In his book Abortion Rights as Religious Freedom (Temple University Press, 1992), philosopher Peter Wenz argues that Roe was in fact wrongly decided. But he makes a strong case that there’s another basis for the conclusions of Roe, to be found in the First Amendment’s separation of church and state. This is that there are no good secular reasons to think that a fetus before the 21st week is a person, in which case to assert the fetus's personhood (and its right to life) before that time is a matter of religious belief. This in turn means that statutes which prohibit abortion in early stages of pregnancy violate the First Amendment because they establish religion, hence are unconstitutional.
Wenz builds his case carefully, first setting out a theory of constitutional interpretation that avoids the pitfalls of what he calls the extreme Liberal and extreme Conservative views. He applies his theory in a telling critique of Roe, finding that Justice Blackmun’s privacy rationale for abortion rights is shaky, and that Justice Stewart’s liberty rationale based in “substantive due process,” although somewhat better, still permits judges to read their own values into the Constitution. (Not being an expert in constitutional law, I won’t hazard an opinion on whether Wenz is right about this.)
Wenz’s alternative rationale depends on his claim that beliefs about fetal personhood are inherently religious. His strategy is to define religious beliefs in contrast to secular beliefs, where the latter are “all those agreements of belief, thought, and practice that are the basis of the cooperation and mutual understanding needed among people to maintain and perpetuate our society” (112). Further, secular beliefs are defined epistemologically as those “supported cogently by the use of common sense, science, technology, or accepted scientific methodologies” (112-113). In contrast, religious beliefs, e.g., belief in god, “are those that cannot be supported cogently with arguments or demonstrations whose premises only include secular beliefs,” so they lack the epistemic support derived from science and commonsense. There are also, he argues, uncontroversial, shared secular values, such as health, liberty, and equal opportunity. Such values might find expression in religious beliefs, but they are secular insofar as they don’t depend on such beliefs for support, but are simply basic to the character of our society.
Wenz cites Supreme Court decisions that suggest this religious-secular distinction indeed operates in mainstream constitutional law involving church-state separation. Precedents based on the First Amendment Establishment Clause are embodied in what’s become known as the Lemon Test. In Justice Burger’s words from Lemon vs. Kurtzman, a statute must 1) “have a secular legislative purpose” 2) its “principal or primary effect must be one that neither advances nor inhibits religion” and 3) “the statute must not foster ‘an excessive government entanglement with religion.’”
With all this in hand, the final step in Wenz’s argument is the claim that beliefs about fetal personhood, like beliefs in god, are inherently religious, that is, not decidable by appeal to science, commonsense, or shared secular values. People might agree on all the physical and psychological (hence secular) facts about an early stage fetus: its biology, level of sentience, viability, etc. But they might (and often do) disagree about personhood, in which case there’s no secular fact of the matter about personhood that can be established. There is, for instance, no fact that can tell us whether the essence of personhood is to have human DNA, or whether it's the potential to become a newborn, both of which have been adduced as grounds for fetal personhood. So even though the claim about personhood (pro or con) might seem perfectly factual to the disputants, there’s really no deciding secular fact they can appeal to. Thus, beliefs about fetal personhood are inherently religious, since, according to Wenz’s schema, religious beliefs are just those which are not decidable on secular grounds.
The personhood of later stage fetuses which are sufficiently like born infants (who are uncontroversially persons, given the secular moral consensus which requires the protection of newborns), is decidable on secular grounds, just because such similarity is sufficient to establish personhood, says Wenz. He draws the line (inevitably somewhat arbitrary) at the 21st week, before which fetuses don’t have “one or more basic systems that newborns have and use” (179, 181). So restrictions on abortions after the 21st week are permissible, according to Wenz, but before that time they run afoul of the First Amendment Establishment Clause: since there’s no good secular rationale for restricting early stage abortions, such restrictions amount to the establishment of religion.
The most problematic feature of Wenz’s strategy (and it isn’t that problematic) is his implicit claim that no valid secular argument will ever be forthcoming to justify the ascription of personhood to fetuses before the 21st week. This is an empirical claim, the evidence for which is simply that no such argument has yet been produced. Those defending the right to abortion based on Wenz’s strategy must assume the burden of refuting all arguments purporting to show, on secular grounds, that the fetus is a person, or at least rendering them inconclusive and thus religious by definition. That there are no irrefutable secular grounds for fetal personhood is, I think, an extremely good bet (see here), but defenders of the right to choose on First Amendment grounds must stay on their toes (as does Richard Carrier in a debate with an anti-choice secularist).
In his book, Wenz painstakingly dissects a host of arguments and counter-arguments about fundamental rights, judicial activism, fetal viability, potentiality, consequentialism, limitations on abortion, and other related matters. So even if you end up disagreeing with him, you’ll get a valuable education in the constitutional law of religion and abortion rights. Abortion Rights as Religious Freedom connects two issues of paramount concern to progressive naturalists (not to mention progressives of other stripes): the separation of church and state, and a woman’s right to choose. For this reason alone Wenz’s book deserves a wide audience, especially at a time when Roe is in danger of being reversed.
TWC, September 2006