Abstract
This paper provides a new analysis and critique of Rawlsian public reason’s handling of the abortion question. It is often claimed that public reason is indeterminate on abortion, because it cannot say enough about prenatal moral status, or give content to the (allegedly) political value which Rawls calls ‘respect for human life’. I argue that public reason requires much greater argumentative restraint from citizens debating abortion than critics have acknowledged. Beyond the preliminary observation that fetuses do not meet the criteria of political personhood, I contend, public reasoners may say nothing about prenatal moral status. Indeed, respect for human life (as distinct from respect for persons) is not, I show, a genuine political value, whose interpretation lies within public reason’s remit. This fact does not, however, prevent deliberators from drawing determinate conclusions regarding the law of abortion. Instead, I show, public reason has radically permissive implications for the legal regulation of feticide, inclining heavily towards the view that abortion should be allowed with little or no qualification, right until birth. I end by giving grounds for thinking that, even if the argumentative restraint which public reason enjoins over prenatal moral status does not generate indeterminacy, it is nonetheless objectionable.
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Notes
This description of the ideal skirts around what Rawls (2005: p. liii) calls the ‘wide view’ of public reason, whereby citizens may freely appeal to their comprehensive doctrines, subject to the proviso that they be able to produce, in due course, sufficient public reasons to yield the same conclusion. Because public reasons must be forthcoming at some point, neither the ‘incompleteness objection’ to which I presently turn in the text, nor the argument of this paper, is affected by Rawls’s endorsement of the wide view, which I therefore leave aside throughout.
Surprisingly, Quong claims elsewhere (2012a: p. 282) that ‘the sanctity of human life’ is a political value. Quong has clarified to me, however, that he intended in that passage only to affirm the looser Rawlsian idea that respect (in some sense) for human life is such a value.
I here ignore a number of other less prominent or promising descriptions of the political domain found in Rawls’s work. For a forensic examination of Rawls’s varied and problematic use of the term ‘political’, see Gaus (2003: ch. 7).
Rawls states that justice as fairness is such a conception, for instance. See Rawls (2005: p. 90).
For an impressively thorough list of the political values identified by Rawls across his relevant works, see Freeman (2004: pp. 2030–2031, n25). It seems plausible to think that nearly all of these would indeed be concomitant commitments of anyone who subscribes to the core liberal values—the standout exception being, as I argue below, respect for human life.
As for the many characterisations of those values, this results from the fact that citizens interpret them through their different political conceptions of justice.
Cf. Williams (2000: p. 207).
It might be replied here that young children do not fulfill the criteria either, yet Rawls sometimes says that they are persons. I address this point in detail in Sect. 3.1.
On monogamy’s status as a nonpolitical value, see Rawls (2005: p. 457).
Note that, in saying that entry and exit are only by birth and death, Rawls means to abstract from the phenomenon of immigration.
I say that Rawls ‘seems to’ indicate this. I acknowledge a difficulty of interpretation, in that it is not wholly clear (at Rawls 2005: p. 245) whether he means to say that political conceptions of justice generally are apt to yield anthropocentric conclusions, or that contractarian conceptions like justice as fairness specifically do so. Tellingly, however, when Rawls considers the perspective of citizens who reject the view that animals and nature are to be thought of as instruments of use, and how they might make their case in the democratic forum, he does not claim that they can avail themselves of political values that justice as fairness, say, neglects. Rather, he envisages them going beyond the limits of public reason altogether, as, given his view that public reasoning is required only when constitutional essentials and questions of basic justice are at issue, they are entitled to do.
And it is also consonant with the view in Theory, where Rawls suggests (1999: pp. 448–449) that a full account of our moral relationship with the natural world is not a task for a theory of justice but for metaphysics.
For such a view of prenatal moral status, and an associated bifurcation of morality between a morality of respect, or justice, and a morality of interests, or beneficence, see McMahan (2002).
In assuming that citizens need not argue in public reason on the basis of the reasons that really motivate them, I follow Schwartzman (2011).
For an argument, however, to the effect that those of us who are committed to a woman’s right to selectively abort for fetal disability ought also to affirm a right to sex-selective abortion, see Williams (2012).
My use of the language of an incline in public reason toward a particular set of rules or rights is reminiscent, of course, of Gaus. My explanation of the way in which Rawlsian public reason inclines towards radically permissive abortion laws differs, however, from his account (in, e.g., Gaus 2011: ch. VIII) of how his own model of justificatory liberalism inclines towards classical liberalism.
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Acknowledgments
Much earlier versions of this paper were presented at the Association of Legal and Social Philosophy conference in Belfast in July 2012, and a seminar at the NYU Center for Bioethics in April 2013. I am grateful to the participants on those occasions, to Cécile Fabre, Dale Jamieson, Matthew Liao, Collin O’Neil, Ara Astourian, and Kevin Vallier, for many valuable pointers, provided in writing and/or conversation, and especially to Jeff McMahan and Jonathan Quong, for their extensive feedback. Finally, I record my thanks to the Leverhulme Trust for the Early Career Fellowship that enabled this research.
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Williams, J. Public Reason and Prenatal Moral Status. J Ethics 19, 23–52 (2015). https://doi.org/10.1007/s10892-015-9190-9
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DOI: https://doi.org/10.1007/s10892-015-9190-9