Viability as Abortion-Rights Orthodoxy

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: "lf 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 l 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.