Friday, January 29, 2016

Bernstein on Abortion at Common Law

Anita Bernstein, Brooklyn Law School, has posted Common Law Fundamentals of the Right to Abortion, which appeared in the Buffalo Law Review 63 (2015): 1141-120:
In an article relied on by Justice Blackmun in Roe v. Wade, a lawyer named Cyril Means, Jr., asserted that abortion had been “a common law liberty” back in the fourteenth century. Responding in part to criticisms of this thesis, this Article extends what Means contended. The prerogative to terminate one’s own pregnancy really is a common law liberty: what the common law provides to pregnant persons is in some respects broader than the privacy-related right sited in the Fourteenth Amendment. As expressed consistently for centuries through its doctrines of criminal law, torts, property, contract, and unjust enrichment, the common law takes a position on abortion that comports with the modern coinage “pro-choice.”

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