NOTES

THE ROOTS OF RIGHTS: WHERE DO COURTS FIND

CONSTITUTIONAL SUPPORT FOR A WOMAN’S RIGHT TO
CHOOSE OR A FETAL RIGHT TO LIFE?
Kathleen Marie McGean *

TABLE OF CONTENTS

I. INTRODUCTION ...................................................................................................... 199

II. GOVERNING DOCUMENTS AND LANDMARK ABORTION CASES IN THE

RELEVANT JURISDICTIONS ........................................................................ 202
A. The United States......................................................................... 202
i. The Constitution of the United States of America ........ 202
ii. Roe v. Wade .......................................................................... 204
iii. Planned Parenthood of Southeastern
Pennsylvania v. Casey ........................................................ 206
B. Mexico ............................................................................................ 209
i. The Political Constitution of the United Mexican
States....................................................................................... 209
ii. September 2021 Decisions ................................................ 211
iii. Non-Binding Decision: AD 1388/2015........................... 212
C. Canada ........................................................................................... 215
i. The Canadian Charter of Rights and Freedoms .......... 215
ii. R v. Morgentaler .................................................................. 217
D. The Council of Europe ............................................................... 220
i. The European Convention on Human Rights................ 220
ii. A, B and C v. Ireland .......................................................... 222
E. Germany ........................................................................................ 226
i. The Basic Law for the Federal Republic of
Germany ................................................................................ 226
ii. Abortion I .............................................................................. 228
iii. Abortion II ............................................................................. 231

* J.D. Candidate, University of Georgia School of Law, 2023; B.A., Vanderbilt

University, 2020.

197
198 GA. J. INT’L & COMPAR. L. [Vol. 51:1

III. ANALYSIS OF THE COMPETING RIGHTS ........................................................ 232

A. Individual Rights Favoring a Right to Abortion .................. 232
i. Right to Liberty .................................................................... 232
ii. Right to Bodily Integrity .................................................... 234
a. Right to Mental Security and Freedom from
“Cruel Treatment” ..................................................... 235
iii. Right to Privacy................................................................... 236
iv. Right to Life .......................................................................... 238
B. Individual Rights Supporting a Fetal Right to Life ............. 239
i. Positive Right to Life................................................... 239

IV. CONCLUSION ....................................................................................................... 241

V. EPILOGUE: IS DOBBS CONSISTENT WITH THE GLOBAL

UNDERSTANDING OF WHAT IT MEANS TO HAVE CERTAIN
CONSTITUTIONAL RIGHTS IN A FREE AND DEMOCRATIC
SOCIETY? ....................................................................................................... 242
2022] ROOTS OF RIGHTS 199

I. INTRODUCTION

Around 73 million abortions are performed worldwide each year.1 Before

they turn forty-five, approximately 24% of women living in the United States
will have had an abortion,2 yet only 38% of American women between the
ages of thirteen and forty-four live in a state that supports abortion rights.3
“Abortion presents a profound moral issue on which Americans hold
sharply conflicting views.”4 This philosophical divide can also be seen on the
global stage. For example, the United Nations Office of the High Commis-
sioner for Human Rights declared that access to legal, safe abortion is a human
right,5 while the Catholic Church declared abortion a “moral evil.”6 Those
who identify as pro-choice believe that it is up to the individual to decide
when—or if—the individual will have children, even if the pro-choice person
would not choose abortion for themself; those who identify as pro-life tend to
believe that life begins at conception and terminating a pregnancy at any stage
of fetal development is effectively murder.7
The debate over abortion is often framed as a balancing act between the
rights of the pregnant woman and the rights of the fetus. But what are these
rights, exactly, and where do they come from? What rights or legal protections
serve as the basis for finding that a woman has the right to terminate her preg-
nancy or that a fetus has the right to fully develop? What written and unwritten
constitutional provisions help tip the scales in favor of one party over another?

1 Unintended Pregnancy and Abortion Worldwide, GUTTMACHER INST. (Mar. 2022),

https://www.guttmacher.org/fact-sheet/induced-abortion-worldwide.
2
Induced Abortion in the United States, GUTTMACHER INST. (Sept. 2019),
https://www.guttmacher.org/fact-sheet/induced-abortion-united-states.
3 Id. For more specific details, see State Abortion Policy Landscape: From Hostile to

Supportive, GUTTMACHER INST. (Aug. 29, 2019), https://www.guttmacher.org/arti-

cle/2019/08/state-abortion-policy-landscape-hostile-supportive.
4 Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2240 (2022).
5 U.N. Hum. Rts. Comm., General Comment No. 36, Article 6: Right to Life, U.N.

Doc. CCPR/C/GC/36 (Sept. 3, 2019).

6 Respect for Unborn Human Life: The Church’s Constant Teaching, U.S. CONF. OF

CATH. BISHOPS, https://www.usccb.org/issues-and-action/human-life-and-dignity/abor-

tion/respect-for-unborn-human-life (last visited Oct. 29, 2022).
7 While “pro-life” and “pro-choice” are most often used to describe the different sides

of the abortion debate, those terms can sometimes be misleading. Planned Parenthood has
begun using the terms “pro-reproductive rights” and “anti-abortion” to characterize peo-
ple’s beliefs in terms of their stance on access to abortion instead of framing their views in
terms of the morality of abortion. See Can You Explain What Pro-Choice Means and Pro-
Life Means?, PLANNED PARENTHOOD: ASK THE EXPERTS (Oct. 16, 2019),
https://www.plannedparenthood.org/learn/teens/ask-experts/can-you-explain-what-pro-
choice-means-and-pro-life-means-im-supposed-to-do-it-for-a-class-thanks; see also Kaia
Hubbard, Making Abortion Murder, U.S. NEWS (May 6, 2022), https://www.us-
news.com/news/national-news/articles/2022-05-06/the-push-to-make-fetuses-people-and-
abortion-murder.
200 GA. J. INT’L & COMPAR. L. [Vol. 51:1

The international landscape of abortion rights is rapidly shifting. In Sep-

tember 2021, Mexico’s Supreme Court unanimously voted to decriminalize
abortion, with Chief Justice Arturo Zaldívar lauding the decision as “a historic
day for the rights of all Mexican women.”8 In the United States, conservatives
are pushing for absolute bans on abortion after the Supreme Court held that
no fundamental right to abortion exists in June 2022.9 The seemingly endless
debate over the abortion question—how to balance a woman’s right to choose
whether to terminate her pregnancy against the potential rights of a fetus—is
reaching a boiling point.
This Note will compare competing constitutional rights considered in
abortion cases in five jurisdictions: the United States (prior to Dobbs),10 Mex-
ico, Canada, the Council of Europe, and Germany. The governing constitu-
tions or conventions for these jurisdictions—the Constitution of the United
States of America, the Political Constitution of the United States of Mexico,
the Canadian Charter of Rights and Freedoms, the European Convention on
Human Rights, and the Basic Law for the Federal Republic of Germany, re-
spectively—offer an ideal basis for comparative analysis for three reasons.
First, within these jurisdictions, the right to abortion has either been spe-
cifically created or limited by judicial action. This is in contrast to jurisdic-
tions where the constitution explicitly addresses abortion11 or where other
branches of government have been allowed to debate the issue and regulate
abortion without judicial interference.12 Second, the abortion decisions from
these jurisdictions span a wide range of findings. For example, Canada has no
legal barriers to abortion,13 while Germany has repeatedly affirmed that “life

8
Natalie Kitroeff & Oscar Lopez, Mexico’s Supreme Court Votes to Decriminalize
Abortion, N.Y. TIMES (Sept. 7, 2021), https://www.nytimes.com/2021/09/07/world/ameri-
cas/mexico-supreme-court-decriminalize-abortion.html.
9 Dobbs, 142 S. Ct. at 2242. For a survey of current state laws banning abortion, see

Caroline Kitchener et al., Abortion is Now Banned or Under Threat in These States, WASH.
POST (Nov. 23, 2022, 1:07 PM), https://www.washingtonpost.com/poli-
tics/2022/06/24/abortion-state-laws-criminalization-roe.
10 The recent Dobbs decision will be analyzed within the context of rulings from the

other jurisdictions and the United States’ own precedent at the end of this Note.
11 See CONSTITUTION OF IRELAND 1937 art. 40.3.3 (“Provision may be made by law for

the regulation of termination of pregnancy.”). See also CONSTITUCIÓN DE LE REPÚBLICA

DOMINICANA [CONSTITUTION] June 13, 2015, art. 37 (Dom. Rep.) (“The right to life is in-
violable from conception until death.”).
12 Israel is one example of a country whose abortion laws developed largely without

judicial interference. See Rebecca Steinfeld, Wars of the Wombs: Struggles Over Abortion
Policies in Israel, 20 ISR. STUD. 1, 7 (2015) (“[J]udicial statistics indicate that after 1960
no case of abortion was discussed in the Israeli courts.”).
13 GUTTMACHER INST., STATUS OF THE WORLD’S 193 COUNTRIES AND SIX

TERRITORIES/NON-STATES, BY SIX-ABORTION-LEGALITY CATEGORIES AND THREE

ADDITIONAL LEGAL GROUNDS UNDER WHICH ABORTION IS ALLOWED (2017),
https://www.guttmacher.org/sites/default/files/report_downloads/aww_appendix_ta-
ble_1.pdf.
2022] ROOTS OF RIGHTS 201

which is developing itself in the womb of the mother is an independent legal

value which enjoys the protection of the constitution . . . for the entire duration
of the pregnancy.”14 Third, despite the differing cultures, histories, and con-
stitutional contexts, these jurisdictions have significantly similar forms of
government; all are—broadly speaking—representative governments, operat-
ing under a federal system, whose people enjoy universal suffrage. The United
States and Mexico are traditional democratic republics, with power split be-
tween the federal government and fifty and thirty-one states, respectively.
Their federal governments are divided into three branches of government: the
executive (embodied by a president), the judiciary, and the legislature (in both
cases, a bicameral Congress).15 Germany is a federal parliamentary republic;
Canada is a federal parliamentary democracy. Like the United States and
Mexico, their states (or “provinces,” in Canada’s case) enjoy significant inde-
pendence and legislative power.16 All the chosen jurisdictions are democratic.
The Economist Intelligence Unit’s Democracy Index characterizes Canada
and Germany as full democracies and the United States and Mexico as flawed
democracies.17 The Council of Europe is an association of European states
working to promote democracy and human rights throughout Europe.18 The
foreign affairs ministers of each member state act as the Council’s decision-
making body, while other representatives from each state debate issues of the
day in the Parliamentary Assembly.19 So, while not technically a country, the
Council of Europe can be thought of as existing in a similar context as the
other jurisdictions.

14 Bundesverfassungsgerichts [BVerfGE] [Federal Constitutional Court] Feb. 25,

1975, 39 Entscheidungen des Bundesverfassungsgerichts 1–95 (1975) (Ger.), translated in

Robert E. Jonas & John D. Gorby, West German Abortion Decision: A Contrast to Roe v.
Wade, 9 J. MARSHALL J. PRAC. & PROC. 605, 605 (1976) [hereinafter Abortion I].
15 See Our Government, THE WHITE HOUSE, https://www.whitehouse.gov/about-the-

white-house/our-government (last visited Oct. 14, 2022); Enrique Gómez Ramírez, Mex-
ico’s Parliament and other Political Institutions, EUR. PARL. 1 (Jan. 2021),
https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/679057/EPRS_BRI(2021)
679057_EN.pdf.
16 See Federal State, FACTS ABOUT GERMANY, https://www.tatsachen-ueber-deutsch-

land.de/en/politics-germany/federal-state (last visited Oct. 14, 2022). Canada is also tech-

nically a constitutional monarchy; though it became wholly independent from the United
Kingdom in 1982, Canada is still a part of the British Commonwealth, and His Majesty
Charles III is the King of Canada. His role is mostly symbolic, as it is in the United King-
dom. See Democracy in Canada, GOV’T OF CAN. (Oct. 11, 2022), https://www.can-
ada.ca/en/democratic-institutions/services/democracy-canada.html.
17 THE ECONOMIST INTELLIGENCE UNIT, DEMOCRACY INDEX 2020: IN SICKNESS AND IN

HEALTH? 8–13 (2020), https://pages.eiu.com/rs/753-RIQ-438/images/democracy-index-

2020.pdf.
18 Values: Human Rights, Democracy, Rule of Law, COUNCIL OF EUR.,

https://www.coe.int/en/web/about-us/values (last visited Oct. 29, 2022).

19 Structure, COUNCIL OF EUR., https://www.coe.int/en/web/about-us/structure (last

visited Oct. 29, 2022).

202 GA. J. INT’L & COMPAR. L. [Vol. 51:1

This Note will conduct a comparative analysis in three parts. Part One will
introduce the major abortion decisions made by the Supreme Court of the
United States (pre-Dobbs), the Supreme Court of Justice of the Nation,20 the
Supreme Court of Canada, the European Court of Human Rights, and the Bun-
desverfassungsgericht.21 Part Two will identify which individual rights cited
in each jurisdiction’s landmark abortion cases support the right of a woman to
obtain an abortion and will analyze the strength and full extent of those guar-
antees. Part Three will do the same for the individual rights that favor the
fetus.
This Note will conclude that the right to liberty most strongly supports
finding a constitutional right to abortion and that a positive right to life most
strongly supports finding a fetal right to life. This Note will also demonstrate
that the same battle over abortion rights, fought over different constitutional
terrains, ultimately converges on similar themes across all jurisdictions. The
purpose of this Note is to suggest that if a constitution contains certain provi-
sions or rights, courts should find the presence of those rights compelling in
determining whether the rights of the woman or the rights of the fetus should
be more heavily favored in answering the abortion question.
Finally, this Note will explore whether the recent United States Supreme
Court decision in Dobbs v. Jackson Woman’s Health Organization is con-
sistent with how other jurisdictions—and even prior U.S. cases—have inter-
preted the same constitutional rights at issue in that case. In other words, is
the Dobbs decision consistent with a global understanding of what it means to
have certain constitutional rights in a free democratic society?

II. GOVERNING DOCUMENTS AND LANDMARK ABORTION CASES IN THE

RELEVANT JURISDICTIONS

A. The United States

i. The Constitution of the United States of America

Ratified in 1788, the Constitution of the United States is the country’s gov-
erning document, outlining the structure and operations of the federal govern-
ment.22 Subsequent amendments to the Constitution, like the Bill of Rights,
define the rights of citizens in relation to the government.23 The Constitution
functions as the supreme law of the land in the United States.24 All other laws
must operate consistently with their provisions or else be struck down as

20 The Supreme Court of Justice of the Nation is the Supreme Court of Mexico.
21 The Bundesverfassungsgericht is the Federal Constitutional Court of Germany.
22 See U.S. CONST.
23 See e.g., U.S. CONST. amend. 1–10.
24 U.S. CONST. art. VI, cl. 2.
2022] ROOTS OF RIGHTS 203

invalid by the Supreme Court.25 The Supreme Court of the United States is
the highest court in the country and the final court of appeal.26 It is “charged
with ensuring the American people the promise of equal justice under law and,
thereby, also functions as guardian and interpreter of the Constitution.”27
Among the Constitution’s provisions is the Fourteenth Amendment. Ratified
in 1868, its first section, known as the Due Process Clause, provides in part:
“No State shall . . . deprive any person of life, liberty, or property, without due
process of law.”28
On its face, the Due Process Clause protects citizens’ procedural rights.
Over time, it has also been interpreted to protect other unenumerated, substan-
tive rights. “Substantive due process,” as it is known, has not been explicitly
defined by the Court, but is sometimes explained as the principle that certain
fundamental rights should be—and through the Fifth and Fourteenth Amend-
ment’s Due Process Clauses in fact are—protected from government interfer-
ence.29 Commentators have said that “[s]ubstantive due process asks the ques-
tion of whether the government’s deprivation of a person’s life, liberty or
property is justified by a sufficient purpose.”30 Some Justices do not believe
that substantive due process exists and is instead merely a creation of the
Court to justify judicial action that would otherwise be unsupported by the
Constitution’s text.31 Other justices have used substantive due process to es-
tablish constitutional protections of personal, private actions relating to eve-
rything from marriage to child rearing to education.32
When reviewing a state action that infringes upon a personal right or lib-
erty, the Court engages in a range of analytical tests which balance the state’s
interests against an individual’s rights. At one end of the spectrum of review
lies rational basis review, which asks whether the interest the government
seeks to further through legislation is legitimate and whether the means of the
legislation are rationally related to achieving that legitimate government

25 See Marbury v. Madison, 5 U.S. 137 (1803) (establishing “judicial review” or the

power of the courts to invalidate legislation that is inconsistent with the provisions of the
Constitution).
26 About the Court, SUP. CT. OF THE U.S., https://www.supremecourt.gov/about

/about.aspx (last visited Oct. 29, 2022).

27 Id.
28 U.S. CONST. amend. XIV, § 1.
29 Substantive Due Process, LEGAL INFO. INST., https://www.law.cornell.edu/wex/

substantive_due_process (last visited Oct. 14, 2022).

30 Erwin Chemerinsky, Substantive Due Process, 15 TOURO L. REV. 1501, 1501 (1999).
31 See e.g., Perry v. New Hampshire, 565 U.S. 228, 249 (2012) (Thomas, J., concurring)

(“In my view those cases [decided on substantive due process grounds] are wrongly de-
cided because the Fourteenth Amendment’s Due Process Clause is not a ‘secret repository
of substantive guarantees against “unfairness.”’” (quoting BMW of N. Am., Inc. v. Gore,
517 U.S. 559, 598–99 (1996) (Scalia, J., dissenting))).
32 See, e.g., Loving v. Virginia, 388 U.S. 1 (1967); Meyer v. Nebraska, 262 U.S. 390

(1923); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925).

204 GA. J. INT’L & COMPAR. L. [Vol. 51:1

interest. Rational basis review is a relatively easy test to overcome. On the

other end of the spectrum sits strict scrutiny, which, as the name implies, pre-
sents a stricter test and a much higher bar for the state to clear. Under strict
scrutiny analysis, the Court asks whether the interest the government seeks to
further through legislation is compelling and whether the legislation is nar-
rowly tailored to achieve that compelling interest.33
With this context in mind, we will examine the United States’ two major
abortion decisions before Dobbs: Roe v. Wade34 and Planned Parenthood of
Southeastern Pennsylvania v. Casey.35

ii. Roe v. Wade

Roe focused on a Texas statute banning abortion in all cases except where
the procedure was necessary to save the mother’s life.36 Similar laws were in
place in most states when the Supreme Court heard Roe.37 The law made it
illegal for doctors to provide abortions.38 While the law did not directly regu-
late a woman’s actions, the prohibition on the medical procedure effectively
prevented women from obtaining abortions.
Three plaintiffs brought suit in Roe. The first was a single woman, Jane
Roe, who had been pregnant at the start of the litigation. The second was a
married couple, the Does; Mrs. Doe had been forced to discontinue using birth
control for medical reasons and was advised by her doctor to avoid a preg-
nancy.39 Both Jane Roe and Mrs. Doe wanted to be able to terminate their
pregnancies (Roe’s real pregnancy in the present and Doe’s hypothetical fu-
ture pregnancy) with the assistance of a licensed, competent medical profes-
sional.40 The third plaintiff was an abortion provider and licensed physician
who had two prosecutions pending against him for violating the Texas law.41
Roe asked whether the Texas law infringed “a right, said to be possessed
by the pregnant woman, to choose to terminate her pregnancy.”42 Justice

33 For a more in-depth discussion of the different standards of review courts impose
when reviewing a law’s constitutionality, see R. Randall Kelso, Standards of Review Under
the Equal Protection Clause and Related Constitutional Doctrines Protecting Individual
Rights: The “Base Plus Six” Model and Modern Supreme Court Practice, 4 U. PENN. J.
CONST. L. 225 (2002).
34 Roe v. Wade, 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women’s Health

Org., 142 S. Ct. 2228 (2022).

35 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), overruled by Dobbs

v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

36 TEX. PENAL CODE ANN., arts. 1191–94, 1196 (West 1973); Roe, 410 U.S. at 117–19.
37 Roe, 410 U.S. at 118.
38 Id. at 117–18, 125–36.
39 Id. at 121.
40 Id. at 120–21.
41 Id.
42 Id. at 129.
2022] ROOTS OF RIGHTS 205

Blackmun, writing for the majority, identified two theories put forward by the
petitioners by which the Court might find a right to abortion: either the right
to abortion existed within “the concept of personal ‘liberty’ embodied in the
Fourth Amendment’s Due Process Clause” or within “personal, marital, fa-
milial, and sexual privacy said to be protected by the Bill of Rights or its pe-
numbras.”43 The majority ultimately held that the right to abortion was a “fun-
damental right” protected by the right to privacy.44 A right to privacy could
be found in the First, Fourth, Fifth, and Ninth Amendments, as well as within
the Fourteenth Amendment’s “concept of liberty.”45
Though Justice Blackmun acknowledged that the potential harm a woman
might suffer by denying her access to abortion was extreme,46 he rejected the
petitioners’ claims that the right to abortion was absolute.47 Instead, the right
to abortion had to be weighed against state interests in protecting a woman’s
health, maintaining medical practice standards, and protecting potential life–
and, “[a]t some point in the pregnancy, these respective interests become suf-
ficiently compelling to sustain regulation of the factors that govern the abor-
tion decision.”48 To outline when, exactly, each of the state’s respective inter-
ests become “compelling,” the Court created a trimester system.49
During the first three months of pregnancy, the state could not interfere
with the right of a woman to consult with her doctor and decide whether to
obtain an abortion.50 During the next three months, a state might regulate abor-
tion access in ways reasonably related to maternal health.51 Only the interest
in protecting the health of the mother was strong enough to justify legislation
at this point in the pregnancy.52 During the last trimester—or “the stage sub-
sequent to [fetal] viability”—states could regulate or even prohibit abortion
“in promoting its interest in the potentiality of human life,” as long as the law
allowed for exceptions to a total ban on abortions in cases where the life or

43 Id.
44 Id. at 152–54.
45 Id. at 152.
46 Justice Blackmun identified several harms that could befall a woman if the state were

allowed to deny her an abortion: having to become a mother or have more children “may
force upon the woman a distressful life and future” and “[p]sychological harm may be
imminent;” having to take care of a child—especially an unwanted child—could cause the
mother distress and cause both mental and physical harm; and, in some cases, the woman
might face the “difficulties and continuing stigma of unwed motherhood.” Id. at 153.
47 Id. at 154.
48 Id.
49 Id. at 163–65.
50 Id. at 163.
51 Id. at 163–64.
52 The Court effectively applied a slightly modified version of rational basis review

here; states had a legitimate interest in protecting the mother’s health—and just in protect-
ing the mother’s health—during the second semester and could pass regulations reasonably
related to achieving that interest.
206 GA. J. INT’L & COMPAR. L. [Vol. 51:1

health of the mother was at risk.53 As the fetus developed, so did the strength
of the state’s interest and its powers to regulate abortion. The Court did not
recognize any interests of the fetus itself.54
In a concurring opinion, Justice Stewart criticized Justice Blackmun’s as-
sertion that the right to abortion stemmed from the right to privacy; he noted
that all of the cases Justice Blackmun cited as establishing a right to privacy
were actually substantive due process cases protecting a right to liberty.55
Those cases were about government interference with a personal choice—
whether or not to marry someone of a different race, whether or not to send
your children to a private school, whether or not to have children at all; they
were not about government intrusion into a protected, private space.56 Despite
Justice Blackmun’s repeated claim that abortion fell within a right to privacy,
his own written opinion supported the idea that the right to abortion stemmed
from the substantive right to liberty. Justice Stewart concluded that “the Court
today is correct in holding that the right asserted by Jane Roe is embraced
within the personal liberty protected by the Due Process Clause of the Four-
teenth Amendment.”57
The Court struck down the Texas law.58 The Court’s approach to abor-
tion—and its conclusions about where the right to abortion can actually be
found within the Constitution—evolved in its next major abortion case, Ca-
sey.

iii. Planned Parenthood of Southeastern Pennsylvania v. Casey

In Casey, the Court considered a series of procedural requirements women

needed to satisfy before being permitted to receive an abortion: 1) a woman
had to provide her informed consent to an abortion procedure at least 24 hours
before the procedure and the doctor had to tell the woman specific information
about the abortion that included warnings on how the procedure could be det-
rimental to her health; 2) a married woman had to sign a statement saying she

53 Id. at 164–65. Here, the Court seemed to subject the government to strict scrutiny,
and empower it to pass that test, all in the same sentence. The state’s interest in protecting
potential life was compelling and banning abortion (i.e., banning the destruction of poten-
tial life), though a broad legislative mandate, was a narrowly drawn way to achieve that
interest.
54 See id. at 159 (“We need not resolve the difficult question of when life begins.”); see

also id. at 162 (“[T]he unborn have never been recognized in the law as persons in the
whole sense.”).
55 See id. at 167–72.
56 Id.
57 Id. at 170 (Stewart, J., concurring). Even Justice Rehnquist, who, dissenting, did not

find a right to abortion, felt that if such a right did exist, it would stem from liberty interests
and not from a right to privacy. See id. at 172 (Rehnquist, J., dissenting).
58 Id. at 166 (majority opinion).
2022] ROOTS OF RIGHTS 207

had told her husband she was getting an abortion; and 3) minors had to get
consent to obtain an abortion from at least one of their parents or undergo a
judicial bypass.59
The Court did not reach a majority consensus. Instead, a plurality of three
Justices created the controlling doctrine: Justices Kennedy, Souter, and
O’Connor.60 The plurality began their opinion with the following: “Liberty
finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that
the Constitution protects a woman’s right to terminate her pregnancy in its
early states, that definition of liberty is still questioned.”61 The right to abor-
tion was clearly framed from the outset as a natural consequence of the right
to liberty found in the Fourteenth Amendment.62 The plurality then reaffirmed
what they believed to be the core holding of Roe:

First is a recognition of the right of the woman to choose to

have an abortion before viability and to obtain it without un-
due interference from the State. Before viability, the State's
interests are not strong enough to support a prohibition of
abortion or the imposition of a substantial obstacle to the
woman's effective right to elect the procedure. Second is a
confirmation of the State's power to restrict abortions after
fetal viability, if the law contains exceptions for pregnancies
which endanger the woman's life or health. And third is the
principle that the State has legitimate interests from the out-
set of the pregnancy in protecting the health of the woman
and the life of the fetus that may become a child.63

There are notable differences between what Casey calls the essential hold-
ing in Roe and Roe’s actual essential holding. Roe held that the state could not
interfere at all with a woman’s right to choose within the first three months of

59 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992), overruled by
Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).
60 Id. at 843–44. Justices Blackmun and Stevens concurred in the judgment. Id. at 911–

12 (Stevens, J., concurring in part and dissenting in part); id. at 922 (Blackmun, J., concur-
ring in part and dissenting in part). Chief Justice Rehnquist and Justices White, Thomas,
and Scalia dissented; they would have overturned Roe. Id. at 944 (Rehnquist, C.J., concur-
ring in part and dissenting in part) (“We believe Roe was wrongly decided, and that it can
and should be overruled.”).
61 Id. at 844 (emphasis added) (citation omitted).
62 The right to privacy is only mentioned twice in the controlling opinion: once as it

related to private conversations between a patient and their doctor, and once in relation to
the spousal notification provision, where the Court found that a woman does not give up
her right to individual privacy by becoming married. Id. at 883, 896.
63 Id. at 846.
208 GA. J. INT’L & COMPAR. L. [Vol. 51:1

her pregnancy.64 Whether or not a state’s interference was “undue” did not
factor into the equation.65 During the second trimester, states could regulate
abortion access if their regulations furthered their interest in protecting the
mother’s health; again, whether the regulations placed “a substantial obstacle”
in the path of a woman seeking an abortion was not the relevant question—
the question was whether the regulation was reasonably related to that partic-
ular state interest.66 These new standards—the “undue burden” and “substan-
tial obstacle” tests67—which do not appear anywhere in Roe, simultaneously
limited a woman’s ability to obtain an abortion and expanded the state’s abil-
ity to regulate abortion.
The plurality justified this discrepancy by rejecting the trimester frame-
work.68 Roe, the plurality believed, was inconsistent with itself; if the state
had important and legitimate interests in protecting the “potentiality of life,”
why should it be forbidden from acting in accordance with that interest for
two-thirds of the pregnancy?69 Though the trimester framework was “erected
to ensure that [a] woman’s right to choose not become so subordinate to the
State’s interest in promoting fetal life that her choice exists in theory but not
in fact . . . the trimester approach is [not] necessary to accomplish this objec-
tive.”70 Roe’s trimester system was “incompatible with the recognition that
there is a substantial state interest in potential life throughout pregnancy.”71
Instead of using a trimester system to regulate state interference with the
right to abortion, the plurality imposed the undue burden test: “Only where
state regulation imposes an undue burden on a woman's ability to make this
decision does the power of the State reach into the heart of the liberty pro-
tected by the Due Process Clause.”72 The Court ultimately held that the wait-
ing period requirement, the specific information requirement, and the parental
notification requirement did not pose an undue burden on a woman seeking
an abortion.73 Only the spousal notification was struck down as invalid under
the Court’s new test.74
Ultimately, Casey represented a fundamental shift in American abortion
jurisprudence. First, it cemented the right to abortion as both a right based in

64 Roe v. Wade, 410 U.S. 113, 163 (1973), overruled by Dobbs v. Jackson Women's
Health Org., 142 S. Ct. 2228 (2022).
65 Id.
66 Id. at 164.
67 Casey, 505 U.S. at 877–78.
68 Id. at 878.
69 Id. at 871.
70 Id. at 872.
71 Id. at 876.
72 Id. at 874.
73 Id. at 882–85, 887, 889.
74 Id. at 898. Because of the widespread nature of domestic violence, the spousal noti-

fication provision was “likely to prevent a significant number of women from obtaining an
abortion.” Id. at 893.
2022] ROOTS OF RIGHTS 209

the Fourteenth Amendment’s right to liberty and as a limited right. Second, it

shifted the balance between a woman’s right to choose and the state’s interest
in protecting potential life, with the state gaining more power and leverage
over women than the Court in Roe had been willing to bestow upon it.

B. Mexico

i. The Political Constitution of the United Mexican States

The Political Constitution of the United Mexican States, otherwise known

as the “Constitution of 1917,” was drafted towards the end of a bloody upris-
ing.75 Leaders of the prevailing faction sought to incorporate the values and
ideals of the Mexican Revolution—better economic and social conditions for
the masses—into their new constitution.76 Since its inception, the Constitution
of 1917 has included a right to free secular schooling,77 a right to an eight-
hour workday,78 a right to a living wage,79 and a right to equal pay for equal
work for men and women.80 As relevant to this Note, the Constitution was
amended in 1983 to include an affirmative right to health care.81
This structure of rights differs from the U.S. Constitution, which outlines
its rights and privileges more vaguely. For example, to find a right to equal
pay for equal work in the U.S. Constitution, one would have to derive that
right from the right to be free from sex-based discrimination, which in turn is
derived from the Fourteenth Amendment’s Equal Protection Clause. In con-
trast, the Constitution of 1917’s provisions are explicit and detailed. From the
time of its inception through today, the Constitution of 1917 was and remains
“one of the most progressive constitutional and legislative documents” in the
world.82
The Supreme Court of Justice of the Nation, like the United States Su-
preme Court, serves as the head of the Mexican judicial system and functions

75 For more on the Mexican Revolution (1910–1920), see GILBERT JOSEPH & JURGEN

BUCHENAU, MEXICO’S ONCE AND FUTURE REVOLUTION (2013).

76 L.S. Rowe, Foreword to H.N. Branch, The Mexican Constitution of 1917 Compared

with the Constitution of 1857, 71 ANNALS AM. ACAD. POL. & SOC. SCI., at iv (Supp. 1917).
77 Constitución Política de los Estados Unidos Mexicanos [CP], art. 3, Diario Oficial

de la Federación [DOF] 05-02-1927, última reforma DOF 28-05-2021.

78 Id. at art. 123(A)(I).
79 Id. at art. 123(A)(V)(c).
80 Id. at art. 123(A)(V)(a).
81 Id. at art. 4.
82 Michael Widener, Centennial of the Mexican Constitution, YALE L. SCH.: LILLIAN

GOLDMAN L. LIBR. (Apr. 2, 2017, 9:02 AM), https://library.law.yale.edu/news/centennial-

mexican-constitution.
210 GA. J. INT’L & COMPAR. L. [Vol. 51:1

as a court of last resort.83 The Court consists of eleven members: five justices
who sit in the First Chamber, five justices who sit in the Second Chamber, and
a presiding chief justice who sits in neither chamber but oversees Full Court
decisions.84 The First Chamber hears civil and criminal cases, while the Sec-
ond Chamber hears cases involving labor and administrative law.85 The Mex-
ican Supreme Court is charged with “the defense of the Mexican Constitution
and the protection of human rights through constitutional review.”86 Article 1
of the Constitution of 1917 directs courts to interpret the rights guaranteed in
the document “in favor of the broader protection of people at all times.”87
The Supreme Court defends human rights through amparo review. There
are two types of amparo review: direct and indirect. Direct amparo (“AD” for
amparo directo) applies only to the final result of a specific trial and can only
alter specific trial outcomes. Indirect amparo (“AI” for amparo indirecto) ap-
plies more broadly, and AI decisions may strike down entire laws or invalidate
other state acts as inconsistent with the Mexican Constitution.88 Though AI
can be used to strike down laws, an AI judgment rendered by the Mexican
Supreme Court is not binding precedent unless either eight out of the Court’s
eleven justices sign on to the opinion or the Court “set[s] case law by five
consecutive uninterrupted decisions” of either chamber.89 In other words, the
Court may hold that a specific constitutional right exists or was violated, but
if only a simple majority of the Full Court (say, six out of eleven justices)
signs on to that opinion, then the plaintiff in the AI proceeding alone has that
constitutional right or is entitled to that remedy for a violation of a constitu-
tional right; lower courts do not have to implement the same reasoning or out-
come in similar cases that come before them.90
Adding to this procedural complication, the Court publishes its binding
precedent in the Semanario Judicial de la Federación irregularly and incom-
pletely.91 Unlike the United States Supreme Court, which makes its full opin-
ions available at the same time it officially announces the case’s outcome,92

83 SUPREMA CORTE DE JUSTICIA DE LA NACIÓN, SUPREME COURT OF MEXICO: A

VISITOR’S GUIDE 11 (2019), https://www.scjn.gob.mx/sites/default/files/pagina/documen-
tos/2019-10/SCJNVisitorsGuide-sept2019.pdf [hereinafter SUPREME COURT OF MEXICO: A
VISITOR’S GUIDE].
84 Id. at 10.
85 Id.
86 Id. at 11.
87 Constitución Política de los Estados Unidos Mexicanos [CP], art. 1., Diario Oficial

de la Federación [DOF] 05-02-1927, última reforma DOF 28-05-2021.

88 SUPREME COURT OF MEXICO: A VISITOR’S GUIDE, supra note 83, at 11.
89 Id.
90 Id.
91 José María Serna de la Garza, The Concept of Jurisprudencia in Mexican Law, 1

MEXICAN L. REV. 131, 145 (2009).

92 See Publication of Supreme Court Opinions, SUP. CT. OF THE U.S., https://www.su-

premecourt.gov/opinions/info_opinions.aspx (last visited Oct. 29, 2022).

2022] ROOTS OF RIGHTS 211

the Mexican Supreme Court often delays publishing opinions for several
months after the judgment is announced—if it publishes the opinion in full at
all.93
With this understanding in mind, we will examine the Mexican Supreme
Court’s most recent constitutional decisions regarding abortion.

ii. September 2021 Decisions

In September 2021, the Mexican Supreme Court handed down a series of

binding rulings that it called “landmark decisions at the vanguard for repro-
ductive rights worldwide.”94 These three decisions “established the strongest
protections for the right to terminate a pregnancy . . . in Latin America to
date.”95
On September 7th, 2021, in AI 148/2017, the Supreme Court struck down
a complete criminal ban on abortion in Coahuila.96 The unanimous decision
held that women have a right to choose whether to terminate their pregnancies
without facing criminal charges. Though the Court acknowledged that a fetus
is entitled to increasing levels of protection as the pregnancy progresses, over-
all, it is unconstitutional to completely criminalize abortion. Absolute crimi-
nal bans on abortion ignore a woman’s right to reproductive freedom.97 Addi-
tionally, a woman’s right to reproductive freedom means she is entitled to
legal, safe, and free abortion in the early stages of pregnancy; the government
must provide abortions to women at no cost.98 The Court claimed that this
decision went “further, even, than the emblematic Roe v. Wade” because it
recognized that access to abortion must be free in order to truly guarantee the
right to health; otherwise, economic barriers could prevent a woman from
fully exercising her right to choose.99
In the second decision, jointly resolving AI 106/2018 and AI 107/2018, the
Court held that Mexican states could not “establish a right to life from the

93 Serna de la Garza, supra note 91.

94 Press Release, Suprema Corte de Justicia de la Nación, Mexican Supreme Court:
Landmark Decisions at the Vanguard for Reproductive Rights Worldwide (Oct. 1, 2021),
https://www.internet2.scjn.gob.mx/red2/comunicados/noticia.asp?id=6606 [hereinafter
Press Release: Mexico Reproductive Rights Decisions].
95 Id.
96 This law subjected both women who procured abortions and the medical profession-

als who gave them abortions to criminal punishment. See Press Release, Suprema Corte de
Justicia de la Nación, Supreme Corte Declara Inconstitucional la Criminalización Total
Del Aborto [Supreme Court Declares Unconstitutional the Total Criminalization of Abor-
tion] (Sep. 7, 2021), https://www.internet2.scjn.gob.mx/red2/comunicados/noticia.
asp?id=6579.
97 Id.
98 Press Release: Mexico Reproductive Rights Decisions, supra note 94.
99 Id.
212 GA. J. INT’L & COMPAR. L. [Vol. 51:1

moment of conception.”100 Only the Constitution can establish what consti-

tutes a “person.”101 Furthermore, the Court held that states cannot grant fe-
tuses the same rights and protections as actual living persons because granting
a fetus full personhood under the law could limit women’s access to abor-
tion.102
Finally, in the third decision, AI 54/2018, the Court struck down a law that
gave state medical practitioners expansive rights to conscientious objection,
reasoning that such a right, without limits, could interfere with a patient’s right
to healthcare.103 The Court noted that potential for interference was especially
true in the context of abortion rights as conscientious objection could be used
to deny women access to the free, safe abortions they were now legally enti-
tled to early in gestation.104
This Note cannot complete an in-depth analysis of these cases at this time,
as no reliable English translation of the September 2021 decisions is available
as of the time of publication. However, a recent, nonbinding AD decision
which greatly expands on the correlation between the constitutionally guaran-
teed right to health and the right to abortion, translated into English by schol-
ars at Harvard Law School, will serve as a proxy for the Court’s reasoning in
the September 2021 decisions.

iii. Non-Binding Decision: AD 1388/2015

The plaintiff in this AD proceeding was Jane Doe who, as a 41-year-old

overweight recent gastric bypass surgery patient, was considered high-risk
when she became pregnant.105 Doe was aware that continuing her pregnancy
posed a severe risk to her health, and she repeatedly asked the state-run hos-
pital’s doctors to terminate her pregnancy. They refused.106 She eventually
filed a formal written request to terminate the pregnancy with the state health
agency.107 Before they replied to her request, Doe obtained an abortion else-
where.108 Several days after her private abortion, the state formally denied her
written request to terminate her pregnancy.109 She challenged the denial in

100 Id.
101 Id.
102 Id.
103 Id.
104 Id.
105 AD 1388/2015, ¶ 8 (Mex.), translated in Motion for Constitutional Relief Under

Amparo Proceedings in Review 1388/2015, THE PETRIE-FLOM CTR. FOR HEALTH L. POL’Y,
BIOTECHNOLOGY, & BIOETHICS AT HARV. L. SCH., https://petrieflom.law.harvard.edu/as-
sets/publications/AR_1388-2015._Tradux_FINAL.pdf (last visited Oct. 17, 2022) [herein-
after AD 1388/2015].
106 Id. ¶ 6.
107 Id.
108 Id. ¶ 7.
109 Id. ¶ 8.
2022] ROOTS OF RIGHTS 213

court, arguing that denying her an abortion, when continuing the pregnancy
would likely put her life at risk, constituted a violation of her Article 4 right
to health.110
The five justices of the First Chamber considered Doe’s AD proceeding
and handed down their opinion on May 15, 2019.111 The justices unanimously
agreed that Doe’s right to health had been violated when the health agency
denied her request for an abortion.112 As recompense, the Court held that Doe
was entitled to have the health agency’s decision denying her an abortion in-
validated and to have any physical or mental health care costs associated with
her private abortion covered by the health agency.113 All but one justice signed
on to Justice Norma Lucía Piña Hernández’s majority opinion, which called
for sweeping changes to Mexico’s approach to abortion.114
Justice Hernández maintained that the right to health should be “under-
stood as the enjoyment of the highest attainable standard of physical, mental
and social wellbeing.”115 The right to health, therefore, includes the right to
access healthcare services. Such a right also imposes a positive duty on the
state to provide the healthcare services necessary for citizens to reach that
highest attainable standard of health.116 This right to health and the accompa-
nying duty imposed on the state is broad; it must include the right of women
to “access [] the widest possible range of sexual and reproductive healthcare
services, including those associated with pregnancy during all its stages” and
“the adoption of measures to make the termination of pregnancy possible,
available, safe and accessible when the continuation of the pregnancy endan-
gers women’s health in its broadest sense.”117
The Court considered “health in its broadest sense” intertwined with the
general ideas of wellbeing and personal satisfaction as well as “with the rights
to life, dignity, autonomy, freedom to freely develop one’s personality. . .
equality, intimacy, privacy and the right to live without cruel, inhuman or de-
grading treatment.”118 Preventing a woman from accessing safe, legal, and
free abortions could impact her life both in terms of her physical wellbeing
and in terms of her level of satisfaction with her life—it could negatively im-
pact her career, her family, her mental health, and her own view of herself.119
The Court believed that “health” should be considered in light of how it im-
pacts the whole person; pregnancy, and the decision of whether to terminate

110 Id. ¶ 9.
111 Id. at 1.
112 Id. ¶ 86.
113 Id. ¶ 108–13.
114 See id. at 50.
115 Id. ¶ 51.
116 Id. ¶ 53–55.
117 Id. ¶ 55.
118 Id. ¶ 55–56.
119 Id. ¶ 69–73.
214 GA. J. INT’L & COMPAR. L. [Vol. 51:1

a pregnancy, impacts and involves the whole person.120 The right to terminate
a pregnancy when continuing such a pregnancy threatens the woman’s well-
being, therefore, falls under the Article 4’s broad right to health and other
constitutional guarantees.121
After finding that the right to terminate a pregnancy for health reasons is
a right guaranteed by the Constitution of 1917, the First Chamber also found
that the state has an affirmative duty to provide all healthcare services related
to reproductive health.122 As such, hospitals “cannot deny or hinder women’s
access to the interruption of pregnancy based on health because this procedure
is necessary to preserve, restore or protect the latter.”123 Women are entitled
to abortions when “there is a probability that an adverse result will be gener-
ated for the woman’s wellbeing.”124 The healthcare system must provide
women with safe, free abortions when their health—in the broadest sense of
the word—would be negatively impacted by being forced to carry a child to
term.
Because this was an AD proceeding rather than an AI proceeding, the
judgment only impacted Jane Doe.125 The opinion’s promises of broad access
to abortion did not come to fruition as a result of her case. But the September
2021 abortion decisions, as AI decisions, have changed the state of abortion
law in Mexico, by decriminalizing abortion and guaranteeing free access to
abortion services for all.126 There are several similarities between this ruling
and the reported holdings of the Mexican Supreme Court’s September 2021
abortion decisions. First, the Doe opinion acknowledges a right to abortion in
some circumstances; the September 2021 decisions “recognized a constitu-
tional right to… abortion services at the initial stages of pregnancy” and in
some other circumstances.127 Second, the Doe opinion acknowledges that in-
ability to access abortion—either because abortions are not free or because
practitioners refuse to perform the procedure—violates the Constitution of

120 Id. ¶ 73.

121 Constitución Política de los Estados Unidos Mexicanos [CP], art. 4, Diario Oficial
de la Federación [DOF] 05-02-1917, últimas reformas DOF 10-02-2014. The explicit con-
stitutional rights alluded to in this decision include: the right to equality and nondiscrimi-
nation (art. 1; art. 4); the right to privacy (art. 16); and the right to decide when and how
many children to have (art. 4). Id. Implied rights alluded to in the Constitution include but
are not limited to: the right to self-determination (from right to family planning (art. 4));
the right to a healthy environment for purposes of self-development (art. 4); the right to
culture (art. 4); the right to choose one’s own occupation (art. 5); and the rights to expres-
sion, opinion, and consciousness (art. 6; art. 7). Id.
122 AD 1388/2015, supra note 105, ¶ 83.
123 Id.
124 Id. ¶ 91.
125 See SUPREME COURT OF MEXICO: A VISITOR’S GUIDE, supra note 83, at 11.
126 See id.; Press Release: Mexico Reproductive Rights Decisions, supra note 94.
127 Press Release: Mexico Reproductive Rights Decisions, supra note 94.
2022] ROOTS OF RIGHTS 215

1917;128 the September 2021 decisions held that abortions must be provided
by the state for no cost and that healthcare providers could not refuse to per-
form abortions on moral grounds.129 Though the questions addressed in AD
1388/2015 are not the same as the ones considered in the Full Court’s Sep-
tember 2021 cases, the similarities in the outcomes and in the values promo-
gulated by all these opinions means that Jane Doe’s case sheds light on the
likely reasoning of the Full Court in the yet untranslated September 2021
cases.

C. Canada

i. The Canadian Charter of Rights and Freedoms

Incorporated into the Constitution of Canada in 1982, the Canadian Char-

ter of Rights and Freedoms (the Charter) “protects basic rights and freedoms
that are essential to keeping Canada a free and democratic society.”130 In ad-
dition to Canada’s Constitution and Bill of Rights, the rights guaranteed in the
Charter serve as the supreme law of the land.131 All other laws must be con-
sistent with the Charter, or else the Supreme Court of Canada may invalidate
them.132 The Charter is “a powerful force for progress, protection, compassion
and fairness.”133 The foundational document includes such rights as freedom
of conscience and religion, the right to vote, the right to be free from cruel and
unusual punishment, and the right to equal protection under the law without
discrimination.134 It also provides in Section 7 that “[e]veryone has the right
to life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.”135
Like the United States Supreme Court, the Supreme Court of Canada is
the country’s final court of appeal.136 It has the power “to consider important
questions of law such as the constitutionality . . . of federal or provincial leg-
islation.”137 The Court believes that its role in interpreting the constitutionality
of legislation alleged to violate the Charter “is not to solve nor seek to solve…

128 AD 1388/2015, supra note 105, ¶ 75.

129 Press Release: Mexico Reproductive Rights Decisions, supra note 94.
130 Learn about the Charter, GOV’T OF CAN. (Apr. 5, 2022), https://www.justice.

gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/learn-apprend.html.
131 Id.
132 Id.
133 Id.
134 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,

being Schedule B to the Canada Act, 1982, c 11, §§ 2, 3, 12, 15 (UK).

135 Id. § 7.
136 Role of the Court, SUP. CT. OF CAN. (Aug. 23, 2017), https://www.scc-csc.ca/court-

cour/role-eng.aspx.
137 Id.
216 GA. J. INT’L & COMPAR. L. [Vol. 51:1

[the] issue, but simply to measure the content of [the legislation] against the
Charter.”138 This differs from the United States Supreme Court, which does
occasionally attempt to solve the issues before it rather than return the ques-
tion to the legislature; the promulgation of the trimester system in Roe and the
undue burden test in Casey are examples of this.
The Supreme Court of Canada uses specific analytical tools in interpreting
Section 7 of the Charter. First, the “Court has held consistently that the proper
technique for the interpretation of Charter provisions is to pursue a ‘purpos-
ive’ analysis of the right guaranteed;” the Court must consider what interests
the Charter should protect in interpreting its provisions.139 Second, Section 7
contains three distinct rights: life, liberty, and security of the person.140 These
“are independent interests, each of which must be given independent signifi-
cance by the Court.”141 Third, after finding that legislation infringes upon any
one of the three rights enumerated by Section 7, the Court will determine
“whether any infringement of that interest accords with the principles of fun-
damental justice.”142 If the infringements are manifestly unfair, they are not
in accordance with the principles of fundamental justice.143
Even if legislation infringes upon Section 7 and is not in accordance with
the principles of fundamental justice, “Section 1 of the Charter can potentially
be used to ‘salvage’ a legislative provision which breaches” Section 7.144 Sec-
tion 1 of the Charter states that the Charter guarantees the rights “set out in it
subject only to such reasonable limits prescribed by law as can be demonstra-
bly justified in a free and democratic society.”145 To determine whether an
infringement of a guaranteed right is a “reasonable limit” on that freedom, the
Court conducts a two-part test: First, is the purpose of the legislation suffi-
ciently important to justify overriding a guaranteed right or freedom? Second,
are the means used by the legislature in overriding the guaranteed right or
freedom “reasonable and demonstrably justified in a free and democratic so-
ciety?”146
This second question is often referred to as a proportionality analysis. To
determine whether the means of the legislation are proportional to the legisla-
tion’s objective, the Court considers three things: First, whether the means are
“rational, fair, and not arbitrary.”147 Second, whether the means have a

138 R. v. Morgentaler, [1988] 1. S.C.R. 30, 138 (Can.).

139 Id. at 52.
140 Id. See also Canadian Charter of Rights and Freedoms, § 7.
141 Morgentaler, 1 S.C.R. at 52. See also Singh v. Minister of Employment and Immi-

gration, [1985] 1 S.C.R. 177, 204 (Can.).

142 Morgentaler, 1. S.C.R. at 52.
143 Id. at 72.
144 Id. at 73.
145 Canadian Charter of Rights and Freedoms, § 1.
146 Morgentaler, 1. S.C.R. at 73.
147 Id. at 74.
2022] ROOTS OF RIGHTS 217

minimal impact on the right or freedom.148 Third, whether the effects of the
limitation are proportional to the purpose of the legislation.149
With that context in mind, we will examine Canada’s landmark abortion
decision: R. v. Morgentaler.

ii. R v. Morgentaler

In Morgentaler, the Court reviewed Section 251 of the Criminal Code.150

Section 251 criminalized abortion for both women seeking abortions151 and
doctors seeking to perform abortions.152 The provision provided a defense, or
exception, to the rule: the ban on abortions did not apply to qualified medical
practitioners who performed abortions at accredited or approved hospitals153
or to women who received an abortion from a qualified medical practitioner
at an accredited or approved hospital.154 Before women could undergo the
procedure under those conditions, they had to appear before a therapeutic
abortion committee at the hospital and receive a certificate stating that “in [the
committee’s] opinion the continuation of the pregnancy of such female person
would or would be likely to endanger her life or health.”155 The petitioners
were doctors who had opened an abortion clinic in Toronto that provided abor-
tions to women without complying with the conditions of Section 251’s ex-
ception.156 They contended that Section 251 violated Section 7 of the Charter,
and, “basing [their] argument largely on American constitutional theories . . .
submitted that the right to ‘life, liberty and security of the person’ is a wide-
ranging right to control one’s own life and to promote one’s individual auton-
omy.”157
The question in Morgentaler was “whether the abortion provisions . . .
infringe the ‘right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of fundamental
justice’ as formulated in” Section 7 of the Charter.158 The majority opinion,
written by Chief Justice Dickson, began by declaring that the Court need not
“explore the broadest implications” of Section 7 and that only the right to se-
curity of the person applied in the present case.159

148 Id.
149 Id.
150 Id. at 45.
151 Criminal Code, R.S.C. 1970, c C-34, § 251(2) (Can.).
152 Id. § 251(1).
153 Id. § 251(4)(a).
154 Id. § 251(4)(b).
155 Id. § 251(4)(c).
156 R. v. Morgentaler, [1988] 1. S.C.R. 30, 50 (Can.).
157 Id. at 51.
158 Id. at 45.
159 Id. at 51.
218 GA. J. INT’L & COMPAR. L. [Vol. 51:1

The right to security of the person includes the right to physical integrity160
but is not limited to bodily security. It also includes the right to be free from
state-imposed psychological trauma.161 Because the Court had previously held
that interfering with a person’s bodily integrity and causing them unnecessary
psychological stress was a violation of the right to security of the person, Chief
Justice Dickon concluded that Section 251 infringed on Section 7, saying:

At the most basic, physical and emotional level, every preg-

nant woman is told by the section that she cannot submit to
a generally safe medical procedure that might be of clear
benefit to her unless she meets criteria entirely unrelated to
her own priorities and aspirations. Not only does the removal
of decision-making power threaten women in a physical
sense; the indecisions of knowing whether an abortion will
be granted inflicts emotional stress. Section 251 clearly in-
terferes with a woman’s bodily integrity in both a physical
and emotional sense. Forcing a woman . . . to carry a foetus
to term unless she meets certain criteria unrelated to her own
priorities and aspirations, is a profound interference with a
woman’s body and thus a violation of security of the per-
son.162

Notably, Chief Justice Dickson declined to comment on whether the Charter

implicitly contained a right to an abortion.163
The Court next analyzed whether the infringement was in accordance with
principles of fundamental justice. Chief Justice Dickson found that the proce-
dural safeguards—or lack thereof—in Section 251 were “manifestly un-
fair.”164 The hoops subsections 4(b) and 4(c) required women to jump through
in order to qualify for an abortion without threat of prosecution “would in
practice prevent the woman from gaining the benefit of the defence.”165 The
Court explained that 58.5% of hospitals in the country either did not have a
large enough medical staff or did not have the treatment capabilities necessary
to establish a therapeutic abortion committee, and even if hospitals had the
capability to establish committees, they were under no obligation to do so or
to provide abortions.166 Though the provisions of Section 251 seemed neutral
on their face, in practice, the law made it difficult for women who might qual-
ify for an abortion under the listed exceptions of Section 251 to actually obtain

160 R. v. Mills, [1986] 1 S.C.R. 863, 919 (Can.).

161 Morgentaler, 1. S.C.R. at 55.
162 Id. at 56–57.
163 See id.
164 Id. at 72.
165 Id. at 70–71.
166 Id. at 66.
2022] ROOTS OF RIGHTS 219

one. The structure of the law itself was not “in accordance with principles of
fundamental justice.”167
The Court then conducted the proportionality analysis necessary to deter-
mine whether Section 1 of the Charter might save the legislation if it the re-
strictions imposed by the law could be “demonstrably justified in a free and
democratic society.”168 The Court found that the primary purpose of Section
251 was to protect the life and health of pregnant women; protecting the “in-
terests” of the fetus were a secondary objective.169 Both were valid and appro-
priate legislative interests, but the Court held that the means in achieving those
goals were not proportionate.170 The procedures governing access to abortion
were arbitrary and unfair, the infringement on the right to security of the per-
son was greater than necessary, and the impact of Section 251 on Section 7
rights was not proportional to the goal of protecting a woman’s health and
life.171 In fact, the Court felt that the effect of Section 251—making it more
difficult for women to access abortion—was actually contrary to its legisla-
tive purpose.172
In his dissent, Justice McIntyre accused Chief Justice Dickson of estab-
lishing a fundamental right to abortion through the right to security of the per-
son, though Chief Justice Dickson did not explicitly say as much.173 Justice
Wilson based his entire concurrence on the premise that Section 7 did, defin-
itively, grant women a right to abortion.174 Unlike the majority’s opinion,
however, Justice Wilson believed that the right within Section 7 at issue in
this case was the right to liberty.175 In Justice Wilson’s view, the right to lib-
erty should—to some extent—protect a person’s autonomy and the right to
make personal decisions about the course of their own private lives.176 The
decision of whether to terminate a pregnancy or carry a fetus to term would
fall within those kinds of protected personal decisions, as that decision carries
with it economic, social, and psychological implications and questions that
the woman must answer for herself as a “whole person.”177
The Court struck down Section 251 as inconsistent with the Charter, leav-
ing Canada with no national laws regulating abortion.178 But did Morgentaler
leave Canada with a well-established right to abortion? Despite a concurring
opinion finding a right to abortion within Section 7’s right to liberty and a

167 Id. at 76.

168 Id. at 73; Canadian Charter of Rights and Freedoms, § 1.
169 Morgentaler, 1 S.C.R. at 74.
170 Id. at 75.
171 Id. at 76.
172 Id. at 75–76.
173 Id. at 142 (McIntyre, J. dissenting).
174 Id. at 161–84 (Wilson, J., concurring).
175 Id. at 163.
176 Id. at 166.
177 Id. at 171.
178 Id. at 79–80 (majority opinion).
220 GA. J. INT’L & COMPAR. L. [Vol. 51:1

dissent insisting that the majority overstepped its bounds and established a
right to abortion, Chief Justice Dickson refused to rule on that matter in his
majority opinion. Instead, Morgentaler merely found that the regulations set
out by Section 251 were a violation of the right to security of the person.179
But consider: what sort of law regulating abortion could be upheld under the
scrutiny of the Court if this law could not? Could any abortion regulation
withstand an application of the reasoning and analysis of Morgentaler?
No laws were ever passed to replace Section 251. Even today, almost 40
years after Morgentaler, Canada has none of the traditional legal barriers to
abortion.180 The right to security of the person—–and, in the mind of at least
one justice, the right to liberty—has protected a woman’s ability to procure
an abortion for over a generation.

D. The Council of Europe

i. The European Convention on Human Rights

Entered into force on September 3, 1953,181 the European Convention on

Human Rights (the Convention) is a treaty between the nations of the Council
of Europe intended to maintain and further the “fundamental freedoms which
are the foundation of justice and peace in the world” and which are necessary
in keeping free and democratic societies.182 Forty-six member states have
made a legal commitment to protect the basic rights articulated in the docu-
ment.183 Among those rights are the right to life,184 the prohibition of tor-
ture,185 and the right to respect for “private and family life.”186
Citizens of member states bring claims arising from violations of the Con-
vention against their home countries.187 These claims are adjudicated by the
European Court of Human Rights (ECHR).188 In total, the ECHR has forty-

179 Id. at 51.

180 GUTTMACHER INST., supra note 13.
181 CONSULTATIVE ASSEMBLY OF THE COUNCIL OF EUR., Recommendation 183 on the

Establishment of the European Court of Human Rights, 10th Sess., (1958). See also Details
of Treaty 005, COUNCIL OF EUR., https://www.coe.int/en/web/conventions/full-list?mod-
ule=treaty-detail&treatynum=005 (last visited Oct. 16, 2022).
182 Council of Europe, Convention for the Protection of Human Rights and Fundamen-

tal Freedoms, pmbl., opened for signature Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter
ECHR].
183 46 Member States, COUNCIL OF EUR., https://www.coe.int/en/web/portal/46-mem-

bers-states (last visited Oct. 16, 2022).

184 ECHR, supra note 182, at art. 2.
185 Id. at art. 3.
186 Id. at art. 8.
187 Id. at art. 34.
188 Id. at art. 32.
2022] ROOTS OF RIGHTS 221

six judges, one for (but not necessarily from) each member state.189 However,
the judges only oversee cases as either a single judge, in a committee of three
judges, in chambers of seven judges, or in Grand Chambers of seventeen
judges.190 Serious questions involving the interpretation of the Convention
may be referred to the Grand Chamber.191 The ECHR’s decisions are legally
binding on the member states.192
When reviewing an alleged violation of Article 8’s right to private life, the
ECHR conducts an analysis similar to the Canadian Supreme Court’s method
of interpreting the Charter. First, the ECHR considers whether the state action
violates or is contrary to any of the positive or negative obligations Article 8
imposes on the member states.193 If it finds an interference with the right to
private life, the ECHR next asks whether the interference was in accordance
with the state’s law and was necessary in a democratic society.194 Article 8
allows official, state-sanctioned interferences under these conditions if the
government is pursuing a legitimate aim.195 The ECHR typically defers to the
states in determining what constitutes a “legitimate aim;” for example, “the
protection of . . . morals” is considered a legitimate aim.196 Finally, the ECHR
considers whether the violation of the right to private life is necessary and
proportionate to the government’s legitimate aim.197 It is not entirely clear
how the ECHR conducts a fact-specific proportionally test. Sometimes the
ECHR adopts a “priority to rights” approach, where the state’s reason for the
interference “must be ‘relevant and sufficient,’ [and the] need for the interfer-
ence must be ‘convincingly established.’”198 Other times, the ECHR has used
a “balancing” approach, which does not put as high burden on the states to
justify their violation of the Convention.199
With this context in mind, we will examine one of the ECHR’s more recent
decisions on abortion: A, B and C v. Ireland.200

189 Id. at art. 20.

190 Id. at art. 26.
191 Id. at art. 30.
192 Id. at art. 46.
193 A, B and C v. Ireland, 2010-VI Eur. Ct. H.R. 185, ¶ 216 (2010).
194 ECHR, supra note 182, at art. 8.
195 A, B and C, 2010-VI Eur. Ct. H.R. ¶ 222.
196 Id. ¶ 223; STEVEN GREER, THE EXCEPTIONS TO ARTICLES 8 TO 11 OF THE EUROPEAN

CONVENTION ON HUMAN RIGHTS 14–15 (1997).

197 GREER, supra note 196.
198 Id.
199 Id.
200 A, B and C, 2010-VI Eur. Ct. H.R. 185.
222 GA. J. INT’L & COMPAR. L. [Vol. 51:1

ii. A, B and C v. Ireland

While Ireland’s constitutional ban on abortion was overturned by referen-

dum in May 2018,201 when this case was heard in 2010, Article 40.3.3 of the
Irish Constitution read: “The state acknowledges the right to life of the unborn
and, with due regard to the equal right to life of the mother, guarantees in its
laws to respect, and as far as practicable, by its laws to defend and vindicate
that right.”202 The Irish Supreme Court had interpreted this provision to mean
that only in instances of an actual and immediate threat to the life of the mother
could she get an abortion.203 In cases where a woman’s health was at risk if
she continued the pregnancy, but death was not imminent, she was not entitled
to an abortion.204 Neither the Supreme Court nor the legislature had estab-
lished any official protocols or procedures through which a woman could
prove that continuing her pregnancy posed a risk to her life, and thereby gain
access to abortion services.205
The three plaintiffs—A, B, and C—were residents of Ireland.206 A was an
unmarried, unemployed, recovering alcoholic suffering from depression who
unintentionally became pregnant. She had four other children living in foster
care over whom she was attempting to regain custody, and a history of de-
pression.207 B was also unmarried and became unintentionally pregnant after
the morning-after pill failed.208 Both women believed that, given their life cir-
cumstances, they would not be able to take care of a baby.209 A was particu-
larly concerned about what an unwanted pregnancy would do to her mental
health and her sobriety.210 Both women traveled to England to procure abor-
tions early in their pregnancy.211
C suffered from a rare form of cancer for which she had undergone three
years of chemotherapy.212 Before the treatment, her doctor “advised that it
was not possible to predict the effect of pregnancy on her cancer and that, if
she did become pregnant, it would be dangerous for the foetus if she were to

201 Irish Abortion Referendum: Ireland Overturns Abortion Ban, BBC NEWS (May 26,
2018), https://www.bbc.com/news/world-europe-44256152.
202 What is the Eighth Amendment?, IRISH COUNCIL FOR CIV. LIBERTIES,

https://www.iccl.ie/her-rights/what-is-the-eighth (last visited Oct. 16, 2022). See supra

note 11 for the new version of Article 40.3.3.
203 See Att’y Gen. v. X [1992] IESC 1 [1992] 1 IR 1 (Ir.) (establishing a right to abor-

tion when the pregnant woman’s life is at risk, including by suicide).

204 Id.
205 A, B and C, 2010-VI Eur. Ct. H.R. ¶¶ 253–54.
206 Id. ¶ 11.
207 Id. ¶ 14.
208 Id. ¶ 19.
209 Id. ¶¶ 14, 19.
210 Id. ¶ 14.
211 Id. ¶¶ 13, 18.
212 Id. ¶ 23.
2022] ROOTS OF RIGHTS 223

have chemotherapy during the first trimester.”213 C became pregnant while in

remission. She grew concerned about the impact the pregnancy could have on
her health and life, as well as what impact the cancer and chemotherapy could
have on the fetus.214 C also traveled to England to have an abortion.215 A, B,
and C all suffered medical complications following their abortions abroad.216
The three women alleged that Ireland’s ban on abortion violated the Con-
vention.217 A, B, and C alleged that their rights under Article 3 (prohibition
on torture) and Article 8 (right to private life and private family life) had been
violated.218 C claimed that in her case, given the uncertainty of her position
medically, Article 2 (right to life) had also been violated.219
The ECHR began by summarily dismissing the applicant’s claims as to
Article 2 and Article 3, finding them “manifestly ill-founded.”220 C’s right to
life was not threatened because, despite her argument that “abortion was not
available in Ireland even in life-threatening situations” due to Ireland’s failure
to outline procedures for establishing that continuing pregnancy threatened
the mother’s life in some way, nothing stopped C from obtaining an abortion
elsewhere.221 There was “no . . . relevant risk” to her life because Ireland im-
posed no legal barriers to traveling abroad for an abortion.222 As to Article 3,
which dictates that “[n]o one shall be subjected to torture or to inhuman or
degrading treatment or punishment,”223 the ECHR found that even though
traveling for an abortion “was both psychologically and physically arduous
for each of the applicants,” the experience did not rise to the “minimum level
of severity… depend[ing] on all the circumstances of the case, such as dura-
tion of the treatment, its physical or mental effects,” necessary to constitute a
true violation of Article 3’s prohibition on torture.224
A, B, and C’s Article 8 claims required more attention and analysis. Article
8 says, in part, that “[e]veryone has the right to respect for his private and
family life, his home and his correspondence.”225 Article 8 has been broadly
interpreted by the ECHR to encompass a right to personal autonomy and a

213 Id.
214 Id. ¶ 24–25.
215 Id. ¶ 22.
216 Id. ¶¶ 16, 21, 26.
217 Id. ¶¶ 113–14.
218 Id. ¶¶ 160, 167.
219 Id. ¶ 157.
220 Id. ¶¶ 159, 165.
221 Id. ¶¶ 157–58.
222 Id. ¶ 158.
223 ECHR, supra note 182, at art. 3.
224 A, B and C, 2010-VI Eur. Ct. H.R. ¶ 164. Under the Convention, torture is “delib-

erate inhuman treatment causing very serious and cruel suffering.” Prohibition of Torture,
COUNCIL OF EUR., https://www.coe.int/en/web/echr-toolkit/interdiction-de-la-torture#
main-content (last visited Oct. 16, 2022).
225 ECHR, supra note 182, at art. 8.
224 GA. J. INT’L & COMPAR. L. [Vol. 51:1

right to physical and psychological integrity.226 A and B argued that the right
to privacy should grant them the right to abortion for “reasons of health and/or
well-being, and C argued that her “inability to establish her eligibility for a
lawful abortion” caused an interference with her right to private life and fam-
ily life.227 Though abortion touches on the sphere of private life, the ECHR
found that Article 8 “cannot be interpreted as meaning that pregnancy and its
termination pertain uniquely to the woman’s private life as, whenever a
woman is pregnant, her private life becomes closely connected with the de-
veloping foetus.”228 Article 8 therefore does not establish an affirmative right
to abortion, but, because of the broad scope of Article 8, some interferences
with a woman’s ability to terminate her pregnancy could constitute a violation
of the right to private life. The ECHR found that Ireland’s abortion ban was
an interference of all three plaintiffs’ Article 8 rights.229
After establishing that there was an interference with the plaintiffs’ rights,
the ECHR determined that the interference was in accordance with Irish
law.230 As the ban was part of the Irish Constitution, it was in accordance with
Irish law; the plaintiffs conceded as much.231 The next step in the analysis
involved examining whether the ban on abortion in all circumstances except
to save the mother’s life furthered a legitimate aim.232 Again, the answer
seemed obvious. Ireland’s ban on abortion “was based on profound moral val-
ues concerning the nature of life,”233 and protecting morality is written into
Article 8 as justifiable grounds for interference with the right to privacy.234
The plaintiffs argued that attitudes in Ireland had changed since the abortion
ban was added to the Constitution in 1983, citing several public opinion polls,
but the ECHR did not find the proposed evidence of overarching societal
change compelling.235

226 A, B and C, 2010-VI Eur. Ct. H.R. ¶ 216.

227 Id. ¶ 214.
228 Id. ¶ 213. The ECHR declined to discuss in any detail the rights or interests of the

fetus, instead pointing to a previous decision, Vo v. France, 2004-VIII Eur. Ct. H.R. 67, ¶
80 (holding that “the unborn child is not regarded as a ‘person’ directly protected by Article
2 of the Convention and . . . if the unborn do have a ‘right’ to ‘life’, it is implicitly limited
by the mother’s rights and interests” but also noting that “[t]he Convention institutions
have not, however, ruled out the possibility that in certain circumstances safeguards may
be extended to the unborn child.”).
229 A, B and C, 2010-VI Eur. Ct. H.R. ¶ 214.
230 Id. ¶ 219.
231 Id. ¶¶ 219–21.
232 Id. ¶¶ 222–28.
233 Id. ¶ 222. Ireland is majority Catholic. Census of Population 2016 – Profile 8 Irish

Travellers, Ethnicity and Religion, CENT. STAT. OFF. (Oct. 12, 2017, 11:00 AM) (Ir.),
https://www.cso.ie/en/releasesandpublications/ep/p-cp8iter/p8iter/. See supra note 6 for
the Catholic Church’s views on abortion.
234 ECHR, supra note 182, at art. 8.
235 A, B and C, 2010-VI Eur. Ct. H.R. ¶ 223.
2022] ROOTS OF RIGHTS 225

The ECHR affords a wide margin to states seeking to protect the morality
of their country, as “[s]tate authorities are in principle in a better position than
the international judge to give an opinion, on the ‘exact content of the require-
ments of morals’ in their country, as well as on the necessity of a restriction
intended to meet them.”236 Even though most member states of the Council of
Europe had more liberal abortion laws than Ireland, Ireland would still enjoy
some deference due to the deeply “profound” nature of moral values in gen-
eral and specifically involving abortion.237
The ECHR applied a balancing approach to determine whether the abor-
tion ban was proportional to the legitimate aim of preserving morality.238 Be-
cause Irish law did not prohibit women from traveling abroad to obtain abor-
tions, the judges felt that a balance between the women’s interest in their
private and family lives and the state’s interest in upholding an important
moral value was well struck.239 Though women could not get abortions spe-
cifically in Ireland, their actual ability to terminate a pregnancy was not fully
impeded, as women could travel abroad to undergo the procedure.240 A and B
lost their Article 8 claims.241
The ECHR felt that C, on the other hand, was in an entirely different po-
sition.242 Her specific claim that Ireland should have a procedural mechanism
by which to establish that her life was at risk to prove she was entitled to an
abortion had merit.243 Granting a woman a right to abortion when necessary
to save her life without outlining how she might establish that right created
“substantial uncertainty”244 and “a striking discordance between the theoreti-
cal right to a lawful abortion in Ireland on the ground of a relevant risk to a
woman’s life and the reality of its practical implementation.”245 Ireland had a
positive obligation under Article 8 to secure respect for the right to abortion
in life-threatening circumstances.246 Failure to establish a clear path forward
for women to obtain abortions lawfully when they met the requisite criteria
amounted to a violation of the Convention.247 C won her claim, and Ireland
was directed to create procedures to ensure that women who wanted to termi-
nate their pregnancies because of an imminent threat to their life could do
so.248

236 Id. ¶ 223.

237 Id. ¶¶ 223–26.
238 Id. ¶¶ 229–30.
239 Id. ¶ 241.
240 Id.
241 Id. ¶ 242.
242 Id. ¶¶ 243, 250–54, 257.
243 Id. ¶¶ 246.
244 Id. ¶ 254.
245 Id. ¶ 264.
246 Id. ¶ 267.
247 Id. ¶¶ 267–68.
248 Id. ¶¶ 265–67.
226 GA. J. INT’L & COMPAR. L. [Vol. 51:1

This case left women living in Council of Europe states in an uncertain

position regarding their right to abortion. The ECHR deliberately declined to
recognize a right to abortion under Article 8’s broad right to respect for private
life.249 It also deliberately declined to recognize a fetal right to life under Ar-
ticle 2’s right to life.250 At a minimum, the decision suggests that member
states may enact virtually any abortion ban as long as the state created clear
procedures for establishing qualifications for exceptions to the ban and did
not legally prevent women from traveling elsewhere to obtain an abortion.

E. Germany

i. The Basic Law for the Federal Republic of Germany

Adopted in the aftermath of World War II, the Basic Law for the Federal
Republic of Germany was “inspired by the determination to promote world
peace.”251 The 1949 document restructured the German government252 and
articulated new rights and freedoms guaranteed to all German people.253
Whereas the U.S. Constitution begins by outlining the structure and role of
the government before defining the rights the Constitution guarantees citi-
zens,254 the Basic Law begins with “Basic Rights.”255 The first protected
right—the first provision in the entire constitution—is the inviolable right to
human dignity and an affirmative duty of the German government to protect
and respect that dignity.256 Other rights in the Basic Law include a right to
freely develop one’s personality and a right to life and physical integrity.257
The Federal Constitutional Court of Germany (“FCC”) is responsible for
interpreting and enforcing the Basic Law.258 It is a specialized court that only
decides constitutional issues.259 Established in 1951, “[i]ts decisions are final

249 Id. ¶ 213.

250 See id. ¶ 222.
251 Grundgesetz [GG] [Basic Law] [Constitution], pmbl. (Ger.), translation at

http://www.gesetze-im-internet.de/englisch_gg/.
252 In the beginning, the Basic Law only applied to West Germany. When East Ger-

many rejoined the German Republic in 1990, the parliaments of both East and West Ger-
many voted to make the Basic Law the government constitution for the re-unified govern-
ment. Constitution of the Federal Republic of Germany, FED. MINISTRY OF THE INTERIOR
& CMTY., https://www.bmi.bund.de/EN/topics/constitution/constitutional-issues/
constitutional-issues.html (last visited Oct. 16, 2022).
253 Grundgesetz [GG] [Basic Law], arts. 1–19 (Ger.).
254 See U.S. CONST.
255 Grundgesetz [GG] [Basic Law], §1 (Ger.).
256 Id. at art. 1.
257 Id. at art. 2.
258 Id. at arts. 92–93.
259 Donald P. Kommers, German Constitutionalism: A Prolegomenon, 40 EMORY L.J.

837, 840 (1991).

2022] ROOTS OF RIGHTS 227

and binding on all other state organs.”260 Like the Supreme Court of Can-
ada,261 it considers its role in reviewing legislation and state policy to be lim-
ited; the FCC’s only standard of review is the Basic Law and whether the state
action falls within the constitutional framework.262 Constitutional questions
may come before the FCC in a number of ways. One way is at the behest of
the government.263 Unlike the United States Supreme Court, which can only
hear cases on direct appeal and cannot issue advisory opinions,264 the German
state, the German federal government, and the German parliament can request
the FCC review a constitutional question about any federal or state statute
immediately after the statute’s enactment, before a traditional legal dispute
arises.265
The FCC uses several guiding principles to test whether legislation is in
accordance with the Basic Law. First, the FCC looks to the actual text of the
law; unlike jurisdictions like the United States, where some jurists give great
weight the original intention of the framers of the U.S. Constitution, German
judges are all, in theory, pure textualists.266 They are supposedly only con-
cerned with the text and structure of the Basic Law. That being said, the FCC
also takes into account the value hierarchy of Basic Law rights.267
The value hierarchy of rights contemplates that certain rights within the
Basic Law have more weight or significance to them based on where within
the document they are articulated;268 the hierarchy of rights is especially im-
portant when two rights are said to conflict with one another. For example, if
the constitutionality of exclusionary single-gendered clubs or associations
came before the FCC, the FCC would be asked to weigh the right to equality
between men and women269 against the right to the freedom of association.270
Since the right to gender equality (Article 3) comes before the right to freedom

260 The Court’s Duties, BUNDESVERFASSUNGSGERICHT, https://www.bundesverfas-

sungsgericht.de/EN/Das-Gericht/Aufgaben/aufgaben_node.html (last visited Oct. 16,
2022).
261 Role of the Court, supra note 136.
262 The Court’s Duties, supra note 260.
263 Grundgesetz [GG] [Basic Law], art. 93(1) (Ger.).
264 See U.S. CONST. art. III.
265 Kommers, supra note 259, at 840–42.
266 Id. at 844–45.
267 See id. at 855–56. The FCC also generally considers proportionality but did not

conduct a proportionality analysis in either Abortion I or Abortion II, so the FCC’s ap-
proach to proportionality will not be discussed in this Note. For a discussion of the FCC’s
proportionality test, see Andrej Lang, Proportionality Analysis by the German Federal
Constitutional Court, in PROPORTIONALITY IN ACTION: COMPARATIVE AND EMPIRICAL
PERSPECTIVES ON THE JUDICIAL PRACTICE 22, 36–38 (Mordechai Kremnitzer et al. eds.,
2020).
268 Kommers, supra note 259, at 855–56, 860.
269 Grundgesetz [GG] [Basic Law], art. 3 (Ger.).
270 Id. at art. 9.
228 GA. J. INT’L & COMPAR. L. [Vol. 51:1

of association (Article 9), the right to gender equality would, in theory, take
precedence under the value hierarchy of rights.
With this context in mind, we will examine Germany’s two major abortion
decisions: Abortion I271 and Abortion II.272

ii. Abortion I

In 1974, the German national legislature passed a series of amendments to

the country’s Penal Code, including §§ 218–219, which made it a crime to
“interrupt[] a pregnancy after the 13th day following conception.”273 Women
who terminated their pregnancies could face up to a year in prison; doctors
who performed the abortion could be incarcerated for up to three years.274 193
members of the German parliament and five state governments asked the FCC
to review the law.275 The plaintiffs were not concerned that the law criminal-
ized abortions. Rather, they found § 218(a)’s exception to the crime by per-
mitting an abortion for any reason within the first twelve weeks of pregnancy
troubling.276 The petitioners argued that allowing unrestricted access to abor-
tion during the first twelve weeks of pregnancy violated the legislature’s duty
under the Basic Law to protect human dignity and life.277 They believed the
legislature had a positive duty to protect unborn life and could not enact a law
explicitly allowing its destruction.278
The FCC agreed.279 At issue was not just “the legal treatment of the inter-
ruption of pregnancy,” but “the protection of human life, one of the central
values of every legal order.”280 The rights to human dignity and to life, the
first two rights outlined in the Basic Law, were a “reaction to the ‘destruction
of life unworthy of life,’ to the ‘final solution’ and ‘liquidations,’ which were

271 Abortion I, supra note 14.

272 Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], 2 BvF 2/90,
May 28, 1993, https://www.bundesverfassungsgericht.de/SharedDocs/Downloads/EN/
1993/05/fs19930528_2bvf000290en.pdf?__blob=publicationFile&v=2 [hereinafter Abor-
tion II].
273 Abortion I, supra note 14, at 611–12.
274 Id. at 611.
275 Id. at 607–09.
276 Id. at 622. § 218(a) stated in full: “An interruption of pregnancy performed by a

physician with the consent of the pregnant woman is not punishable under § 218 if no more
than twelve weeks have elapsed since conception.” Id. at 611. § 218(b) also allowed women
to obtain abortions after this point if their lives or health were in danger and in cases where
genetic testing revealed a serious fetal anomaly, if the abortion was performed within the
first 22 weeks of pregnancy. Id. at 611–12.
277 Id. at 622.
278 Id. at 624–25.
279 Id. at 642–43.
280 Id. at 637.
2022] ROOTS OF RIGHTS 229

carried out by the National Socialistic Regime as measures of state.”281 These

values and rights were of the utmost importance; they signified the new Ger-
man government’s complete revocation of the previous regime and its new-
found commitment to world peace and progress.282
The FCC found that from a biological standpoint, human life begins when
the fertilized egg attaches to the wall of the uterus, approximately fourteen
days after conception.283 In their view, the development of the fetus was con-
tinuous and gradual from that point on, with no real tangible demarcation
points; the development of life could not be divided into stages.284 This was a
deliberate rejection of the U.S. Supreme Court’s reasoning in Roe, which di-
vided development into trimesters and declared viability the point at which
fetal life had some legal significance.285
Even birth did not constitute a significant point in the development of hu-
man life in the eyes of the FCC, since “the phenomena of consciousness which
are specific to the human personality . . . appear for the first time a rather long
time after birth.”286 Because life developed slowly and continuously after im-
plantation, the legal protections of Article 2—the right to life—applied to and
protected fetuses from that point forward. The FCC reasoned:

The right to life is guaranteed to everyone who “lives”; no

distinction can be made here between various stages of the
life developing itself before birth, or between unborn and
born life. “Everyone” in the sense of Article 2, Paragraph 2,
Sentence 1,287 of the Basic Law is “everyone living”; ex-
pressed in another way: every life possessing human indi-
viduality; “everyone” also includes the yet unborn human
being.288

Article 2, therefore, prevented direct attacks on developing life.

Having established that developing life was entitled to the same Article 2
protections as life after birth, the FCC next outlined what responsibilities and
duties that finding imposed on the state. First, it reiterated that Article 2 did,
in fact, create a positive obligation for Germany; it was the duty of the state

281 Id.
282 Id. at 637–42.
283 See id. at 609–10, 614. Hence § 218’s criminalization of abortion after 13 days post-

conception.
284 Id. at 638.
285 Id. at 667 (stating that Roe’s holding “would, according to German constitutional

law, go too far indeed”).

286 Id. at 638.
287 “Every person shall have the right to life and physical integrity.” Grundgesetz [GG]

[Basic Law], art. 2 (Ger.).

288 Abortion I, supra note 14, at 638.
230 GA. J. INT’L & COMPAR. L. [Vol. 51:1

to protect every human life.289 Though that directive was not explicitly laid
out in the text of Article 2, it could be “directly deduced” from the provi-
sion.290 That duty could also be found in Article 1, Paragraph 1, of the Basic
Law, which explicitly places an obligation on the state to protect human dig-
nity.291 The FCC found these two provisions created a comprehensive duty of
the state “to take a position protecting and promoting . . . life, that is to say, it
must, above all, preserve it even against illegal attacks by others.”292 That duty
included protecting fetuses from their mothers.293
Despite its powerful statement on the necessity of a fetal right to life under
the Basic Law, the FCC acknowledged that women had rights which could
conflict with the rights of the unborn.294 Just as Article 2 protected fetuses, it
also protected the mother’s interest in obtaining an abortion. While Paragraph
2 of Article 2 states that “[e]very person shall have the right to life and phys-
ical integrity,” Paragraph 1 states that “[e]very person shall have the right to
free development of his personality insofar as he does not violate the rights
of others or offend against the constitutional order or the moral law.”295
Whether to have children clearly fell within a woman’s right to develop her
personality, but the FCC emphasized that that right was not absolute, and that
terminating a pregnancy would violate the right of the fetus to live.296 The
right to life was absolute, and the “protection of life of the child en ventre sa
mere [in utero] takes precedence as a matter of principle for the entire duration
of the pregnancy over the right of the pregnant woman to self-determination
and may not be placed in question for any particular time.”297 Unlike other
decisions analyzed in this Note, there was no balancing the interests of the
mother against the interests of the fetus.
The FCC struck down the legislature’s new exception to the criminaliza-
tion of abortion.298 It also reaffirmed that the state could criminally punish
women and doctors for procuring or providing an abortion, respectively.299
However, the FCC also held that there were certain situations where criminal-
ization would not be appropriate: in cases of severe fetal deformity, in cases
where the woman’s life or health were in danger, and in cases of “social or
general emergency.”300 The “social or general emergency” exception allowed

289 Id. at 641.

290 Id.
291 Id.
292 Id. at 642.
293 Id.
294 Id. at 643.
295 Grundgesetz [GG] [Basic Law], art. 2 (Ger.) (emphasis added).
296 Abortion I, supra note 14, at 643.
297 Id. at 605.
298 Id. at 662–63.
299 Id. at 649.
300 See id. at 648.
2022] ROOTS OF RIGHTS 231

women to obtain abortions when they faced “conflicts of such difficulty that,
beyond a definite measure, a sacrifice by the pregnant woman in favor of the
unborn life cannot be compelled.”301 This final exception was so broad that
while abortion was undeniably illegal in Germany following this decision, it
was not completely inaccessible. It was not necessarily difficult for a woman
to find a doctor who would agree that she had a “social or general emergency”
necessitating an abortion.302

iii. Abortion II

The FCC handed down Abortion II almost twenty years after Abortion I.303
In Abortion II, the FCC held that the federal legislature could choose to de-
criminalize abortions during the first twelve weeks of pregnancy as long as
women underwent some form of counseling before getting the abortion.304
Abortion had to remain illegal, because the state could not under its Article 2
obligations sanction terminating a pregnancy.305 But the state did not neces-
sarily have to penalize women or doctors for a first-trimester abortion. The
state could—and indeed had to—take other measures to dissuade women
from terminating their pregnancies.306 Criminalization did not have to be
among those prophylactic measures.
For the purposes of this Note, the important outcome of Abortion II is that
the FCC considered two new constitutional provisions as potentially support-
ing a woman’s right to terminate her pregnancy, in addition to the already
acknowledged right to develop her personality freely: (1) the right to her dig-
nity under Article 1 and (2) the right to her life and physical inviolability under
Article 2.307 Still, neither of these additional competing legal values altered
the FCC’s stance on abortion or fetal life. Reaffirming Abortion I, the FCC
held that “a termination must be regarded for the duration of the pregnancy as
fundamentally wrong and thus forbidden by law. If there were no such prohi-
bition, control over the unborn’s right to life . . . would be handed over to the
free, legally unbound decision of a third party.”308
Unlike its American counterpart, Casey, Abortion II did not completely
overhaul the framework for analyzing the abortion question in Germany. It
reaffirmed the FCC’s actual original holding: that fetal life must take prece-
dence at all stages of pregnancy, but that in some circumstances, when the

301 Id.
302 See generally Rachel Rebouché, Comparative Pragmatism, 72 MD. L. REV. 85
(2012).
303 Abortion II, supra note 272.
304 Id. ¶¶ 185, 267.
305 Id. ¶ 267.
306 Id. ¶ 162.
307 Id. ¶ 153.
308 Id. ¶ 156 (citation omitted).
232 GA. J. INT’L & COMPAR. L. [Vol. 51:1

burden of carrying a pregnancy to term was unjustifiable, criminalizing abor-

tion would not be appropriate.309 In replacing the trimester system with the
undue burden test, the U.S. Supreme Court granted states increasing regula-
tory power over a woman’s right to choose.310 Allowing—but still morally
condemning—abortions in the first trimester after a woman goes through dis-
suasive counseling opened another route to abortion for women in Germany,
but it did not fundamentally shift the balance of rights at play in abortion cases
in the same way that Casey did. For this reason, many legal and feminist schol-
ars have observed that despite a formal recognition of the right to abortion in
the United States after Roe and Casey, that right “[was] unrealizable for many
women due to restrictive state and federal laws,” whereas in Germany, “early
abortion is widely available,” despite the formal recognition of a fetal right to
life.311

III. ANALYSIS OF THE COMPETING RIGHTS

A. Individual Rights Favoring a Right to Abortion

i. Right to Liberty

The first constitutional guarantee that supports a right to abortion is the

right to liberty. This right takes different forms in the jurisdictions discussed
in this Note. Strictly examining the texts of each jurisdiction’s governing doc-
uments, the U.S. Constitution and the Canadian Charter of Rights and Free-
doms both contain explicit guarantees of a right to liberty;312 in the German
Basic Law, liberty takes the form of the right to develop one’s personality
freely;313 and in the Mexican Constitution, a general liberty interest can be
derived from, among others, the rights to a healthy environment for one’s per-
sonal development, to family planning, and to choose one’s own occupa-
tion.314 But courts, in interpreting these documents, have expanded this liberty
right further. The United States has defined liberty as a comprehensive right,
“a rational continuum which, broadly speaking, includes a freedom from all
substantive arbitrary impositions and purposeless restraints.”315 Mexico has
conceived a right to build a “life project,” or the right to “personal fulfillment
based on the options that a persons have [sic] to lead their life and reach the

309 Id. ¶¶ 156–62.

310 See discussion supra Part II(A)(iii).
311 E.g., Rebouché, supra note 302, at 86.
312 U.S. CONST. amend. XIV, § 1; Canadian Charter of Rights and Freedoms, Part I of

the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c 11, § 7 (UK).
313 Grundgesetz [GG] [Basic Law], art. 2 (Ger.).
314 Constitución Política de los Estados Unidos Mexicanos [CP], arts. 4–6, Diario Ofi-

cial de la Federación [DOF] 05-02-1927, última reforma DOF 28-05-2021.

315 Poe v. Ullman, 367 U.S. 497, 543 (1961).
2022] ROOTS OF RIGHTS 233

destiny they have proposed.”316 In all, the right to liberty can best be defined
as it was by Justice Wilson of the Canadian Supreme Court in Morgentaler:
the right to liberty is a right to make decisions about the course of one’s life
and to have the state respect those choices.317
The inherent breadth of the right to liberty naturally encompasses a right
to abortion. If liberty endows us with the right to determine the course of our
lives, to make decisions for ourselves, then women must have the right to
choose whether to continue a pregnancy; “[f]ew decisions are . . . more basic
to individual dignity and autonomy, than a woman’s decision . . . whether to
end her pregnancy.”318 A right to liberty is the strongest source for a right to
abortion. The only thing a woman seeking an abortion under the right to lib-
erty needs to prove is that her ability to make a choice about her personal
life—i.e., her liberty—is being unduly interfered with. She does not need to
prove that being forced to carry the fetus to term would put her life at risk or
potentially damage her physical or mental health. She does not need to prove
that extenuating circumstances or hardships in her personal life necessitate an
abortion. She merely needs to assert that, by right, she ought to be able to
decide for herself whether to continue the pregnancy and that the state is stop-
ping her from exercising that right to choose. Barring any gestational limita-
tions (which this Note discusses below), jurisdictions where the right to abor-
tion is predicated on the right to liberty allow women to access abortion
services for any reason. This makes it the most comprehensive and protective
source for a right to abortion.
Though the right to liberty allows women to exercise a right to abortion as
a matter of choice, without necessitating any other justification, it is subject
to limitations. As alluded to above, the right to obtain an abortion for any
reason does not extend throughout the entire duration of the pregnancy in any
of the jurisdictions we have discussed.319 Like many rights, the right to liberty
is not absolute and uninfringeable.
For example, the U.S. Supreme Court acknowledged that abortion “is an
act fraught with consequences for others” and was therefore subject to some
level of regulation by the state.320 Immediately following Roe, this meant that
a woman could exercise her right to abortion, unrestricted, in the first trimester

316 AD 1388/2015, supra note 105, ¶ 70.

317 Morgentaler, 1. S.C.R. at 166–67.
318 Id. at 172 (quoting Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476

U.S. 747, 772 (1986)).

319 From a practical standpoint, Canada would be an exception to this rule, since there

are no laws restricting access to abortion at all in Canada. That being said, there is also no
right to abortion in Canada. So, while women may theoretically be able to obtain an abor-
tion at any stage of the pregnancy, they are not legally entitled to do so.
320 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 852 (1992), overruled by

Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

234 GA. J. INT’L & COMPAR. L. [Vol. 51:1

of her pregnancy.321 Roe represents the most autonomy women were entitled
to exercise in deciding whether to obtain an abortion in the United States. The
Court diminished that autonomy in Casey, allowing states to place obstacles—
as long as they were not substantial obstacles—in the path of a woman seek-
ing an abortion.322 Still, states could not force a woman to justify her choice
to terminate her pregnancy for a specific reason before the point of fetal via-
bility.323
Even with limits on when women can obtain abortions, the right to abor-
tion is strongest when rooted in the right to liberty. Furthermore, applying the
right to liberty in abortion cases appears to have broad appeal; all of the cases
discussed in this Note either based their decisions explicitly on a right to lib-
erty, made arguments rooted in a respect for liberty, or, if no right to abortion
was found, at least acknowledged in some respect that a woman’s personal
liberty was at stake in deciding against that right.324 These jurisdictions’
shared democratic values, expressed differently across different constitutional
landscapes, led every court to the same conclusion: the right to liberty sug-
gests a right to abortion.

ii. Right to Bodily Integrity

The right to bodily integrity may also serve as the basis for the right to
abortion. More concrete in its conception than the right to liberty (which can
be nebulous), the right to bodily integrity is exactly what it sounds like—a
right to security and control over one’s own person. Morgentaler was decided
on these grounds;325 the Canadian Charter of Rights and Freedoms contains a
right to security of the person, which amounts to a right to physical integ-
rity.326 The Canadian Supreme Court found that not only did preventing a
woman from “submit[ting] to a generally safe medical procedure that might

321 Roe v. Wade, 410 U.S. 113, 163 (1973), overruled by Dobbs v. Jackson Women’s

Health Org., 142 S. Ct. 2228 (2022).

322 Casey, 505 U.S. at 877–78.
323 See id. at 878 (summarizing the holding of the plurality). All of the restrictions

upheld in Casey impacted how (or the manner in which) a woman might obtain an abortion,
not why she might get one. Id.
324 Casey was decided on liberty grounds, see supra Part II(A)(iii); Roe and Mor-

gentaler had concurring opinions based on the right to liberty, see supra Parts II(A)(ii),
II(C)(ii); Mexico’s AD 1388/2015 decision leaned heavily on the idea of a life project, see
supra Part II(B)(ii)–(iii); and both FCC cases acknowledged that the woman’s right to self-
determination was the right in direct conflict with the fetal right to life, see supra Parts
II(E)(ii)–(iii). As for A, B and C v. Ireland, see supra Part II(D)(ii) (and the majority opin-
ion in Roe, see supra Part II(A)(ii)). A discussion of whether privacy rights are actually
liberty rights in the abortion context will follow. See infra Part III(A)(iii).
325 R. v. Morgentaler, [1988] 1. S.C.R. 30, 56 (Can.).
326 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,

being Schedule B to the Canada Act, 1982, c 11, § 7 (UK).

2022] ROOTS OF RIGHTS 235

be of clear benefit” constitute “a profound interference with a woman’s

body,”327 but preventing or delaying her from obtaining an abortion could be
“potentially [physically] devastating.”328 Abortion is a medical procedure;
abortions—and pregnancies—necessarily involve concerns of the body.
The concept of bodily integrity also appears several times in Casey as a
potential consideration or justification for finding a right to abortion, in both
the plurality opinion and in Justices Stevens’s and Blackmun’s concur-
rences.329 Only Justice Blackmun addresses in some detail how the right to
bodily integrity might protect a right to abortion, arguing that forcing a woman
to carry a fetus to term could cause her physical harm, thereby imposing
“physical invasions far more substantial than those this Court has held to vio-
late the constitutional principle of bodily integrity in other contexts.”330
The right to bodily integrity creates a relatively strong presumption in fa-
vor of a right to abortion. If a woman has a right to control her body, it follows
that she should have a right to submit to voluntary medical procedures or to
decide whether to subject her body to the strains of pregnancy and labor. The
exact strength of this argument is difficult to measure, however. The U.S. Su-
preme Court relied on a right to bodily integrity only tangentially, and the
Canadian Supreme Court refused to establish a specific right to abortion
through the right to security of the person in writing, though that may have
been the ultimate effect of Morgentaler regardless.
The analysis of the right to bodily integrity as a basis for abortion cannot
end there. The right to bodily integrity “is not restricted to physical integ-
rity”331—it may also protect a right to mental security and a right to be free
from cruel treatment. These sub-rights of the right to bodily integrity have
also played an important role in various courts’ analyses in abortion decisions.

a. Right to Mental Security and Freedom from “Cruel

Treatment”

A majority of the opinions discussed in this Note acknowledge that being

forced to carry an unwanted pregnancy to term could result in severe mental
distress.332 In Roe, Justice Blackmun was particularly cognizant of the immi-
nent psychological harm facing women who wanted but were prohibited from

327 Morgentaler, 1. S.C.R. at 56–57.

328 Id. at 58.
329 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 849, 857, 896 (1992), over-

ruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022); id. at 915 (Ste-
vens, J., concurring); id. at 926–27 (Blackmun, J., concurring).
330 Id. at 927 (Blackmun, J., concurring).
331 Morgentaler, 1. S.C.R. at 55.
332 See Roe v. Wade, 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women's

Health Org., 142 S. Ct. 2228 (2022); AD 1388/2015, supra note 105; Morgentaler, 1.
S.C.R. 30; A, B and C v. Ireland, 2010-VI Eur. Ct. H.R. 185 (2010).
236 GA. J. INT’L & COMPAR. L. [Vol. 51:1

obtaining an abortion.333 The Mexican Supreme Court was especially worried

that forcing motherhood upon women could damage not only their physical
health but also their overall well-being; well-being, to that Court, was “what
it means for each woman to be well . . . not only the quantity of life, but par-
ticularly the quality of that life, and how women feel about their wellbeing.”334
The ECHR in A, B and C and the Canadian Supreme Court in Morgentaler
gave freedom from unnecessary mental anguish the most attention, to opposite
ends. The ECHR acknowledged that being denied an abortion in Ireland and
thereby forced to travel abroad for abortions was psychologically arduous, but
ultimately found that the impact on the petitioners’ mental health did not rise
to the “minimum level of severity”335 necessary to cause a breach of Article
3’s prohibition on “torture or inhuman or degrading treatment.”336
The Morgentaler Court, on the other hand, was deeply perturbed by the
mental and emotional stress Canada’s abortion regulations might inflict on
women, citing studies and expert testimony on the psychological impact forc-
ing women to wait for an abortion could cause.337 To the Court, having to wait
for approval from a therapeutic abortion committee before being allowed to
obtain an abortion amounted to “psychological trauma” even in the women
who were eventually successful in their pursuit of abortions.338 Though, again,
the majority in Morgentaler refused to answer whether an absolute right to
abortion exists under the Charter,339 if the regulations at issue in that case were
so severe they constituted unjustifiable mental trauma, it is difficult to imagine
regulation might survive the Court’s inquiry. Certainly, being required to
travel to another country for an abortion, which the ECHR was willing to al-
low,340 would be unacceptable to the Canadian Supreme Court.
A right to be free from psychological trauma or cruel or degrading treat-
ment supports a right to abortion. However, because what constitutes severe
psychological harm is subjective and difficult to define, rooting the right to
abortion in the right to be free from mental distress or cruel treatment ulti-
mately creates a less comprehensive constitutional protection than the previ-
ously discussed approaches to abortion rights.

iii. Right to Privacy

The right to privacy is the most difficult to discuss within the abortion
context because it is often unclear whether a right to privacy or a right to make

333 Roe, 410 U.S. at 153. See also supra note 42.
334 AD 1388/2015, supra note 105, ¶ 74 (footnote omitted).
335 A, B and C, 2010-VI Eur. Ct. H.R. ¶¶ 163–64.
336 ECHR, supra note 182, at art. 3.
337 Morgentaler, 1. S.C.R. at 60.
338 Id. at 63.
339 See discussion supra, Part II(C)(ii).
340 A, B and C, 2010-VI Eur. Ct. H.R. ¶ 241.
2022] ROOTS OF RIGHTS 237

decisions about one’s private life is at the center of a given court’s analysis.
In other words, in abortion cases, is it really one’s privacy that is being threat-
ened, or is one’s liberty to make choices at stake?
This critique of using the right to privacy as the basis for finding a right to
abortion first appeared in Justice Stewart’s concurrence in Roe. Justice
Blackmun, in the majority opinion, insisted that the right to abortion was
rooted in a right to privacy, but all the cases he cited as supporting that con-
clusion were really liberty cases, not privacy cases.341 Justice Stewart pointed
this out, and cited the same line of case law in his concurrence to demonstrate
that the right to abortion comes from the Fourteenth Amendment’s substantive
right to liberty.342
A similar problem arises in A, B and C. The ECHR found that Ireland’s
complete and total ban on abortion, which forced women to travel abroad to
undergo an abortion procedure, infringed Article 8’s “right to respect for [a
person’s] private and family life.”343 Though Article 8 is couched in terms of
privacy, it has been interpreted as a “broad concept which encompasses, inter
alia, the right to personal autonomy and personal development.”344 Autonomy
and personal development are concepts more often associated with liberty
than with privacy. In both cases, though the decisions were framed in terms
of privacy, an in-depth look at the courts’ reasonings reveals a concern for the
freedom to make decisions and choices about one’s personal life—which is
encompassed by the right to liberty. Nevertheless, we may take courts at their
word for the purposes of this Note. If a court or judge insists they are basing
their opinion on a right to privacy, then we may proceed in our analysis as if
that opinion is rooted in the right to privacy.
The right to privacy is a relatively weak basis for the right to abortion be-
cause, even more so than the right to liberty, the right to privacy is not abso-
lute, especially in the abortion context.345 According to the ECHR and the
U.S. Supreme Court, a woman is not alone in deciding whether to terminate
her pregnancy.346 Though both courts explicitly refused to rule on when life
begins,347 both decided that when a woman is pregnant, she “cannot be

341 See supra pp. 205–06.

342 Roe v. Wade, 410 U.S. 113, 169–70 (1973) (Stewart, J., concurring), overruled by
Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022).
343 ECHR, supra note 182, at art. 8; see supra pp. 223–26.
344 A, B and C, 2010-VI Eur. Ct. H.R. ¶ 212.
345 See, e.g., Roe, 410 U.S. at 154 (“We . . . conclude that the right of personal privacy

includes the abortion decision, but that this right is not unqualified and must be considered
against important state interests in regulation.”).
346 Id. at 159; see also A, B and C, 2010-VI Eur. Ct. H.R. ¶ 213 (“[W]henever a woman

is pregnant, her private life becomes closely connected with the developing foetus.”).
347 Roe, 410 U.S. at 159 (“We need not resolve the difficult question of when life be-

ings.”); A, B and C, 2010-VI Eur. Ct. H.R. ¶ 213 (pointing to a previous decision, Vo v.
France, 2004-VIII Eur. Ct. H.R. 67, ¶ 80, which stated that “the unborn child is not regarded
as a ‘person’ directly protected by Article 2 of the Convention and . . . if the unborn do
238 GA. J. INT’L & COMPAR. L. [Vol. 51:1

isolated in her privacy”––the implication being that there is another person,

the fetus, involved in the decision.348 The involvement of someone else in the
decision strips the woman of some degree of protection the right to privacy
would normally afford her.
The FCC, in Abortion I, also acknowledged that the right to privacy might
protect a woman’s choice to terminate her pregnancy were she alone in mak-
ing that decision, stating:

Pregnancy belongs to the sphere of intimacy of the woman,

the protection of which is constitutionally guaranteed . . . .
Were the embryo to be considered only as a part of the ma-
ternal organism the interruption of pregnancy would remain
in the area of the private structuring of one’s life, where the
legislature is forbidden to encroach.349

As long as courts give some value to the notion of the fetus as a separate entity,
it is difficult to argue that the decision to terminate a pregnancy is a truly
private one. For this reason, in addition to the problem of whether privacy is
even the real right at issue in abortion cases, the right to privacy does not
provide strong support for finding a right to abortion.

iv. Right to Life

Finally, we turn to the right to life. The right to life protects a right to
abortion in both the most limited and the most absolute way. On the one hand,
a woman’s right to life protects her from being forced to continue a pregnancy
that puts her very life at risk—but that may only occur in limited circum-
stances, and the risk she faces may be difficult to prove. On the other hand,
none of the jurisdictions reviewed in this Note have approved an abortion reg-
ulation scheme that did not include an exception to a ban on abortion in cases
where the woman’s life was threatened. In fact, most mandated that such an
exception exist.350

have a ‘right’ to ‘life’, it is implicitly limited by the mother’s rights and interests,” but also
noting that “[t]he Convention institutions have not, however, ruled out the possibility that
in certain circumstances safeguards may be extended to the unborn child.”).
348 Roe, 410 U.S. at 159; see also A, B and C, 2010-VI Eur. Ct. H.R. ¶ 213 (“[W]hen-

ever a woman is pregnant, her private life becomes closely connected with the developing
foetus.”).
349 Abortion I, supra note 14, at 642.
350 Such requirements exist in the United States under Roe and Casey and in Germany

under Abortion I and Abortion II. Even the Irish Supreme Court, before the constitution
was amended following the 2018 referendum, held that the constitutional fetal right to life
must fall when the mother’s life was threatened, even if the risk to her life came from a
2022] ROOTS OF RIGHTS 239

Mexico’s AD 1388/2015 decision contained the most robust discussion on

the connection between the right to life and the right to abortion through the
lens of Mexico’s constitutional right to health.351 As previously discussed, the
right to health in Mexico is incredibly expansive, protecting everything from
a right to physical health to a right to satisfaction with one’s state of being.352
Because the First Chamber viewed the right to life as interdependent with the
rights to health, “dignity, autonomy, freedom, to freely develop one’s person-
ality, information, non-discrimination, equality, intimacy, privacy and the
right to live without cruel, inhuman or degrading treatment,” it is difficult to
isolate the significance of the right to life in the AD 1388/2015 decision.353
The Mexican right to life, in this context, is significantly farther reaching than
the right to life considered by other courts in abortion cases; it seems to in-
clude a right to be satisfied with the outcome of one’s life as much as it does
a right to actually be alive. The right to life includes the right to “live as one
chooses . . . to live well . . . [and] to live without humiliation.”354 The First
Chamber’s application of the right to life is perhaps best thought of as an
anomaly in global abortion jurisprudence—or as the right to liberty by another
name.355

B. Individual Rights Supporting a Fetal Right to Life

i. Positive Right to Life

Only one jurisdiction examined in this Note favors a right to fetal life over
a right to abortion: Germany. Haunted by the specter of the Nazi government,
“to which the individual life meant little and which therefore practiced limit-
less abuse with its presumed right over life and death of the citizen,” the FCC
found that the new Basic Law required the German government to take an
absolutist stance to protect life in every stage of development.356 If it held

likelihood that she would commit suicide. See generally Att’y Gen. v. X [1992] IESC 1
[1992] 1 IR 1 (Ir.).
351 AD 1388/2015, supra note 105, ¶ 68 (“The right to life, in its broadest sense, must

be understood as a right interdependent with the right to health.”).

352 Id. ¶¶ 51–52.
353 Id. ¶ 56.
354 Id. at 31.
355 According to the First Chamber, Mexico’s right to a life project, which it defined

as “personal fulfillment based on the options that a persons have to lead their life and reach
the destiny they have proposed,” technically derives from its right to life. Id. at 32. But the
concept of a life project so clearly falls into the category of a liberty right that it was dis-
cussed under that heading in this Note instead.
356 Abortion I, supra note 14, at 638.
240 GA. J. INT’L & COMPAR. L. [Vol. 51:1

otherwise, or provided developing fetal life with lesser protections, “security

of human existence . . . would be incomplete.”357
This Note has previously established that a right to life generally weighs
in favor of a right to abortion. What differentiates the right to life guaranteed
by the other jurisdictions from the right to life guaranteed by the Basic Law is
that, in other jurisdictions, the right to life is not a positive right.358 In the
United States, for example, the right to life prevents state interference with a
general right to be alive but does not require that the state take affirmative
action to actually protect someone’s life.359 In the abortion context, the Amer-
ican right to life manifested as a command that states may not prevent women
from obtaining an abortion if the pregnancy threatens their life. It is not a re-
quirement that the state provides an abortion to a woman whose life is at
stake.360 Without a positive obligation on the state to actively intercede to pro-
tect life, it seems the right to life is not strong enough to support an all-en-
compassing fetal right to life.
The inverse is true in Germany. To protect life, the state must prohibit
abortions.361 Under the value hierarchy theory of German law, no rights are
more important than the right to human dignity and the right to life.362 Those
rights must be enforced to the fullest possible extent.
Even then, the positive obligation placed on the state to protect fetal life
by the Basic Law is not, in practical terms, absolute. In Abortion I, the FCC
outlined four major exceptions where forcing a woman to carry the fetus to
term is non-exactable: where the woman’s life or health is danger, where the
pregnancy results from an illegal act (like rape), in cases of severe fetal de-
formity, and in cases of general social need.363 Though this framework was
not nearly as permissive as Roe’s trimester framework, it provided for a fairly
expansive set of exceptions to the abortion ban. After Abortion II, those ex-
ceptions widened when the FCC held that the legislature could allow a woman
to obtain an abortion—without facing criminal charges—within the first

357 Id.
358 Grundgesetz [GG] [Basic Law], art. 1(2) (Ger.). See also Abortion I, supra note 14,
at 641 (holding that a positive right to life could be “deduced” from Article 2 and also
stemmed from the positive obligations on the state to protect human dignity found in Arti-
cle 1).
359 See, e.g., Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) (holding that a

municipality and its police department could not be held liable for failing to enforce a re-
straining order even when failure to enforce that restraining order led to the deaths of three
children).
360 Cf. AD 1388/2015, supra note 105, ¶ 104 (holding that “in the specific case of ter-

mination of pregnancy for health reasons, the State has the obligation to provide healthcare
services and appropriate medical treatment to prevent women from continuing – against
her will – with a pregnancy that places her at risk of suffering a health impairment”).
361 Abortion I, supra note 14, at 641–42; Abortion II, supra note 272, ¶ 267.
362 Kommers, supra note 259, at 855–56, 860.
363 Abortion I, supra note 14, at 648.
2022] ROOTS OF RIGHTS 241

trimester without having to prove she was in a position where forcing her to
carry the fetus to term would be non-exactable.364
The effect of these rulings is that while abortion is illegal and morally con-
demned in Germany, it is relatively accessible.365 A fetus’s fundamental pos-
itive right to life is not as absolute or preeminent as the FCC’s prose would
have a reader believe.

IV. CONCLUSION

The global abortion landscape has undergone rapid changes in the last few
years. In 2018, the people of Ireland voted to remove a fetal right to life from
its constitution.366 In 2020, Poland’s Constitutional Court struck down the ex-
ception to its abortion ban that over 98% of women in Poland seeking an abor-
tion used to access the procedure.367 That same year, Argentina and New Zea-
land’s legislatures legalized elective abortion during the early stages of
pregnancy.368 In 2021, Mexico’s Supreme Court decriminalized abortion and
created new protections to the right to abortion that it claimed surpassed Roe
v. Wade.369
As courts are asked to determine whether their constitutions protect a
woman’s right to choose—or, in the inverse, whether their constitutions ex-
plicitly protect a fetal right to life––they should consider that some rights
weigh more heavily in favor of one party over the other. The rights to liberty,
bodily integrity, privacy, and life weigh in favor of finding a constitutional
right to abortion. The right to liberty provides the strongest foundation for a
woman’s right to choose whether to terminate her pregnancy. Every jurisdic-
tion examined in this Note––despite the cultural and constitutional differences
between them––recognized the protection a right to liberty should afford
women in deciding whether to obtain an abortion. On the other hand, a posi-
tive right to life supports a right to fetal life. But neither the right to liberty
nor the positive right to life support their respective positions on abortion ab-
solutely. In both cases, the other party’s rights may necessitate a limitation;

364 Abortion II, supra note 272, ¶ 185.

365 See Rebouché, supra note 302.
366 Irish Abortion Referendum: Ireland Overturns Abortion Ban, supra note 201.
367 Poland Abortion: Top Court Bans Almost All Terminations, BBC NEWS (Oct. 23,

2020), https://www.bbc.com/news/world-europe-54642108.
368 Kevin Sieff et al., Abortion Rights Advocates Throughout Latin American Draw

Inspiration from Argentina Vote, WASH. POST (Dec. 30, 2020), https://www.washing-
tonpost.com/world/the_americas/argentina-abortion-legal-fernandez-senate-vote/2020/
12/28/4a6d77d4-492a-11eb-a9f4-0e668b9772ba_story.html; New Zealand Passes Law
Decriminalizing Abortion, BBC NEWS (Mar. 18, 2020), https://www.bbc.com/news/world-
asia-51955148.
369 Press Release: Mexico Reproductive Rights Decisions, supra note 94.
242 GA. J. INT’L & COMPAR. L. [Vol. 51:1

courts must engage in a balancing act between a woman’s rights and the po-
tential rights of the fetus.

V. EPILOGUE: IS DOBBS CONSISTENT WITH THE GLOBAL

UNDERSTANDING OF WHAT IT MEANS TO HAVE CERTAIN
CONSTITUTIONAL RIGHTS IN A FREE AND DEMOCRATIC SOCIETY?

In June 2022, the United States Supreme Court overruled Roe and Casey
in Dobbs v. Jackson Women’s Health Organization.370 In contrast with nearly
fifty years of the Court’s precedent, the majority opinion, penned by Justice
Samuel Alito, found no support for a right to abortion in the United States
Constitution.371 Was such a conclusion consistent with the global understand-
ing of what it means to have certain constitutional rights in a free and demo-
cratic society? No. In not finding support for a right to abortion in the U.S.
Constitution, the majority ignores several constitutional rights that other ju-
risdictions explored in this paper have found do provide a basis for a right to
abortion: the rights to liberty, bodily integrity, and life.
First, this Note concluded that a constitutional right to liberty most
strongly weighed in favor of a right to abortion. Justice Alito concluded that
finding the right to abortion “is an aspect of the ‘liberty’ protected by the Due
Process Clause of the Fourteenth Amendment” was a “bold assertion.”372
As previously discussed, “liberty” can be a nebulous term that, in and of
itself, “provides little guidance.”373 Rather than viewing liberty broadly or in
an evolving, global, modern context, the majority in Dobbs takes its prece-
dential directive to ask whether a right invoked under the Due Process
Clause’s right to liberty is “deeply rooted in [American] history and tradition”
to an extreme.374 Justice Alito’s survey of history led him to conclude that
abortion was widely outlawed and criminalized from the time Roe was handed
down back to the thirteenth century.375 Because abortion had been prohibited
from medieval times to the height of the women’s movement, there could be
no fundamental right to it.376
Certainly, the United States Supreme Court is entitled to determine how
the United States’ own constitution should be interpreted. But Justice Alito’s

370 Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).
371 Id. at 2284 (“[A] right [to abortion] has no basis in the Constitution’s text or in our
Nation’s history.”).
372 Id. at 2246.
373 Id. at 2235.
374 Id. at 2242 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).
375 Id. at 2249–54.
376 Id. at 2253–54 (“[A]n unbroken tradition of prohibiting abortion on pain of criminal

punishment persisted from the earliest days of the common law until 1973 . . . ‘Attitudes
toward [abortion] have changed since Bracton, but our laws have consistently condemned,
and continue to prohibit, [that] practice.’” (citation omitted)).
2022] ROOTS OF RIGHTS 243

near religious deference to historical practice, without serious consideration

for how centuries of de jure and de facto gender inequality shaped the com-
mon law and the legislation in place at the time Roe was decided,377 leaves the
United States in a Dark Ages almost more literal than proverbial in terms of
its approach to interpreting the right to liberty. Refusing to even consider that
liberty may encompass a right to abortion puts the United States wildly out of
step with similar international jurisdictions.
Second, the Dobbs majority ignores the right to bodily integrity. Though
American abortion jurisprudence has never relied heavily on the right to bod-
ily integrity,378 the majority does not consider bodily integrity at all.379 This
highlights a failure of the Court’s analysis, unique in the global abortion con-
text. Unlike every other case explored in this Note, Dobbs does not consider
the physical and psychological damage that may result from forcing women
to carry unwanted pregnancies to term. It does not consider the consequences
of its decision on women. Worst of all, it does not consider that women may
have constitutional rights—like the right to bodily integrity—that protect
them from those consequences. Throughout this Note, the debate over abor-
tion has been framed as a balancing act between the rights of the fetus and the
rights of the pregnant woman. Dobbs frames the issue as a matter of states’
rights,380 leaving all considerations of the woman and her right to bodily in-
tegrity out of the equation.
Third, Dobbs does not positively affirm that a pregnant mother has a right
to life. This Note previously characterized the constitutional right to life as the
right that “protects a right to abortion in both the most limited and the most
absolute way.”381 Though the majority notes that the Mississippi law at issue
includes an exception to its fifteen-week abortion ban “in a medical emer-
gency,”382 it does not mandate that abortion bans contain such an exception in
the same way Roe did.383 This is important because abortion regulations are
now subject to rational basis review; “[s]tates may regulate abortion for legit-
imate reasons” and such regulations are “entitled to a ‘strong presumption of

377 Justice Alito waves away these concerns by noting that women gained the right to

vote over fifty years prior to Roe, id. at 2260, the implication being that if they were not in
favor of such laws, enfranchised women should have simply changed them. This ignores
both African American women’s continued struggle for the right to vote and the ongoing
fight for true legal gender equality, which did not come to a head until the same era as Roe.
See, e.g., Reed v. Reed, 404 U.S. 71 (1971) (holding for the first time that gender-based
discrimination violated the Equal Protection Clause).
378 See discussion supra Part III(A)(ii).
379 Contra Dobbs, 142 S. Ct. 2228, 2328 (Breyer, Sotomayor, & Kagan, JJ., dissenting)

(examining the interaction between the right to bodily integrity and the right to abortion).
380 See id. at 2279, 2284 (majority opinion).
381 See supra p. 238.
382 Dobbs, 142 S. Ct. at 2243 (quoting MISS. CODE ANN. § 41-41-191(4)(b) (2018)).
383 Roe v. Wade, 410 U.S. 113, 164 (1973), overruled by Dobbs, 142 S. Ct. 2228

(2022).
244 GA. J. INT’L & COMPAR. L. [Vol. 51:1

validity.’”384 The Court identifies both protecting the life or health of the
mother and protecting prenatal life at all stages of gestational development as
legitimate state interests.385 Without clear direction from the Court to protect
the life of the mother, when those two legitimate interests come into direct
conflict with one another, is it not up to the state to choose which interest
should win out under rational basis review? Allowing a woman to die in order
to save the fetus is, undeniably, rationally related to the legitimate interest in
protecting prenatal life.
Dobbs may very well allow states to direct a woman to give up her life for
a fetus. In taking this position, the United States stands virtually alone in the
developed world,386 and certainly far apart from the other jurisdictions ex-
plored in this Note. Even if courts go on to strike down abortion bans that do
not have exceptions for when the life of the mother is at risk, if a woman dying
of pregnancy complications must go to court to litigate her right to live, it is
already too late.
In all, Dobbs is inconsistent with other jurisdictions’ holdings that certain
rights—like the right to liberty, the right to bodily integrity, and the right to
life—provide a strong presumption for finding that their constitutions protect
a fundamental right to abortion. While various understandings of what the
right to liberty means in the abortion context converge on a near universal
understanding among other jurisdictions, the United States has strayed from
that shared idea. Despite sharing similar fundamental structures of govern-
ment, comparable commitments to the values of democracy and human rights,
and kindred constitutional rights with Mexico, Canada, the Council of Europe,
and Germany, the United States now stands alone in its interpretation of those
constitutional rights.
The dissenters put it best: “In light of . . . worldwide liberalization of abor-
tion laws, it is American States that will become international outliers after”
the Dobbs decision.387

384 Dobbs, 142 S. Ct. at 2283–84 (quoting Heller v. Doe, 509 U.S. 312, 319 (1993)).
385 Id. at 2284.
386 See GUTTMACHER INST., supra note 13.
387 Dobbs, 142 S. Ct. at 2341 (Breyer, Sotomayor, & Kagan, JJ., dissenting).