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10 J. Contemp. Health L. & Pol'y 1 (1994)


What I plan to do here is to tell you the story of Germany's legal approach to abortion and offer some tentative conclusions about what we Americans might learn from the German experience. My story centers mainly on the constitutionality of efforts in Germany to remove legal restrictions on abortion. In the United States, the story has a different twist, for there it centers on the constitutionality of efforts to impose legal restrictions on abortion. Both stories are fascinating accounts of constitutional decisionmaking, revealing as much about the values of the two societies as about the role of judicial review in a constitutional democracy. The two stories unfold in the decisions, respectively, of the U.S. Supreme Court and Germany's Federal Constitutional Court.

The purpose of this article is not so much to find the right answer to a constitutional problem, but rather to understand and distinguish the competing conceptions of freedom and responsibility that undergird the abortion cases in the two countries. What makes comparison in this instance so engaging is that two occidental, post-industrial, secular societies, presumably committed to liberty and justice for all, have embraced, at least temporarily radically different constitutional positions on abortion. More interesting still is that these divergent outcomes proceed from humane values and constitutional principles common to both societies.


Originally published in Journal of Contemporary Health Law and Policy.



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