Abortion and the Veil of Ignorance
My oldest son is a senior in high school. I’ve watched him play hundreds of baseball games over the years—along with a smattering of football, basketball, and soccer contests. My daughter is 16 and plays sports year round: volleyball, basketball, and softball. All that to say, youth athletics is a big part of our lives—and so are loud, unruly parents. The two go hand in hand. But I’ve never in all my life seen a parent lose their mind over a “bad” call made in their team’s favor or berate a coach for playing their child too much. For all our talk of “fair play,” we seem awfully adept at selectively applying it—which is why we might benefit from a “veil of ignorance.”
The veil of ignorance—not to be confused with the cone of silence—is a hypothetical construct articulated by the renowned political philosopher John Rawls. His 1971 work, A Theory of Justice, coined the term to help describe a means of making judgments that aren’t tainted by personal bias. The reason umpires tend to be more reliable arbiters than parents, fans, or coaches is that they don’t have a vested interest in the outcome. This is the same reason why coaches are generally better talent evaluators than parents. Coaches care more about winning than they do about trying to make your child a star. Though John Rawls did not have sports in view when he articulated his conception of justice as fairness, he was looking for a way to transcend sectarian self-interest.
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I suspect that my own introduction to Rawls came in college, though I can’t say for certain. I took at least one semester of political science, but I have zero memory of what we actually covered. I was an art major, after all. For all practical purposes, my coursework in Rawls began in earnest last year when I read Political Liberalism—after hearing his veil of ignorance referenced in an interview. The veil of ignorance, it’s argued, can independently establish the justice or injustice of an act—without having to appeal to divine authority. As someone who trades in such concepts, I was immediately intrigued.
It turns out that John Rawls' basic political philosophy—which asserts that a workable social contract must be rooted in shared reason rather than religious dogma—lines up nicely with Abort73’s basic construction. I am a Christian man, and Abort73 is the product of a Christian organization, but our case against abortion is built almost exclusively on common belief. Anyone who holds that it is wrong to kill an innocent human being already has the necessary moral framework to condemn abortion, no matter what their religious convictions. Our first task isn’t to convince such a person that abortion is unbiblical. It’s to convince them abortion kills an innocent human being. This is how Rawls defends the necessity of such an approach:
Justice as fairness aims at uncovering a public basis of justification on questions of political justice given the fact of reasonable pluralism. Since justification is addressed to others, it proceeds from what is, or can be, held in common; and so we begin from shared fundamental ideas implicit in the public political culture in the hope of developing from them a political conception that can gain free and reasoned agreement in judgment, this agreement being stable in virtue of its gaining the support of an overlapping consensus of reasonable comprehensive doctrines.
“The conception of justice,” Rawls maintained, “should be, as far as possible, independent of the opposing and conflicting philosophical and religious doctrines that citizens affirm.” It is what Rawls called “the fact of reasonable pluralism” that necessitates taking such an approach to justice. In a nation of increasingly disparate beliefs, what are the “shared fundamental ideas” that offer a reasonable starting point? Rawls suggested two. “We collect such settled convictions as the (1) belief in religious toleration and the (2) rejection of slavery and try to organize the basic ideas and principles implicit in these convictions into a coherent political conception of justice.” This is possible, Rawls argued, because “these convictions are provisional fixed points that it seems any reasonable conception must account for.” If you’re surprised that Rawls regarded religious toleration to be a tenet of such import that no reasonable position could refute it, remember that he wrote Political Liberalism in 1993. Rawls was a liberal in the classic sense—not in the 2020 “burn it all down” sense.
It is said that John Rawls lost his Christian faith as a soldier in World War II—upon “seeing the capriciousness of death in combat and learning of the horrors of the Holocaust.” That’s how the Stanford Encyclopedia of Philosophy describes his religious disaffection. And yet he regarded religious toleration to be one of society’s essential bedrocks. “Reasonable persons will think it unreasonable,” Rawls wrote, “to use political power, should they possess it, to repress [religious] views that are not unreasonable, though different from their own.” This is the only way to maintain “a just and stable society of free and equal citizens, who remain profoundly divided by reasonable religious, philosophical, and moral doctrines.” It requires “an overlapping consensus of reasonable religious, philosophical, and moral doctrines.” Nothing short of a police state, Rawls warned, can mandate and maintain intellectual conformity:
Of course, those who do insist on their beliefs also insist that their beliefs alone are true: they impose their beliefs because, they say, their beliefs are true and not because they are their beliefs. But this is a claim that all equally could make; it is also a claim that cannot be made good by anyone to citizens generally. So, when we make such claims others, who are themselves reasonable, must count us unreasonable. And indeed we are, as we want to use state power, the collective power of equal citizens, to prevent the rest from affirming their not unreasonable views.
It’s not religious belief that Rawls took issue with. It was blind fanaticism, the kind of my-way-or-the-highway ideology that demands total conformity—which is precisely what we see being practiced today on the “secular” left. The reason Rawls didn’t begrudge the explicitly Christian underpinnings of the abolitionists or the civil rights movement is because their appeals were rooted in principles which transcend religion. “However much they emphasized the religious roots of their doctrines,” Rawls noted, “these doctrines supported basic constitutional values—as they themselves asserted—and so supported reasonable conceptions of political justice.” Reasonable conceptions of political justice recognize that it is immoral to propose a system of justice that favors members of “[one] particular social position” over another. This is where the veil of ignorance comes in.
One way to ensure that laws are enacted on the basis of fairness—rather than selective utility—is to evaluate them behind a “veil of ignorance.” Behind this veil, Rawls’ hypothetical representatives do not know the race, ethnicity, gender, age, income, wealth, abilities, or religion of their constituents. Neither do they know if they’re representing a majority or minority. They don’t know if they’re representing those in power or those facing religious persecution. They don’t know if they’re representing the slave or the slave owner—so they must find solutions that are the most equitable for all. You’ve probably employed the same basic principle when sharing a sandwich or piece of pie. The fairest way to divide something between two parties is to have one party make the division and the other party choose their half. Since the one doing the cutting doesn’t get to choose their piece, their best course of action is to divide it as evenly as they possibly can. When you don’t know which piece of the pie will be yours—be it literal or metaphorical, it’s in your best interest to be as equitable as nature permits.
The veil of ignorance is a fairly ingenious construct when it comes to the big stuff. If there is no God—as large swaths of the population insist, if there is no divine directive, then what’s to protect us from the mass weaponization of social darwinism? Survival of the fittest. Might makes right. The end justifies the means. There is no truth. We’re all just animals. Right and wrong is whatever I say it is. Amidst these transcendent threats, Rawl’s justice as fairness offers an alternative pathway and helps demonstrate that social cooperation is in everyone’s best interest. But it can only go so far—by Rawl’s own admission. “We do best not to assume that there exist generally acceptable answers for all or even for many questions of political justice,” he concedes. In fact, “we must be prepared to accept the fact that only a few questions we are moved to ask can be satisfactorily resolved.” The crucial political objective, Rawls suggested, is in “identifying those few, and among them the most urgent.” The veil of ignorance, for instance, can tell you that all races should be given equal rights and protections under the law, but it can’t tell you how best to combat generational poverty or the breakdown of family.
Political Liberalism makes frequent reference to the “two principles of justice” which anchor justice as fairness, but Rawls struggled to define them clearly and consistently. In part, because the second principle is actually two. Here’s my best effort: 1) Each person has an equal claim to basic rights and liberties. 2a) Social and economic inequalities are reasonable so long as they do not result from discriminatory practices. 2b) Social and economic inequalities should benefit the least-advantaged members of society. If you’re a bit confused by the implications of that last clause, you’re not alone. Some have wondered if Rawls’ efforts to mitigate inherited advantages made him a socialist, but he also argued emphatically that “the right to hold and to have the exclusive use of personal property” is one of the most basic liberties. And whether you want to call him a socialist or not, Rawls explicitly stated that the first principle must always be “given priority over the second.”
With all that as a primer, let’s now turn our attention to the issue of abortion. Why is legal abortion incompatible with Rawls’ theory of justice as fairness? To my mind, it’s easy. If you had to judge the ethics of abortion behind a veil of ignorance—and you didn’t know whether you would be the pregnant woman or the unborn child—how could you possibly affirm the morality of abortion? You’d have a 50-50 chance of signing your own death warrant. And unless you believe in reincarnation, each of us only gets one shot at life. The younger we are when we die, the more of our life we lose—and no one loses more of their life than the child who dies in the womb. To me, the veil of ignorance offers a remarkably straightforward condemnation of abortion, but I’ll push the case a bit further. Rawls provided at least ten principles upon which we can condemn abortion. I’ll list them below, followed by Rawls’ own articulation.
1. It is a priori wrong to kill an innocent human being.
“By a democratically ratified constitution with a bill of rights, the citizen body fixes once and for all certain constitutional essentials, for example, the equal basic political rights and liberties, and freedom of speech and association, as well as those rights and liberties guaranteeing the security and independence of citizens, such as freedom of movement and choice of occupation, and the protections of the rule of law.”
2. It is unjust for any human being to be regarded as property under the law.
“To argue that slavery is unjust we appeal to the fact that it allows some persons to own others as their property... In claiming that slavery is unjust the relevant fact about it is not when it arose historically, or even whether it is economically efficient, but that it allows some persons to own others as their property.”
3. The citizenry is never free to act unjustly.
“The principles of justice set limits to permissible ways of life: the claims that citizens make to pursue ends transgressing those limits have no weight. The priority of right gives the principles of justice a strict precedence in citizens’ deliberations and limits their freedom to advance certain ways of life.”
4. When rights conflict, the more fundamental right must prevail.
“The most reasonable political conception of justice for a democratic regime will be, broadly speaking, liberal. This means that it protects the familiar basic rights and assigns them a special priority... Each person has an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for all.”
5. Personal conceptions of justice cease to be legitimate when they infringe upon the basic rights of another.
“Liberalism accepts [that different people have different conceptions of right and wrong], provided, of course, these conceptions respect the limits specified by the appropriate principles of justice... Citizens and legislators may properly vote their more comprehensive views when constitutional essentials and basic justice are not at stake.”
6. It is unjust for the law to benefit one generation at the expense of the next.
“It helps us work out what we now think, once we are able to take a clear and uncluttered view of what justice requires when society is conceived as a scheme of cooperation between free and equal citizens from one generation to the next.”
7. The overall impact to a person’s complete life must be considered in all matters of justice.
“If the equal basic liberties of some are restricted or denied, social cooperation on the basis of mutual respect is impossible. For we saw that fair terms of social cooperation are terms upon which as equal persons we are willing to cooperate with all members of society over a complete life.”
8. The pragmatic benefits that an injustice may provide to certain individuals are immaterial.
“Desires and wants, however intense, are not by themselves reasons in matters of constitutional essentials and basic justice. The fact that we have a compelling desire in such cases does not argue for the propriety of its satisfaction any more than the strength of a conviction argues for its truth.”
9. Even if injustice is said to serve the greater good, it is still unacceptable.
“Since the various basic liberties are bound to conflict with one another, the institutional rules which define these liberties must be adjusted so that they fit into a coherent scheme of liberties. The priority of liberty implies in practice that a basic liberty can be limited or denied solely for the sake of one or more other basic liberties, and never, as I have said, for reasons of public good or of perfectionist values.”
10. Majority support has no bearing on the justice of an act.
“Moreover, the priority of the basic liberties implies that they cannot be justly denied to anyone, or to any group of persons, or even to all citizens generally, on the grounds that such is the desire, or overwhelming preference, of an effective political majority, however strong and enduring. The priority of liberty excludes such considerations from the grounds that can be entertained... Unless constitutionally recognized restrictions on majority legislation and other elements are in place, the basic liberties and other freedoms will not be properly protected.”
As a system, justice as fairness offers such a robust condemnation of abortion that trying to justify abortion behind a veil of ignorance—when you don’t know whether you’re the mother or the unborn child—would be an exercise in complete futility, were it not for one simple and rather unfathomable fact. John Rawls did precisely that. “When hotly disputed questions, such as that of abortion, arise,” Rawls wrote, “citizens must vote on the question according to their complete ordering of political values.” This assessment is perplexing on two levels. First, American citizens have never voted on the legitimacy of abortion. It was legalized by judicial fiat. Second, Rawls had already stated that fundamental human rights cannot be staked to the whims of majority opinion. Nevertheless, he argued that if a democratic majority votes to allow abortion, then it must be accepted as a legitimate decision:
Some may, of course, reject a legitimate decision, as Roman Catholics may reject a decision to grant a right to abortion. They may present an argument in public reason for denying it and fail to win a majority. But they need not themselves exercise the right to abortion. They can recognize the right as belonging to legitimate law enacted in accordance with legitimate political institutions and public reason, and therefore not resist it with force.
Notice first that Rawls dismissively inferred that opposition to abortion is narrowly religious. In one sense, this is true—but it’s misleading. Yes, opposition to abortion is overwhelmingly “Christian,” but so was opposition to slavery. We should also note that early opposition to abortion came almost exclusively from the medical community. The church was late to the game. More to the point, it is not religious doctrine that condemns abortion. It’s basic biology. Biology demonstrates that human life begins at conception, while the “religion” of the secular left insists—without empirical basis—that personhood begins at birth. Rawls then trotted out the tired assertion that those who oppose abortion don’t have to have one—just as the abolitionists could find supposed solace in the fact that they didn’t have to own a slave. Rawls, unfortunately, continued:
[If] we consider the question (of abortion) in terms of these three important political values: the due respect for human life, the ordered reproduction of political society over time, including the family in some form, and finally the equality of women as equal citizens. Now I believe any reasonable balance of these three values will give a woman a duly qualified right to decide whether or not to end her pregnancy during the first trimester. The reason for this is that at this early stage of pregnancy the political value of the equality of women is overriding, and this right is required to give it substance and force.
After giving tacit recognition to the value of human life, Rawls inexplicably dismissed it. But not only that, he went on to say that women’s equality requires abortion. “Any [belief] that leads to a balance of political values (that) exclud[es] [abortion],” Rawls posited, “is to that extent unreasonable; and depending on details of its formulation, it may also be cruel and oppressive.” And then he really turned things on their head: “Thus, assuming that [legal abortion] is either a constitutional essential or a matter of basic justice, we would go against the ideal of public reason if we voted from a [religious belief] that denied [the right to abortion].”
Instead of viewing the right to life as a constitutional essential, Rawls called abortion a constitutional essential—without providing anything in the way of explanation. So far as I can tell, here’s what he did. Rawls placed himself behind the veil of ignorance and evaluated abortion from the perspective of a generic Roman Catholic—who opposes abortion—and a pregnant, unmarried woman who “needs” one. Since the pregnant woman clearly has more at stake, and since the “pro-choice” position allows for her to have an abortion without requiring the Roman Catholic to follow suit, Rawls concluded that allowing for abortion was the more “fair” solution.
The problem, of course, is that Rawls left the victim of abortion entirely out of the equation. Instead of putting himself in the shoes of the unborn child, he considered only the mother—and a straw man Catholic. The veil of ignorance is tailor made to demonstrate the injustice of abortion, and yet its own author completely missed the most straightforward application. Rawls dehumanized its victim to such an extent that the intrinsic worth of their individual life was not even considered. While insisting that rights of personhood belong to everyone who will be a participating member of society over the course of a complete life, Rawls then defined life as that which happens “from birth until death.”
John Rawls spent a lifetime painstakingly crafting a unified theory of justice, but when it came to the most helpless and vulnerable members of the human community, he excluded them entirely. His application of “fairness” to the issue of abortion proved entirely wonton. And even if you hold his biologically-nonsensical position that unborn children do not become human beings until they’re born, left to themselves, this is precisely what they will do. Perhaps we should consider again Rawls’ assertion that slavery and religious intolerance are self-evidently wrong—by human reason alone. If that were really the case, then why have both been the historic norm across the globe? The veil of ignorance has plenty of utility as a hypothetical construct, but in the real world, it doesn’t exist. That’s because nobody can truly put themselves behind it, and even if they could, they would still lack the objectivity—and wisdom—to lean entirely upon their own understanding.
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