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 Nordic Party Members: Linkages in Troubled Times, Edited by Marie Demker, Knut Heidar, and Karina Kosiara-Pedersen

The Impact of Legal Mobilisation Compared: Policy Change for Assisted Reproductive Technologies in Europe and North-America

Christine Rothmayr Allison
Université de Montréal
Christine Rothmayr Allison
Université de Montréal

Countries around the world are adopting and implementing public policies regulating biotechnologies. Courts are also involved in this process. However, the question of how courts have contributed to policy-making has not been studied from a comparative perspective. The present paper compares litigation and the impact of court decisions across three countries, Canada, the USA and Switzerland for assisted reproductive technologies and embryonic stem cell research. The paper inquires to what extent court involvement varies across countries and how this variation might be explained. Based on existing research we would expect considerable differences across the three countries, the US being the most and Switzerland the least litigious case, with Canada ranking somewhere between the two. The empirical analysis comes, however, to a different conclusion. Courts have had more influence on public policy-making in Switzerland than in the US, and basically no influence in Canada. The variable importance of court decisions across countries can be explained through the characteristics of the policy-making process, in particular the actor constellation and the degree to which states, cantons and provinces engaged early on in policy-making. The paper also reveals that in all three countries, courts have the tendency to defer to government when private interests challenge public policies. Medical and research interests had the most success in challenging restricting regulations at an early stage in the policy making process, i.e. in the late 1980s and early 1990s, when the issue of assisted reproductive technology was relatively new on the political agenda.
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