A comparative analysis of a pregnant woman's rights to abortion: Notes on constitutional courts' decisions of abortion laws in Germany and the United States, and their implications for Korean abortion laws

Contrasting the interesting decisions of two highest tribunals in Germany and the United States, this article suggests that two highest courts have dealt with the issue of abortion by applying a similar yardstick, namely, a balancing test. Both courts might have been under influences derived from each other, alluding that a pregnant woman has the right to abortion qua the right to privacy, which comes within the purview of the constitutional provisions, such as, Basic Law Article 2 (1) and the Fourteenth Amendment to the United States Constitution. The German Federal Constitutional Court's decisions and the United States Supreme Court's decisions are compared in order to find similar constitutional jurisprudence between the two highest tribunals on abortion, rather than the differences. However, the Gonzales v. Carhart case, handed down by the United States Supreme Court in April 18, 2007, which may seriously erode the Roe-Casey line of precedent vis-à-vis a woman's right to abortion, made the dissenting opinion voiced by Justice Ginsburg that the plurality opinion would chip away the core value of Roe v. Wade persuasive. Therefore, I am tempted to claim that the United States Supreme Court should remain with the distinctive traditions established by Roe and Casey, an effort to protect a pregnant woman's right to abortion notwithstanding Gonzales v. Carhart, and the Korean Constitutional Court would be better off if it takes into account the converging rationale and yardstick applied to the abortion cases of the two influential highest courts save Gonzales v. Carhart when deciding the constitutionality of a ban on abortion in Korea.