A Comparative Study on the Constitutionalization of Abortion in Korea, On The Busy Intersection of Morality and Law
0
조회
0
다운로드
0
인용
0
참고문헌
키워드
초록
This study presents a comparative overview of certain parallel aspects in the legal history of the abortion debate as it transpired historically in the key judicial opinions in the United States and Germany, and recently in the Korean Republic. The object is to elucidate the extreme difficulty that the learned Justices of the Courts in the United States and Germany faced in attempting to objectively measure the moral values involved in the determination of maternal and fetal rights, and their inability to provide rational explanations for the initial prioritization or ultimate balancing of the rights. As a result, the Courts failed to direct and stabilize abortion regulation because their frameworks were neither proven to be equitable nor legally workable. The primary method of this study is to highlight the questionable nature of the legal frameworks of the original abortion opinions of the U.S. Supreme Court and the German Constitutional Court to demonstrate that they were guided more by the personal moral convictions of the Justices than by the dictates of the law. The goal is to offer a comparative context that begins to explore the question, whether the Korean Constitutional Court has indeed found a way to resolve the abortion debate once and for all, or alternatively, whether all protagonists in Korea ought to shift course to help avoid weakening the authority of the rule of law and its legitimacy in the public eye, by delaying any further attempt in the resolution of this controversial issue until a national debate on the dialectic results in a consensus in the public, scholarly, and ultimately legislative discourse that properly values and balances the mother’s right of self-determination with the natural right of the fetus to life.
Abstract
This study presents a comparative overview of certain parallel aspects in the legal history of the abortion debate as it transpired historically in the key judicial opinions in the United States and Germany, and recently in the Korean Republic. The object is to elucidate the extreme difficulty that the learned Justices of the Courts in the United States and Germany faced in attempting to objectively measure the moral values involved in the determination of maternal and fetal rights, and their inability to provide rational explanations for the initial prioritization or ultimate balancing of the rights. As a result, the Courts failed to direct and stabilize abortion regulation because their frameworks were neither proven to be equitable nor legally workable. The primary method of this study is to highlight the questionable nature of the legal frameworks of the original abortion opinions of the U.S. Supreme Court and the German Constitutional Court to demonstrate that they were guided more by the personal moral convictions of the Justices than by the dictates of the law. The goal is to offer a comparative context that begins to explore the question, whether the Korean Constitutional Court has indeed found a way to resolve the abortion debate once and for all, or alternatively, whether all protagonists in Korea ought to shift course to help avoid weakening the authority of the rule of law and its legitimacy in the public eye, by delaying any further attempt in the resolution of this controversial issue until a national debate on the dialectic results in a consensus in the public, scholarly, and ultimately legislative discourse that properly values and balances the mother’s right of self-determination with the natural right of the fetus to life.
참고문헌 (33)
- Alexy, R., "Constitutional Rights, Balancing, and Rationality", Ratio Juris, 16(2), pp.131~140 (2003)
- Beck, R, "Self-Conscious Dicta: The Origins of Roe v. Wade's Trimester Framework", Am. J. Legal Hist., 51, pp.505~530 (2011)
- Chiesa, L. E., "Of Persons and the Criminal Law: (Second Tier) Personhood as a Prerequisite for Victimhood", Pace L Rev., 28, pp.759~782 (2008)
- "Defense of Viability"[URL]
- Dworkin, R., "FREEDOM'S LAW: THE MORAL READING OF THE CONSTITUTION" (1996), Oxford University Press
- Enders, C., "A Right to Have Rights - The German Constitutional Concept of Human Dignity", NUJS L. Rev., 3, pp.253~264 (2010)
- Freund, P. A., "Storms over the Supreme Court", A. B. A. J, 69, pp.1474~1481 (1983)
- George, J., "Political Effects of Court Decisions on Abortion : A Comparison between the United States and the German Federal Republic", Int'l J. L. & Fam., 3, pp.106~136 (1989)
- Gilles, S. G., "Roe's Life-or-Health Exception : Self-Defense or Relative-Safety", Notre Dame L. Rev, 85, pp.525~620 (2010)
- Horan, D. J., "The Supreme Court on Abortion Funding: The Second Time Around", St. Louis U. L.J, 25(46), pp.411~428 (1981)
- Jonas, R. E., "West German Abortion Decision: A Contrast to Roe v. Wade", J. Marshall J. Prac. & Proc., 9, pp.605~684 (1976)
- Jonas, R. E., "West German Abortion Decision: A Contrast to Roe v. Wade, Preface", J. Marshall J. Prac., 9, pp.551~556 (1976)
- Kim, S., "The Role of Reproductive Justice Movements in Challenging South Korea’s Abortion Ban", Health & Hum. Rts. J., 21, pp.97~108 (2019)
- Kommers, D. P., "The Constitutional Law of Abortion in Germany: Should Americans Pay Attention", J. Contemp. Health L. & Pol'y, 10, pp.1~32 (1994)
- Lee, S. K., "A Comparative Analysis of a Pregnant Woman's Rights to Abortion: Notes on Constitutional Courts' Decisions of Abortion Laws in Germany and the United States, and their Implications for Korean Abortion Laws", Asian Women, 24, pp.75~101 (2008)
- Levy, R. E., "Paradoxical Parallels in the American and German Abortion Decisions", TUL. J. INT'l & COMP. L., 9, pp.109~166 (2001)
- McDonald, B. P., "A Hellersttedt Tale: There and Back Again", U.Cin. L. Rev., 85, pp.979~1016 (2018)
- Miedel, F., "Is West Germany’s 1975 Abortion Decision a Solution to the American Abortion Debate: A Critique of Mary Ann Glendon and Donald Kommers", N.Y.U. Rev. L. & Soc. Change, 20, pp.471~516 (1993)
- Morris, D. G., "Abortion and Liberalism: A Comparison between the Abortion Decisions of the Supreme Court of the United States and the Constitutional Court of West Germany", Hastings Int'l & Comp. L. Rev, 11, pp.159~246 (1988)
- Nagel, R. F., "Political Pressure and Judging in Constitutional Cases", U. Colo. L. Rev., 61, pp.685~702 (1990)
- Neuman, G. L., "Casey in the Mirror: Abortion, Abuse and the Right to Protection in the United States and Germany", AM. J. COMP. L., 43, pp.273~314 (1995)
- Olsen, F., "Unraveling Compromise", Harv. L. Rev., 103, pp.105~135 (1989)
- "A, Mississippi AG Certifies Trigger Law, Criminalizing Most Abortions" (2022)[URL]
- Porter, J., "From Natural Law to Human Rights: Or, Why Rights Talk Matters", J. L. & RELIGION, 14, pp.77~96 (1999)
- Posner, R. A., "The Problematics of Moral and Legal Theory", Harv. L. Rev., 111, pp.1637~1717 (1998)
- 이우영, "Decision of the Korean Constitutional Court of Nonconformity of Statute with the Constitution and the Subsequent National Assembly Legislative Process in Korea’s Constitutional Democracy", Journal of Korean Law, 20(1), pp.1~55 (2021), 아시아태평양법연구소[DOI]
- Rice, C. E., "Abortion, Euthanasia, and the Need to Build a New Culture of Life", Notre Dame J.L. Ethics & Pub. Pol'y, 12, pp.497~528 (1998)
- "PROPORTIONALITY IN KOREA, Ch.4" (2020)[URL]
- Somek, A., "THE CONSMOPOLITAN CONSTITUTION" (2014), Oxford University Press
- Suk, J. C., "A World without Roe: The Constitutional Future of Unwanted Pregnancy", Wm. & Mary L. Rev., 64, pp.443~524 (2022)
- Urbana, F. J., "A CRITIQUE OF PROPORTIONALITY AND BALANCING" (2017), Cambridge University Press
- Van der Walt, J., "THE HORIZONTAL EFFECT REVOLUTION AND THE QUESTION OF SOVEREIGNTY" (2014), De Gruyter
- Jurgen Brohmer, "60 YEARS OF BASIC LAW: THE GERMAN CONSTITUTION AND ITS COURT, LANDMARK DECISIONS OF THE FEDERAL CONSTITUTIONAL COURT OF GERMANY IN THE AREA OF FUNDAMENTAL RIGHTS" (2012)