Moral Authority in English and American Abortion Law

In R. (on the application of Axon) v. Secretary of State for Health & Another, the English High Court affirmed that young women are entitled to seek and receive sexual health care, including abortion care, without parental notification. This chapter examines the Court’s use of comparative constitutional authorities in its reasoning, focusing on the rejection of American authorities. Contrast and rejection, it is argued, can be an exercise in self-reflection, revealing how a court understands its own constitutional approach. Aversive constitutionalism presents opportunities to deconstruct claimed similarities and differences in constitutional approaches, to uncover and contest characteristics and assumptions otherwise unexamined. This chapter uses the contrast and rejection of American authorities in Axon to expose a fundamental characteristic underlying the English constitutional approach to young women’s abortion care. It is a shared rather than contrasted characteristic in American and English law. The characteristic is moral authority, defined as the legal authority to protect a state interest in prenatal life through moral abortion decision-making. Both American and English abortion law seek to protect a state interest in prenatal life by entrusting decision-making about young women’s abortion care to third parties: the family, the court, and the medical profession. Neither constitutional approach vests moral authority in young women themselves. Part I deconstructs the aversive constitutional move in Axon to expose the shared characteristic of third-party moral authority and the supporting set of assumptions underlying it. Part II turns to the assumptions themselves. The first assumption is that the involvement of third parties necessarily improves the moral quality of abortion decision-making. The second assumption is that such improvement is required. It is argued that both assumptions are gendered. Young women are denied moral authority on a feminine-gendered assumption of their underdeveloped capacity to engage in moral decision-making. The family, the court, and the medical profession are granted moral authority by virtue of their masculine-gendered identity. Third-party moral authority for this reason requires constitutional reform. Part III seeks to develop a reformed vision of moral authority in abortion law from the perspective of gender equality. It offers a constitutional approach that protects the state interest in prenatal life by entrusting and supporting the decision-making of young women, privileging the unique moral insight of their individual experience