The Creation and Taking of Human Life: The Courts' Confused (and Confusing) Understanding of the Creation and Taking of Human Life

Abstract

This essay, scheduled to be published in the Montana Law Review, argues that current abortion jurisprudence allows women to act irresponsibly regarding children they intentionally conceive, while imposing strict liability upon males for any sexual activity that results in the conception of a child. In cases involving women's decisions to continue or terminate their pregnancies, there is little or no consideration for the unique dependency of the unborn child, created by the voluntary sexual activity of the women, while consideration of the needs of the child is determinative of males' legal responsibility. This anomoly is reflective of a larger theme in American law regarding the state's obligation to provide for the personal security of each citizen, but disregards Anglo-American law regarding the use of lethal force to defend self and others.

Keywords: Constitutional law, human life, judicial activism, marriage, family