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The Jurisprudence of Doubt’: How the Premises of the Supreme Court's Abortion Jurisprudence Undermine Procreative Liberty
Journal of Law and Politics (1998)
  • Elizabeth Reilly, University of Akron School of Law

Two realities make continuing disagreement likely: the limits of human knowledge and the diversity of moral belief systems. Because disagreement will persist, we must learn to respect each others' positions. Without this respect, neither law (be it constitutional law or legislative law) nor politics (be it formal politics or informal public discourse) can provide an arena within which to address the multiple issues surrounding procreation, especially the issue of abortion, in a constructive way. The public debate in which we are mired is proof of the current failure of the political process to provide a workable vehicle for confronting these issues. Even as the issues are being returned in some measure to the legislative process, as a result of the undue burden test adopted in Casey, the public discourse has not improved. The political process cannot provide for constructive confrontation of the issues of procreation and abortion.

The failure of politics and public discourse is due in part to unstated negative assumptions about the moral, social and political value of procreative liberty, about women and their moral capacity to make decisions, and about procreation, all of which premise the Supreme Court's abortion jurisprudence and infect the public debate. By analyzing the Supreme Court's abortion jurisprudence, this article documents the profound lack of respect for the morality of the abortion choice, for women, and for their ability to make good moral choices that infects the law and makes the procreative liberty debate so intractable in our society. The article then suggests alternative premises on which to ground a workable jurisprudence and policy addressing procreative choices.

Part I examines the Supreme Court's abortion cases to expose the flawed premises that are incorporated into current analysis of the abortion issue.

Part II critiques those substantive premises as inapt and insufficient to ground rights or enable dialogue and solutions in the context of procreative decisionmaking.

Part III critiques the analytical process used for procreative rights, exploring its negative impact upon the resolution of constitutional and policy disputes involving such issues.

Part IV suggests new premises to replace the existing problematic premises, in pursuit of a viable jurisprudence of procreative liberty.

The issue is: What is the role of people in human procreation and what is the role of government? The answer requires a decision: should procreative choices be made by rules or with responsibility and love? Government can only control procreation by rules. But individuals can make choices, and choices can be made responsibly. Opting for procreation with responsibility requires respect--and trust. Failure to remove decisionmaking from the political arena and entrust it to individual hands will doom the societal response to the issues surrounding procreation.

  • abortion,
  • procreative rights,
  • Supreme Court
Publication Date
Fall 1998
Citation Information
Elizabeth Reilly, The Jurisprudence of Doubt’: How the Premises of the Supreme Court's Abortion Jurisprudence Undermine Procreative Liberty, 14 Journal of Law and Politics 757 (1998).