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Personhood Seeking New Life With Republican Control, Jonathan Will, I. Glenn Cohen, Eli Y. Adashi Jan 2018

Personhood Seeking New Life With Republican Control, Jonathan Will, I. Glenn Cohen, Eli Y. Adashi

Journal Articles

Just three days prior to the inauguration of Donald J. Trump as President of the United States, Representative Jody B. Hice (R-GA) introduced the Sanctity of Human Life Act (H R. 586), which, if enacted, would provide that the rights associated with legal personhood begin at fertilization. Then, in October 2017, the Department of Health and Human Services released its draft strategic plan, which identifies a core policy of protecting Americans at every stage of life, beginning at conception. While often touted as a means to outlaw abortion, protecting the "lives" of single-celled zygotes may also have implications for the …


Expectant Fathers, Abortion, And Embryos, Dara Purvis Jan 2015

Expectant Fathers, Abortion, And Embryos, Dara Purvis

Journal Articles

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.


Beyond Abortion: Why The Personhood Movement Implicates Reproductive Choice, Jonathan Will Jan 2013

Beyond Abortion: Why The Personhood Movement Implicates Reproductive Choice, Jonathan Will

Journal Articles

In 2008, an amendment was proposed to the Colorado Constitution that sought to attach the rights and protections associated with legal “personhood” to any human being from the moment of fertilization. Although the initiative was defeated, it sparked a nation-wide Personhood Movement that has spurred similar efforts at the federal level and in over a dozen states. Personhood advocates choose terms like “fertilization,” or phrases such as “human being at any stage of development,” to identify the “person”-defining moment in the reproductive process, and these designations have profound implications for reproductive choice. Proponents are outspoken in their desire to outlaw …


Science, Public Bioethics, And The Problem Of Integration, O. Carter Snead Jan 2010

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

Journal Articles

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 …


Of Persons And The Criminal Law: (Second Tier) Personhood As A Prerequisite For Victimhood, Luis E. Chiesa Jan 2008

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 …


Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead Jan 2007

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

Journal Articles

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 …


Federalism Doctrines And Abortion Cases: A Response To Professor Fallon, Anthony J. Bellia Jan 2007

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

Journal Articles

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 …


Prophecy And Casuistry: Abortion, Torture And Moral Discourse, M. Cathleen Kaveny Jan 2006

Prophecy And Casuistry: Abortion, Torture And Moral Discourse, M. Cathleen Kaveny

Journal Articles

In turn of the 21st century United States there are serious moral disputes over issues such as abortion and torture among persons who see themselves as belonging to the same moral tradition. These disputes have not given rise to fruitful discussion about differences, but instead led to a breakdown of conversation and even of community. A part of these clashes and breakdowns are not the result of mutually inconsistent moral premises, but are driven by tensions between two styles of moral discourse, the prophetic and casuistical. The former invokes the absolute and fiery rhetorical style of biblical prophets while the …


Rights And The Need For Objective Moral Limits, Charles E. Rice Jan 2005

Rights And The Need For Objective Moral Limits, Charles E. Rice

Journal Articles

In this article, we will examine the natural law conception that rights are rooted in human nature, which nature itself is of divine origin through creation. We will compare this natural law concept to the premises and social consequences of the secular, relativist, and individualist approaches common to the jurisprudence of the Enlightenment. This article will offer the conclusion that only a grounding of right in the nature of persons as immortal beings created by God can offer moral and cultural security against the depersonalization characteristic of regimes premised on a relativist individualism.


Helping Enact Unjust Laws Without Complicity In Injustice, John M. Finnis Jan 2004

Helping Enact Unjust Laws Without Complicity In Injustice, John M. Finnis

Journal Articles

The form of enactments must be distinguished from their legal meaning (their "juridical effect"), that is, from the propositions of law which those enactments, properly interpreted, make legally valid. This distinction makes it possible, and rationally necessary, to conclude that, in certain contexts, a certain statute which declares or textually implies that some abortions are legally permitted (but others prohibited) is not apermissive law within the meaning of the principle, assumed in this article to be true, that permissive abortion laws are intrinsically unjust and may never be voted for. A permissive statute, in that sense, is one which has …


Inverting The Viability Test For Abortion Law, Bruce Ching Jan 2000

Inverting The Viability Test For Abortion Law, Bruce Ching

Journal Articles

The abortion controversy is likely to become even more pressing with the development of technological advancements that enhance the chances for fetal survival of the abortion procedure. This essay explores the consequences of recognizing that keeping the fetus alive does not depend on keeping the fetus in utero.


Fundamental Rights, Moral Law, And The Legal Defense Of Life In A Constitutional Democracy, Martin Rhonheimer, Paolo G. Carozza Jan 1998

Fundamental Rights, Moral Law, And The Legal Defense Of Life In A Constitutional Democracy, Martin Rhonheimer, Paolo G. Carozza

Journal Articles

Article by Martin Rhonheimer, translated by Paolo G. Carozza.


Public Reason, Abortion, And Cloning, John M. Finnis Jan 1998

Public Reason, Abortion, And Cloning, John M. Finnis

Journal Articles

Every society, liberal or illiberal, takes a public stand on the question whether abortion is or is not a form of criminal activity. If that question were left to private judgment, people who judge it homicide would be entitled to use force to prevent their fellow citizens engaging in it.

The need for the law and public policy to take a stand has become more and more obvious for two reasons. The first has to do with the standard purpose of abortion, as that term is commonly used: to end the life of a fetus/unborn child. As Jeffrey Reiman argues …


The Legality And Morality Of Using Deadly Force To Protect Unborn Children From Abortionists, Charles E. Rice, John P. Tuskey Jan 1995

The Legality And Morality Of Using Deadly Force To Protect Unborn Children From Abortionists, Charles E. Rice, John P. Tuskey

Journal Articles

Is killing abortionists as they arrive at abortuaries to perform regularly scheduled abortions a legally justifiable use of force in defense of another person's life? Under commonly accepted criminal law principles of justification, a person normally is entitled to use force—even deadly force—when necessary to save a person's life from an aggressor bent on taking that life. But because Roe and its progeny have made abortion a constitutionally protected right, courts would predictably hold that using force against an abortionist is not legally justified, despite the fact that the motive for that force is to defend innocent human life.

Even …


The Constitutional Law Of Abortion In Germany: Should Americans Pay Attention?, Donald P. Kommers Jan 1994

The Constitutional Law Of Abortion In Germany: Should Americans Pay Attention?, Donald P. Kommers

Journal Articles

What I plan to do here is to tell you the story of Germany's legal approach to abortion and offer some tentative conclusions about what we Americans might learn from the German experience. My story centers mainly on the constitutionality of efforts in Germany to remove legal restrictions on abortion. In the United States, the story has a different twist, for there it centers on the constitutionality of efforts to impose legal restrictions on abortion. Both stories are fascinating accounts of constitutional decisionmaking, revealing as much about the values of the two societies as about the role of judicial review …


Issues Raised By The Abortion Rescue Movement, Charles E. Rice Jan 1989

Issues Raised By The Abortion Rescue Movement, Charles E. Rice

Journal Articles

The civil rights protests of the fifties and sixties taught the nation about the relation of the enacted law to the higher law of justice. Though less favorably publicized, the abortion rescue movement provides another such teaching moment today. As with the civil rights protests, the abortion rescue movement involves ordinary people putting their bodies on the line-and in jail-to vindicate their conception of justice. The rescue movement raises issues that transcend the question of whether one approves or disapproves of abortion. This paper examines what society might learn from the Operation Rescue movement about the weaknesses of our law.


Implications Of The Coming Retreat From Roe V. Wade, Charles E. Rice Jan 1988

Implications Of The Coming Retreat From Roe V. Wade, Charles E. Rice

Journal Articles

In Thornburgh v. American College of Obstetricians and Gynecologists, the Supreme Court held unconstitutional Pennsylvania statutes which required that (1) pregnant women give "informed consent" to an abortion and that they be provided information as to the characteristics of their unborn child, the nature and risks of abortion and the availability of alternatives to abortion; (2) the attending physician must file detailed reports on abortions and the reports be made available to the public for copying, even though this could lead to public identification of the woman having the abortion; (3) that in post-viability abortions, the physician use the care …


Liberty And Community In Constitutional Law: The Abortion Cases In Comparative Perspective, Donald P. Kommers Jan 1985

Liberty And Community In Constitutional Law: The Abortion Cases In Comparative Perspective, Donald P. Kommers

Journal Articles

In the mid-1970s the high courts of several western democracies handed down constitutional decisions concerning the legal regulation of abortion. All of the courts sustained their abortion statutes except the United States and West Germany, which moved in opposite directions. The US Supreme Court voided the conservative abortion statutes of various states while West Germany's highest court nullified an abortion statute that took a liberal stance on abortion. The extended opinions of the American and German courts and their contrasting grounds for decision make them fitting candidates for a comparative analysis of abortion jurisprudence. The abortion issue illustrates the tension …


Amniocentesis, Coercion, And Privacy, Charles E. Rice Jan 1984

Amniocentesis, Coercion, And Privacy, Charles E. Rice

Journal Articles

The 1973 abortion decisions of the Supreme Court were based on a right of reproductive privacy which the Court in 1965 had discovered in certain elusive "penumbras formed by emanations from the Bill of Rights." This fictional right of privacy was used by the Court to declare unconstitutional virtually all state restrictions on abortion; according to the Court's rulings, the states have no effective power to prohibit abortion at any stage of pregnancy. Even in the third trimester, the state may not prohibit abortion where it is necessary "in appropriate medical judgment for the preservation of the life or health …


The Dred Scott Case Of The Twentieth Century, Charles E. Rice Jan 1973

The Dred Scott Case Of The Twentieth Century, Charles E. Rice

Journal Articles

In the 1973 abortion cases, the Supreme Court quoted this language from an 1871 report of the Committee on Criminal Abortion of the American Medical Association. The Court, however, did not follow the advice. Instead, the seven man majority held that the child in the womb is not a "person" within the meaning of the fourteenth amendment, which provides, "No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The Court refused to call the child in …


Equal Protection For The Child In The Womb, Charles E. Rice Jan 1971

Equal Protection For The Child In The Womb, Charles E. Rice

Journal Articles

During 1971, the drive for liberalized abortion laws stalled after achieving rapid successes in the preceding four years. The law in most American states still allows abortion only where, it is necessary to save the life of the mother. Since 1967, however, sixteen states have relaxed their laws to provide that abortions may now be performed in varying situations where the life of the mother is not at stake. Some states, such as New York, allow abortions virtually on request. In other states, laws forbidding abortion have been declared unconstitutional by the courts. During 1971, no further liberalization was enacted …


Abortion And Legal Rationality, John M. Finnis Jan 1970

Abortion And Legal Rationality, John M. Finnis

Journal Articles

This article concerns the legitimacy of various legal schemes for dealing with abortion. Legitimacy in one sense is secured simply by complying with the formal criteria for valid law-making: enactment within power and in due form. But jurists have learned (or re-learned) that more can be said about legitimacy, without betraying the purity of their discipline by moralizing and advocacy. From this development in jurisprudential thought emerges the range of questions and criteria deployed in the present study.


Abortion, The Law And Human Life, Thomas L. Shaffer Jan 1967

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

Journal Articles

The issue in abortion "reform" is whether existing criminal sanctions against doctors and pregnant women should be abolished or liberalized. From one point of view this is the question presented in any discussion of the criminal law—whether people should be put in jail for doing something. From another viewpoint, it is the question presented in any discussion of existing law—whether the reformers, who presumably have the burden of proof, have made a case. The controversy will be especially interesting to Indiana lawyers, who last winter saw an abortion-reform proposal pass both houses of the General Assembly and then die (abort?) …