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Hastings International and Comparative Law Review

Abstract

Liberalism defines a relationship between individuals and the state in which individuals are treated equally by laws which provide certain rights. One of the central problems of applying liberal ideals is determining who the individuals accorded equal treatment are. A related problem is deciding who can make this determination. These problems also arise in court decisions concerning abortions. In its 1973 decision in Roe v. Wade, the United States Supreme Court declared unconstitutional a law that treated most abortions as crimes. Two years later, the Constitutional Court of West Germany struck down a national law that liberalized abortions. This Article compares the ways in which these decisions reflect different views of how liberalism should be applied. The author finds that the Roe v. Wade decision reflects the idea that judicial review is the appropriate means of protecting individual freedom from excessive state power. The majority opinion in the German decision demonstrates an authoritarian view of liberalism under which freedom rests in the state, which may impose moral values on individuals. The author also analyzes the German dissent, which found that the legislature should be the body responsible for protecting the rights of individuals. The author concludes that, for protecting individual freedoms, the classical liberal views of the Roe v. Wade majority and the German dissent are preferable to the authoritarian view of the majority opinion of the West German court.

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