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CHAPTER 3 The Evolution of "Religion" W: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 Constitution. Chapter 2 maintained that in both law and morality, the principal objections to abortion rest on beliefs about the humanity of the fetus. I argued that the legal ascription of full personhood to newly fertilized human ova leads to absurdities, but that ascriptions of personhood should ordinarily take place before birth. I argued also that the Court's viability standard is poorly understood by some members of the Court, and that it cannot be relied upon in the future to yield an acceptable legal standard. In none of this discussion, however, was the Constitution shown to protect abortion rights. That issue was not even addressed . The argument begun in this chapter and concluded in Chapter 6 shows that abortion rights are constitutionally protected. In outline, the argument is the following: The First Amendment says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." These are termed the Establishment Clause and the Free Exercise Clause, and together they are called the Religion Clauses. I analyze the meaning of religion as it appears in these clauses and find that beliefs concerning the personhood of fetuses twenty weeks or younger are religious beliefs. Legislation having no justification except the protection of such fetuses for their own sakes 78 Evolution of "Religion" 79 amounts to the unconstitutional establishment of religion. Thus the constitutional point is not that women have a right to terminate their pregnancies. Rather, the only plausible legislative goal for much antiabortion legislation is constitutionally forbidden by the First Amendment . I begin the present chapter by reviewing others' attempts to tie abortion rights to the Religion Clauses of the First Amendment. I find especially that Justke Stevens has the right idea, but the idea needs elaboration and defense. I begin that defense by describing the purposes and original understanding of the Religion Clauses; I then recount the changes in understanding that have occurred in the last one hundred years. I next defend the legitimacy of this kind of evolution of understanding by comparing Robert Bork's Original Understanding view of constitutional interpretation with my own Moderate view. Having secured the legitimacy in general of evolutionary changes in the meaning of constitutional guarantees, I question the adequacy of the particular changes wrought by the Court in its understanding of the Religion Clauses. I note that the Court has brought the Free Exercise Clause into apparent conflict with the Establishment Clause. Some writers and courts have maintained that "religion" must be defined differently in the one clause than in the other. Yet the word "religion" appears only once in the First Amendment, suggesting that the amendment 's authors intended "religion" to have a single meaning. Worse than this, I next point out, there appears to be no definition of religion capable of encompassing the meaning of religion implied in some judicial decisions under the Free Exercise Clause. These problems raise doubts about the Court's expanded meaning of "religion" in the First Amendment. Since I rely in the rest of my argument on the expanded meaning of religion, I develop in the next chapter a definition of religion that eliminates these prolblems. I then use this definition in Chapter 6 to show that legislation whose sole purpose is protecting fetuses twenty weeks or younger for their own sakes violates the rights that women have under the Religion Clauses. Religion in the Abortion Debate Professor Laurence Tribe of Harvard University attempted shortly after the Roe v. Wade decision to justify a woman's right to terminate her pregnancy as an aspect of religious liberty. He began by noting that the 80 Chapter 3 most promising case for governmental prohibitions of abortion rests on the claim that the fetus is a human being.! But "some regard the fetus as merely another part of the woman's body until quite late in pregnancy or even until birth; others believe the fetus must be regarded as a helpless human child from the time of its conception."2 Because no secular concepts can settle this issue, it is no accident, according to...


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