摘要
1973年“罗伊诉韦德案”以联邦判例法形式确立了美国妇女的堕胎权。但自该案后,美国反堕胎主义者在该国各地组织了各种声势浩大的反“堕胎合法化”抗议活动,采取各种手段阻止女性堕胎,最终促使美国联邦最高法院通过判决否定了美国女性受联邦宪法保护的堕胎权。美国妇女堕胎权宪法保障的丧失是美国堕胎与反堕胎力量持续斗争的结果,也是不同话语竞争的结果。在人权理念影响下,美国反堕胎主义者逐渐将宗教话语转化为“胎儿人格理论”“堕胎有害论”等人权话语,并获得了精英阶层的广泛支持,当胎儿生命权与妇女隐私权发生冲突时,法律更倾向于保护胎儿利益。在此影响下,各种反堕胎立法在联邦与地方不断涌现,也最终促成了美国联邦最高法院推翻1973年“罗伊诉韦德案”判例。但该案的宣判并不意味着纷争的结束,围绕堕胎权问题的争论恐将一直持续。
In 1973,Roe v.Wade established women’s right to abortion in the United States in the form of federal case law.However,since that case,antiabortionists in the United States have organized various large-scale protests across the country against the“legalization of abortion”and adopted a variety of means to prevent women from having abortions,which ultimately prompted the Supreme Court of the United States to make a decision denying American women’s right to abortion that had been protected by the Constitution.The loss of the constitutional protection of women’s right to abortion is the result of the ongoing battle between pro-abortion and anti-abortion forces in the United States,as well as the result of the competition between different discourses.Nowadays,the most important jurisprudential basis for the legality of abortion in the United States is the protection of the individual’s“right to privacy”,i.e.,a woman has the freedom to choose whether or not to have an abortion and this freedom falls within the protection of the individual’s“right to privacy”under the Constitution of the United States.In Roe v.Wade,the Supreme Court confirmed that the individual’s“right to privacy”guaranteed by the Constitution included a woman’s right to decide whether or not to terminate her pregnancy.Another important jurisprudential rationale for the right to abortion derives from the respect for the“right to life and health”,i.e.,legalizing abortion is objectively necessary to protect a woman’s“life and health”and compared to continuing pregnancy and childbirth,abortion is more favorable to a woman’s life and health.Under the influence of human rights concepts,anti-abortionists in the United States have gradually transformed religious discourse into human rights discourse such as the“fetal personhood theory”and the“harmfulness of abortion”.The latter claims that abortion causes“depression,anxiety,and suicidal thoughts”in women by fabricating conditions such as post-abortion trauma or“post-abortion syndrome”.The fetal personhood theory,on the other hand,advocates for the recognition of the legal personality of the fetus,which consists of two main aspects:firstly,the law recognizes the fetus in pregnancy as having certain perceptual abilities,such as the“sense of pain”;and secondly,the fetus’legal status is elevated to the same level as that of a born baby.Under the premise that the law recognizes that the fetus has a sense of pain,even if the fetus has not yet become a full“person”in the legal sense,the pain of abortion causes suffering to the fetus and the act is inhumane,so it has no legitimacy.Moreover,when the legal status of the fetus is equal to that of a born baby,the fetus is a full“person”in the legal sense,so abortion is tantamount to“infanticide”.In the midst of competing discourses,the“fetal personhood theory”has gradually gained the support of the Americanélite,and when the right to life of the fetus conflicts with the right to privacy of a woman,the law is more inclined to protect the interests of the fetus.As a result,a variety of anti-abortion legislation has emerged at the federal and local levels,culminating in the Supreme Court’s overturning of Roe v.Wade in 1973.However,this decision does not mean the end of the controversy,and the debate over the right to abortion is likely to continue.
作者
张剑波
ZHANG Jianbo(School of International Law,Southwest University of Political Science and Law)
出处
《人权法学》
2024年第3期133-151,166,167,共21页
Journal of Human Rights Law
关键词
堕胎权
隐私权
胎儿人格理论
the right to abortion
the right to privacy
fetal personhood theory
