 | Abortion Rights as Religious Freedom Subjects: Abortion -- Religious aspects; Women -- Civil rights -- United States; Abortion -- Law and legislation -- United States; Religious liberty -- United States; "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 UniversityWith 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 SelectionContentsPrefaceIntroductionRoe v. Wade under Attack âe¢ Individual Rights and Majority Rule âe¢ Constitutional Interpretation âe¢ Preview of Chapters1. The Derivation of Roe v. WadeEconomic Substantive Due Process âe¢ Due Process and the Family âe¢ Contraception and Privacy in Griswold v. Connecticut âe¢ Contraception and Privacy in Eisenstadt v. Baird âe¢ Blackmun''s Privacy Rationale in Roe v. Wade âe¢ Stewart''s Due Process Rationale in Roe v. Wade âe¢ Tribe on Substantive Due Process âe¢ Conclusion2. Potentiality and ViabilityThe Roe v. Wade Decision âe¢ The Concept of Viability in Abortion Cases âe¢ Dividing the Gestational Continuum âe¢ The Genetic Approach to Personhood âe¢ Viability versus Similarity to Newborns âe¢ Two Consequentialist Arguments âe¢ Feminism and Viability âe¢ Conclusion3. The Evolution of "Religion"Religion in the Abortion Debate âe¢ The Original Understanding of the Religion Clauses âe¢ The Evolution of Religion Clause Doctrine âe¢ Incorporation of the Religion Clauses âe¢ From Belief to Practice âe¢ Alleviating Indirect Burdens on Religious Practice âe¢ Expanding the Meaning of "Religion" âe¢ The Original Understanding View âe¢ Bork: Conservative or Moderate? âe¢ Conflicts between the Religion Clauses âe¢ The Elusive Meaning of "Religion" âe¢ Conclusion4. The Definition of "Religion"The Adjectival Sense of Religion âe¢ Religious Beliefs Independent of Organized Religions âe¢ Religious Belief as Fundamental to Organized Religion âe¢ Secular Beliefs Related to Material Reality âe¢ Secular Beliefs Related to Social Interaction âe¢ Secular Facts versus Secular Values âe¢ The Court''s Characterizations of Secular Beliefs âe¢ Secular (Nonreligious) Belief âe¢ The Epistemological Standard for Distinguishing Religious from Secular Belief âe¢ Judicial Examples of Religious Beliefs âe¢ General Characteristics of Religious Beliefs âe¢ Summary5. "Religion" in CourtThe Epistemological Standard Applied âe¢ Cults and Crazies âe¢ Secular Religions âe¢ Tensions between the Religion Clauses âe¢ The Unitary Definition of "Religion"6. Fetal Personhood as Religious BeliefAnti-Contraception Laws and the Establishment Clause âe¢ Belief in the Existence of God âe¢ Belief in the Personhood of Young Fetuses âe¢ Distinguishing Religious from Secular Determinations of Fetal Personhood âe¢ Religious versus Secular Uncertainty âe¢ Environmental Preservation and Animal Protection versus Fetal Value âe¢ Greenawalt''s Argument âe¢ The Reach of Secular Considerations âe¢ Secular versus Religious Matters âe¢ Conclusion7. The Regulation of AbortionThe Trimester Framework and Its Exceptions âe¢ O''Connor''s Objections to the Trimester Framework âe¢ Superiority of the Establishment Clause Approach to the Trimester Framework âe¢ Required Efforts to Save the Fetus âe¢ The Neutrality Principle âe¢ Appropriate Judicial Skepticism âe¢ Undue Burdens and Unconstitutional Endorsements âe¢ Conclusion8. Abortion and OthersPublic Funding of Abortion âe¢ The Establishment Clause Approach to Public Funding âe¢ The Court''s Funding Rationale âe¢ The Court''s Inconsistent Rationale âe¢ Publicly Funded Family Planning Clinics âe¢ Spousal Consent âe¢ The Court''s Flawed Parental Consent Rationale âe¢ Information Requirements âe¢ Spousal and Parental Consent âe¢ The Establishment Clause Approach: Medical Dimension âe¢ The Establishment Clause Approach: Religious Dimension âe¢ Implications of the Establishment Clause Approach âe¢ The Court''s Inconsistency âe¢ Equivalent Results âe¢ Parental Notification âe¢ ConclusionConclusionJustice Scalia''s View âe¢ The Fundamental Flaw in Roe âe¢ The Rationale for the Establishment Clause Approach âe¢ Advantages of the Establishment Clause ApproachNotesGlossary of TermsAnnotated Table of CasesBibliographyIndexAbout the Author(s):Peter S. Wenz is Professor of Philosophy and Legal Studies at Sangamon State University. |
