Bernstein — Volume 63, Issue 5

Abortion law scholarship has emphasized constitutional doctrine following Roe v. Wade, yet common law fundamentals underlying the right to abortion remain underdeveloped. Bernstein excavates decisional law, examining how common law courts have long adjudicated claims about ending prenatal life through accident and intentional conduct. The article traces how common law provides substantive principles relevant to abortion: consent doctrines, undertaking liability, crime-and-punishment frameworks shape how courts address abortion. Bernstein argues that judges and legal scholars have mistakenly peripheralized common law, treating it as secondary to constitutional analysis, when in fact common law offers mature jurisprudence on fetal harm. English common law dating centuries back contains judicial decisions about abortion through negligent operation and deliberate termination. Through common law framework, Bernstein demonstrates that legal tradition established self-governing status regarding reproductive decisions by conceptualizing pregnancy as an invasion of bodily integrity by a zygote-embryo-fetus whose presence can trigger deadly force response. Common law recognizes a pregnant woman's right to resist unwanted occupation of her body using proportional measures. The article develops the concept of the Zef (zygote-embryo-fetus) as a legal entity crossing boundaries of common law categories. Bernstein argues that common law fundamentals—consent, undertaking, and violence doctrines—establish that abortion is lawful when a woman repels an intruding life form.

Topics: Family Law · Legal History · Constitutional Law

Keywords: abortion rights · common law · bodily autonomy · pregnancy · reproductive rights · fetal development · self-defense