Chapter 6: Fetal Personhood as Religious Belief
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CHAPTER 6 Fetal Personhood as Religious Belief W: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 Clause of the First Amendment. lBy officially endorsing, and enforcing, a religious belief, such laws constitute what the Supreme Court considers an establishment of religion. In order to sustain this thesis I examine the structure and epistemology of argumt:nts about the existence of God, when God's existence is viewed as a matter of fact. The structure of such arguments rests on the interplay of considerations favoring and disfavoring belief that God exists . Epistemologically, the belief is religious because the issue cannot be resolved through recourse to secular considerations alone. The next section shows that arguments about the personhood and right to life of young fetuses are structurally and epistemologically identical to arguments about the existence of God. So beliefs about the personhood and right to life of young fetuses are religious beliefs. In the following sections I consider and then reply to three different kinds of objections. I answer Justice White's worry that if beliefs about young fetuses are religious, beliefs about the personhood of fetuses at any stage of gestation are equally religious. If such beliefs were religious , then fetuses on the eve of birth could not be officially declared 161 162 Chapter 6 persons and given legal protection. I show that this worry is groundless because there are secular reasons for attributing personhood and a right to life to twenty-eight week fetuses. Next, I address the following concern. If the humanity of young fetuses cannot be determined one way or the other on secular grounds alone, then such fetuses may be persons (just as God may exist, even though this cannot be established on secular grounds alone). Where there is uncertainty, the objection continues, caution is appropriate. Abortion should be illegal because it may be murder. I argue, however, that laws violate the Establishment Clause when their goal is the reduction of risks, such as the risk of murder in the case of abortion, that exist only on religious premises. Finally, I argue against a view put forward by Kent Greenawalt. Greenawalt assimilates issues regarding the intrinsic value or inherent worth of young fetuses to issues regarding environmental preservation and animal protection. He maintains that although religious beliefs influence judgments on these matters, they are all proper subjects for legislation . I maintain that Greenawalt has confused issues where religion may matter, such as those concerning environmental preservation and animal protection, with issues that are purely a matter of religion, such as those concerning the humanity of the fetus and the existence of God. Political judgments about many secular concerns may properly be influenced by religious beliefs. These include judgments about the value or worth of animals and the environment. But where young fetuses are concerned, there is no secular issue to begin with, so laws reflecting religiously inspired judgments about the intrinsic value or inherent worth of young fetuses violate the Establishment Clause. Before beginning the chapter's main argument, I redeem a pledge made in Chapter 1. I there promised to provide an alternative to the privacy rationale that the Court employed in its review of anti-contraception statutes. Accordingly, I now explain the Court's understanding of the Establishment Clause and relate that understanding to laws prohibiting the use or distribution of contraceptives. I maintain that such laws violate the Establishment Clause because, like laws promoting "creation science," they exist primarily to reconcile the law with an interpretation of the Bible. Anti-Contraception Laws and the Establishment Clause I argued in Chapter 1 that the Supreme Court provided inadequate rationales for its decisions in leading cases concerning the use and sale of Fetal Personhood as Religious Belief 163 contraceptives. This section reviews those rationales and the reasons for their inadequacy before providing firmer foundations in the Establishment Clause for the results reached in those cases. I support the results reached by the: Court, but on different rationales. In Griswold v. Connecticut (1965) the Court struck down a law that prohibited the use...


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