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Posted on August 20, 2019 at 6:09 AM

As a Christian, it seems to me that the most logically consistent application of justice is based upon the belief that all human beings bear the image of God, the imago Dei, and as bearers of the image, have equal human dignity, deserving of equal and just treatment by others, both morally and legally, regardless of our varying human attributes (as expounded here at page 163). I realize that not all human beings believe in this God so their systems of justice naturally differ from mine. Resolving conflicting understandings of justice is what makes the intersection of law and bioethics challenging. Currently, nowhere is this conflict so challenging as in the issue of unrestricted, elective abortion.

One such differing theory of justice is by the late John Rawls, in his 1971 Theory of Justice. Briefly, Rawls conceived arriving rationally at a theory of justice by conducting a thought experiment whereby rational persons would determine justice by conceiving it from an “Original Position” behind what he termed a “Veil of Ignorance”. At this Original Position, no one knows what eventual position they would subsequently hold in society, including wealth, health, class, education, minority status, religion and sex/gender. Since justice would be determined prior to one’s random subsequent placement in society, no decision from behind the Veil of Ignorance within the Original Position ought to favor one classification over another because no one would know in advance into what classification one might fall. No one religion would be favored since one might not believe in that religion or any religion at all. No one racial group or sex/gender would be favored since one might not be included in that group or sex/gender.

So what does the Theory of Justice have to say about elective abortion? Interestingly, Rawls himself only wrote once parenthetically on the subject of abortion as it pertained to his theory. It was a very brief footnote in support of abortion, unfortunately not a rigorous defense. As one might expect, different people have used Rawls’s theory to support or refute abortion. I have included links to two such example position papers (RawlsAbortionPro and RawlsAbortionCon). Both of these papers (and others like them) hinge on whether or not one believes the embryo or fetus has sufficient “personhood” or “moral potential”, qualifications that are indeterminate from within the Theory of Justice. Facts are preferred to beliefs when rationalizing from the Original Position behind the Veil of Ignorance, since one does not know in advance what one might believe once subsequently existing in society. Are there any facts that one might use from the Original Position to consider the Rawlsian justice of abortion regardless of one’s beliefs about personhood or moral status of the unborn?

Consider the following: EVERY actual human being invited by Rawls to step with him behind the Veil of Ignorance into the Original Position to determine justice MUST have already passed from conception through the stages of embryo, fetus, newborn infant and immature youth before reaching that nebulous stage of human development called personhood in order to receive the coveted invitation. For the sake of argument, let’s grant that Rawls only wanted the philosopher-kings, IQs above 180, possessors of the apex of personhood, Harvard, not Yale, to join him behind the Veil. Would any of these persons reasoning from the Original Position permit unrestricted, elective abortion of an otherwise healthy unborn human, given that the unborn human aborted might be one of them? The beliefs about the personhood or moral status of any of the earlier stages of development prior to personhood of these great thinkers are irrelevant. What is factually relevant is that all of these great thinkers must each pass through all these stages of development before achieving personhood. None would, from that Original Position, choose unrestricted, elective abortion of themselves to be a just outcome, simply because death has to be the worst of all social categories in which to land after leaving the Original Position. Or is that just my belief?

Treating all humans as equal image bearers of God regardless of any other human characteristics we might possess seems to me a better basis for a theory of justice than one rationally designed by our best and brightest fellow humans. Living that out is the real challenge.

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