Law Commons^™

How Planned Parenthood V. Casey (Pretty Much) Settled The Abortion Wars, Neal Devins

Neal E. Devins

More than twenty-one years after Robert Bork's failed Supreme Court nomination and seventeen years after Planned Parenthood of Southeastern Pennsylvania v. Casey, the rhetoric of abortion politics remains unchanged. Pro-choice interests, for example, argue that states are poised to outlaw abortion and that Roe v. Wade is vulnerable to overruling. In this Essay, I will debunk those claims. First, I will explain how Casey's approval of limited abortion rights reflected an emerging national consensus in 1992. Second, I will explain why the Supreme Court is unlikely to risk political backlash by formally modifying Casey- either by restoring the trimester test …

To Recognize The Tyranny Of Distance: A Spatial Reading Of Whole Women's Health V. Hellerstedt, Lisa R. Pruitt , Michele Statz

Lisa R Pruitt

Science, Public Bioethics, And The Problem Of Integration, O. Carter Snead

O. Carter Snead

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decision making. It has captured the attention of officials in every branch of government, as well as the American public itself. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decision making) continue to roil the public square. This Article examines the question of how scientific methods and …

Expectant Fathers, Abortion, And Embryos, Dara Purvis

Dara Purvis

One thread of abortion criticism, arguing that gender equality requires that men be allowed to terminate legal parental status and obligations, has reinforced the stereotype of men as uninterested in fatherhood. As courts facing disputes over stored pre-embryos weigh the equities of allowing implantation of the pre-embryos, this same gender stereotype has been increasingly incorporated into a legal balancing test, leading to troubling implications for ART and family law.

Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead

O. Carter Snead

Volokh’s project stands or falls with the claim that the entitlement he proposes is of constitutional dimension. If there is no fundamental right to medical self-defense, the individual must, for better or worse, yield to the regulation of this domain in the name of the values agreed to by the political branches of government. Indeed, the government routinely restricts the instrumentalities of self-help (including self-defense) in the name of avoiding what it takes to be more significant harms. This same rationale accounts for current governmental limitations on access to unapproved drugs and the current ban on organ sales. The FDA …

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 …

Abortion, The Law And Human Life, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.

Federalism Doctrines And Abortion Cases: A Response To Professor Fallon, Anthony J. Bellia

Anthony J. Bellia

This Essay is a response to Professor Richard Fallon's article, If Roe Were Overruled: Abortion and the Constitution in a Post-Roe World. In that article, Professor Fallon argues that if the Supreme Court were to overrule Roe v. Wade, courts might well remain in the abortion-umpiring business. This Essay proposes a refinement on that analysis. It argues that in a post-Roe world courts would not necessarily subject questions involving abortion to the same kind of constitutional analysis in which the Court has engaged in Roe and its progeny, that is, balancing a state's interest in protecting life against a pregnant …

Deadly Dicta: Roe’S “Unwanted Motherhood”, Gonzales’S “Women’S Regret” And The Shifting Narrative Of Abortion Jurisprudence, Stacy A. Scaldo

Stacy A Scaldo

For thirty-four years, the narrative of Supreme Court jurisprudence on the issue of abortion was firmly focused on the pregnant woman. From the initial finding that the right to an abortion stemmed from a constitutional right to privacy[1], through the test applied and refined to determine when that right was abridged[2], to the striking of statutes found to over-regulate that right[3], the conversation from the Court’s perspective maintained a singular focus. Pro-life arguments focusing on the fetus as the equal or greater party of interest were systematically pushed aside by the Court.[4] The consequences of an unwanted pregnancy, or as …

Lawmakers Increasingly Undermining Roe V. Wade, Erin Daly, John G. Culhane

John G. Culhane

No abstract provided.

Lawmakers Increasingly Undermining Roe V. Wade, Erin Daly, John G. Culhane

Erin Daly

No abstract provided.

Stopping Philadelphia Abortion Provider Kermit Gosnell And Preventing Others Like Him: An Outcome That Both Pro-Choicers And Pro-Lifers Should Support, Samuel W. Calhoun

Samuel W. Calhoun

This article focuses on three of the atrocities committed by Philadelphia abortion provider Kermit Gosnell: his shameful, destructive treatment of women; his brutal killing of born-alive infants; and his performance of illegal post-viability abortions. Pro-choicers and pro-lifers alike should unite in condemning, stopping, and preventing these abuses. Women seeking abortions need the protection of medically appropriate health and safety regulations; a civilized society should not tolerate the killing of babies, viable or not, once they are born; and viable fetuses deserve meaningful legal protection. The wider abortion controversy is sure to continue, but the combatants should join forces to achieve …

Valuing Intrauterine Life, Samuel W. Calhoun

Samuel W. Calhoun

No abstract provided.

(Reviewing Elizabeth Mensch And Alan Freeman, The Politics Of Virtue: Is Abortion Debatable (1993)), Samuel W. Calhoun

Samuel W. Calhoun

None Available.

Is It Possible To Take Both Fetal Life And Women Seriously? Professor Laurence Tribe And His Reviewers, Samuel W. Calhoun, Andrea E. Sexton

Samuel W. Calhoun

No abstract provided.

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.