Comparative Constitutional Law
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Comparative Constitutional Law

Edited by Tom Ginsburg and Rosalind Dixon

This landmark volume of specially commissioned, original contributions by top international scholars organizes the issues and controversies of the rich and rapidly maturing field of comparative constitutional law.
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Chapter 24: Autonomy, Dignity and Abortion

Donald P. Kommers


Donald P. Kommers* I INTRODUCTION Autonomy and dignity are associated concepts variously invoked to justify a woman’s decision to procure an abortion as well as to support legal measures to protect unborn life. Both values are deeply rooted in constitutional democracies devoted to the protection of individual liberty and the promotion of justice. Indeed, as the rights of speech, privacy and association demonstrate, they are multi-faceted concepts that overlap and collide in the fundamental rights jurisprudence of modern constitutional courts. Especially is this so on abortion. In the following comparative analysis of abortion law in Ireland, Germany and the United States, we shall find that each country has defined these values differently. Depending on how a society – or law – views unborn life, the two values often clash. As the constitutional jurisprudence of the United States, Germany and Ireland show, autonomy and dignity spar with one another when a woman’s ‘right’ to reproductive freedom clashes with the ‘right’ to life of the unborn.1 In this chapter, I examine how three constitutional democracies have sought to balance and define the values of dignity and autonomy in settling or reconciling the competing claims of pro-choice and pro-life interests. Accordingly, the analysis below is mainly descriptive, although its normative implications will merit some attention in the concluding section of this chapter. Why have I chosen to focus on Ireland, Germany and the United States? Economy is one reason. Limiting this chapter to three representative jurisdictions allows for a more careful examination of the factual...

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