Scholarship@WashULaw

Document Type

Article

Language

English (en)

Publication Date

2025

Publication Title

Missouri Law Review

Abstract

Borrowing a quotation from Justice Jackson’s influential opinion in West Virginia Board of Education v. Barnette, Professors Linda McClain and James Fleming have named their ambitious and illuminating new book “What Shall Be Orthodox” in Polarized Times. As Justice Jackson wrote in applying the First Amendment to protect school children with familial objections to a required flag salute: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Although Justice Jackson takes aim at government prescribed orthodoxy and Professors McClain and Fleming understandably center such concerns, this essay for the symposium on their book takes a broader look at orthodoxy. As I show, orthodoxies can form in subtle ways without government prescription, and official speech—although not itself subject to the First Amendment—can sometimes shape them.

This essay explores, as an illustration, the inclusion of a viability limit in the successful November 2024 ballot initiative that placed a right to reproductive freedom in the Missouri Constitution. The orthodoxy lens prompted by McClain and Fleming offers new insights on how viability, a judicial compromise from the now overruled 1973 decision in Roe v. Wade, came to constrain efforts to reimagine reproductive justice after Dobbs v. Jackson Women’s Health Organization. The campaign to restore abortion in Missouri makes plain the tenacity of the viability limit, notwithstanding both strong arguments by those who opposed any gestational limit and at best tepid support in favor of one based on fetal viability. This “case study” illustrates how orthodoxies can arise from state actors even in the absence of any government-imposed restriction or compulsion.

Keywords

Abortion, Reproductive Rights, Viability, Orthodoxy, Gestational Limit

Publication Citation

Susan Frelich Appleton, Viability as Abortion-Rights Orthodoxy, 90 Mo. L. Rev. 713 (2025)

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