Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, November 29, 2006

Balkin's two abortion rights

In this post, and in this article, Professor Jack Balkin proposes and fleshes out the argument that we should think in terms of two abortion rights, not one:

The first right to abortion is a woman's right not to be forced by the state to bear children at risk to her life or health. The second right is a woman's right not to be forced by the state to become a mother and thus to take on the responsibilities of parenthood, which, in our society are far more burdensome for women than for men. Although the first right to abortion continues throughout pregnancy, the second right need not. It only requires that women have a reasonable time to decide whether or not to become mothers and a fair and realistic opportunity to make that choice. . . .

The state's interest in protecting unborn life is most compelling in the later stages of pregnancy. But letting states vindicate this interest when it is strongest is not necessarily inconsistent with the second right to abortion. When a woman's health and life are not at risk, the second right requires that women have a right to a fair and realistic opportunity to choose whether or not to become a mother, and in most cases this choice can usually be made in the earlier stages of a pregnancy. . . .

There's a lot more (about, among other things, the "discourse shaping" character of his approach).  Take a look.  For my own part, two quick thoughts:  First, it seems that Balkin's handling of the "first" abortion right does not say enough about what he means by "health."  Does he mean to say -- and, his discussion of self-defense might suggest that he does -- that the first abortion right is not timebound because women always have a right not to be forced to bear children at the risk to her life or physical health?  Or, would he incorporate into his first right the much more expansive understanding of "health" that seems to be at work in the Court's cases?

Second, I wonder if the discussion, or the analysis, change if, instead of asking when the interest of the state in protecting fetal life justifies limiting the exercise of the "second" abortion right, we ask instead about the point at which the moral claims of the unborn child -- his or her own moral claims, and not just the interests of the "state" -- justify such limits?


Garnett, Rick | Permalink

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