Gonzales v. Carhart: Bringing Abortion Back into the Family Law Fold

Montana Law Review, Vol. 69, No. 2, pp. 409-445, 2008

George Mason Legal Studies Research Paper No. LS 16-20

40 Pages Posted: 2 May 2016

See all articles by Helen M. Alvare

Helen M. Alvare

George Mason University - Antonin Scalia Law School, Faculty

Date Written: 2008

Abstract

Alone among abortion opinions, the U.S. Supreme Court’s second partial-birth abortion decision, Gonzales v. Carhart, included fetuses within the categories of human life and family relations. It spoke of a “bond” between a woman and her unborn “child.” Its analysis of constitutional law concerning abortion incorporated presumptions about parent-child relationships ordinarily applied only respecting already-born children: first that the law should prefer maintaining parent-child relationships; and second, that children are naturally vulnerable such that parents have a primary duty of protection, which will be supplemented by the state when a child’s welfare is seriously endangered. This article argues that Gonzales’ harmonizing of abortion law with family law has important and positive consequences not only for children’s health, but also for women and families in the areas of helping women to avoid unwanted pregnancies, and better accommodating women’s employment and other social commitments to women’s childbearing.

Keywords: abortion law, child vulnerability, constitutional law, family law, Justice Ruth Bader Ginsburg, Gonzales v. Carhart, parent-child relations, parental attachment

Suggested Citation

Alvare, Helen M., Gonzales v. Carhart: Bringing Abortion Back into the Family Law Fold (2008). Montana Law Review, Vol. 69, No. 2, pp. 409-445, 2008; George Mason Legal Studies Research Paper No. LS 16-20. Available at SSRN: https://ssrn.com/abstract=2773658

Helen M. Alvare (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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