Michael Stokes Paulsen (University of St. Thomas School of Law) has posted The Insistent Analogy to Slavery (Washington and Lee Law Review, 2014, Forthcoming) on SSRN. Here is the abstract:
This essay examines the legal, constitutional, and political arguments over legal abortion over the past forty years in terms of their arrestingly close historical parallels in the similar arguments over legal slavery a century and a half earlier, including: the moral and public stakes of the controversy; the structure of the moral and legal arguments for each legal institution; the denial of full legal status to certain categories of human beings, in order to vindicate the asserted rights of others to dispose of such persons as they would see fit; the enlisting of theological justifications on both sides; the rhetoric of choice, toleration, and freedom; the rise and rhetoric of abolition movements and social and legal retaliation against such movements; the divisions within such movements; the tenacity of resistance to such movements; the issue of violence directed against perceived immoral legal institutions; parallels in legal regimes and Supreme Court jurisprudence; the support of law generally, for asserted immoral institutions, and the issue of obedience to law within such regimes; the phenomena of legal entrenchment and asserted judicial supremacy; and the seeming intractability of the issues to principled compromise and peaceful resolution.
