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The Law and Ethics of MedicineEssays on the Inviolability of Human Life$
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John Keown

Print publication date: 2012

Print ISBN-13: 9780199589555

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199589555.001.0001

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Back to the future of abortion law: Roe’s rejection of America’s history and legal traditions

Back to the future of abortion law: Roe’s rejection of America’s history and legal traditions

Chapter:
(p.109) Chapter 5 Back to the future of abortion law: Roe’s rejection of America’s history and legal traditions
Source:
The Law and Ethics of Medicine
Author(s):

John Keown

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199589555.003.0005

This chapter concerns the history of the crime of abortion in Anglo-American law. It outlines the historical development of the crime and summarises Justice Blackmun’s understanding of that history in his judgment for the majority of the US Supreme Court in Roe v Wade. The body of the chapter is a critique of an amicus curiae brief which was submitted to the Court in the later abortion case of Webster v Reproductive Health Services: the “historians’ brief”. The brief contended that abortion was not a crime at common law and that the anti-abortion legislation enacted in the US in the nineteenth century did not have as even one of its purposes the protection of the unborn child. The chapter rejects both of these claims and concludes by questioning the propriety of such “advocacy scholarship”.

Keywords:   abortion, law, history, Roe, Webster, historians' brief, advocacy scholarship

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