Law Commons^™

October 24, 2008: There Is No Pro-Life Vote In This Election, Bruce Ledewitz

Hallowed Secularism

Blog post, “ “ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Of Persons And Prenatal Humans: Why The Constitution Is Not Silent On Abortion, Lawrence Nelson

Lawrence J Nelson

Many jurists and legal commentators have concluded that the Constitution does not protect a woman’s right to terminate a pregnancy because nothing in the Constitution’s text and no principle or rule derived from its structure, internal logic, or propositions supports striking down restrictive legislation on abortion. In short, Roe v. Wade, Casey v. Planned Parenthood, and their progeny have been wrongly decided because the Constitution has absolutely no bearing on abortion other than to leave it to the legislative branch.

The conclusion that the Constitution is silent on abortion is false because the Constitution, in the text of the Fourteenth …

Crime And Moral Condemnation, John H. Bogart

John H Bogart

“Crime and Moral Condemnation” considers the relationship between enforcement of criminal law and moral condemnation of conduct by examining the enforcement of California’s feticide statute over a 50 year period in Sacramento. The article focuses in particular on the trial of Dr. T. Wah Hing, one of only three persons prosecuted during the period, and for whom a full trial transcript exists. The article suggests that abortion was not the object of widespread moral condemnation for reasons in addition to the paucity of prosecution, and that enforcement of the feticide statute was more the result of action by the California …

Gonzales V. Carhart: Continuing The Class Critique Of The Reproductive Rights Doctrine And Movement, Pamela Bridgwater

South Carolina Law Review

No abstract provided.

Judicial Modesty And Abortion, Teresa Collett

South Carolina Law Review

No abstract provided.

Abortion Rights, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Construccion Vs. Desarrollo: La Raiz De Nuestros Malentendidos Sobre El Principio De La Vida, Richard Stith

Law Faculty Publications

Este ensayo argumenta que el fracaso de nuestros debates públicos sobre el aborto y la investigación destructora de embriones se debe, en gran parte, no a distintas valoraciones de la vida humana individual sino a distintas concepciones e intuiciones acerca del proceso de gestación. Un grupo lo trata como un proceso de construcción y el otro como un proceso de desarrollo. Se muestra que estos dos incompatibles modelos de reproducción explican las distintas posturas que por lo general se encuentran en los debates sobre la vida. Por último, se examinan las ventajas históricas, teóricas, e intuitivas de cada modelo.

This …

It's A Wonderful Life, Ronen Perry

Ronen Perry

“It’s a Wonderful Life,” the title of Frank Capra’s classic 1946 movie, seems to encapsulate a fundamental all-American conviction. Unsurprisingly, several courts and jurists have applied the movie-title maxim as the ultimate retort to one of the most intriguing questions in modern tort discourse: Is it possible to say that a severely disabled child has been harmed by the mere fact of being born? Wrongful life claimants answer in the affirmative, whereas Capra’s aphorism makes a compelling counterargument. In my opinion, the contrasting views represent equally legitimate subjective beliefs rather than objective truths, so neither may ever prevail. Without a …

Built In Obsolescence: The Coming End To The Abortion Debate, Vernellia R. Randall, Tshaka C. Randall

Vernellia R. Randall

The current legal and political dispute is grounded in the misconception that the decision to have an abortion is one decision, a decision to terminate a fetus. In fact, in choosing an abortion, a woman is actually making two distinct choices: first, she is choosing to terminate her pregnancy, that is, remove the fetus from her body; and, second, she is choosing to terminate the fetus. Currently, a woman’s decision to remove the fetus from her body (the “autonomy decision”) is necessarily a medical decision to terminate the fetus (the “reproductive decision”). The current argument in favor of legalized abortion …

The Slave, The Fetus, The Body: Articulating Biopower And The Pregnant Woman, Kevin Kuswa, Paul Achter, Elizabeth Lauzon

Rhetoric and Communication Studies Faculty Publications

Many slaveholders attempted to justify the institution of slavery in the United States by claiming that the practice of slavery was actually in the interests of the slaves themselves. Not only are these arguments invalid because they justify inhumane treatment and the imprisonment of innocent human beings, they also contain a dangerous paternalism (a “speaking for”) that has not vacated the social sphere. Indeed, this same logic—the notion that bodies can be regulated and controlled for their own protection—is presently being used to speak for the fetus in order to justify fetal rights. Borrowing from Berlant (1997), these fetal rights …

Reproductive Injustice: An Analysis Of Nicaragua’S Complete Abortion Ban, Jocelyn E. Getgen

Cornell International Law Journal

No abstract provided.

"Carhart", Constitutional Rights, And The Psychology Of Regret, Chris Guthrie

Vanderbilt Law School Faculty Publications

In "Gonzales v. Carhart", the Supreme Court upheld the Partial-Birth Abortion Ban Act. In so doing, the Court used the prospect of regret to justify limiting choice. Relying on empirical evidence documenting the four ways in which regret actually operates, this Article argues that the Court's analysis reflects a fundamental misunderstanding of the psychology of regret. By exposing the Court's misunderstanding of this emotion, this article seeks to minimize the most significant risk posed by the Carhart decision: that states will use the prospect of regret to justify additional constraints not only on the abortion right but also on other …

Prenatal Management Of Anencephaly, Rebecca Cook, Joanna Erdman, Martin Hevia, Bernard Dickens

Articles, Book Chapters, & Popular Press

About a third of anencephalic fetuses are born alive, but they are not conscious or viable, and soon die. This neural tube defect can be limited by dietary consumption of foliates, and detected prenatally by ultrasound and other means. Many laws permit abortion, on this indication or on the effects of pregnancy and prospects of delivery on a woman's physical or mental health. However, abortion is limited under some legal systems, particularly in South America. To avoid criminal liability, physicians will not terminate pregnancies, by induced birth or abortion, without prior judicial approval. Argentinian courts have developed means to resolve …

Prenatal Management Of Anencephaly, Rebecca J. Cook, Joanna Erdman, Martin Hevia, Bernard M. Dickens

Articles, Book Chapters, & Popular Press

About a third of anencephalic fetuses are born alive, but they are not conscious or viable, and soon die. This neural tube defect can be limited by dietary consumption of foliates, and detected prenatally by ultrasound and other means. Many laws permit abortion, on this indication or on the effects of pregnancy and prospects of delivery on a woman's physical or mental health. However, abortion is limited under some legal systems, particularly in South America. To avoid criminal liability, physicians will not terminate pregnancies, by induced birth or abortion, without prior judicial approval. Argentinian courts have developed means to resolve …

Barriers To Access To Abortion Through A Legal Lens, Jocelyn Downie, Carla Nassar

Articles, Book Chapters, & Popular Press

In addressing whether the procedure for obtaining abortions was operating equitably across Canada, the 1977 Badgley Report concluded that for many women, access to abortion was “practically illusory.” Sadly, although abortion on request became legally permissible for Canadian women in 1988, access to a safe and legal abortion remains practically illusory for many women today. A woman seeking an abortion in Canada must overcome numerous barriers. She must find a way to secure for herself some of the limited resources that our health care system provides for abortion. She must also expend her own, often scarce, personal resources: her time, …

Judicial Reasoning About Pregnancy And Choice, Jocelyn Downie, Chris Kaposy

Articles, Book Chapters, & Popular Press

Women in Canada are at risk of abortion becoming increasingly difficult to access. In its landmark 1988 ruling, R. v. Morgentaler, the Supreme Court of Canada struck down the prohibition of abortion in section 251 of the Criminal Code on the grounds that it violated a section of the Charter of Rights and Freedoms which guarantees, among other things, "security of the person". However, all of the justices who ruled that section 25 unconstitutional nonetheless claimed that protecting the fetus is a valid objective of federal legislation, leaving open the possibility that a different and carefully crafted law against abortion …

Of Persons And The Criminal Law: (Second Tier) Personhood As A Prerequisite For Victimhood, Luis E. Chiesa

Journal Articles

This article examines the implications of the Michael Vick case for the criminal law in general and for the law of victimhood in particular. It takes as its point of departure the NFL star's agreement to pay close to one million dollars to the various entities that assumed custody of the pit bulls in order to "make restitution for the full amount of the costs associated with the disposition of all dogs" that were involved in his illegal operation. According to the agreement, the authority to order such payments stems from 18 U.S.C. ý 3663, which allows for the issuance …

Reproductive Injustice: An Analysis Of Nicaragua's Complete Abortion Ban, Jocelyn E. Getgen

Cornell Law Faculty Publications

No abstract provided.

The Intriguing Federalist Future Of Reproductive Rights, Scott A. Moss, Douglas M. Raines

Publications

As the decline of Roe v. Wade inspires renewed efforts to restrict federal constitutional abortion rights, the serious shortcomings of abortion rights advocates' strategies for preserving such rights will become increasingly apparent. Continued reliance on Roe is likely to fail with an increasingly unsympathetic Supreme Court. Even abortion rights supporters have begun to criticize the decision for weak reasoning, which is difficult to remedy at this late stage of federal abortion jurisprudence. Moreover, although autonomy and gender equality arguments for abortion rights would improve upon Roe's privacy rationale, such arguments would require abrogating substantial precedent and are, therefore, of limited …

Gonzales V. Carhart: No Limits To What Congress May Now “Find”, M. Katherine Burgess

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Living On The Edge: The Margins Of Legal Personhood, Symposium Foreword, Kimberly Kessler Ferzan

All Faculty Scholarship

In January 2008, at the Association of American Law Schools' annual meeting, the Jurisprudence Section conducted a panel on "The Margins of Legal Personhood." The goal of this panel was to draw (or sever) connections between and among different "marginal" entities: the psychopath, the animal, and the embryo or fetus. As is perhaps immediately apparent, these entities are not marginalized in a political sense, but rather lie at the margins of our moral and legal communities. Prima facie, they may have some, but lack all, of the capacities necessary for full membership. Because they live on the edge, we must …

Right To Remain Silent: A First Amendment Analysis Of Abortion Informed Consent Laws, The, Whitney D. Pile

Missouri Law Review

Since the United States Supreme Court legalized abortion in the 1973 decision Roe v. Wade, the law governing the regulation of abortions has been in a constant state of flux. After the legalization of abortion, states began enacting informed consent laws in order to regulate what information a woman must be given before terminating her pregnancy; today, a total of 32 states have an informed consent law of some kind. Many informed consent laws, such as that of Missouri, require that a woman receive information at least 24 hours before undergoing an abortion and that the abortion providers disclose the …