must prove. The burden of proof in a criminal case is relatively easy to understand, prosecutors must prove beyond a reasonable doubt that a certain person engaged in some form of criminal activity. In defending a law, however, the burden of proof is not as intuitively obvious. When a government seeks to defend a law in a case involving strict scrutiny, that government must first prove that the law itself furthers a compelling government interest.
Defining what constitutes “compelling interest” is difficult, and can even be subjective. There are special interest groups that argue the government has a compelling interest in advancing numerous agendas, including promoting racial diversity in the health-care workforce.14 Among courts there is no definitive standard, apart from legal tradition itself, as to what constitutes a compelling government interest. A court composed of strict textualists may deny a compelling government interest where a more liberal court may affirm one and vice versa. In short, courts have recognized many government interests, but whether a particular government interest legally represents a compelling interest is largely up for debate apart from cases in which SCOTUS has ruled on compelling interest.
What is clear in regard to compelling interest, however, is that the courts require a compelling interest to be a government interest of a very important sort. While there is no strict definition, in Justice Brennan’s majority opinion in Sherbert v. Verner he quotes another SCOTUS decision and notes “It is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, “[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation,” Thomas v. Collins, 323 U.S. 516.”15 By this standard compelling interest must involve a government interest of the most important sort, it cannot be a secondary type of interest.
A second requirement for compelling interest is found in Justice Goldberg’s concurring opinion in Griswold v. Connecticut, a law that impinges on a fundamental liberty must be necessary to pursuing the government’s compelling interest, simply being rationally related to the compelling interest is not enough.16 A law may pursue a compelling interest, and may have a rational relationship to attaining the compelling interest, but this is not enough when fundamental liberties are at stake. The law itself must be absolutely essential to attaining the compelling interest.
It is not enough merely to meet the standard of compelling interest, however. A government may prove it has a compelling interest in regulating or restricting a fundamental right and the law may still not be upheld under strict scrutiny. This is because in strict scrutiny cases the compelling interest must be narrowly tailored in how it achieves the compelling interest.
The Supreme Court’s criteria for narrow tailoring are quite a bit clearer than the criteria for what constitutes a compelling interest. One of the most succinct descriptions of narrow tailoring comes from Justice Kennedy’s majority opinion in Ward v. Rock Against Racism. Justice Kennedy notes that narrow tailoring requires achieving a “substantial government interest”17 that would not be as effectively achieved without the law. In addition, the method for obtaining the interest cannot be “substantially broader than necessary”.18 Accordingly, a law that represents a compelling government interest could be struck down under strict scrutiny if the compelling interest is not actually achieved by the law in question, and if the interest is achieved by the law in question it must be achieved by a narrow means.
A highly publicized case in this regard is Burwell v. Hobby Lobby. This case involved the contraceptive mandate of the Patient Protection and Affordable Care Act (commonly known as Obamacare); it required private companies, including Hobby Lobby, to include in health plans offered to employees coverage of certain contraceptives considered abortifacients by the owners of the companies in question.19 In this decision Justice Alito wrote the majority opinion and stated “The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, but the Government has failed to show that the contraceptive mandate is the least restrictive means of furthering that interest.”20 This decision is an important illustration of how seriously the Supreme Court takes the narrow tailoring requirement of strict scrutiny. Illustrating the point even further, the Supreme Court has taken up a second case regarding the contraceptive mandate, this time involving the Catholic charity Little Sisters of the Poor.21 While it is impossible to predict how the Supreme Court will rule, it is difficult to imagine that the narrow tailoring requirement will not once again play a significant role in the final ruling.
Strict Scrutiny and Abortion Laws
It is clear that in the modern legal context strict scrutiny applies when courts determine a fundamental right is at stake. With a clear understanding of what strict scrutiny is, it is now possible to examine in detail the role strict scrutiny played in legalizing abortion and establishing it as a fundamental right. This process happened gradually, beginning with a recognition of a right to privacy, and followed by the extension of the right to privacy to abortion itself. This section will briefly detail these legal developments.
The Right to Privacy
The Constitution itself never enumerates a right to privacy. Rather, the right to privacy is a derived right, it follows as a necessary extension of rights that are enumerated in the Constitution. This point is noted explicitly in Griswold v. Connecticut, as the majority held “The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights.”22 In explaining this Justice Douglas pointed to numerous rights recognized by the courts not specifically enumerated in the Constitution, including the right of parents to educate their children, the right to print and read literature, and the right to teach.23 Douglas goes on to state that “Without those peripheral rights, the specific rights would be less secure.”24 That is to say fundamental rights recognized in the Constitution, such as freedom of speech and the press, necessarily entail the protection of additional rights without which the fundamental rights could not be procured. These “peripheral” rights are part of the “penumbra” of rights the Constitution is meant to secure.25 In this view the Constitution enumerates core rights around which numerous other rights are oriented. These peripheral rights are necessary to the extent they are an expression or extension of a core right.
In accordance with Justice Douglas’s majority opinion is Justice White’s concurring opinion. Justice White, while agreeing there is a right to marital privacy and that the Connecticut law banning contraceptives was unconstitutional, held the Connecticut law was violating liberty “without due process of law” under the Fourteenth Amendment.26 This is very significant, because the majority opinion in Roe v. Wade also appealed to the Due Process Clause of the Fourteenth Amendment is reaching its decision.27
The right to privacy, upon which the right to abortion is based, finds its legal grounding in the Griswold v. Connecticut ruling. The right to privacy represents an unenumerated right, one that is itself derived from fundamental liberties specifically preserved and protected in the Constitution. If the right to privacy is not protected, in the view of the Court, other liberties will be threatened.
Major Abortion Cases
Following the view that there is a right to privacy that cannot be violated without due process came the view that there is a right to abortion which also cannot be violated without due process. This came most famously in Roe v. Wade, the Supreme Court case in which state laws prohibiting abortion were viewed under strict scrutiny and struck down as a violation of the right to privacy.
This reasoning was clearly articulated by Justice Blackmun in his majority opinion, and it is important enough to quote at length:
The principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal “liberty” embodied in the Fourteenth Amendment’s Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id. at 460 (WHITE, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S. at 486 (Goldberg, J., concurring).28
Justice Blackmun then goes on to note that “This right of privacy… is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”29 Thus, the argument made by Roe and accepted by SCOTUS contends that the right to privacy, though not explicitly mentioned in the Constitution, is sufficiently entailed by fundamental rights to be considered a fundamental right itself. Beyond this, it is sufficiently broad to entail a woman’s right to an abortion.
The legal foundation that established the right to an abortion is remarkably clear. Strict scrutiny is applied to laws which violate fundamental rights. Fundamental rights entail not only rights enumerated in the Constitution, but the penumbra of rights entailed by enumerated rights. One such right, the right to privacy, entails the right to abortion. Thus, laws prohibiting abortion rights must meet the demands of strict scrutiny.
The first such demand, the burden of proof, required the state of Texas to defend its anti-abortion law and make a prima facie case in favor of it. The second demand, compelling interest, required Texas’ law to represent a government interest of the highest order and to be necessary for procuring that interest. The third requirement, narrow tailoring, required the Texas law to procure the compelling interest (assuming one existed) in the least restrictive way possible.
The Court did recognize that states have an interest in regulating abortion, the right to abortion is not absolute. Justice Blackmun noted “a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.”30 These interests, according to Blackmun, become compelling “at approximately the end of the first trimester.”31 That is, in the latter two-thirds of a pregnancy, the state does have a compelling interest in regulating the procurement of abortion. At the point of viability, the state’s interest is strong enough to prohibit abortion entirely except when the life of the mother is at stake.32
The Court’s decision in Roe v. Wade was amended somewhat in Casey v. Planned Parenthood. In this case regarding a Pennsylvania law SCOTUS slightly broadened states’ abilities to regulate abortion. The final ruling upheld the fact that there is a Constitutional right to abortion, and also upheld viability as the point at which a state’s interest in protecting the life of the unborn becomes compelling, but admitted in light of medical advances that the point of viability was earlier than it had been when Roe v. Wade was decided.33 The Casey decision even recognized that future advances could make the point of viability even earlier than it was in 1992 when the decision was issued.34
A second important aspect of the Casey decision, one directly related to strict scrutiny, is in the fact that the Court shifted from employing the strict scrutiny standard utilized in Roe to an undue burden standard.35 In short, the Court allowed state restrictions on abortion even if such restrictions do not meet strict scrutiny.36 It is important to note a restriction is not the same as a prohibition, and there is good reason to think the courts would still hold a prohibition on abortion to the standards of strict scrutiny, even if certain restrictions on abortion need not be held to such a rigorous standard.
Casey v. Planned Parenthood is a complicated decision with numerous important legal ramifications. The most pertinent for present purposes are the facts that viability is recognized as a fluid concept dependent on available medical technology, and the fact that certain restrictions on abortion need not be held to the standard of strict scrutiny. If viability can change with advances in medical technology, the point at which a state has a compelling interest in prohibiting abortion can also change. If certain restrictions on abortion need not meet strict scrutiny, then access to abortion can be restricted even without a compelling state interest.
Law and ethics are inextricably related. Frédéric Bastiat noted that the law’s “necessary sanction is force.”37 Such use of force necessitates appropriate ethical justification. Positive law is necessarily an expression of ethical commitments. Positive law is always grounded in ethics, either in some form of situation ethics that reduces to relativism and subjectivism, or in the higher law that transcends cultures and times and entails objective moral values.38
Ethical Assumptions and Strict Scrutiny
The Supreme Court’s rulings in Roe and Casey are not exempt from ethical assumptions.
Namely, it is assumed that the unborn fetus, prior to viability, is not a person with a right to life. This point is explicitly mentioned in Roe, Blackmun stated that if the unborn is a person under the Fourteenth Amendment “the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument.”39 Unfortunately Blackmun and the majority of the Court gave very little serious consideration to the meaning of personhood within the Fourteenth Amendment and to the argument that life begins at conception apart from the Fourteenth Amendment.40 This is rather appalling given Blackmun’s own admission that if the unborn is a person then the case for a right to abortion would be nullified.
Blackmun’s arguments for why the unborn fetus is not a person have been robustly criticized elsewhere.41 For present purposes, it is important to consider the ethical implications of the Court’s application of strict scrutiny which was essential in creating a legal right to abortion. Recall that strict scrutiny is only applied by the courts when a fundamental liberty is threatened by a law. Such a law may be a local, state, or federal law. It has been clearly demonstrated that in applying strict scrutiny in Roe SCOTUS was positively asserting there is a fundamental right to privacy, and this right to privacy finds appropriate expression in a woman seeking an abortion. The application of strict scrutiny itself is not free from ethical commitments. In this case, the Court viewed itself as protecting the right to privacy. In applying strict scrutiny to the right to privacy, the Court implicitly denied that the unborn fetus has any right to life.
This is so because there are two fundamental liberties to be considered in regard to abortion. The first is the unborn’s right to life. If life begins at conception and an unborn fetus is a person, Blackmun himself recognized such a person has a legal right to protection under the Fourteenth Amendment. Second, there is the mother and her right to privacy. Generally speaking, parents should be free from unnecessary government intrusion in family decisions. Thus, there are two fundamental liberties at issue in any discussion of abortion, the right to life and the right to privacy.
In applying strict scrutiny to Texas’s prohibition of abortion, the Court determined from the start that the unborn has no right to life. Because two fundamental liberties are at issue, and strict scrutiny was applied in favor of one and not the other, this constituted an implicit denial that a second fundamental liberty was in question at all. Upon making this assumption, the Court then concluded that the unborn is not a person and so has no fundamental right to life.
This is a classic example of circular reasoning. The Supreme Court assumed there was no right to life for the unborn, and subsequently concluded the same. In essence, by applying strict scrutiny to the right to privacy and implicitly denying the unborn has any right to life, the Court begged the question in favor of abortion rights and against laws that prohibit abortion. In his dissenting opinion Justice Rehnquist noted a very similar point, “the adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be “compelling.””42
Strict Scrutiny and Pro-Life Arguments
The pro-life position insists that the unborn has a right to life.43 This insistence rests on a metaphysical position on the nature of persons, and one which has important ethical implications. If the substance view of persons is correct, then it is morally wrong to kill the unborn without appropriate ethical justification.44
In making a case for the pro-life position, it may be tempting to argue that there is a compelling state interest in protecting life. This is so because no liberty is more fundamental or more compelling than the right to life. However, if one attempts to argue there is a compelling interest in prohibiting abortion, the pro-life position is undermined from the start. To argue there is a compelling interest in prohibiting abortion is to admit that the fundamental liberty at stake is the right to privacy, and that the right to life is not itself a fundamental liberty worthy of being protected by the standards of strict scrutiny itself. It is to admit that the right to life, which is the most fundamental liberty, is not a fundamental liberty in its own right and that instead it is actually a threat to other liberties such as the right to privacy.
What pro-life advocates must do, if they believe their own premise that the unborn represents a full member of the human race, is insist that strict scrutiny be applied to any policy that would deny the fundamental right to life. The one who bears the burden of proof for demonstrating a compelling state interest is not the one upholding and protecting a fundamental liberty. Rather, the one who would violate a fundamental liberty bears the burden of proof. Because the substance view of persons is true, strict scrutiny should be applied to any policy and decision that allows abortion. Abortion infringes on the fundamental right to life of the unborn, and it is only those policies that violate fundamental liberties that must meet the demands of strict scrutiny. The pro-life position upholds a fundamental liberty, and as such it must reject the claim that pro-life policies are appropriate objects of strict scrutiny.
Legally and ethically the application of strict scrutiny to laws prohibiting abortion is very significant. Both ethics and law are concerned to uphold and protect innocent human life. Strict scrutiny itself is intended to be a legal safeguard of liberty against governmental intrusion. If the pro-life position is true, then strict scrutiny has served as the legal foundation for the violation of the most fundamental liberty, the right to life. Ethically speaking, the unjustified taking of innocent human life is murder. Legally speaking, the use of strict scrutiny to violate a fundamental liberty is the reversal of the spirit of strict scrutiny itself.
There is an ethical obligation to seek to end the injustice of abortion. Pragmatically the question arises about what can be done to reverse the Supreme Court’s Roe decision. There are several options. First, there is the possibility the Supreme Court itself will eventually take up the issue of abortion once again and reverse the Roe decision. This would require a sufficient number of pro-life justices in the federal court system, especially in the Supreme Court itself. Second, it is theoretically possible to pass a Constitutional Amendment to reverse the Roe decision, though Constitutional Amendments are notoriously difficult to pass. Third, states can rely on the Court’s Casey decision and use every available means to restrict abortion even if they are unable to prohibit it entirely. Fourth, individuals can advocate for the pro-life position in the public sphere so as to create a cultural context in which a reversal of Roe becomes viewed as acceptable, even expected.45 In doing this, however, the pro-life movement must not accept that it bears the burden of proof for demonstrating a compelling interest. To do so would be to implicitly admit that the right to life is not itself a fundamental liberty worthy of the protection of strict scrutiny and to undermine the metaphysical and ethical commitments of the pro-life position itself.
Abortion is legal in the United States because, under strict scrutiny, state laws prohibiting abortion were deemed to violate the right to privacy of pregnant women. In applying strict scrutiny to the right to privacy the Supreme Court discounted from the start the possibility that the unborn fetus is a person with a legitimate right to life. Strict scrutiny, which is meant to protect fundamental liberties, was wielded as a weapon against the right to life itself.
The ethical implications of this decision are of the most important and substantial sort. Innocent lives are at stake, if the Supreme Court erred in its evaluation of the unborn as persons then innocent lives have been lost under its Roe decision. The pro-life movement recognizes its ethical obligation to advocate for the lives of the unborn. In doing this the pro-life movement must not undermine itself by accepting the burden of meeting strict scrutiny for laws prohibiting abortion. Because the pro-life position is true and the unborn has a fundamental right to life, it is illegitimate to use strict scrutiny against that fundamental liberty. Instead, strict scrutiny is properly utilized in defending liberty from governmental intrusion, and should be applied to any policy that would deprive the unborn of the right to life. A consistent application of the principle of strict scrutiny necessitates a reversal of the Roe decision itself.
Bastiat, Frédéric. The Law. Translated by Patrick James Stirling. Merchant Books, 2012.
Beckwith, Francis J. Defending Life. New York, NY: Cambridge, 2007.
Craig, William Lane. Reasonable Faith. 3rd ed. Wheaton, IL: Crossway, 2008.
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Montgomery, John Warwick. The Law Above the Law. Irvine, CA: NRP Books, 2015.
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Smedley, Brian D., Adrienne Stith Butler, and Lonnie R. Bristow, eds. In the Nation’s Compelling Interest: Ensuring Diversity in the Health-Care Workforce. Washington, D. C.: National Academies Press, 2004. Accessed November 28, 2015. http://www.nap.edu/read/10885/chapter/1.
The Becket Fund for Religious Liberty. “High Court to decide if Government can force nuns to provide contraceptives.” Accessed December 4, 2015. http://www.becketfund.org/scotus-to-decide-little-sisters-case/.
Winkler, Adam. “Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts.” Vanderbilt Law Review vol. 59:3 (2006): 793-871. Accessed November 22, 2015. http://ssrn.com/abstract=897360.
1 Roe v. Wade, 410 U.S. 113 (1973), in Legal Information Institute, https://www.law.cornell.edu/supremecourt/text/410/113#writing-USSC_CR_0410_0113_ZD (accessed November 22, 2015).
2 Adam Winkler, “Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts,” Vanderbilt Law Review vol. 59:3 (2006): 798, accessed November 22, 2015, http://ssrn.com/abstract=897360.
4 Skinner v. Oklahoma, 316 U.S. 535 (1942), in Legal Information Institute, https://www.law.cornell.edu/supremecourt/text/316/535 (accessed November 22, 2015).
6 Stephen A. Siegel, “The Origin of the Compelling State Interest Test and Strict Scrutiny,” The American Journal of Legal History, vol. XLVIII (2006): 359-360, accessed November 22, 2015, http://ssrn.com/abstract=934795.
7 Ibid., 361.
8 Sweeny v. New Hampshire, 354 U.S. 234 (1957), in FindLaw, http://caselaw.findlaw.com/us-supreme-court/354/234.html (accessed November 22, 2015).
10 Wex Legal Dictionary and Encyclopedia, s. v. “Burden of Proof,” https://www.law.cornell.edu/wex/burden_of_proof (accessed November 28, 2015).
11 John P. McCahey, “The Burdens of Pursuasion and Production,” Proof: The Journal of the Trial Evidence Committee 16:3 (Summer 2008): 1, accessed November 28, 2015, http://www.hahnhessen.com/uploads/39/doc/2008_06_jpm_burdens.pdf.
12 McCahey, “The Burdens of Persuasion and Production,” 8.
14 Brian D. Smedley, Adrienne Stith Butler, and Lonnie R. Bristow, eds., In the Nation’s Compelling Interest: Ensuring Diversity in the Health-Care Workforce (Washington, D. C.: National Academies Press, 2004), accessed November 28, 2015, http://www.nap.edu/read/10885/chapter/1.
15 Sherbert v. Verner, 374 U.S. 398 (1963), in Legal Information Institute, https://www.law.cornell.edu/supremecourt/text/374/398 (accessed November 28, 2015).
16 Griswold v. Connecticut, 381 U.S. 479 (1965), in Legal Information Institute, https://www.law.cornell.edu/supremecourt/text/381/479 (accessed December 4, 2015).
17 Ward v. Rock Against Racism, 491 U.S. 781 (1989) in Legal Information Institute, https://www.law.cornell.edu/supremecourt/text/491/781 (accessed November 28, 2015).
19 Burwell v. Hobby Lobby Stores, INC., 134 S. Ct. 2751 (2014), in Legal Information Institute, https://www.law.cornell.edu/supremecourt/text/13-354 (accessed November 28, 2015).
21 The Becket Fund for Religious Liberty, “High Court to decide if Government can force nuns to provide contraceptives,” accessed December 4, 2015. http://www.becketfund.org/scotus-to-decide-little-sisters-case/.
22 Griswold v. Connecticut, 381 U.S. 479 (1965).
27 Roe v. Wade, 410 U.S. 113 (1973).
29 Roe v. Wade, 410 U.S. 113 (1973).
31 Roe v. Wade, 410 U.S. 113 (1973).
33 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) in Legal Information Institute, https://www.law.cornell.edu/supct/html/91-744.ZO.html (accessed December 5, 2015).
35 Francis J. Beckwith, Defending Life (New York, NY: Cambridge, 2007), 33.
37 Frédéric Bastiat, The Law, trans. Patrick James Stirling (Merchant Books, 2012), 38.
38 John Warwick Montgomery, The Law Above the Law (Irvine, CA: NRP Books, 2015), 17-57.
39 Roe v. Wade, 410 U.S. 113 (1973).
41 Beckwith, Defending Life, 26-31.
42 Roe v. Wade, 410 U.S. 113 (1973).
43 Beckwith, Defending Life, 132-134.
44 Ibid., xii.
45 William Lane Craig, Reasonable Faith, 3rd ed. (Wheaton, IL: Crossway, 2008), 16-19.