In Political Liberalism, John Rawls seeks a conception of justice that is political, not philosophical—that is, a conception that does not presuppose any particular conception of the person, autonomous or otherwise. He proposes bracketing controversial moral and religious issues for the sake of securing social cooperation in the face of disagreement about ends, not for the sake of advancing a “comprehensive” view based on autonomy or individuality. One objection to this kind of minimalist liberalism is that the case for bracketing a particular moral or religious controversy may partly depend on an implicit answer to the controversy it purports to bracket. In the case of abortion, for example, the more confident we are that fetuses hold a moral status different from babies, the more confident we can be in bracketing the question about the moral status of fetuses for political purposes.
The Supreme Court’s argument in Roe v. Wade illustrates the difficulty of deciding constitutional cases by bracketing controversial moral and religious issues. Although the Court claimed to be neutral on the question of the beginning of life, its decision presupposes a particular answer to that question. The Court began by observing that Texas’ law against abortion rests upon a particular theory of the beginning of life, as it states that “Texas urges that…life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception.”[1] In accordance with Rawls’ minimalist liberalism, the Court claimed to be neutral on this question: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary…is not in a position to speculate as to the answer.”[2] To ground its argument on historical precedent, the Court concluded by pointing at the wide divergence of thinking on this difficult question, particularly in Western legal tradition and in the law of various American states.
The reasoning outlined above led the Court to conclude that “the unborn have never been recognized in the law as persons in the whole sense.”[3] Accordingly, it argued that Texas was wrong to embody in law a particular theory of life—that is, since no theory was conclusive, it held that Texas erred in “adopting one theory of life…[which would] override the rights of the pregnant woman that are at stake.”[4] However, contrary to its alleged neutrality, the Court’s decision presupposed a particular answer to the question it claimed to bracket:
With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.
That the Court’s decision in Roe v. Wade presupposes a particular answer to the question it purports to bracket is no argument against its decision—only an argument against its claim to have bracketed the controversial question of the beginning of life. Thus, contrary to its purported intention, the Court does not replace Texas’ theory of life with a neutral stance, but with a different theory of its own.
The Rawlsian case for neutrality is subject to a further difficulty: even given an agreement to bracket controversial moral and religious issues for the sake of social cooperation, it may be controversial to decide what counts as bracketing. For its solution, this further controversy may require either a substantive evaluation of the interests at stake, or the autonomous conception of agency that Rawlsian liberalism resolves to avoid. A useful hypothetical to illustrate this difficulty would be to consider turning abortion into a “states’ rights” issue in the United States. In this case, we would agree that abortion is a controversial moral issue, but we would argue that the best way for the Court to bracket this controversy would be to let each state decide the question for itself. We would propose, in effect, to bracket the controversy over abortion as Stephen Douglas proposed to bracket the controversy over slavery in the 1860s—by refusing to impose a single answer to the country as a whole. Thus, despite agreeing that abortion is a hotly contested moral and political issue, we would argue that such issues in our society are to be resolved by the will of the people, either as expressed through legislation or through the general principles already incorporated into the Constitution. Thus, if the Court did otherwise it would be giving up its neutrality—imposing yet again its own controversial choices of value upon individuals.
One response to the hypothetical presented above would be to urge that individual women should be the ones in charge of deciding the question about abortion for themselves. In this case, for the Court to insist that women are free to choose for themselves would not be to impose the Court’s values, but simply to prevent local majorities from imposing their values on individuals. Put differently, from this view no woman should be compelled to surrender her freedom to make that decision for herself simply because her “value preferences” are not shared by the majority. Thus, in this case, the basic question would not be to decide which theory of life is true, but whether the “abortion decision” should be made by the individual or by the majority in the unrestrained imposition of its own, extraconstitutional value preferences.
What is striking is that both hypothetical ways of bracketing the abortion debate are in principle consistent with Rawls’ political liberalism, which suggests that the practical interest in social cooperation under conditions of disagreement about the good offers no grounds for choosing one over the other. Even after agreeing to bracket an intractable moral or religious controversy for the sake of social cooperation, it may still be difficult to know what counts as bracketing and what does not. Moreover, resolving that question—deciding between, for example, delegating the “abortion decision” to states or to individuals—requires either a substantive view about the moral and religious interests at stake or an autonomous conception of the person such as the voluntarist view affirms. Both solutions, however, would deprive Rawls’ political liberalism from its attractive minimalism; each individual would implicate its putatively political conception of justice in precisely the moral and philosophical commitments that it seeks to avoid. This is why it seems to me that it is not possible to decide on the legal permissibility of abortion without taking a moral stand on the status of the fetus.
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