Preface
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Preface 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 Supremc~ Court's role in our government and society, its justices seldom have the luxury in important cases of rendering decisions without reasons. Of course, Supreme Court justices are not novices. Nevertheless , their reasons are often less persuasive than their decisions are acceptable. I maintain in this work that the abortion decisions, especially Roe v. Wade, suffer from this defect. The reasoning provided is poor, while tht~ result is largely justifiable. I have two ;goals: to assist lay people in understanding constitutional issues regarding abortion, and to provide a new, better foundation in the Constitution for a woman's right to terminate her pregnancy. I pursue the first goal by explaining all legal terms and including them in a glossary. I achieve the second goal, to provide a more secure constitutional justification for abortion rights, in two stages. I criticize the Court's reliancc~ on a right of privacy and then argue that during at least the first twenty weeks of pregnancy, the issue is inherently religious. Abortion rights are a species of the right to religious freedom. I judge rival interpretations of the Constitution according to two basic criteria: congruence with appropriate written documents, and conformity with moral and political ideals. Other things being equal, an interpretation is better that is confined to specific rights explicitly proXl xii Preface tected in the Constitution, and that accords with more Supreme Court precedents. On many matters, including abortion, there is no perfect irrefutable interpretation of the Constitution because the relevant words and phrases in the Constitution are general, and their limits are inherently imprecise. Such terms include "liberty," "due process of law," and "religion," to name but a few. Constitutional interpretations remain problematic also because they are judged in part by their compatibility with past decisions of the Supreme Court. Since those decisions span two hundred years and were made by people with different life experiences and values, it is often impossible for an interpretation to agree with all Supreme Court decisions on a topic. Those decisions do not always agree with one another. Preference is usually given to interpretations in better accord with Court opinions that are more recent and that better express our moral and political ideals. Conformity with our moral and political ideals, the second criterion for the acceptability of constitutional interpretations, is an application of what is often called the principle of charity. Other things being equal, interpretations are preferred that place what is being interpreted in a better light. Constitutional interpretations are better when they place the Constitution in a favorable light by implying that it furthers what we currently consider to be the highest and best moral and political values. Constitutional interpretations are often problematic as a result of tensions between these two criteria. An interpretation that accords best with our current highest moral and political ideals may not conform best to the words of the Constitution or to past decisions of the Supreme Court. Controversy can stem also from conflicts among our moral and political ideals. The goal of the present work, then, is to find an inexplicit, underlying rationale for the Supreme Court's abortion-related decisions. I maintain that a rationale featuring the moral and political ideal of religious freedom accords best with the words of the Constitution and with Supreme Court decisions in a variety of areas. This rationale best expresses our contemporary ideals regarding religious freedom and gives due weight to two additional ideals: majority rule and individual rights. Because I disagree with the rationale given by the Court in Roe v. Wade, I hope to vindicate the critics who point out the weakness of that rationale. At the same time, however, because my interpretation of the Constitution shows the decisions in Roe and in other abortion-related cases to be justified, I vindicate the view of those who defend a woman's constitutional right to terminate her pregnancy. Preface xiii The present work was facilitated greatly by the Center for Legal Studies at Sangamon State University, especially Director Nancy Ford and Assistant Director Rebecca Wilkin. Typing and other secretarial support was provided by Kathy...