Pro-Choice and Anti-Abortion: Constitutional Theory and Public Policy

Pro-Choice and Anti-Abortion: Constitutional Theory and Public Policy

Pro-Choice and Anti-Abortion: Constitutional Theory and Public Policy

Pro-Choice and Anti-Abortion: Constitutional Theory and Public Policy

Synopsis

Bowers argues that, when correctly interpreted and applied, the Constitution and the theory of liberty on which it is based require government to reject the conventional pro-choice and anti-abortion perspectives as too extreme and incomplete. Instead, this book sets forth a position that government is constitutionally obligated to approach abortion policy from a middle perspective. Relying on a jurisprudence of original theory, Pro-Choice and Anti-Abortion forcefully asserts that government is constitutionally constrained to formulate abortion policy that is at once pro-choice and anti-abortion. In so arguing, this book walks readers through this constitutionally mandated middle position by introducing them to the liberal teachings of John Locke that were so influential to the framers of the Constitution and by applying this political theory to the major issues of the abortion controversy--including the individual liberty interest in the abortion decision, minors and abortions, the liberty interest of the fetal-being, and the Freedom of Choice Act.

Excerpt

The idea for this book was conceived in the immediate aftermath of Webster v. Reproductive Health Services (106 L. Ed. 2d 410). At that time it appeared as if the ascending conservative excess, then dominating the abortion controversy, would harness enough forces within the Supreme Court and the state governments to overturn Roe v. Wade (93 S. Ct. 705), thereby severely restricting if not actually banning a woman's liberty interest in the abortion decision. In light of these seemingly impending circumstances, it became readily apparent that if this liberty interest were to survive it would be necessary to both reexamine the meaning of a woman's liberty interest in the abortion decision and develop a new middle perspective firmly rooted in the Constitution and the political theories informing it. This middle position could then stand as a constitutionally faithful alternative to the constitutionally infirmed pro-life and pro-choice approaches, then (and now) dominating the abortion debate. But in the immediate aftermath of the 1992 presidential election and the Supreme Court's refusal to review a lower court's overturning of a Guam statute criminalizing abortion, some commentators rushed to declare the end of the abortion debate and a victory for the pro-choice position. One syndicated columnist wrote:

The great abortion debate is over. With the courts overturning a Guam law criminalizing abortion and the election of the down-the-line pro-choice president, November 20, 1992, marks the end of a 20-year abortion war. Never again will abortion be criminalized. . . . (Krauthammer 1992, 6a)

The general liberty interest in the abortion decision now may be more secure than during the 1980s, but announcing the abortion debate over is premature, and outright wrong. Even with congressional support . . .

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