Rozum sądu czy wola ludu? Swoboda jednostki czy upowszechniony ideał wolności? Interpretacja sprawy Dobbs
The Reason of the Court or the Will of the People? Individual Liberty or the Common Ideal of Freedom? Interpretation of the Dobbs Case

Summary/Abstract: The article is an attempt to look at the Dobbs case from the perspective of the dispute over the understanding of personal freedom, using Isaiah Berlin’s proposal, distinguishing freedom in the negative aspect from that in the positive one. The author maintains that in the ratio decidedi in the Roe case and in subsequent decisions based on this precedent, it is perceptible that they are anchored in the concept of negative freedom, freeing woman’s fertility from external constraints: the pressure of the social environment, including public authority. In the Dobbs case, on the other hand, the Justices of the Supreme Court ask themselves whether the right to terminate a pregnancy is part of the American tradition of understanding freedom, or whether it is an example of “ordered liberty”, in which individual freedom gains a social context. Since the majority in Dobbs denies that the Supreme Court is able to answer such a question, it was decided to refer the issue to state legislatures and residents of individual states. The ratio decidendi in the Dobbs case can be read as adopting a perspective appropriate for freedom in its positive aspect.

• Details
• Contents