Cover

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Frontmatter

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Contents

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Preface

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pp. xi-xiii

The Supreme Court's decisions regarding abortion remind me of a story about a novice judge who was anxious about judging correctly. Her anxiety was allayed somewhat by an older colleague's confidence that her decisions would probably be correct, even though her reasons for those decisions would probably be mistaken. Render a decision without giving reasons, the veteran advised. In view of the Supreme Court's role in our government and society, its justices seldom have the luxury in important cases...

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Introduction

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pp. 1-16

The Supreme Court decisions in Roe v. Wade1 (1973) and its companion case, Doe v. Bolton,2 increased enormously the availability in the United States of legal abortions. Since those decisions, people on opposite sides of the abortion issue have often focused on Roe v. Wade. Those (generally) opposed to abortions have called for the reversal of that decision, whether through constitutional amendment, congressional action, or judicial overturn. In contrast, people favorable to legal abortions have tended to rally round...

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Chapter 1: The Derivation of Roe v. Wade

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pp. 17-49

The decision in Roe v. Wade rests largely on the claim that the Constitution gives a woman a fundamental right to terminate her pregnancy. This right was derived in two different ways from the text of the Constitution as that text has been interpreted in previous Supreme Court decisions. Justice Blackmun, writing for the Court, cites a line of precedents that establishes the existence of a fundamental, constitutional right of privacy. He maintains that a woman's right to terminate her pregnancy is one of these rights...

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Chapter 2: Potentiality and Viability

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pp. 50-77

This chapter examines three basic approaches to the issue of legalizing abortion. One approach maintains that abortions should be restricted severely, or prohibited completely, because the unborn is, from the moment of fertilization, a (human) person with the same right to life as every other person. A second approach...

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Chapter 3: The Evolution of "Religion"

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pp. 78-110

We saw in chapter I that the Supreme Court failed in its Roe v. Wade decision to justify adequately its claim that women have a fundamental (constitutional) right to terminate their pregnancies. Two rationales were given in that case, one based on privacy and the other on substantive due process. Neither one convincingly connects the alleged right to the text of the...

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Chapter 4: The Definition of "Religion"

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pp. 111-140

The first amendment begins, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." We saw in the last chapter that the Court's understanding of these Religion Clauses has evolved considerably during the past one hundred years. But uncertainties attend the results of this evolution. The present chapter proposes and defends a unified, consistent, and satisfactory definition of "religion"...

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Chapter 5: "Religion" in Court

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pp. 141-160

The preceding chapter attributes to the Supreme Court a particular understanding of "religion" as it appears in the First Chapter 4. Court opinions were used to illustrate several, but not all of the views there attributed to the Court. Other views can be attributed only indirectly. For example, in no opinion (that I am aware of) does the Court maintain explicitly that beliefs of fact and beliefs of value are ...

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Chapter 6: Fetal Personhood as Religious Belief

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pp. 161-190

We have seen that according to the Supreme Court, "religion" in the First Amendment refers primarily to religious belief, and religious belief is identified through an epistemological standard. This chapter maintains that only on the basis of such religious belief can personhood, a right to life, intrinsic value, or inherent worth be attributed to fetuses twenty weeks or younger (which I refer to as "young fetuses"). So laws whose purpose or primary effect is protecting the lives of young fetuses violate the Establishment...

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Chapter 7: The Regulation of Abortion

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pp. 191-212

Chapters 4 and 5 argued that the Supreme Court interprets the First Amendment religion guarantees according to what I call the about the personhood or humanity of fetuses twenty weeks or younger are religious according to this epistemological standard. Thus, legislation bearing upon abortions performed before the twenty-first week of pregnancy touches significantly on a matter of religious belief. The...

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Chapter 8: Abortion and Others

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pp. 213-244

This chapter applies the Establishment Clause approach and the Neutrality Principle to regulations about public funding, information transfer, spousal consent, parental consent and parental notification. The Establishment Clause approach avoids the inconsistencies of the Court's approach but yields decisions that provide for (almost) I first show that, like the Court's approach, the Establishment ...

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Conclusion

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pp. 245-250

Few, if any, theses in controversial areas of constitutional law can be maintained with certainty, because few, if any, supporting arguments are impregnable and decisive. In the main, a thesis is accepted if it is self-consistent and accords better than its competitors with the words of the Constitution, authoritative interpretations of those words, our political institutions, our political ideals, and our ...

Notes

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pp. 251-268

Glossary of Terms

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pp. 269-272

Annotated Table of Cases

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pp. 273-282

Bibliography

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pp. 283-286

Index

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pp. 287-294