Abortion Rights as Religious Freedom
Publication: Jan 92
7 x 10
Wenz argues that the Supreme Court reached the right decision in Roe v. Wade but for the wrong reasons
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.
"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
"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
Table of 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)
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