罗伊诉韦德案判决多数意见的权利理论重构——选择论的替代性论证思路

Reconstructing the Court’s Opinion in Roe v.Wade from the Theories of Rights: Alternative Justification from the Choice Theory

罗伊诉韦德案是影响美国历史的几个重要案件之一,但是该案的判决结果却并未获得美国社会的普遍接受,最新的多布斯案判决更是明确将其推翻。原因之一或许是,联邦最高法院判决的多数意见潜在地将权利(尤其是生命权和隐私权)视为利益,这导致隐私权是否能够成立、利益之间如何进行比较、利益如何能够压倒权利,以及胎儿为何被认为不享有生命权等诸多问题无法解决。相反,如果将权利视为选择,那么上述问题便能够得到妥当解决。在哈特所提出的将权利视为对义务人履行义务行为的控制和选择的理论中,妇女可以享有隐私权,而且仅仅通过自由权就能够推衍出其享有堕胎自由;胎儿虽然不享有权利,但妇女的堕胎自由仍然受到国家在胎儿潜在生命上的利益的限制,这种利益呈现为一种义务。选择论或许是对罗伊案件判决结果的更为合理的论证。

Roe v. Wade, the case that clearly put forward a complete notion of the right to privacy and admitted women’s abortion right, is one of the most influential decisions in the U.S., the decision of which, however, has never been generally accepted. After the release of the decision, some statutes and case decisions in the U.S. have followed it, while others agree outwardly but disagree inwardly. The case has just been overturned by the Dobbs case newly decided for mainly two wrongs lying in the decision, according to the Dobbs majority. First, the Roe case admitted women’s abortion right that cannot be constitutionally justified. Second, justification in the Roe case was not sufficient or sound enough. The reason for the second wrong may lie in the Court’s opinion that presumed the right to life and the right to privacy as interests, making the Court stand by the Interest Theory, one branch of the two main theories of rights, and resulting in the uncertainty of the right to privacy and the right to abortion, inability to compare between interests, and incapacity to explain why an interest may triumph a right and why a fetus cannot have a right to life. Rather, if the rights can be viewed as choices, those issues may be solved. The Choice Theory proposed by Hart is a part of the other branch of the two main theories of rights. It emphasizes a right as a choice that generates control over the performance of the duty-bearer. If a right is such a choice, a woman can have a right to privacy. Even though U.S. Constitution and its Amendments did not clearly include such a right, inclusive positivism as the back-up theory of the Choice Theory allows "judge-made law". It can also be inferred from personal liberty that a woman enjoys the freedom to choose abortion or not, even without considering the right to privacy, only by resorting to the idea of the Choice Theory rather than the precedents and statute history of U.S. On this point, the purely theoretical answer provided by the Choice Theory is divergent from the one given by the Dobbs case majority, but with the Roe case majority. Furthermore, although a fetus still does not have any rights according to the Choice Theory, the state has an interest in this potential life and may restrict a women’s abortion right. In the context of the Choice Theory, the state’s interest takes the form of the mother’s duty not to hurt, which therefore can stay clear away from the difficulty in the comparison of interests. In view of these, the Choice Theory provides a better justification for the Roe decision while at the same time maintaining its result unchanged. If the Dobbs case were to be overturned and the abortion right to be admitted again in the future, the Choice Theory may be a new way of thinking to rely on.