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Abortion and the Right to Privacy: A Comparative Perspective
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18450 |
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Section : |
MODERN THOUGHT
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| Issue
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9 / 1990 |
5,990 Words |
| Author
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Donald P. Kommers
Donald P. Kommers is a professor of Law and Government at the
University of Notre Dame. He is also editor of The Review of
Politics. |
The Fourteen Amendment to the United States Constitution reads in part: “No state…shall deprive any person of life, liberty, or property without due process of law.” The Supreme Court has declared that the term liberty within the meaning of this amendment includes the right to privacy, a right that the Court has seen fit to protect in a series of cases involving marital relations, procreation, contraception, family relations, and child rearing. In 1973, armed with these precedents, the Court declared, in Roe v. Wade, that “[t]his right of privacy…is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” With that historical utterance, a woman's right to interrupt her pregnancy rooted itself in American constitutional law.
This essay examines Roe v. Wade and its progeny in the light of the constitutional and statutory policies of selected European nations. There is no better way to illumine a legal problem of one's own country than to compare it with the experience of other polities, particularly those constitutional democracies with traditions of liberty similar to one's own. Here I take special note of the West German Abortion Case, not only because of its sharp contrast to the result in Roe, but also because it exemplifies the prevailing European approach to abortion regulation. European countries approach the problem of abortion from an angle sharply at variance with the American emphasis upon personal privacy and individual liberty. The comparative perspective may help us to see ourselves through a glass more clearly and to rethink the constitutional basis of American abortion policy. Before looking through this glass, however, I will evaluate the arguments put forth by the Supreme Court in its seminal decision and later rulings.
ROE V. WADE AND ITS PROGENY
Prior to the decision in Roe v. Wade the Supreme Court extended the Constitution's protection to fundamental decisions relating to marriage, procreation, and child rearing. Such decisions, the Court declared, implicate the right of privacy, which is a form of liberty protected by the Fourteenth Amendment. At stake in these cases was the privacy of the family; the Court could not imagine the state regulating such matters without invading this sacrosanct relationship. Family symbolizes for Americans the right to be let alone - in thought, feeling, and sensation - and they have long regard its protection as the essence of personal liberty. Intimate associations of the kind protected here touch the core of the human personality, and state intrusion into this sphere would subvert the principle of human
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