25 Am. J. Comp. L. 255 (1977)
The US Supreme Court’s 1973 and the German Federal Constitutional Court’s 1975 decisions on abortion provide us with an uncommon opportunity to compare the constitutional law of different nations on the issue. The two courts took opposing stances in their decisions. The US Supreme Court substantially curtailed the power of American states to limit abortion while the German court ruled that an existing statute that permitted abortion within the first three months of pregnancy violated the rights of unborn children. These opinions can be explained by the different political contexts of the two nations and different perceptions on judicial intervention in policy making by their courts. German courts were influenced by a taught tradition of legal interpretation that is narrowly focused on creating legal certainty and determining if a law is in conformity with the constitution. The German constitution also places a greater emphasis on protecting community interests over individual liberty. These legal traditions led the German Federal Constitutional Court to intervene in the abortion dispute to protect community interests. In the United States, a greater emphasis on exercise of personal freedom in the constitution led the Supreme Court to intervene to protect the individual interests of women.
Donald P. Kommers,
Abortion and Constitution: United States and West Germany,
25 Am. J. Comp. L. 255 (1977).
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