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Golden Gate University Law Review

Abstract

This Comment considers the question of abortion as a fundamental right by reframing pregnancy as a ground for implied contract. The recent decision in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022) rejected the Fourteenth Amendment’s Due Process Clause as a basis for asserting a fundamental right to abortion. However, other constitutional limits on state power may provide different avenues to such an assertion. Specifically, the Contracts Clause of Article I, Section 10 of the U.S. Constitution prohibits the states from impairing the freedom to contract. This Comment argues that the key issue in the abortion debate is whether women have the right to consent to the bodily changes imposed by a fetus during pregnancy. Thus, viewing pregnancy as an implied contract would create a new paradigm to protect the right to terminate a pregnancy in the absence of a right under the Fourteenth Amendment. This Comment argues further that pregnancy creates an implied contract with the fetus (and ultimately the born child) to provide the child with an environment that will foster the child’s development. Where the state restricts a person’s ability to choose to enter the contract, i.e., limits the right to abortion, such laws unconstitutionally subject the person to involuntary servitude in violation of the Thirteenth Amendment of the U.S. Constitution. Using pre-Roe scholarship as a starting point, the Comment distinguishes between consensual and nonconsensual pregnancies to argue that terminating pregnancy aligns with the Contract Clause’s original intent to protect natural rights. The Comment also responds to various counterarguments.

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