“I always took for granted,” wrote political philosopher John Rawls, “that the writers we were studying were much smarter than I was. If they were not, why was I wasting my time and the students’ time by studying them?” There is no doubt that Rawls, a man who is often considered the most significant political philosopher of the twentieth century, was a much smarter man than I will ever be. While I don’t subscribe to his particular form of liberalism, I do think his views should be afforded due consideration.

“If I saw a mistake in their arguments,” continued Rawls, “I supposed those writers saw it too and must have dealt with it. But where? I looked for their way out, not mine. Sometimes their way out was historical: in their day the question need not be raised, or wouldn’t arise and so couldn’t then be fruitfully discussed.”

When Rawls wrote those words in 1971 the Supreme Court was considering the question of what restrictions, if any should be put on the right to abortion. Since the arguments against abortion were capable of being “fruitfully discussed” it is worth considering how Rawls theory could be relevantly applied.

A useful starting point is the famously controversial thought experiment first articulated in A Theory of Justice . Beginning with a minimal assumption about human nature and morality, Rawls attempts to develop a principle of justice under which it would be most reasonable for people to choose to live. The just social life, according to Rawls, could be derived from a thought experiment in which people imagined an “original position” where they decide on social rules. In order to maximize fairness, the philosopher proposed that the rules be developed from behind a “veil of ignorance” which prevents their knowing anything about their own situation in the hypothesized society:

Among the essential features of this situation is that no one knows his place in society, his class position or social status, nor does any one know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. The principles of justice are chosen from behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances. Since all are similarly situated and no one is able to design principles to favor his particular condition, the principles of justice are the result of a fair agreement or bargain. The original position is, one might say, the appropriate initial status quo, and thus the fundamental agreements reached are fair. This explains the propriety of the name “justice is fairness”: it conveys the idea that the principles of justice are agreed to in a state that is fair.

To understand why let’s add to the veil of ignorance what philosopher Daniel Dennett calls an “intuition pump””an analogy or illustration that helps us understand what would otherwise be obscure or abstract.

Let us imagine that we live in a totalitarian state and are part of a governing body tasked with determining bioethical policy. On the agenda for the first session of the Benign Dictator’s Council on Bioethics is the establishment of a moral principle on abortion. Our sole guideline is that we must establish a precedent that is not chronologically arbitrary. In other words, any policy we set would have to be applicable not only to the present and the future but to the past as well.

Several days pass in which we argue over whether the moral status of the embryo and debate whether the entity is a “human” or a “person.” After a week of debate in which we cannot come to a consensus, the members of the BDCB split down the middle on a policy recommendation. One group wants to completely prohibit abortion while the other half would allow it for up to the twelfth week of development.

After reviewing our recommendations, Solomon, our wise Benign Dictator, invites us into a lecture hall in which a thick veil of canvass hides half the room. Behind the veil, he says, are the “embryos””humans who, whether in the past and present, have passed thought the earliest stage of development. The new policy will be applied immediately applied to anyone who would have been affected by the policy had the people wisely chosen to implement it sooner.

When Solomon pulls away the veil, we find several cryogenic vats of frozen embryos along with a person who has the following relationships to each member of the Council:

• Your spouse.
• One of your children. If you have no children, the first child that you would have will be included on the “Future list.
• One of your closest friends.
• An acquaintance you met in passing.
• Your favorite distant relative.
• A co-worker.
• Your first significant relationship.

Since a policy that prohibits embryo destruction would not affect anyone behind the veil, Solomon dismisses those people related to the members who voted against the measure. For the others, he offers them an opportunity to reconsider before the policy is retroactively enacted. He will allow those members to change their vote provided they can provide a non-arbitrary justification for changing the principle.

What could Rawls say to Solomon? What argument could he make that would save both his theory and a loved one?

The answer, of course, is that he cannot. Rawls own writings show that he was not able to hold position consistently. Rather than applying his own veil of ignorance to the question of abortion, Rawls added additional criteria that he believed must be considered: the due respect for human life, the ordered reproduction of the political society, and the equality of women as citizens with equal rights.

By adding these qualifications, Rawls undermined”indeed negated”his own theory of justice. If women are allowed the “right” to abortion, then they have an unnatural advantage, based on “the contingency of social circumstances,” over the unborn child. These women were allowed to be born, while the unborn child is not. There are, in the parlance of Rawls, given an unfair advantage in the initial status quo.

“Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override,” said Rawls, “For this reason, justice . . . does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many.” Rawls was pro-abortion, which means that he really didn’t believe his own claims. No matter how he or his disciples try to split the baby, you can’t have both justice and abortion.

Joe Carter is Web Editor of First Things and the co-author of How to Argue Like Jesus: Learning Persuasion from History’s Greatest Communicator . His previous articles for “On the Square” can be found here .

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