The Promise and Peril of a Common Law Right to Abortion (Symposium Review of Anita Bernstein's The Common Law Inside the Female Body)
9 Pages Posted: 12 Jan 2020
Date Written: December 19, 2019
To those of us who associate the common law with the policy preferences of propertied, conservative, old white men, Bernstein’s account of the common law inside the female body is a novel and welcome interpretation of our negative liberty tradition. Given the current attacks on abortion rights from state legislatures and the federal judiciary, Bernstein’s common law right to terminate an unwanted pregnancy could, if widely adopted, help protect abortion rights in the future. However, in the wrong hands, her grounding could play into the goals of the anti-abortion movement without helping protect actual access for people seeking abortions. Thus, her account of this right is a double-edged sword, with much promise, but also much peril.
Keywords: abortion, common law, Bernstein
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