Case Study Planed Parenthood of S.E. PA v. Casey (original) (raw)
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A Comparative Analysis on the Issue of Abortion in Germany and the US
The topic of abortion is highly combustible. It is an issue which has incited ferocious levels of public, scholarly, judicial and legislative debate for many years in countries worldwide while rarely, if ever, achieving any satisfactory level of harmony. This study will be conducting an examination on abortion in Germany and the United States, through both states’ relevant jurisprudence and identifying why they have reached dramatically varying conclusions on the issue. The analysis will be streamlined through the prism of the states’ respective grounding legal norms and how the establishment of a hierarchy of rights is cognisant to understanding modern conceptions of abortion in Germany and the United States. Abortion is particularly appropriate for this normative comparison as the debate boils down to a moral dilemma between preserving the sanctity of life on the one hand and the freedom of choice on the other . Furthermore, the fact that Germany and the United States are two of the world’s leading constitutional democracies – frequently being cross-cited and thus indirectly engaging in what Anne-Marie Slaughter refers to as the ‘Global Judicial Conversation’ – lends more credence to the importance of this comparative study. The first part of this study will initially and briefly examine the historical contexts under which the respective constitutions were formed before then discussing the doctrinal visions of both texts. The German vision primarily centres on the dignity of the person – a “spiritual-moral” individual; Human values are the focal point of the German legal order . The US vision is more simplistic in its approach, yet it arguably doesn’t possess the clarity of the Basic Law. It focuses on the freedom of the individual and sees the state as intrusive and so seeks to limit its influence. There is no clear core value structure. This is instructive into understanding both states’ views on abortion as will become evident later on in this study. Secondly, the diametrically opposed decisions present in early abortion jurisprudence in the US and Germany will be appraised. These seminal abortion cases represent an excellent example of how the Constitutional Court and the Supreme Court established an irrefutable adherence to these respective visions through their hierarchical rights structure. The Supreme Court, despite there being no explicit textual reference to the right of privacy has, through the doctrine of stare decisis, rooted an individual right to privacy in the 14th amendment’s due process clause. Roe v Wade contended that the right to privacy – which was awarded supremacy over the rights of the foetus - was broad enough to incorporate a woman’s right to choose whether to terminate her pregnancy. The right to privacy was sequentially and exponentially developed prior to Roe however, in the Poe-Griswold-Eisenstadt continuum. The Constitutional Court in Abortion I took an altogether different perspective. It premised its judgement on the recognition that the state has a comprehensive duty to both protect and promote unborn life based on human dignity, which is positioned at the apex of the hierarchical value structure of the Basic Law . Finally, has there been an ideological convergence on the issue of abortion in these two states? Casey v Planned Parenthood , while upholding the central premise of Roe, appeared to converge towards the middle ground, particularly in implementing the “undue burden” standard and by deeming viability the watermark and therefore ensuring greater foetal protection as medical advancements push back the point of viability . Abortion II , in de-criminalising terminations during the first trimester, also seemingly indicated a shift in attitude more reflective of prevailing societal factors at the time. Notions of an ideological convergence seem misplaced, however. These issues will be critically analysed in the rest of this paper.
Why Roe v. Wade Should be Overturned.docx
Why Roe v. Wade Should be Overturned By: Yvonne Teeple The Supreme Court of the United States (hereinafter, “the SCOTUS”) must stop supporting the “right to abortion,” because Roe v. Wade,1 Doe v. Bolton,2 and their progeny violate four juridical principles. First, the judiciary must maintain a separate function from the legislature. Second, the judiciary must not abridge the Constitution’s enumerated rights. Third, the judiciary must not encourage preferential treatment or deprive any person equal protection. Fourth, judges should not be forced into a conundrum, where law means one thing for adults, but something else for vulnerable persons, such as unborn children and the disabled. Roe contradicts established jurisprudence. The judiciary faces a conundrum where attempting to reconcile abortion laws with constitutional, criminal, and tort law. The precedent set by Roe and its progeny establishes adults’ rights as superior and subsuming over children’s rights. However, the Fourteenth Amendment ensures equal and consistent legal applications for all persons. The government must cease its laissez-faire complacency toward unborn children and the disabled. Congress should enact new laws protecting unborn children from conception, and permanently defund all abortion providers. Just as importantly, the SCOTUS should select an abortion case from a state that restricts abortions from conception, and affirm that state’s right to outlaw all abortions. 1 Roe v. Wade, 410 U.S. 113 (1973). 2 Doe v. Bolton, 410 U.S. 179 (1973).
Abortion laws originated in the United Kingdom as early as 1803, but the credit for revolutionizing abortion laws and recognizing the inherent, perhaps inextricable right and liberty of women over their bodies can only be given to the United States - more specifically to the American judiciary. From as early as Roe v. Wade, the American judiciary has been reiterating the inherent right of a woman as a constitutional person, to terminate her pregnancy in the earlier stages and thereafter giving the State a role to play, hence making abortion legal for the first time in the Unites States in 1973. Even though senators and other policy-makers in several, if not all, states of the United States have tried to whittle down the basic premise of Roe v. Wade, it has been emphatically upheld in subsequent cases. After more than thirty years of the pro-abortion movement in the West taking firm root, anti-abortion groups have again taken a radical stand by trying to control abortions through the introduction of the Unborn Child Pain Awareness Bill, 2005 (commonly known as Fetal Pain Legislation) and as many as twenty-three states in the USA have passed it to be an Act, which would require that abortionists disclose to women the reality that killing an unborn baby by abortion causes pain to the child. It would also require that women who were pregnant for more than twenty weeks be given the choice of adopting anesthesia for their fetuses. Interestingly this move by the legislature was said to find its basis in the judgment of Gonzales v. Carhart where the Supreme Court held that the federal legislation banning partial-birth abortion was constitutional on its face. The issue of fetal pain arose amidst the partial-birth abortion debate. Supporters of the federal legislation argued that partial-birth abortion was excruciatingly painful for the fetus and that banning this abortion procedure would further the state’s legitimate interest in protecting the unborn child. Opponents of the federal ban argued that there was no conclusive scientific evidence to support the hypothesis that a fetus is even capable of feeling pain. As a result of this partial-birth abortion controversy, legislations aimed at acknowledging and assuaging fetal pain during abortion came into being. In India, the debate on abortion laws as embodied in the Medical Termination of Pregnancy Act, 1971 has been swirling since the Bombay High Court’s decision in Dr. Nikhil Dattar & Ors. v. Union of India, where the Court by a strict interpretation of the provisions in the statute, refused to give a lady pregnant with a malformed fetus the right to abort since she was already in her twenty-fourth week of pregnancy. Since then there have been urgent calls to amend the statute as long-standing criticisms of the policy have been brought to the forefront again. It has become critical at this juncture to look at the development of abortion law and policies in the West, particularly in the United States, to gauge where India stands at this moment and whether, if at all, India should be inspired by the western counterpoint or should take caution from the developments therein to further its own interests in striking the perfect balance between liberty, autonomy and freedom of the individual on the one hand and the State’s right to interfere, on the other.
The Abortion Act 1967 constructs women as patients seeking care, rather than as women choosing abortion, portraying them as vulnerable subjects in need of assistance to make a responsible decision. This article reviews recent proposed women-protective amendments to the Abortion Act focussing upon the proposed introduction of a requirement that women be offered independent counselling. It argues that the issue of abortion should be reframed as a matter of the protection of human dignity, rather than as a conflict between the woman’s right to autonomy and the life of the foetus and, drawing comparatively upon case law from Germany and the United States of America, considers the way in which the U.S. Supreme Court and the Bundesverfassungsgericht have constructed human dignity in the abortion context. Ultimately it is argued that reproductive exceptionalism must end and that by locating the regulation of abortion within a framework of respect for dignity, it is possible to prioritise choice so that the woman’s dignity, which necessarily includes respect for her autonomy and bodily integrity, is not subject to the whims of the medical profession. It is suggested that dignity operates as a lens through which the woman’s claim to autonomy and the interest in foetal life are best viewed, enabling the conflicting interests to be reconciled and simultaneously protecting foetal life and the woman’s autonomy and bodily integrity. The protection of human dignity does not require that these interests be given an equal degree of protection throughout pregnancy and thus it is argued that at least during the first trimester a lower level of protection is demanded in respect of the foetal life, whilst the woman’s right to autonomy and bodily integrity are given precedence. With increased gestation dignity will require that the balance is adjusted so that from viability the foetal life should be prioritised over the woman’s autonomy, albeit with exceptions for risks to her health and life.