The Common Law Right to Abortion

Wednesday, February 3, 2016

The Common Law Right to Abortion

Anita Bernstein (Brooklyn),Common Law Fundamentals of the Right to Abortion, 63 Buffalo L. Rev.


In an article relied on by Justice Blackmun in Roe v. Wade, a lawyer named Cyril Means, Jr., asserted that abortion had been a common law liberty back in the fourteenth century. Responding in part to criticisms of this thesis, this Article extends what Means contended. The prerogative to terminate ones own pregnancy really is a common law liberty: what the common law provides to pregnant persons is in some respects broader than the privacy-related right sited in the Fourteenth Amendment. As expressed consistently for centuries through its doctrines of criminal law, torts, property, contract, and unjust enrichment, the common law takes a position on abortion that comports with the modern coinage pro-choice.

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