Gonzales v. Carhart: Bringing Abortion Back into the Family Law Fold


Alone among abortion opinions, the U.S. Supreme Court’s second partial-birth abortion decision, Gonzales v. Carhart, included fetuses within the categories of human life and family relations. It spoke of a “bond” between a woman and her unborn “child.” Its analysis of constitutional law concerning abortion incorporated presumptions about parent-child relationships ordinarily applied only respecting already-born children: first that the law should prefer maintaining parent-child relationships; and second, that children are naturally vulnerable such that parents have a primary duty of protection, which will be supplemented by the state when a child’s welfare is seriously endangered. This article argues that Gonzales’ harmonizing of abortion law with family law has important and positive consequences not only for children’s health, but also for women and families in the areas of helping women to avoid unwanted pregnancies, and better accommodating women’s employment and other social commitments to women’s childbearing.