The Supreme Court, the fetus, and the constitutional person [electronic resource]
說明
388 p
附註
Source: Dissertation Abstracts International, Volume: 67-06, Section: A, page: 2303
Adviser: Donald A. Downs
Thesis (Ph.D.)--The University of Wisconsin - Madison, 2006
This dissertation examines the intersection of constitutional personhood, Supreme Court decision-making, and the fetus in Roe v. Wade (1973). In Roe, the Supreme Court held that a fetus is not a Fourteenth Amendment "person" and thus lacks constitutional rights. Only a few Supreme Court decisions have explicitly analyzed a question of "constitutional personhood."
In my dissertation, I answer the following questions: Why did the Supreme Court, in Roe, analyze whether the fetus is a Fourteenth Amendment person? Furthermore, why did they examine the issue as they did? I studied the Court's decision making in Roe v. Wade (1973) and its companion case, Doe v. Bolton (1973), by analyzing the papers of several Supreme Court justices kept by the Library of Congress. I also studied 28 lower court decisions that analyzed state abortion laws in the period before Roe (1969-1973) to look for decision-making patterns on questions of personhood
The justices of the Roe Court thought that the non-personhood of the fetus was obvious. I conclude that this obviousness was a function of the adjudicative and jurisprudential context in which the question was raised, specifically, a lawsuit challenging an abortion law on abortion rights grounds. In addition, the obviousness of the fetus's constitutional status was a function of jurisprudential and attitudinal choices the justices made in conceptualizing, framing, and analyzing the issue, choices influenced by the adjudicative and jurisprudential context of abortion rights litigation
Based on my research, I construct a theory of Supreme Court decision-making on constitutional personhood. Constitutional personhood is a necessary condition for the exercise of constitutional rights and is, therefore, the foundation of American civil liberties. Understanding how the Supreme Court actually makes decisions on questions of personhood will become increasingly important as advances in science and medicine raise ever more complex questions about who belongs, constitutionally, and who does not. This dissertation contributes to the literatures of constitutional personhood, Supreme Court decision-making, and Roe v. Wade
