Jane Maslow Cohen
This article discusses critical debate about individual control over the beginnings of life that has sprawled across the fields of academic law, philosophy, politics, religion, the life sciences, and the self-christened field of bioethics from the 1960s up to the present. The subject has formed in and around a cascade of popular pressures; biomedical advances; legislative, judicial, and public policy initiatives; media attention; and the boiling politics in which, at least in the United States, the whole series of enterprises has been bathed. The present undertaking will train on the law. It covers contraception in the United States, abortion law and policy in the United States, and contraception and abortion in Europe and the United Kingdom.
Eleanor D. Kinney and Priscilla Keith
This chapter examines the issue of access to healthcare, with particular emphasis on the five dimensions of the model proposed by Roy Penchansky and J. William Thomas: availability, accessibility, accommodation, affordability, and acceptability. It also discusses the constitutional powers of states and the federal government with respect to health, along with relevant health law. It outlines the three categories of law governing access to physicians and hospitals: direct obligations of physicians and hospitals to provide free care to the indigent; federal programs to provide health insurance or health services to vulnerable populations; and laws that affect the delivery of care based on the patient’s physical characteristics and immigration status. The chapter concludes by considering the United States’s failure to realize the human rights aspect of health in international treaties and suggesting that the country’s efforts when it comes to access to physicians and hospitals leave much to be desired.
Jenny S. Martinez
Armed Conflict and Forced Migration: A Systematic Approach To International Humanitarian Law, Refugee Law, And International Human Rights Law
This chapter examines the application of three branches of international law to forced migration and refugee protection in an armed conflict. It provides a comparative assessment of these branches of international law in terms of their application to protection of refugees in war, refugees fleeing war, and refugees in post-war contexts. The analysis indicates that international humanitarian and refugee law are not a panacea in terms of protection, and that it is international human rights law that fulfils the central function of filling the gaps in protection left by humanitarian and refugee law.
This article focuses on debates, both historic and contemporary, surrounding assisted reproductive technologies (ART) and abortion. After providing a historical background on ART and abortion and their integration into modern reproductive life, the article discusses the current usage of both techniques in America. It then compares the populations who avail of ART and abortion before turning to an analysis of the regulatory landscape surrounding the two procedures, along with reproduction as a fundamental right. It also examines the issue of whether the existing jurisprudence concerning the right to avoid procreation can be applied equally to the right to access parenthood through assisted conception. The article concludes with an assessment of three areas in which ART and abortion have overlapped: selective reduction of multiple pregnancy, the personhood movement, and perinatal genetic diagnosis.
Chris A. Robinson
Mark Barnes and David Peloquin
This article examines federal and state laws on biomedical research in the United States. It also considers the tension among various regulatory regimes and highlights conflicting regulations that could be better harmonized. The article first describes regulatory regimes that govern protections for human subjects, with particular reference to the federal Common Rule and the Food and Drug Administration’s regulations on the protection of human subjects. The discussion then turns to state laws on informed consent; privacy laws; laws on clinical trials registration and data transparency; financial disclosure requirements; research misconduct such as fabrication, falsification, and plagiarism; and animal research requirements. The article concludes by presenting additional considerations related to federal funding of research.
This article highlights the trials and tribulations of citizenship in a world of increasing mobility and diversity. The discussion is divided into three parts. Section I provides a concise overview of citizenship's multiple meanings and interpretations. Section II constitutes the bulk of the discussion. It begins by exploring questions of membership acquisition and transfer, which legally determine ‘who belongs’ within the boundaries of a given political community, either by birth or naturalization. It then assesses three recent developments: the growing recognition of dual nationality; the revival of debates about involuntary citizenship revocation; and the ‘cultural turn’ in citizenship discourse, which often makes inclusion in the body politic more difficult for those deemed ‘too different’ from the majority community. Section III charts the major challenges and opportunities facing citizenship in the twenty-first century.
The relationship of citizenship and human rights has become a central issue for contemporary politics. This chapter begins with a brief overview of theories of human rights, before addressing two pivotal topics for this relationship: a human right to citizenship (as membership of a state) and a human right to democracy. It then turns to consider the practical salience of the international human rights regime for citizenship and human rights, before concluding with a discussion of the relationship of human rights as cosmopolitan norms to the principle of the self-determination of peoples.
This chapter traces the development of citizenship in immigrant-receiving states, comparing the Gulf States in the Middle East with the Western states of Europe and North America. In particular, I juxtapose these states` opposite responses to the fact of immigration, which is exclusion in the Gulf and inclusion in the West. These opposite responses articulate a structural ambivalence of citizenship, which is to be inclusive to the inside but exclusive to the outside. Among the factors conditioning inclusive or exclusive outcomes are the liberal-democratic features of Western states and the autocratic and rentier character of Gulf States.
This chapter discusses the boundaries, the authority, and the methods of comparative human rights law (CHRL). It first explains what comparing human rights means and how it developed historically, along with some distinctions between subfields of CHRL, before considering the transnational consensus method, how it works, and how it relates to some of the general methods of comparative law. It goes on to examine the authority of and the justifications for the authority of CHRL, the democratic objection to the legitimacy of CHRL, and selected issues in CHRL. In particular, it analyzes three potential solutions to the problem of securing the universal scope of CHRL: the turn to quantitative methods in CHRL, the development of (trans-)regional human rights comparison, and generalizing CHRL to all universal human rights treaty bodies. In conclusion, the chapter argues that, unlike other areas of domestic and even international law, human rights law amounts to a necessarily comparative project, i.e. a law-making enterprise in which comparative law is not only interesting, but is required and in which it should not only amount to a piecemeal and retail practice, but to a systematic and universal one.
Michael Les Benedict
This chapter examines constitutional developments during the period from the inauguration of President Andrew Jackson through Reconstruction. It begins with an overview of the tension between constitutional politics and constitutional law before turning to a discussion of constitutional issues in the Jacksonian Era, with particular emphasis on the constitutional politics of state rights, Jackson’s increased power, equal rights and democracy, how the Supreme Court addressed constitutional issues of the period, and constitutional issues of slavery. It then explores constitutional issues during the Civil War by tackling ones related to secession, civil liberties and emancipation under the administration of Abraham Lincoln, and the accretion of federal power. The chapter concludes with an analysis of the constitutional issues during Reconstruction, focusing on efforts to restore the Southern states to normal relations in the Union, instability in the South and federal protection of rights, and the role of the Supreme Court.
This chapter begins with a discussion of the role of Swiss banker Henry Dunant in the genesis of international humanitarian law (IHL). It then assesses the present deficiencies of IHL. This is followed by a discussion of ways to mitigate the devastating effects of armed conflict. It proposes a three-pronged strategy involving the establishment of non-binding guidelines, the creation of effective monitoring mechanisms, and the adoption of mechanisms to indemnify victims of serious violations.
This chapter discusses the revival of customary humanitarian law. It begins by considering the origins of the revival, followed by discussions of the application of customary international law by non-criminal international bodies, such as the International Court of Justice; the customary law jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY); and the customary law jurisprudence of the other international criminal courts.
This chapter examines the scope and protection of democratic rights in Canada. After outlining the source of democratic rights, it focuses on the right to vote by considering judicial decisions on such issues as voter qualifications, residency rules, and the entitlement to vote. It then shows how the Supreme Court has interpreted the right to vote as consisting of a bundle of democratic rights. By using the bundle of rights, the Supreme Court has been able to regulate a wide array of democratic institutions and processes. The chapter proceeds to examine the Court’s intervention in the electoral process by discussing its cases on electoral redistricting, political parties, campaign finance, and the dissemination of electoral information. The chapter concludes with an analysis of current and future challenges facing democratic rights and their protection by the courts.