Using insights from Professor Stephen A. Simon’s Universal Rights and the Constitution, this Article argues that national courts should continue to assume an active role in the protection of privacy rights by giving due consideration to the nature of the privacy right in combination with the merits of the universal right theory. This Article then demonstrates that both foreign national courts and domestic state courts have recognized the right to procreate and key aspects of the right to abortion as fundamental rights.
Part II introduces the universal right theory, explaining why the theory is particularly relevant to the protection of privacy, in contrast to textualist Justices’ skepticism towards the theory. Part III provides an overview of reproductive privacy law in the United States and foreign jurisdictions. It highlights the judicial acknowledgement that reproductive freedom underpins human dignity and autonomy. Part IV then examines representative methods of judicial review in various jurisdictions, showing the remarkable similarities in the courts’ analyses. In conclusion, this Article identifies the role of judicial review based on the universal right theory, the convergence in the applicable standards of review, and the diminished precedential value of Buck v. Bell.
Reproductive Privacy in the World: Critical Examination of June Medical Services, L.L.C. v. Russo and Buck v. Bell,
28 Wash. & Lee J. Civ. Rts. & Soc. Just. 101
Available at: https://scholarlycommons.law.wlu.edu/crsj/vol28/iss1/5
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