A Veil of Ignorance

One of the salient features of the abortion “debate” is that it rarely involves a genuine, intellectually honest discussion of the issue. People seldom approach the subject sincerely seeking to understand the other side’s perspective. Rather, the verbal combatants, wedded to their positions before the first words are exchanged, prefer to avoid the other side’s most compelling arguments, choosing instead to dismantle straw men so that they can decry victory as the straw lays strewn around them.

And of all the political discourse in the last 40 years, the purported debate about abortion certainly claims the prize when it comes to the argumentum ad hominem fallacy. Pro-choice advocates are nothing more than baby killers, and pro-life proponents have a maniacal desire to control and subjugate women. To paraphrase an oft used phrase, the abortion issue has generated ample rhetorical heat, but precious little light on the subject.

In this article, I opt for a different tack. While I may approach the abortion question from a generally pro-life perspective, I intend to explore what I believe to be each side’s best philosophical argument, perhaps with special emphasis on and discussion of the pro-choice arguments.

The abortion issue is so contentious in large part because two foundational principles which most people hold dear conflict —- individual liberty and freedom clashes with the sanctity of human life. How a person comes down on the abortion question may depend on the emphasis that that particular person may place on one of these principles over another, but both principles are nonetheless important to almost all of us.

The purpose of a theory is to be able to explain all known, relevant facts and phenomena. The more a theory can explain, the more validity it appears to contain. But almost every theory, regardless of the field, normally encounters situations at the edges that it cannot easily account for. I refer to that space as the frayed edges of a theory.

Political theory is no exception. The abortion debate is on our system’s frayed edge precisely because it involves a clash of foundational principles—- a woman should have a fundamental right to control her own body, and human life must be protected and respected.

As explained below, because the abortion issue lies on that frayed edge, it involves a situation where fair minded, reasonable people can disagree on what the rules governing the legal right to an abortion should be. I conclude this article by describing an exercise that may prove helpful in determining how readers should approach the issue, recognizing that it may lead different readers to arrive at different positions.

The seminal question, of course, is whether a fetus should be deemed a human being, because if the fetus is not a person, then there is nothing really left to debate. If a fetus is the moral equivalent of an appendix, then we can call it a day. While the decision to have your appendix, breast, or prostate removed may involve a difficult decision, it does not constitute the moral question of our age. Indeed, if a fetus equates to a gall bladder, then the principle that we should have the liberty to govern decisions about our own bodies dictates that a woman  should have an unrestricted right to determine whether to abort an fetus.

Contrary to what many in the pro-life community assert, I do not believe that we resolve the question of a fetus’s humanity by citing the Bible. I am a member of the Christian faith, and from a Christian perspective I accept on faith that the fetus is a person. However, the United States is not a theocracy. Indeed, the Founding Fathers inscribed into our Constitution via the First Amendment a safeguard against theocracy. When we look out across the world and how those under a theocracy fare, our Founding Fathers’ wisdom becomes apparent.

So if we do not rely on religion to determine the legal status of a fetus, on what basis do we decide? To me it is a question of philosophy, and from a philosophical position I conclude that a fetus must be deemed a person.

The first possible distinction that comes to mind between a fetus and a person is that the fetus has not yet been born. However, that difference cannot serve as a viable distinction. From a philosophical perspective, birth is simply an issue of location. I am inside a womb or outside of it. Yet my location at a given moment doesn’t determine whether I continue to be human. Whether I am in Virginia or California, my kitchen or my bedroom, does not bear on my status as a human.

Some argue that if a fetus cannot survive outside the womb, then the fetus is not human. Under this argument, viability becomes the litmus test. But that cannot serve as the appropriate distinction either. There are all kinds of situations where someone needs to rely on a temporary life support system, but we do not suggest that the patient’s status as a human is suspended while receiving treatment. Does a person on a ventilator or a dialysis machine become nonhuman? Of course not. The fetus from a scientific stand point is attached to a biological life support system. Its reliance on that support system to temporarily sustain its life therefore cannot dictate its status.

Ah, but some argue, a fetus, at least for much of its term, is not conscious, and until it achieves consciousness, the fetus is not human. But once again the logic fails. Is a person that is asleep or in a coma temporarily nonhuman? No. So long as a possibility remains that a person in a coma will awaken, we deem the person remains a living human being. Similarly, a fetus, if allowed to come to term, will achieve consciousness. That it has not yet awoken is not determinative.

Thus, I conclude that a fetus should be treated as and considered to be a person. Not from a theological perspective, but a philosophical one. (In college, I thought this argument I had assembled represented a new insight into the abortion issue, only to later learn that Peter Singer had tread this same line of reasoning on a published path. However, Singer concluded that infanticide should be acceptable. That is where, it is fair to say, he and I part company.) So does the status of the fetus as human end the debate as pro-life advocates suggest? Most decidedly not.

As stated earlier, we are not a theocracy. Our system rests roughly upon the concepts of liberty, fairness, and equal rights. The question then becomes how a system that relies on such principles should regulate abortion. Much of political philosophy recognizes that a just society based on the above principles makes a distinction between personal morality and a political system that gives a person the right and freedom to make personal decisions many others might find objectionable.(Tomes of philosophical thought have been written on this subject that far exceeds the scope of this article. Suffice it to say, I subscribe to the school of thought that a system based on liberty gives people broad leeway to make personal decisions so long as those decisions do not unduly interfere with the rights and liberty of others.) In such a system, pro-choice advocates can advance a substantial argument that at least some abortions should be legal even if many would find it morally objectionable. The argument goes like this.

Whether to abort a child represents a profound moral choice. From my faith background, I believe a person has a moral duty to try to save a child even at the risk of his or her own life (John 15:13). But society, except in extreme circumstances such as the collective national defense, does not compel a person to risk his life for another. I may have a personal moral duty to save a child from an oncoming car, but the law does not require me to do so if it would pose a danger to me.

Likewise, pro-choice advocates can argue that pregnancy by its nature entails risk and great inconvenience. Thus, while from a personal moral standpoint a mother should perhaps take a fetus to term, society cannot compel her to do so.

The pro-life advocate will rejoin that the analogy is faulty. The hypothetical presupposes that you had done nothing to first endanger the child in the road. If you were the one to place the child in the road, then society can require you to act. (Although not articulated, I believe this is why many pro-life advocates make exceptions for rape and incest. In those circumstances, the mother had not “willingly” placed the fetus in harm’s way.)

The pro-choice proponent has two arguments in reply. First, by voluntarily engaging in sexual intercourse that results in pregnancy, it is nonsensical to say that the woman has placed the fetus in a worse position. She has not negatively impacted the child’s status quo ante, because without the intercourse, there would be no child in the first place. How can you say you have made a child worse off by engaging in an act when the child would not exist but for your having engaged in the act?

Second, sexual intimacy is a fundamental activity that is an integral part of who we are as a species. It makes no sense to say you should be blamed for engaging in intimacy that goes to the core of who we are, and society certainly is not in a position to determine whether a person took sufficient “safeguards” to protect against a particular pregnancy when being intimate.

Thus, the pro-choice advocate can maintain that the analogy of a child in the road holds. Before explaining how I believe each person should approach the abortion issue from a legal perspective, I would make a few observations.

First, the pro-choice advocate should not shy away from the moral implications of his/her position, which are stark. Distilled to its essence, the proponent is advocating justifiable homicide — a woman has a right to legally terminate the life of a child. And not just any child. Her child. That is a profoundly uncomfortable position from which to argue, and it is why, I think, many pro-choice advocates do not engage in an extended analysis about the possible personhood of a fetus. It would force them to embrace an unpleasant reality. It is why they often instead try to conflate abortion with other healthcare decisions. In short, while pro-choice advocates have a defensible philosophical position, they need to understand and appreciate the moral ramifications of that position.

Second, pro-life advocates are wrong when they declare that politicians who claim to be morally opposed to abortion but support a legal right to choose, are hypocrites. They are not. They at some level are adopting the position that we are not a theocracy and that a difference exists between legal rights and personal morality.

Third, if a fetus is human, as medical technology improves and we can substitute artificial life support systems for a biological one, we have a duty to sustain the fetus outside the womb. Over time, abortions should become rarer.

Fourth, this analysis does not dictate what the answer is to the constitutional question whether and to what extent a legal right exists to an abortion. That is a separate issue. No just system is perfect, and we are governed by a constitution that on balance is just. We are at the end of the day a nation of laws, with the foremost law being our constitution.

So how do I suggest we resolve the clash between liberty and the sanctity of life? (In fact, the sanctity of life can be considered a subset of liberty, so it is really a conflict between the liberty of the mother and liberty of the fetus.)

I recommend we use what John Rawls described as the veil of ignorance. I assume that I am a rational person and that I am in the position to determine the balance of rights between a mother and a fetus. In doing so, I know all the risks and possible impacts of pregnancy, but I assume I have an equal chance of being a woman of child bearing age or the fetus. Not knowing the answer to which one I would be, what rules would I adopt?

At the outset, I realize I likely cannot be completely impartial and rational. Can I truly block from my mind that I will never be the woman, and can I ever really know exactly what it is like to be pregnant? More importantly for me, I came along late in my mother’s life, and her pregnancy was a high risk one. Some of those around her advocated that I be aborted. I am profoundly grateful that she did not have me aborted and that she risked her life for me. I strive to make her proud of that decision, and most of the time I think those who know me well will say on balance it was a good thing I was born.

But trying my best, I stepped behind the veil and have decided what rules I would adopt.

To me, different people of good heart can arrive at different conclusions behind that veil, because the answer lies in the clash of important rights and principles. As memory serves, Rawls came to a different place than I did. What I think Rawls’s theory of justice fails to account for is that when applying the overarching principle that people should enjoy the greatest freedom possible so long as it does not unduly interfere with the freedom of others, cases on the frayed edge can lead different, reasonable people to come to different results. As a lawyer, I am comfortable with that. That idea even lies at the heart of our judicial system.

In closing, I would ask my readers to engage in this simple exercise. Step behind the veil of ignorance. If you did not know if you were to be the mother or the fetus, but understood all the risks and possible impacts associated with pregnancy, what rules would you adopt relating to abortion? I do not know what your answer will be, but I respectfully submit that your answer to the question should inform your view about how a just society should address the abortion issue.