Wenz argues that the Supreme Court reached the right decision in Roe v. Wade but for the wrong reasons
Abortion Rights as Religious Freedom
Search the full text of this book
Peter S. Wenz
"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
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.
BACK TO TOP
"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
BACK TO TOP
Roe v. Wade under Attack
Individual Rights and Majority Rule
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
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
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"
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
5. "Religion" in Court
The Epistemological Standard Applied
Cults and Crazies
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
The Reach of Secular Considerations
Secular versus Religious Matters
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
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
The Court's Flawed Parental Consent Rationale
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
Justice Scalia's View
The Fundamental Flaw in Roe
The Rationale for the Establishment Clause Approach
Advantages of the Establishment Clause Approach
Glossary of Terms
Annotated Table of Cases
BACK TO TOP
About the Author(s)
Peter S. Wenz is Professor of Philosophy and Legal Studies at Sangamon State University.
Philosophy and Ethics
In the series
Ethics and Action, edited by Tom Regan.
No longer active.
BACK TO TOP