Course “Introduction to Contemporary Political Philosophy”, 2010 (Zoltan Miklosi)
Abortion in J. Rawls’s “A Theory of Justice” and “Political Liberalism” and
R. Dworkin’s “Life’s Dominion”
The author has compared the issue of abortion focusing on pro-life vs. pro-choice position in Rawls’s theory of justice and political liberalism and Dworkin’s discussion about moral problems of abortion. In the first and second parts of this paper, the author has analyzed the abortion issue from the standpoint of the original position, veil of ignorance, rights and interests, detached vs. derivative position, natural vs. human investment while criticisising the application of Rawls’s natural duties and Dworkin’s intrinsic (sacred) value to abortion. In the final part, Rawls’s and Dworkin’s positions on abortion issues are compared, drawing conclusions on similarities and divergence.
Two American philosophers, Rawls and Dworkin, show how the position is influenced by the time of drafting the theoretical framework – the 1970s when abortion came in the foreground of the political agenda (Rawls’s “A Theory of Justice” written in 1971 holds pro-life position) and the 1990s when abortion received a more liberal treatment (Rawls’s “Political Liberalism” and Dworkin’s “Life’s Dominion” both written in 1993 hold pro-choice position). MacIntyre has in laconic manner described the difference between pro-life and pro-choice positions as: “one side who asserts that abortion is murder (pro-life position); the other side asserts that women should have the right to make a decision about abortion” (pro-choice position) (Clayton, 2005).
Rawls’s “A Theory of Justice”
Abortion from the standpoint of the original position, veil of ignorance and maximin principle
The original position and other conceptions constrained by Rawls can be applied to ethical issues, also to such issue as abortion. My point of view is similar to Evers’s opinion that from the standpoint of conceptions of original position, veil of ignorance and maximin principle neither of Rawls’s conceptions of justice could permit abortion or Rawls position would entail at least frequent prohibition (Evers, 1978: 111).
I share my opinion with Shaw that if we interpret Rawls’s theory of justice abortion would not be chosen as a reasonable policy by those in the original position. (Shaw, forthcoming: 1) As Rawls has emphasized, the purpose of the original position is “to represent equality between human beings as moral persons, as creatures having a conception of their good and being capable of a sense of justice”. (Rawls, 1971 [further TJ ], sec. 4, 17) But can we associate this assumption with a fetus? Is fetus a human being, a moral person, capable of a sense of justice?
Veil of ignorance
The aim of Rawls’s veil of ignorance is to achieve objectivity in our moral judgments. Behind the veil of ignorance, a woman would not know her place in society, her wealth, her religious views or moral beliefs and so forth (Hampton, 1998: 137-138). A woman is deprived of information or, in other words, the concept of “veil of ignorance” presupposes the exclusion of the knowledge of conditions. (TJ, sec. 4, 17) “If a person does not know whether she will be in the position of the woman seeking the abortion (..), what rule of decision would that person choose to maximize the welfare of both? A pro-life position”. (Epstein, 1993)
Hare emphasizes that in Rawls’s theory neither the interests of possible people nor the interests of the person that the fetus would turn into if not aborted will be taken into consideration, “but the maximin principle will require them to say that before anything is done for the rest of us, we ought to secure the birth of all these possible people”. (Hare, 1973) Maximin principle determines that in an uncertain situation a woman cannot estimate the outcome that will occur (Hampton, 1998: 139): a woman does not know if a born baby will impose any restrictions on her life, she can only hypothesize. Even in the situation of rape a woman can hypothesize that she will not love the child but she cannot say it definitely.
Abortion from the standpoint of natural duties (positive and negative)
Natural duties are general, fundamental duties in virtue of shared humanity and apply unconditionally. Therefore, I agree with Evers that the duty of mutual respect and the duty not to injure others [in the point of view of Rawls] would prohibit abortion of a potential moral person (Evers, 1978: 112). Likewise, Dworkin argues that a fetus is “protected indirectly in virtue of the pregnant woman’s duty to respect humanity in her own person”. (Saugstad, 1995: 579) The duty of mutual respect is a positive duty because it is a duty to do something good for a fetus; but the duty not to injure others is a negative duty because it requires us not to do something that is bad. (TJ, sec. 19, 114)
Duty of mutual respect
But as Rawls states later, “the duty of mutual respect is the duty to show a person the respect, which is due to him as a moral being that is a being with a sense of justice and a conception of the good”. (TJ, sec. 51, 337-338) But is a fetus a person? Is a fetus a moral being? Rawls also admits that the duty of mutual respect means that we are “prepared to give reasons for our actions whenever the interests of others are materially affected”. (TJ, sec. 51, 337) But does a fetus have rights? Moreover, Rawls states that respect is shown because of “our awareness of another’s person’s feelings” (TJ, sec. 51, 338). But does fetus have feelings? Despite my remarks of a fetus being a “person”, a “moral being” or having “interests” and “feelings”, Rawls argues for prohibition of abortion from the standpoint of natural duties. Furthermore, the pregnancy because of voluntarily sexual intercourse or rape (or incest) would not matter for Rawls because natural duties apply unconditionally without their acceptance (TJ, sec. 51, 335 in Evers, 1978: 112)
Duty of mutual aid
Rawls also distinguishes the duty of mutual aid (a positive duty) that requires that we have to help others who are in need when doing so is not too costly for us (TJ, sec. 16 (17), 100; sec. 19, 114; sec. 51, 297-298). The last point about costs plays a crucial role in the case of abortion because people in a great extent do not have a moral duty to save others at serious costs to themselves. (Rakowski, 1994: 2061) Also Dworkin argues that “abortion for rape or incest victims would be allowed, using a field and seed analogy: involuntary implantation of the seed imposes no duty to nourish the alien seed”. (LD, 96) Moreover, as Saugstad adds – forcing a woman to have a fetus in her body in such circumstances would be a violation of her right to decide how to use her own body (1995: 577). These asymmetrical relationships resemble Thomson’s provocative example of a woman attached to a violinist, who will die if she detaches herself during nine months and which proves the assumption about the weakness of our duty to aid strangers. (Rakowski, 1994: 2062) Also Evers points out that Rawls’s formulation of the duty of mutual aid assigns that “the duty holds only when one can aid someone without “considerable” or “excessive” risk or loss to oneself”. (Evers, 1978: 111).
Duty not to harm (injure)
Duty not to harm or injure another (TJ, 115) as a natural duty also applies because it is wrong to kill a fetus. But if a fetus is suffering from a disease or there are threats to the mother’s life? Will then this natural duty be in conflict with the fetus’s right to a good life or the mother’s right to self-defense? From another side, abortion is permissible only in a situation when the person is able to kill, thus abortion is permissible only if it is required to save the mother’s life not when the fetus has health problems or inherited diseases (English, 1975: 239). But then the duty not to harm is in conflict with the duty of mutual respect (especially in the case of rape or incest when her mental state should be respected). Another point of criticism is that if we follow the duty not to harm contradicts, for example, state’s policy of reproduction (e.g. Chinese policy that allows only having one child in the family). Even Aristotle has argued that abortion is not only permissible but also necessary to regulate the birth rate.
 However, to my mind Thomson’s example with violonist can be critized on the grounds that it does not illustrate the relationships between mother and fetus analogously.
 „When local custom does not allow exposing infants for the purpose of keeping down numbers, the proper thing to do is to limit family size (..). (Politics 7.16, 1335b). Pro-life proponents criticize this statement because it means that for Aristotle (and also for Plato) the welfare of society was more important than the rights of a child.