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Abortion Rights as Religious Freedom

Peter Wenz

Publication Year: 1992

"This excellent books is bound to stir debate on the abortion issue and to occupy a rather distinctive position." —R.G. Frey, Bowling Green State University With the current composition of the Supreme Court and recent challenges to Roe v. Wade, Peter S. Wenz's new approach to the ethical, moral, and legal issues related to a woman's right to elective abortion may turn the tide in this debate. He argues that the Supreme Court reached the right decision in Roe v. Wade but for the wrong reasons. Wenz contends that a woman's right to terminated her pregnancy should be based, not on her constitutional right to privacy, but on the constitutional guarantee of religious freedom, a basis for freedom of choice that is not subject to the legal criticisms advanced against Roe. At least up to the 20th week of a pregnancy, one's belief whether a human fetus is a human person or not is a religious decision. He maintains that because questions about the moral status of a fetus are religious, it follows that anti-abortion legislation, to the extent that it is predicated on such "inherently religious beliefs," is unconstitutional. In this timely and topical book, Wenz also examines related cases that deal with government intervention in an individual's procreative life, the regulation of contraceptives, and other legislation that is either applied to or imposed upon select groups of people (e.g., homosexuals, drug addicts). He builds a concrete argument that could replace Roe v. Wade. Reviews "In this important study of abortion and the Constitiution, legal philosopher Peter Wenz contends that Roe v. Wade was wrongly argued but well conlcuded. Wenz presents a substantial review of Supreme Court decisions on abortion, then critically exposes flaws, including the privacy justification for abortion as well as the trimester scheme. —Religious Studies Review "In this major work, Peter Wenz has analyzed the relation of the Constitution's religion clauses to the abortion controversy. His principal contribution is to shift the argument from the right of privacy (invoked, he believes, unsuccessfully in Roe v. Wade) to the Establishment Clause. The Court's concern in Roe was whether the statute unduly burdened a fundamental right. But tested by the Establishment Clause, statutes may violate the Constitution by implicitly endorsing a religious belief, namely, the personhood of the unborn. Wenz concludes that the Establishment Clause permits abortions prior to the twenty-first week of pregnancy." —C. Herman Prichett, Professor of Political Science Emeritus, University of California, Santa Barbara "This is an original and scholarly exposition of the view that abortion rights fall under the religion clauses of the First Amendment. The view defended is an important alternative to the privacy defense upon which the Roe v. Wade decision was based and should help to expand the ethical and constitutional debate about abortion rights." —Mary Anne Warren, Associate Professor of Philosophy, San Francisco State University, and author of Gendercide: The Implications of Sex Selection Contents Preface Introduction Roe v. Wade under Attack • Individual Rights and Majority Rule • Constitutional Interpretation • Preview of Chapters 1. The Derivation of Roe v. Wade Economic Substantive Due Process • Due Process and the Family • Contraception and Privacy in Griswold v. Connecticut • Contraception and Privacy in Eisenstadt v. Baird • Blackmun's Privacy Rationale in Roe v. Wade • Stewart's Due Process Rationale in Roe v. Wade • Tribe on Substantive Due Process • Conclusion 2. Potentiality and Viability The Roe v. Wade Decision • The Concept of Viability in Abortion Cases • Dividing the Gestational Continuum • The Genetic Approach to Personhood • Viability versus Similarity to Newborns • Two Consequentialist Arguments • Feminism and Viability • Conclusion 3. The Evolution of "Religion" Religion in the Abortion Debate • The Original Understanding of the Religion Clauses • The Evolution of Religion Clause Doctrine • Incorporation of the Religion Clauses • From Belief to Practice • Alleviating Indirect Burdens on Religious Practice • Expanding the Meaning of "Religion" • The Original Understanding View • Bork: Conservative or Moderate? • Conflicts between the Religion Clauses • The Elusive Meaning of "Religion" • Conclusion 4. The Definition of "Religion" The Adjectival Sense of Religion • Religious Beliefs Independent of Organized Religions • Religious Belief as Fundamental to Organized Religion • Secular Beliefs Related to Material Reality • Secular Beliefs Related to Social Interaction • Secular Facts versus Secular Values • The Court's Characterizations of Secular Beliefs • Secular (Nonreligious) Belief • The Epistemological Standard for Distinguishing Religious from Secular Belief • Judicial Examples of Religious Beliefs • General Characteristics of Religious Beliefs • Summary 5. "Religion" in Court The Epistemological Standard Applied • Cults and Crazies • Secular Religions • Tensions between the Religion Clauses • The Unitary Definition of "Religion" 6. Fetal Personhood as Religious Belief Anti-Contraception Laws and the Establishment Clause • Belief in the Existence of God • Belief in the Personhood of Young Fetuses • Distinguishing Religious from Secular Determinations of Fetal Personhood • Religious versus Secular Uncertainty • Environmental Preservation and Animal Protection versus Fetal Value • Greenawalt's Argument • The Reach of Secular Considerations • Secular versus Religious Matters • Conclusion 7. The Regulation of Abortion The Trimester Framework and Its Exceptions • O'Connor's Objections to the Trimester Framework • Superiority of the Establishment Clause Approach to the Trimester Framework • Required Efforts to Save the Fetus • The Neutrality Principle • Appropriate Judicial Skepticism • Undue Burdens and Unconstitutional Endorsements • Conclusion 8. Abortion and Others Public Funding of Abortion • The Establishment Clause Approach to Public Funding • The Court's Funding Rationale • The Court's Inconsistent Rationale • Publicly Funded Family Planning Clinics • Spousal Consent • The Court's Flawed Parental Consent Rationale • Information Requirements • Spousal and Parental Consent • The Establishment Clause Approach: Medical Dimension • The Establishment Clause Approach: Religious Dimension • Implications of the Establishment Clause Approach • The Court's Inconsistency • Equivalent Results • Parental Notification • Conclusion Conclusion Justice Scalia's View • The Fundamental Flaw in Roe • The Rationale for the Establishment Clause Approach • Advantages of the Establishment Clause Approach Notes Glossary of Terms Annotated Table of Cases Bibliography Index About the Author(s): Peter S. Wenz is Professor of Philosophy and Legal Studies at Sangamon State University.

Published by: Temple University Press

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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


E-ISBN-13: 9781439904619

Publication Year: 1992