What is the status of this "reason"? It is a purely logical form of reason, which takes the following form: If a person begins with an attitude of pure self-interest, and argues according to the particular form of logic prescribed by Rawls, then this is the form of society which they would logically accept. But, unless one is prepared to assume that this is the only kind of reason that the participants could use, it cannot be excluded that they might still have other reasons why the human embryo should be counted among those who are to be protected by that society.
I will now examine the notion of "reason" that is adopted by the liberal position. We can do this by examining the arguments of the liberal view as presented by John Rawls. The central question is: what is the ideal society? The classic answers have been (1) that which would meet the approval of an ideal, neutral observer, (2) and/or that which is based on a freely entered contract.14 The problem which both seek to deal with is the ineradicable tendency of human beings to seek their own egotistical advantages. Thus, there is need for the ideal neutral observer, who, free from egoism, could judge objectively.
Let us, however, take a closer look at the ideal observer. Surely there would be a danger, or even a likelihood, that we would create the ideal observer, in our own image, reflecting our own desires and prejudices. How can those who construct the ideal neutral observer be sure that they have, in fact, conceived such an ideal observer, when the only criteria of evaluation is the very ideal that they themselves have constructed?
They would claim, of course, that the exclusion is not an arbitrary decision of will, but is "reasonable." However, as I have argued, they have not shown that this is so. Furthermore, the "reason" to which they appeal, turns out to be not reason as such, or timeless, universal reason, but a version of reason which emerged at a particular period in history. (That is, that "liberal" theory which claimed that it was possible and necessary to presuppose an ideal neutral observer). To assume, as the liberal view does, that this way of reasoning must be that of all reasonable people, is merely an assumption.15
In the section of his later work, Political Liberalism, where he deals explicitly with the abortion question, Rawls argues that any reasonable balance of the three values, namely,
. . . 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,. . . will give a woman a duly qualified right to decide whether or not to end her pregnancy during the first trimester.16
But, I would argue, the balance will move this way only if it is already presumed that the rights of the embryo do not have equal weight with the rights of the woman concerned. That is to say, Rawls argument entails that particular way of placing the burden of proof, which was criticized in the first part of this paper. That is, it simply presumes that, while the woman is to be accepted as a person, the embryo is not to be considered a person. That is to say, it is presumed that the woman, as a person, may decide to eliminate the embryo, while the embryo and those who would defend its right to life have nothing to say, simply on the presumption that the embryo is not a person. The argument places the burden of proof on the embryo and its defenders, and does so on the basis of a gratuitous, unproven assumption.
Furthermore, I argue that the way in which the onus of proof is apportioned is itself a moral judgment about the allocation of power. In the first instance, those who adopt a theory, which excludes the embryo from the human moral community, have assumed to themselves power to decide who is to be admitted to that community and to determine the criteria by which they are admitted.
In the second theory, that of the pro-life position, as supported by the Catholic Church, there is no such imposition of power on the embryo and no such exclusion of the embryo from participation in the human community. Rather the embryo is accepted for what it is, and can become, simply because it is a human embryo. To express this somewhat differently: it is not being claimed, of course, that the embryo has the capacity to consent to a contract, and so enter society. It is we who do have the capacity to consent, who ought to consent to the embryos belonging to that community. Why ought we?
An element of the embryos reality is that it does have the capacity to develop, through time, into the kind of being that all would recognize as a person. We cannot arbitrarily exclude the element of time, without leaving aside an aspect of reality. The reason why it is excluded, is because the notion of reason which the liberal arguments employ is one that excludes time. It is a version of the kind of supposedly timeless reason, which is presumed by the liberal view.17 My argument is that we cannot think morally about a human embryo without thinking in terms of time. That is to say, we must consider the embryo not only at one abstract moment, but within the real time through which it develops.
The argument is made that eliminating the embryo now is not the same as eliminating a person, since this embryo is not yet a person. But that is to fall back into one particular way of setting up the case. To exclude time and history from the notion of reason, is simply to accept uncritically a particular, time conditioned, notion of reason. An ethical argument which simply leaves this out is an incomplete ethical argument. If the embryo is destroyed now, there will never be the person who could have been otherwise. That is, this embryo will never be able to exercise the capacity to participate in society, a capacity which it already has in that it can be related to and can relate in a human manner.
At this point, those who refuse to acknowledge a right to life on the part of the embryo will argue: but the embryo has only the potential to participate in the community and to be a person; it is not an actual participant or an actual person. I have already provided the basis for a reply to this. This objection is not really an argument, it is simply a re-statement of the assumption that the embryo is to be presumed to be not a participant in society and not a person, unless the contrary can be proved. That is to say, it simply repeats that way of allocating the burden of proof which I have previously shown is without foundation.
Consider now the position adopted by official Catholic teaching. Note that the positions expressed in the documents are stated very carefully. It is said that the human embryo probably is a person, and the contrary cannot be proved.18 It is clear that this position also entails placing the burden of proof in a particular way, namely on those who claim the embryo is not a person, in the sense described above. They are required to prove the contrary.
The supporters of the liberal position might reply that what has just been said depends on the presuppositions that are assumed by the pro-life position as I have expounded it; namely, that the burden of proof should be set up so that the embryo must be considered to be a person, unless the contrary can be proved. This is true. But that is not the end of the matter. There is no neutral position, outside and above all such presuppositions, from which an assessment can be made. The liberal position may claim to operate from the stand-point of a neutral observer. But, as I have shown, this is not the case at all. In fact, the liberal position assumes a particular set of assumptions, and moreover, as has been shown, is unable to provide a neutral, objective, rational basis for those assumptions.
However, it must be recognized that the Catholic argument from probability also works only when the burden of proof is set in the way described above, namely by assuming that the embryo is a person, unless the contrary can be proved.
The question then arises: can we show that this way of setting up the burden of proof is to be preferred to the alternative, on rational grounds? This is the crux of my argument. I set out to find a way of defending the Catholic position defending the rights of the embryo on rational grounds as distinct from those provided by religious faith.
It was argued at the start of this paper, that an argument from reason, to be publicly sustainable, must fulfil at least two criteria: it must be based on arguments and not merely on unproven presuppositions and it must be coherent with itself. According to the first criteria, it would have to be admitted that the liberal position, because it is based on unproven assumption, would have no more secure rational grounding than would the Catholic view, which is also, of course, based on certain presuppositions. But could not the same objection be made against the Catholic pro-life position? It would have to be admitted that the presuppositions of the Catholic position, are just as much presuppositions as are those assumed by the liberal position. Thus, we cannot say that one view is based on assumptions and the other is not. On this score, there is no reason for preferring one to the other.
But the difference lies in the kind of assumptions which are made. There is a fundamental difference between one set and the other. The basic assumptions of the Catholic position do not exclude any human beings from participation in the human moral community. The liberal position on the other hand, does exclude some from participation, in particular the human embryo. It needs justification for so doing.19 But, as has been shown, it fails to provide such justification. But public reason would surely have to require such justification, therefore, the liberal position ultimately fails to satisfy the first criterion of public reason. Further, since this position claims to fulfil the criteria or reasonableness, but allows arbitrariness to enter its argument, it is not coherent with itself and so fails the second criterion of public reason.
The pro-life position, as proposed by the Catholic view, does not exclude any human being from participation in the human community. It is therefore, not exposed to the charge of introducing arbitrariness. Its does not, at the same time, claim to present a reasoned argument and allow arbitrariness. Thus, it does not entail internal incoherence. Therefore, according to the criteria of public reason, the pro-life position is to be preferred.
1 (#29) "The Church's moral reflection, always conducted in the light of Christ, the "Good Teacher", has also developed in the specific form of the theological science called "moral theology," a science which accepts and examines Divine Revelation while at the same time responding to the demands of human reason." [Back]
2 Cf. Charles Taylor, "Explanation and Practical Reason," in idem. Philosophical Arguments (Cambridge, Mass.: Harvard University Press, 1995),53. [Back]
3 Norman M. Ford, The Prenatal Person: Ethics from Conception to Birth (Malden, MA: Blackwell, 2002) 9. [Back]
4 Ford, The Prenatal Person, 16. [Back]
5 Ronald Dworkin, Life's Dominion (London: HarperCollins, 1993) 7. [Back]
6 Christopher Fox, Locke and the Scriblerians: Identity and Consciousness in Early Eighteenth-Century Britain (Berkeley: University of California Press, 1988) 32. [Back]
7 Dworkin, Life's Dominion, 18. [Back]
8 Dworkin, Life's Dominion, 18. [Back]
9 John Locke, An Essay Concerning Human Understanding, (2.27.26), in Hutchins, Robert Maynard, ed. Great Books of the Western World, vol. 35 (Chicago: Encyclopedia Britannia, Inc., 1952), 227. [Back]
10 Locke, Essay, (2.27.18), 225. [Back]
11 Charles Taylor, Sources of the Self: The Making of Modern Identity (Cambridge: Mass: Harvard University Press, 1989) 173. [Back]
12 Louis Dupré, "The Common Good and the Open Society," in Catholicism and Liberalism, eds. R. Bruce Douglas and David Hollenbach (Cambridge: Cambridge University Press, 1994) 179. [Back]
13 John Rawls, A Theory of Justice (Cambridge, Mass.: Belknap Press, 1971) 118. [Back]
14 Rawls, A Theory of Justice, 188. [Back]
15 See the critique of the liberal view by Alasdair MacIntyre, Whose Justice? Which Rationality? (Notre Dame: University of Notre Dame Press, 1988). [Back]
16 John Rawls, Political Liberalism (New York: Columbia University Press, 1993) 243. [Back]
17 MacIntyre, Whose Justice? Which Rationality? 346. [Back]
18 Congregation for the Doctrine of the Faith, Declaration on Abortion, AAS 66 (1974) 738, Note 19. ". . . it suffices that this presence of the soul be probable (and one can never prove the contrary) in order that the taking of life involve accepting the risk of killing a man, not only waiting for, but already in possession of his soul." [Official translation] [Back]
19 Of course, the proponents of the liberal position would argue that they do not exclude any human beings, since the human embryo is not a human being. In the body of my argument I have sought to show that this position is based on a pure assumption without rational basis. [Back]
1, 2,