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Havard Journal of Law and Public Policy HARVARD JOURNAL of LAW & PUBLIC POLICY VOLUME 41, NUMBER 3 SUMMER 2018 ARTICLES IRRECONCILABLE DIFFERENCES? WHOLE WOMAN’S HEALTH, GONZALES, AND JUSTICE KENNEDY’S VISION OF AMERICAN ABORTION JURISPRUDENCE Laura Wolk & O. Carter Snead ............................................... 719 SURROGACY AND LIMITATIONS TO FREEDOM OF CONTRACT: TOWARD BEING MORE FULLY HUMAN Adeline A. Allen ...................................................................... 753 UNASHAMED OF THE GOSPEL OF JESUS CHRIST: ON PUBLIC POLICY AND PUBLIC SERVICE BY EVANGELICALS Johnny Rex BuCkles ................................................................. 813 LIBERAL SECULARISM AND RELIGIOUS FREEDOM IN THE PUBLIC SPACE: REFORMING POLITICAL DISCOURSE Alex Deagon ............................................................................ 901 NOTES THE PARTIALITY OF NEUTRALITY Kelsey Curtis ............................................................................ 935 A CONSTITUTIONAL OUTLIER: LEGITIMACY AS A STATE INTEREST AND ITS IMPLICATIONS IN ELECTION LAW Boyd Garriott ........................................................................... 973 HARVARD JOURNAL of LAW & PUBLIC POLICY Editor-in-Chief JOSHUA J. CRADDOCK Deputy Editor-in-Chief Articles Editors TIERNAN KANE Managing Editors JENNIFER BARROW ANNE BROWN BOYD GARRIOTT STEPHEN J. HAMMER Executive Editors JENNIFER BARROW Assistant ArtiCles Editors KATHRYN BOLAS Deputy Managing Editors NOAH HEINZ MATTHEW BURTON BRAD BARBER DANIEL JOHNSON HUSSEIN ELBAKRI WILL COURTNEY BOYD GARRIOTT KELSEY CURTIS ArtiCles Board JASON HALLIGAN RYAN PROCTOR ANNIKA BOONE FRANCES MANZO CASEY CONNOLLY MATTHEW REARDON Chief Financial OffiCer HAYLEY EVANS KYLE REYNOLDS ASHER PEREZ BRANTON NESTOR Events Manager SubsCriptions Manager Notes Editors ANNIKA BOONE NICK AQUART CHADWICK HARPER KYLE REYNOLDS TeChnology Manager CommuniCations Editor R.J. MCVEIGH SAMUEL SETTLE Senior Editors ANNIKA BOONE VERONICA FULTON VINCENT LI JEREMY SAWYER CASEY CONNOLLY CHANSLOR GALLENSTEIN AZFER ALI KHAN KEES THOMPSON HAYLEY EVANS JORDAN GREENE PARKER W. KNIGHT III SAM WILLIAMS RYAN FOLIO CHADWICK HARPER BRANTON NESTOR SARAH ZHANG DANIEL JOHNSON GRANT NEWMAN Editors NICOLE BAADE AARON GYDE JOHN MITZEL STEVE SZROM CHASE BROWNDORF JOSHUA HA DAVID NABORS JACOB THACKSTON DOUGLAS COLBY AARON HSU FELIPE PINTO MATTHEW WEINSTEIN HUGH DANILACK ASEEM JHA JASJAAP SIDHU YI YUAN BEN FLESHMAN JOSEPH LONGENECKER ANDREW SKARAS NICHOLAS ZAHORODNY ANASTASIA FRANE ISABEL MARIN DYLAN SOARES ZHUORAN ZHONG TERRENCE L. GEORGE R.J. MCVEIGH DOUG STEPHENS IV Founded by E. Spencer Abraham & Steven J. Eberhard BOARD OF ADVISORS E. Spencer Abraham, Founder SteVen G. Calabresi Douglas R. Cox Jennifer W. Elrod Charles Fried Douglas H. Ginsburg Orrin Hatch Jonathan R. Macey Michael W. McConnell Diarmuid F. O’Scannlain Jeremy A. Rabkin Hal S. Scott DaVid B. Sentelle Bradley Smith Jerry E. Smith THE HARVARD JOURNAL OF LAW & PUBLIC POLICY RECEIVES NO FINANCIAL SUPPORT FROM HARVARD LAW SCHOOL OR HARVARD UNIVERSITY. IT IS FUNDED EXCLUSIVELY BY SUBSCRIPTION REVENUES AND PRIVATE CHARITABLE CONTRIBUTIONS. The Harvard Journal of Law & Public PoliCy is published three times annually by the HarVard Society for Law & Public Policy, Inc., HarVard Law School, Cambridge, Mas- sachusetts 02138. ISSN 0193-4872. Nonprofit postage prepaid at Lincoln, Nebraska and at additional mailing offices. POSTMASTER: Send address changes to the HarVard Journal of Law & Public Policy, HarVard Law School, Cambridge, Massachusetts 02138. Yearly subscription rates: United States, $55.00; foreign, $75.00. Subscriptions are re- newed automatically unless a request for discontinuance is receiVed. The Journal welcomes the submission of articles and book reViews. Each manuscript should be typed double-spaced, preferably in Times New Roman 12-point typeface. Authors submit manuscripts electronically to [email protected], preferably pre- pared using Microsoft Word. Views expressed are those of the authors and do not nec- essarily reflect the Views of the Society or of its officers, directors, editors, members, or staff. Unless otherwise indicated, all editors are students at the Harvard Law School. Copyright © 2018 by the HarVard Society for Law & Public Policy, Inc. PREFACE For the first time since the fall of the Soviet Union, many in the West are reconsidering liberalism. Those on the left are quick to point out the rise of populism and capitalism’s culture of consumption. Critics on the right, such as Professor Adrian Vermeule, question the neutrality of liberalism when it func- tions as a secular religion, complete with articles of faith and claims of exclusivity that crowd religion out of the public square. Others note the collateral casualties of liberalism’s struggle against nature in the realm of bioethics. The “end of history,” it seems, was only an intermission. Are liberalism’s travails the result of Progressive corruption, or were the roots of its demise embedded in its theoretical underpinnings from the very beginning? Advocates of the former view seek a re- turn to classical liberalism, hoping to prevent the “suicide of the West,” while those of the latter persuasion tout liberalism’s failures under its own consistent principles. Regardless of which view perceives liberalism more truly, this Issue consid- ers some of liberalism’s struggles and proposes ameliorative public policy solutions. Our first Article addresses itself to the quintessential liberal himself, Justice Kennedy. Laura Wolk and Professor O. Carter Snead observe a tension in the Supreme Court’s abortion juris- prudence after Whole Woman’s Health, and suggest that Justice Kennedy could provide much-needed clarity to lower courts considering the constitutionality of state bans on dismember- ment abortions. Professor Adeline A. Allen addresses another bioethical problem presented by liberal man’s Baconian con- quest of nature. She argues from a natural law perspective that gestational surrogacy arrangements are not within the freedom of contract and should be prohibited as against public policy. Taking stock of recent congressional hostility toward reli- gious nominees for public office, Professor Johnny Rex Buckles analyzes the Religious Test Clause and First Amendment norms to assess the constitutionality of congressional votes against nominees on the basis of religion. He then summarizes basic evangelical Christian beliefs to explain why such individ- uals are fit for public service. Finally, Professor Alex Deagon No. 3] Preface ii critically examines Rawlsian liberalism’s treatment of religious non-establishment. He argues that secularism is not truly neu- tral and advocates a broader view of religious freedom that permits greater participation in legal and political discourse. This Issue also features two student Notes written by editors of the Journal. Kelsey Curtis picks up precisely where Professor Deagon leaves off. She argues that the Supreme Court’s Estab- lishment Clause and Free Exercise Clause jurisprudence is not neutral, and proposes that the Court’s anti-discrimination and Free Speech Clause jurisprudence could lead toward some semblance of impartiality. Boyd Garriott closes this Issue by addressing whether the appearance of electoral legitimacy should be a judicially cognizable state interest in election law. He presents a persuasive case that it should not. I would be remiss if I did not conclude with a word of grati- tude. Editing Volume 41 of the Harvard Journal of Law & Public Policy has been the great privilege of my time in law school. I would like to thank the entire editorial staff for their continued faithfulness and dedication to the success of this Journal. Espe- cially deserving of our thanks are those editors who went above and beyond their duties by volunteering for extra as- signments, including Annika Boone, Hayley Evans, Jason Hal- ligan, Stephen Hammer, and Ryan Proctor. Without the com- mitment of each and every member of our editorial staff, publication of this Journal would be impossible. In another forty years, I expect that the Harvard Journal of Law & Public Policy will remain a bulwark of conservative legal scholarship and a home to all those who resist the prevailing orthodoxies of our time. Joshua J. Craddock Editor-in-Chief IRRECONCILABLE DIFFERENCES? WHOLE WOMAN’S HEALTH, GONZALES, AND JUSTICE KENNEDY’S VISION OF AMERICAN ABORTION JURISPRUDENCE LAURA WOLK* & O. CARTER SNEAD** INTRODUCTION A law is unconstitutional if it “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”1 Twenty-five years have elapsed since a plurality of the Supreme Court articulated this undue burden standard in Planned Parenthood of Southeastern Pennsylvania v. Casey,2 yet its contours remain elusive. Notably, two current members of the Court—Justice Breyer and Justice Kennedy—seem to fundamentally differ in their understanding of what Casey requires and permits. In Gonzales v. Carhart,3 Jus- tice Kennedy emphasized a wide range of permissible state in- terests implicated by abortion4 and indicated that courts should defer to States when they regulate in areas of medical uncer- tainty.5 According to Justice Kennedy, “[w]here [the State] has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power” to impose regulations “in furtherance of its legitimate interests.”6 More recently, Jus- tice Breyer wrote in Whole Woman’s Health v. Hellerstedt7 that * J.D., Notre Dame Law School, 2016. **
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