From Cannibalism to Caesareans: Two Conceptions of Fundamental Rights

On September 6, 1884, three British seamen were arrested at the port of Falmouth and charged with the murder of the fourth member of their crew while adrift in a dinghy in the South Atlantic. On June 16, 1987, George Washington University Hospital sought a declaratory order from the District of Columbia Superior Court instructing the hospital whether to perform a Caesarean section on Angela Carder, a young woman in her twenty-sixth week of pregnancy who was dying of lung cancer. These two seemingly unrelated events have much to tell us about the changing concept of rights in Anglo-American jurisprudence. For, each gave rise to a case whose resolution required a court to construe the fundamental rights of the parties involved; and, in each case, the construction of these rights was literally a matter of life and death. Yet a radically different conception of rights emerged from each. For this reason, these cases are ideally designed to illustrate just how much the legal conception of a fundamental right has changed over the last century