The Judge as Moral Arbiter? The Case of Abortion

Rights have moral content. Both the right to choose to have an abortion and the total prohibition against the procurement of an abortion based on the right to life or personhood of the fetus are steeply embedded in morality. Moreover, constitutional adjudication in general and even ordinary adjudication in many cases – e.g., should victims of industrial pollution be compensated for their impaired health – inevitably raise moral questions and call for answers that require making moral judgments, or that at least have signifi cant moral implications. The purpose of this chapter is to determine whether judges can avoid being moral arbiters; whether they ought to be moral arbiters; or whether inevitable questions of morality tied to the grant and protection of (constitutional) rights ought to be entrusted to others, such as the constituent power, legislators, etc. The chapter will test these issues in relation to the existing constitutional jurisprudence relating to abortion, gauged from a comparative perspective. Part 2 will provide a critical assessment of the theoretical debate; Part 3, an examination of insights stemming from relevant constitutional jurisprudences on abortion, and, Part 4 a theory about the optimal apportionment of responsibility for determining the moral issues that arise in the context of the recognition, interpretation and implementation of constitutionalized fundamental rights.