Common Law Fundamentals of the Right to Abortion

71 Pages Posted: 28 Jan 2016

Date Written: January 28, 2016


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.”

Keywords: women, pregnancy, abortion, common law, self-defense, duty to rescue, Roe v. Wade, Blackstone, right to exclude

Suggested Citation

Bernstein, Anita, Common Law Fundamentals of the Right to Abortion (January 28, 2016). Buffalo Law Review Vol. 63, p. 1141, 2015, Brooklyn Law School, Legal Studies Paper No. 438, Available at SSRN:

Anita Bernstein (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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