Medical Jurisprudence Commons^™

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 …

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 …

Federally Mandated Informed Consent: Has Government Gone Too Far, Linda P. Mckenzie

Journal of Law and Health

Laws mandating disclosure of particular information are known as informed consent laws. They exist primarily in the area of reproductive health and most often apply to women seeking abortion. This article discusses the legal and ethical issues that arise when lawmakers decide what patients must be told before they can access certain medical procedures. Part II examines some of the ethical implications of informed consent laws. Physicians have a duty to obtain a patient's informed consent before acting. Part III discusses legal concerns raised by informed consent laws. These include the First Amendment free speech rights of physicians and patients' …

In The Back Alleys Of Health Care: Abortion, Equality And Community In Canada, Joanna Erdman

Articles, Book Chapters, & Popular Press

The decriminalization of abortion in Canada ensured neither its availability nor accessibility as an integrated and publicly funded health service. While Canadian women are increasingly referred to or seek abortion services from single-purpose clinics, their exclusion from public health insurance often render these services inaccessible. This article considers denied funding for clinic abortion services from the perspective of the Canadian constitutional guarantee of sex equality. The article focuses on the 2004 Court of Queen's Bench's judgment in Jane Doe I v. Manitoba, which framed denied public funding for clinic abortion services as a violation of women's equality rights under the …

Emergency Contraception, Abortion And Evidence-Based Law, Rebecca Cook, Bernard Dickens, Joanna Erdman

Articles, Book Chapters, & Popular Press

Courts and legal tribunals increasingly decline to serve as religious or moral guardians, and require social evidence to support litigants' claims. Recent cases on emergency contraception and abortion are examined to show how judicial interpretations can take account of evidence of the impact that different understandings of the law will have for how ordinary people can plan their lives and reproductive choices. In an emergency contraception case, an interpretation was rejected that would have criminalized choices that millions of decent, law-abiding physicians, pharmacists and women routinely make. In an abortion case, three judges unanimously rejected a government ministry's defence of …

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.

The Alley Behind First Street, Northeast: Criminal Abortion In The Nation's Capital 1873-1973, Douglas R. Miller

ExpressO

The thirtieth anniversary of Roe v. Wade found our country no less divided over abortion than it was during the era of its prohibition. As the bitter struggle over judicial nominations throughout the present administration suggests, abortion’s future remains at the forefront of American political debate.

In their push for increased limitations, abortion opponents generally overlook the historical consequences of prohibition. Abortion rights proponents often invoke history in their opposition to new restrictions, but tend to do so superficially, and only in a manner that supports their position.

This article attempts a more complex study of criminal abortion’s legal and …

Assisted Reproduction In Germany And The United States: An Essay In Comparative Law And Bioethics , John A. Robertson

ExpressO

No abstract provided.

Rights Of Embryo And Foetus In Private Law, Timothy Stoltzfus Jost

Scholarly Articles

This article summarizes the rights of the embryo and fetus under American law. It was presented as a country report at the World Congress on Comparative Law, and is written primarily for a non U.S. audience. It examines, for example, the legal position of the embryo and fetus with respect to their parents, issues in research involving embryos and fetuses, remedies for torts or crimes against an embryo or fetus, and issues involving stem cell research.

The Right Of Refuse: A Call For Adequate Protection Of A Pharmacist's Right To Refuse Facilitation Of Abortion And Emergency Contraception, Donald W. Herbe

Journal of Law and Health

The purpose of this Note is not to argue for or against either the pro-life or pro-choice positions. The purpose of this Note is to shed light on a serious moral dilemma that faces many pharmacists today, to call for universal acceptance in the pharmacy profession of a right of conscience, and to suggest adequate state and national legislative measures that would protect and prevent pharmacists from having to act contrary to their basic moral convictions. Section I provides background regarding present day abortive and contraceptive drug therapies and the role of the pharmacist in providing such medications. Section II …

The Limits Of Law At The Limits Of Life: Lessons From Cannibalism, Euthanasia, Abortion, And The Court-Ordered Killing Of One Conjoined Twin To Save The Other, George J. Annas

Faculty Scholarship

The subject is law at the beginning and end of life. Most of my work is in the area of general health law: law and medicine, public health law, and health and human rights. But this is my favorite subject area, and I expect you to ask me the hardest questions you can. I am not saying I can answer them, but if I cannot that is my fault, not yours. I am going to make a pretty broad argument today about law and medicine; specifically about how new medical technology and medical practice standards have eclipsed religion (and sometimes …

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.

Liberalism And Abortion, Robin West

Georgetown Law Faculty Publications and Other Works

First in a groundbreaking book, Breaking the Abortion Deadlock: From Choice to Consent, published in 1996, then in various public fora, from academic conference panels to Christian radio call-in shows, and now in a major law review article entitled My Body, My Consent: Securing the Constitutional Right to Abortion Funding, Eileen McDonagh has sought to redefine drastically our understanding of the still deeply contested right to an abortion, and hence, of the nature of the constitutional protections which in her view this embattled right deserves. Her argument is complicated and subtle, but its basic thrust can be readily …

Abortion As Commerce: The Impact Of "United States V. Lopez" On The Freedom Of Access To Clinic Entrances Act Of 1994, Benjamin W. Roberson

Vanderbilt Law Review

American politics in the 1990s is preoccupied with the movement of power from a centralized federal authority to state and local governments. There is some measure of consensus that the federal government can no longer provide solutions to all of America's problems., The resulting retreat from the twentieth century federal monolith has interesting implications for constitutional law. The federal government's power expanded largely under the authority of the Commerce Clause. Although the traditional broad interpretation of Congress's commerce power bears little resemblance to the actual text of the Constitution, courts have accepted the notion that Congress may regulate any activity …

Prenatal Genetic Screening: The Enigma Of Selective Abortion, David Stoller

Journal of Law and Health

This paper examines the issues of pre-natal genetic testing and its ethical and legal concerns. Part II details the scientific techniques involved in pre-natal genetic testing. Part III discusses the Human Genome Project and its influence on the choices available to prospective parents. Part IV analyzes the moral and ethical issues raised by pre-natal genetic screening. Part V presents the legal issues raised by pre-natal genetic screening. Finally, Part VI concludes and offers a prospective on the future of these technologies.

Restricting Donative Choice: Fetal Tissue Transplantation And Respect For Human Life, Joanna H. Kinney

Journal of Law and Health

I propose that a woman who becomes pregnant with the intent to abort will be treated as an initial aggressor, and as such she will be denied the "abortion exception" that will be granted to the woman who aborts an accidental, unwanted pregnancy. Moreover, I shall argue that a woman should not be allowed to designate the donee of the fetal tissue from her abortion, even though her pregnancy was accidental. Without this restriction, a woman who intends to become pregnant and abort may simply claim her pregnancy was accidental, and thereby claim the exception. Central to this study is …

Homologizing Pregnancy And Motherhood: A Consideration Of Abortion, Julia E. Hanigsberg

Michigan Law Review

In this essay I reconsider abortion in order to bridge what initially seem to be two opposing frameworks: first, the conception of abortion as an issue of women's bodily integrity and liberty, and second, the acknowledgement of the existence and meaning of intrauterine life. The abortion choice is indeed deeply and necessarily tied to women's bodily integrity. I will discuss how taking away women's ability to control their decision not to become mothers can be severely damaging to their very sense of self, for this denial of decisionmaking divides women from their wombs and uses their wombs for a purpose …

"Life" And "Liberty": Their Original Meaning, Historical Antecedents, And Current Significance In The Debate Over Abortion Rights, Sheldon Gelman

Law Faculty Articles and Essays

The legal controversy over abortion has been a dispute about constitutional “liberty.” Constitutional debate has ranged far and wide over questions of natural law, interpretative method, and judicial function, yet liberty remains the focal point. It is widely believed that if abortion and privacy rights derive from anything in the Constitution, they derive from “liberty,” and that if anything in the Constitution tells us how to treat those rights, “liberty” does. Part I outlines the present day controversy over liberty and abortion, including the multiple, conflicting opinions in Casey. Part II examines the phrase “life, liberty, or property,” and the …

Toward A More Perfect Union: A Federal Cause Of Action For Physician Aid-In-Dying, Todd David Robichaud

University of Michigan Journal of Law Reform

Part I of this Note investigates the possible foundations of a constitutional right to physician aid-in-dying triggering section 1983 protection and the opposing state interests in preventing suicide. Part II examines the nature and scope of and obstacles to a request for section 1983 relief. Finally, Part III focuses on the public policy implications associated with recognizing a federal cause of action.

Operation Rescue Blockades And The Misuse Of 42 U.S.C. 1985(3), Michael F. O'Brien

Cleveland State Law Review

The purpose of this Note is to demonstrate that § 1985(3) is not applicable to Operation Rescue's blockade activities. Part II provides a brief survey of the history of § 1985(3) from its roots in the post-Civil War era to the 1950's. Part III examines the requirements for a § 1985(3) claim as delineated in the Griffin, Novotny, and Scott decisions. Part IV applies these requirements to the blockade controversy and argues that: (1) Gender-based animus should be accepted by the Court as a form of class-based animus within the meaning of § 1985(3); (2) the blockades do not fall …

The Use Of Government Funding To Discourage Abortion: Who Will Protect The Rights Of The Poor?, Claudia J. Postell

University of the District of Columbia Law Review

No abstract provided.

Liberalism, Republicanism And The Abortion Controversy, Gary C. Leedes

Villanova Law Review (1956 - )

No abstract provided.

Pregnancy, Drugs, And The Perils Of Prosecution, Wendy K. Mariner, Leonard H. Glantz, George J. Annas

Faculty Scholarship

In the war on drugs an offensive has been launched against pregnant women who use drugs. Over the past four years, prosecuting attorneys have been indicting women who use drugs while pregnant. In South Carolina alone, eighteen women who allegedly took drugs during pregnancy were indicted last summer for criminal neglect of a child or distribution of drugs to a minor.' In the only successful prosecution so far, Jennifer Johnson was convicted in Florida for delivering illegal drugs to a minor via the umbilical cord in the moment after her child was born and before the cord was clamped.^{2 …}

Fetal Tissue Transplantation: Regulating The Medical Hope For The Future, Jacquelyn F. Sedlak

Journal of Law and Health

While fetal tissue implants have the potential to offer relief to several million Americans, these two scenarios are examples of the many legal and ethical issues surrounding the technology. Currently, the use of fetal tissue is loosely regulated by an assortment of laws, many of which were enacted before the therapeutic use of fetal tissue was even conceived as a possibility. At the time many of the regulations governing fetal tissue use were developed, the primary goal of the regualtions was to prevent the exploitation and sale of aborted fetuses following the Supreme Court's decision in Roe v. Wade. Had …

Who Decides--The Next Abortion Issue: A Discussion Of Fathers' Rights, Maria F. Walters

West Virginia Law Review

No abstract provided.

Parental Notification And Abortion: A Review And Recommendation To West Virginia's Legislature, David W. Frame West Virginia University College Of Law

West Virginia Law Review

No abstract provided.

Book Reviews: Ethics At The Edges Of Life / Samuel Johnson, L. Harold Levinson, J. Allen Smith

Vanderbilt Law Review

Professor Paul Ramsey,' writing as a Christian ethicist, has revised, extended, and updated the Bampton Lectures in America that he delivered in 1975 at Columbia University. The resulting book is Ethics at the Edges of Life: Medical and Legal Intersections. A substantial portion of the book is devoted to critical analysis of a number of landmark court decisions, all of which were rendered after his delivery of the Bampton lectures--Planned Parenthood v. Danforth, on abortion; Commonwealth v. Edelin, on the treatment of a fetus during or immediately after an abortion; In re Quinlan, on the termination of life support; and …

Father And Mother Know Best: Defining The Liability Of Physicians For Inadequate Genetic Counseling, Ellen Wright Clayton

Vanderbilt Law School Faculty Publications

Although genetic disorders have been recognized for centuries, recent advances in the study of human genetics often permit accurate determination of the risk that parents will have genetically defective children.' When this information is available either before conception or during pregnancy, prospective parents may choose to prevent the birth of such defective children through contraception or abortion. Recently, courts have been called on to define the circumstances in which either the parents or the children should receive tort damages when parents are denied opportunities to prevent the birth of defective children because of their physicians' negligent failure to detect or …

The Impact On Fetal Research Of The Report Of The National Commission For The Protection Of Human Subjects Of Biomedical And Behavioral Research, Robert J. Levine

Villanova Law Review (1956 - )

No abstract provided.

Reflections On The Report And Recommendations Of The National Commission: Research On The Fetus, Karen Lebacqz

Villanova Law Review (1956 - )

No abstract provided.