Law Commons^™

Does The Right To Elective Abortion Include The Right To Ensure The Death Of The Fetus?, Stephen G. Gilles

Stephen G Gilles

Is the right to an elective abortion limited to terminating the woman’s pregnancy, or does it also include the right to ensure the death of the fetus? Important as this question is in principle, in today’s world the conduct that would squarely raise it cannot occur in practice. The right to elective abortion applies only to fetuses that are not viable, which by definition means that they have been determined to have no realistic chance of surviving outside the uterus. Even if abortion providers used fetus-sparing methods rather than the fetus-killing methods they currently prefer, pre-viable fetuses would die within …

Why The Right To Elective Abortion Fails Casey’S Own Interest-Balancing Methodology – And Why It Matters, Stephen G. Gilles

Stephen G Gilles

Why the Right to Elective Abortion Fails Casey’s Own Interest-Balancing Methodology – and Why It Matters

Stephen G. Gilles

In Planned Parenthood v Casey, the Supreme Court reaffirmed the right to elective abortion before viability, but abandoned Roe v Wade’s characterization of it as a fundamental right that can be overcome only by a compelling state interest. Instead, Casey treats the right to elective abortion as grounded in an interest-balancing judgment that the woman’s liberty interest in terminating her pregnancy outweighs the state’s interest in protecting pre-viable fetal life. Remarkably, however, the Casey Court did not defend that interest-balancing judgment …

Abortion And Women's Legal Personhood In Germany: A Contribution To The Feminist Theory Of The State, D. A. Jeremy Telman

D. A. Jeremy Telman

This article looks at abortion regulation in Germany in the context of the full range of laws through which the state specifies the status of women as legal persons. Reviewing Germany's most important abortion law decisions in 1975 and 1993, the article contends that while the Constitutional Court struck a balance between the East German legacy of reproductive freedom and West Germany's robust protections of the right to life, it did so by undermining the legal structures that had facilitated full civil, economic and political equality for women in East Germany through legal regimes geared towards protecting women's reproductive autonomy.

Taking Federalism Seriously: Lopez And The Partial-Birth Abortion Ban, David B. Kopel, Glenn Harlan Reynolds

David B Kopel

In United States v. Lopez, the United States Supreme Court struck down the federal Gun Free School Zones law as not within congressional power to regulate interstate commerce. This article examines post-Lopez jurisprudence regarding the permissible scope of federal criminal law. Analyzing a wide variety of federal criminal laws challenged in post-Lopez cases (including arson, robbery, gun possession, drugs, violence against women, and abortion clinic disruption), the article shows how courts have followed or evaded Lopez. Studying the proposed federal ban on partial birth abortions, the article suggests that the ban is not a lawful exercise of Congress' interstate commerce …