- This chapter analyzes constitutional decisions concerning abortion in the United States and Germany, their evolution over time, and their influence across jurisdictions. But it approaches this question from a vantage point, less common in the literature, concerned with the question of how abortion was constitutionalized. Examining the conflicts, within and across borders, that led to the first judicial decisions addressing the constitutionality of abortion laws in the 1970s sheds light on questions that prompted the birth of this body of law, and continue to shape its growth. It reveals the roots of the first constitutional decisions on abortion in modern debates over women’s citizenship. Reading the abortion decisions from this vantage point demonstrates how political conflict shapes constitutional law and constitutional law endeavors to shape political conflict.
Constitutional decisions on abortion began in an era when a transnational women’s movement was beginning to contest the terms of women’s citizenship, eliciting diverse forms of reaction, both supportive and resisting. As I show, the woman question haunts the abortion decisions, where it is initially addressed by indirection, and over time comes to occupy a more visible role, whether as an express concern of doctrine, or as a problematic nested inside of the growing body of law articulating a constitutional obligation to protect unborn life.
The body of constitutional law on abortion that has grown up since the 1970s is concerned with the propriety, necessity, and feasibility of controlling women’s agency in decisions concerning motherhood. Some courts have insisted that government should respect women’s decisions about motherhood, while many others have insisted that protecting unborn life requires government to control women’s decisions about motherhood. Over the decades a growing number of courts have allowed government to protect life by persuading (rather than coercing) women to assume the role of motherhood. Across Europe a growing number of jurisdictions are now giving women the final word in decisions about abortion — on the constitutional ground that it is the best way to protect unborn life. These remarkable developments suggest deep conflict about whether law should and can control women’s agency in decisions about motherhood. Reading the cases with attention to this conflict identifies questions that courts are grappling with in the latest generation of abortion decisions, illuminating ambiguities in the normative basis of constitutional frameworks and in their practical architecture.