A theory of stability: John Rawls, fetal homicide, and substantive due process

Boston University Law Review

Volumn 87, Issue 5, 2007, Pages 1177-1230

  Milligan, Luke M ^a  

^a UNIVERSITY OF LOUISVILLE   (United States)

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EID: 38949141954     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (428)

1. For the sake of simplicity, the terms "fetus" and "fetal," unless otherwise noted, encompass all stages of gestation from fertilization to birth. In reality, the fetal period begins around the ninth week of pregnancy. See KEITH L. MOORE & T.V.N. PERSAUD, THE DEVELOPING HUMAN: CLINICALLY ORIENTED EMBRYOLOGY 3 (7th ed. 2003).
2. See infra discussion Part I.D.
3. See, e.g., MODEL PENAL CODE § 3.04(2)(b) (1962) ("The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat."). The criminal law has occasionally permitted an actor to use deadly force in self-defense even if the one killed did not intentionally seek to inflict harm. A woman, for example, could claim self-defense in shooting a 3-year-old who pointed a loaded gun at her, even if the child had been too young to form criminal intent.
4. JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 197 (2d ed. 1995)
5. (citing SANFORD H. KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES 876 (5th ed. 1989)).
6. One notable exception is Professor Carolyn Ramsey, who takes the position that fetal-homicide statutes "do not provide clear evidence that the unborn are ubiquitously becoming 'persons' under law." Carolyn B. Ramsey, Restructuring the Debate Over Fetal Homicide Laws, 67 OHIO ST. L.J. 721, 737 (2006).
7. Jeffrey Rosen, A Viable Solution, LEGAL AFF., Sept.-Oct. 2003, available at http://www.legalaffairs.org/ printerfriendly.msp?id=435 ("Far from threatening abortion rights, the fetal-homicide statutes provide a model for a pluralistic approach to reproductive rights.");
8. id. (quoting Ronald Dworkin as stating that statutory assertions of fetal "personhood" are "a kind of shorthand for describing the complex network of rights and duties, and so long as states do not use the shorthand to curtail or diminish constitutional rights, there can be no constitutional objection").
9. Judith Jarvis Thomson, A Defense of Abortion, 1 PHIL. & PUB. AFF. 47, 48-49 (1971) (analogizing a fetus to a violin player plugged into one's body for a period of nine months, and arguing that it would be morally permissible to unplug the violinist even if one knew the violinist would die as a result);
10. see also Anita L. Allen, Taking Liberties: Privacy, Private Choice, and Social Contract Theory, 56 U. CIN. L. REV. 461, 468 (1987) (arguing that the hypothetical connection to the violinist has no moral bearing on the woman's right to choose to remain connected);
11. Donald Regan, Rewriting Roe v. Wade, 77 MICH. L. REV. 1569, 1569 (1979) ("It is a deeply rooted principle of American law that an individual is ordinarily not required to volunteer aid to another individual who is in danger or in need of assistance.");
12. cf Ramsey, supra note 4, at 738 ("The pro-choice camp would be better served by arguing that, although the fetus may be a human being (or even a person in some legal contexts), the choice to prevent it from being born still belongs to the woman, but not to her attacker.").
13. RONALD DWORKIN, LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM 111 (1993) ("But abortion normally requires a physical attack on a fetus, not just a failure to aid it, and, in any case, parents are invariably made an exception to the general doctrine because they have a legal duty to care for their children.");
14. Jack Balkin, How New Genetic Technologies Will Transform Roe v. Wade, 56 EMORY L.J. 843, 846 (forthcoming 2007), available at http://ssrn.com/abstract-964508 ("Why could states decriminalize murder simply because of who the victim's parents were or because the victim's conception was not consensual? These conclusions do not mesh well with how most people - even those with strong moral objections - feel about abortion.");
15. see also KRISTIN LUKER, ABORTION AND THE POLITICS OF MOTHERHOOD 5-6 (1984) (suggesting that the recognition of fetuses as persons would undermine abortion rights);
16. Lynn M. Paltrow, Pregnant Drug Users, Fetal Persons, and the Threat to Roe v. Wade, 62 ALB. L. REV. 999, 1000 (1999) ("If fetuses are recognized as full legal persons, then their right to life must, as a matter of constitutional law, be protected - and all abortions outlawed.");
17. Jed Rubenfeld, On the Legal Status of the Proposition That "Life Begins at Conception," 43 STAN. L. REV. 599, 627 (1991) ("I do not question the conclusion that a state could override a woman's privacy rights if it were able to determine in advance that the fetus was a person.").
18. But see, e.g., JEFFREY H. REIMAN, ABORTION AND THE WAYS WE VALUE HUMAN LIFE 113-14 (1999) (briefly discussing Rawls's views on public reasoning); Robert P. George, Public Reason and Political Conflict: Abortion and Homosexuality, 106 YALE L.J., 2475, 2476 (1997) (arguing that Rawlsian public reason is purposely designed to induce dissenters to accede to liberal hegemony);
19. Charles I. Lugosi, Conforming to the Rule of Law: When Person and Human Being Finally Mean the Same Thing in Fourteenth Amendment Jurisprudence, 22 ISSUES L. & MED. 119, 142 (2007) (briefly speculating on how Rawls might have viewed the recognition of fetuses as "human beings" but not "persons").
20. See, e.g., ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 183 (1974).
21. See, e.g., Martha Nussbaum, The Enduring Significance of John Rawls, CHRON. HIGHER EDUC. (Wash., D.C.), July 20, 2001, § 2 (Magazine), at B7 ("[Rawls's] ideas are central starting points in many nations for discussions of justice.");
22. see also RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 149 (1977) ("Professor Rawls, of Harvard . . . has published an abstract and complex book about justice which no constitutional lawyer will be able to ignore.").
23. See JOHN RAWLS, The Idea of Public Reason Revisited, in JOHN RAWLS: COLLECTED PAPERS 573, 605 n.80 (Samuel Freeman ed., 1999)
24. [hereinafter RAWLS, Public Reason Revisited].
25. Rawls uses the terms "societal judgments" and "societal convictions of justice" interchangeably throughout his work. For a definition of "societal judgments," see infra note 135.
26. See, e.g., Note, What We Talk About When We Talk About Persons: The Language of Legal Fiction, 114 HARV. L. REV. 1745, 1766 (2001) ("[T]he doctrinal confusion regarding legal personhood evidences the two-mindedness of a society that finds fetal murder abhorrent even as it desires to protect the autonomy of pregnant women.").
27. See Bym v. N.Y. City Health & Hosps. Corp., 286 N.E.2d 887, 889 (N.Y. 1972) ("The process [of granting personhood] is, indeed, circular, because it is definitional. Whether the law should accord legal personality is a policy question which in most instances devolves on the Legislature, subject again of course to the Constitution as it has been 'legally' rendered.");
28. JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT 19-20 (Erin Kelly ed., 2001) [hereinafter RAWLS, RESTATEMENT] ("[T]he conception of the person is worked up from the way citizens are regarded in the public political culture of a democratic society. . . . For these interpretations we look . . . to courts, political parties, and statesmen . . . .");
29. cf. Levy v. Louisiana, 391 U.S. 68, 70 (1968) ("[I] llegitimate children are not 'nonpersons.' They are humans, live, and have their being.").
30. There are, of course, other, perhaps less persuasive, indicia of fetal personhood in the laws of tort, property, or equity. See, e.g., Cowles v. Cowles, 13 A. 414, 417 (Conn. 1887) (holding that a child born six months after the testator's death was in existence, in contemplation of law, and therefore a beneficiary);
31. Raleigh Fitkin-Paul Morgan Mem'l Hosp. v. Anderson, 201 A.2d 537, 538 (N.J. 1964) (holding that an unborn child had a right to medical care despite the mother's refusal to consent to a blood transfusion on religious grounds);
32. State v. Beale, 376 S.E.2d 1, 2 n.3 (N.C. 1989) (noting that the word "person" in the state's wrongful death statute had been extended to impose civil liability for the killing of a fetus).
33. See, e.g., Mamta K. Shah, Note, Inconsistencies in the Legal Status of an Unborn Child: Recognition of a Fetus as Potential Life, 29 HOFSTRA L. REV. 931, 934 (2001)
34. (citing Kayhan Parsi, Metaphorical Imagination: The Moral and Legal Status of Fetuses and Embryos, 2 DEPAUL J. HEALTH CARE L. 703, 718 (1999));
35. cf. United States v. Spencer, 839 F.2d 1341, 1343 (9th Cir. 1988) ("In 1908 it was well-established in common law that murder was the killing of one human being by another, and that an infant born alive that later died as a result of fetal injuries was a human being.").
36. See Jean Reith Schroedel, Pamela Fiber & Bruce D. Snyder, Women's Rights and Fetal Personhood in Criminal Law, 7 DUKE J. GENDER L. & POL'Y 89, 95, 117 (2000) (observing that "[b]y separating fetal killing from the crime against the pregnant woman, these states implicitly or explicitly accord the fetus at least limited personhood status" and that "[o]ne possible escape from this conundrum is a return to the idea that the interests of the woman and fetus are unitary");
37. Note, supra note 13, at 1756 ("[T]he act of criminalizing feticide, regardless of the method, sends a message about the state's regard for fetal life and thereby implicitly grants fetuses limited personhood status.");
38. see also Shah, supra note 16, at 939 (mentioning how a majority of jurisdictions have extended the term "person" in their wrongful death statutes to include fetuses)
39. (citing Mary Lynn Kime, Note, Hughes v. State: The "Born Alive" Rule Dies a Timely Death, 30 TULSA L.J. 539, 550 (1995)).
40. But see State v. Merrill, 450 N.W.2d 318, 324 (Minn. 1990) ("People are free to differ or abstain on the profound philosophical and moral questions of whether an embryo is a human being, or on whether or at what stage the embryo or fetus is ensouled or acquires 'personhood.' These questions are entirely irrelevant to criminal liability under the statute.").
41. Unborn Victims of Violence Act (Laci and Conner's Law) of 2004, Pub. L. No. 108-212, 118 Stat. 568 (codified at 18 U.S.C. § 1841 (Supp. IV 2004)). The House of Representatives approved the bill on February 26, 2004, with a vote of 254-163. 150 CONG. REC. H667-68 (daily ed. Feb. 26, 2004). For the entire debate on the UVVA in the House,
42. see id. at H637-68. The Senate approved it on March 25, 2004, with a vote of 61-38. 150 CONG. REC. S3167 (daily ed. Mar. 25, 2004). For the entire debate on the UVVA in the Senate,
43. see id. at S3124-67.
44. 18 U.S.C. § 1841(a)(1) ("Whoever engages in conduct that violates any of the provisions of [various federal criminal provisions] and thereby causes the death of, or bodily injury . . . to, a child, who is in utero at the time the conduct takes place, is guilty of a separate offense . . . ."). The elements of fetal murder under the UVVA are: (1) the defendant violated one of the federal laws dealing with crimes of violence; and (2) the defendant's criminal conduct caused the death of "a member of the species homo sapiens, at any stage of development, who is carried in the womb." Id. Prior to the enactment of this law, an unborn child was not recognized as a victim with respect to violent crimes under federal law.
45. See 150 CONG. REC. S3145 (daily ed. Mar. 25, 2004) (statement of Sen. Feinstein) (warning of the potentially serious "repercussion[s]" that will result from "giv[ing] a fertilized egg rights in the Federal law"). The UVVA applies this two-victim principle to sixty-eight existing federal laws dealing with acts of violence (as well as all laws governing federal geographical jurisdictions and the military justice system).
46. See 18 U.S.C. § 1841(b) (listing the statutory provisions to which the UVVA applies).
47. Compare 150 CONG. REC. S3125 (daily ed. Mar. 25, 2004) (reporting Senator Feinstein's separate bill punishing a third party for terminating a woman's fetus as a separate offense against the third party),
48. with 18 U.S.C. § 1841 (punishing a third party for terminating a woman's pregnancy as a separate offense against the third party while also finding that the fetus is a separate victim). Public sentiment seems to reflect the two-victim principle.
49. See Dana Blanton, Peterson Should Get Two Counts of Murder, FOXNEWS.COM, April 25, 2003, http://www.foxnews.com/story/0,2933, 85158,00.html (citing a Fox News/Opinion Dynamics poll from April 22-23, 2003, in which eighty-four percent of respondents believed that Scott Peterson should be charged with two counts of homicide for murdering his wife and unborn child);
50. Debra Rosenberg, The War over Fetal Rights, NEWSWEEK, June 9, 2003, at 40, 42-43 (discussing how "abortion-rights supporters are finding it increasingly difficult to claim credibly that a fetus just a few weeks, or even days, from delivery is not entitled to at least some protections under the law").
51. See 150 CONG. REC. S3145 (daily ed. Mar. 25, 2004) (statement of Sen. Hatch) ("Where our bills are different - and this is important - is the definition of when life begins."). Sharon Rocha, the mother of Laci Peterson, wrote the following to U.S. Senators: I hope that every legislator will clearly understand that adoption of such a single-victim amendment . . . would be a painful blow to those, like me, who are left alive after a two-victim crime, because Congress would be saying that Conner and other innocent unborn victims like him are not really victims indeed, that they never really existed at all. H.R. REP. No. 108-420, pt. 1, at 4 n.4 (2004)
52. (quoting Letter from Sharon Rocha to United States Senators Mike DeWine, Lindsey Graham, Orrin Hatch and United States Congresswoman Melissa Hart (June 16, 2003) (on file with House Committee on the Judiciary)).
53. See infra notes 23 & 25 and accompanying text. Interestingly, the Supreme Court has held that a policy shared by thirty states constitutes a "national consensus," at least for the purposes of an Eighth Amendment analysis.
54. See Roper v. Simmons, 543 U.S. 551, 564 (2005) ("When Atkins was decided, 30 States prohibited the death penalty for the mentally retarded. . . . By a similar calculation in this case, 30 States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach.").
55. For a critique of this method of evaluating national consensus, see Tonja Jacobi, The Subtle Unraveling of Federalism: The Illogic of Using State Legislation as Evidence of an Evolving National Consensus 2 (Nw. Law Sch. Pub. Law & Legal Theory Research Paper Series, Research Paper No. 05-15, 2005), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 813124 ("Atkins and Roper confirmed and expanded an inherently defective practice, using state legislation as evidence of an evolving national consensus.").
56. The minority view has been adopted by twelve jurisdictions. See ARK. CODE ANN. § 5-1-102(13)(B)(i)(b) (2006) (twelve weeks);
57. CAL. PENAL CODE § 187(a) (West 1999) (postembryonic stage, as construed in People v. Davis, 872 P.2d 591, 602 (Cal. 1994));
58. FLA. STAT. ANN. §§ 782.071, .09 (West 2007) (viability and quickening, respectively);
59. IND. CODE ANN. §§ 35-42-1-1(4), -3(a)(2), -4(b) (West 2004 & Supp. 2006) (viability as defined in IND. CODE ANN. § 16-18-2-365 (West 2007));
60. IOWA CODE ANN. § 707.7 (West 2003) (end of second trimester);
61. MD. CODE ANN., CRIM. LAW § 2-103 (LexisNexis Supp. 2006) (viability as defined in MD. CODE ANN., HEALTH-GEN. § 20-209 (LexisNexis 2005));
62. NEV. REV. STAT. § 200.210 (2005) (quickening); N.Y. PENAL LAW § 125.00 (McKinney 2004) (end of twenty-four weeks);
63. R.I. GEN. LAWS § 11-23-5 (2002) (quickening);
64. TENN. CODE ANN. § 39- 13-214 (2006) (viability);
65. WASH. REV. CODE ANN. § 9A.32.060(1)(b) (West 2000) (quickening); Commonwealth v. Cass, 467 N.E.2d 1324, 1325 (Mass. 1984) (viability).
66. "Viability" occurs once a fetus has "a reasonable potential for subsequent survival if . . . removed from the uterus." Tara Kole & Laura Kadetsky, Recent Developments, The Unborn Victims of Violence Act, 39 HARV. J. ON LEGIS. 215, 217 n.28 (2002) (omission in original)
67. (quoting Bicka A. Barlow, Comment, Severe Penalties for the Destruction of "Potential Life" - Cruel and Unusual Punishment?, 29 U.S.F. L. REV. 463, 471 (1995)). "Viability generally occurs between twenty and twenty-four weeks gestation, at about the end of the second trimester of pregnancy."
68. Id. By contrast, "[q]uickening is the point at which a fetus first moves within the womb or is capable of moving; this stage usually occurs between the sixteenth and twentieth week of pregnancy."
69. Id. at 217 n.29
70. (citing Alison Tsao, Note, Fetal Homicide Laws: Shield Against Domestic Violence or Sword To Pierce Abortion Rights?, 25 HASTINGS CONST. L.Q, 457, 463 (1998)).
71. Finally, "[t]he post-embryo stage, when an embryo nominally becomes a fetus, occurs approximately seven to eight weeks into gestation." Id. at 217 n.30
72. (citing Davis, 872 P.2d at 599).
73. See infra App. A (describing the fetal-homicide laws of the twenty-four states that recognize unique victim-status upon conception). Conception is not synonymous with fertilization.
74. See, e.g., Rubenfeld, supra note 7, at 625 n.112 (stating that conception is complete only when the fertilized ovum implants itself in the woman's uterus).
75. See Kole & Kadetsky, supra note 24, at 227 (observing that the UVVA's "protection of the fetus during pregnancy is entirely disconnected with the woman's 'choice' to continue her pregnancy");
76. see also People v. Taylor, 86 P.3d 881 (Cal. 2004) (upholding a murder conviction for causing the death of an eleven- to thirteen-week old fetus without addressing whether the mother had been aware of the pregnancy prior to her death).
77. For a discussion of the various reasons why victims of domestic abuse can be reluctant to cooperate with law enforcement investigations, see Deborah Epstein et al. Transforming Aggressive Prosecution Policies: Prioritizing Victims' Long-Term Safety in the Prosecution of Domestic Violence Cases, 11 AM. U. J. GENDER SOC. POL'Y & L. 465, 472-84 (2003).
78. These statutory provisions are particularly relevant when one appreciates the expressive dimension of law. This concept holds that law does more than simply regulate behavior; it embodies and signals social values and aspirations. See Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349, 352-61 (1997) (describing how social influences can shape a person's propensity to engage in crime);
79. Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2025-29 (1996) (defining the "expressive function of law" as referring to the law's attempt to influence social norms, though also noting that the phrase can be defined in other ways as well).
80. There are differing views on how the terms "persons" and "human beings" differ from one another. In some jurisdictions, for example, there appears to be no meaningful distinction. See Note, supra note 13, at 1749 ("When courts held that slaves were legal persons, they emphasized the obvious fact that slaves were human beings and relied on this fact to settle the issue.");
81. Cass, 467 N.E.2d at 1325 ("An offspring of human parents cannot reasonably be considered to be other than a human being, and therefore a person, first within, and then in normal course outside, the womb.").
82. For a contrary view, see Ramsey, supra note 4, at 738 (stating that the difference between the two "constitutes more than formalistic hairsplitting" and stating that "[m]ore than sixty percent of states with fetal homicide laws eschew designating the fetus as a 'person,' instead calling it a 'human being'").
83. 18 U.S.C. § 1841(d) (Supp. IV 2004).
84. OHIO REV. CODE ANN. § 2901.01(B)(1)(a)(ii), (c)(i) (LexisNexis 2006);
85. see also ALA. CODE § 13A-6-1(a)(3) (LexisNexis Supp. 2006) (including "an unborn child in utero at any stage of development, regardless of viability" in the definitions of a "person" and "human being" for purposes of the state laws dealing with murder, manslaughter, criminally negligent homicide, and assault);
86. ARK. CODE. ANN. § 5-1-102(13)(B)(i)(a), (b) (2006) (defining "person" to include a "living fetus of twelve (12) weeks or greater gestation," at any stage of development);
87. LA. REV. STAT. ANN. § 14:2(7), (11) (2007) (stating that the definition of "person" includes "a human being from the moment of fertilization and implantation");
88. Cass, 467 N.E.2d at 1325-26 (ruling that a viable fetus is within the ambit of "person" in the state's homicide statute).
89. 18 PA. CONS. STAT. ANN. § 3203 (West 2000).
90. KY. REV. STAT. ANN. § 507A.010(1)(c) (LexisNexis Supp. 2006);
91. see also ALASKA STAT. § 11.81.900(b)(62) (2006) ('"[U]nborn child' means a member of the species Homo sapiens, at any stage of development, who is carried in the womb.");
92. GA. CODE ANN. §§ 16-5-20, -28, -80 (Supp. 2006) (defining "unborn child" as a member of the species homo sapiens);
93. MISS. CODE ANN. § 97-3-37 (West 2005) ('"[U]nborn child' means a member of the species homo sapiens, at any stage of development, who is carried in the womb.");
94. NEB. REV. STAT. § 28-389 (Supp. 2006) (defining "unborn child" as "an individual member of the species Homo sapiens, at any stage of development in utero, who was alive at the time of the homicidal act and died as a result thereof whether before, during, or after birth");
95. S.C. CODE ANN. § 16-3-1083(C) (Supp. 2006) (defining "unborn child" in essentially the same manner as the previously cited statutes). Moreover, the California Supreme Court recently defined an eleven- to thirteen- week-old fetus as a "person" for the purposes of its implied malice doctrine.
96. People v. Taylor, 86 P.3d 881, 884-85 (Cal. 2004).
97. BLACK'S LAW DICTIONARY 654 (8th ed. 2004) (defining "feticide" as an "act or instance of killing a fetus").
98. At least thirty states employ such language. See infra App. A (listing twenty-four states adopting the majority view, of which twenty define the crime as either murder, homicide, or manslaughter). Of the jurisdictions adopting the minority view of victim status, ten states define the crime as either murder, homicide, or manslaughter.
99. See supra note 23 (listing the jurisdictions adopting the minority view of victim status, of which Arkansas, California, Florida, Indiana, Maryland, Massachusetts, Nevada, Rhode Island, Tennessee, and Washington define the crime as either murder, homicide, or manslaughter).
100. BLACK'S LAW DICTIONARY 751 (8th ed. 2004).
101. Id. at 1043;
102. see also Note, supra note 13, at 1747-48 (arguing that punishing the killing of a slave as "murder" constituted a "robust understanding of slaves' personhood").
103. BLACK'S LAW DICTIONARY 983 (8th ed. 2004).
104. 18 U.S.C § 1841(a)(2)(A). The UVVA, however, withholds the death penalty for an actor who kills only the fetus.
105. Id. § 1841(a)(2)(D) ("Notwithstanding any other provision of law, the death penalty shall not be imposed for an offense under this section.").
106. UTAH CODE ANN. § 76-5-201(1)(a) (2003);
107. cf. 18 PA. CONS. STAT. ANN. § 2605(c) (West 1998) ("The penalty for voluntary manslaughter of an unborn child shall be the same as the penalty for voluntary manslaughter.") .
108. ARIZ. REV. STAT. ANN. § 13-604(V) (Supp. 2006).
109. Id. § 13-604.01(M);
110. see also id. § 13-703 (treating unborn children and children under fifteen as being the same for the purpose of determining when someone sentenced to life can be released);
111. id. § 13-1102 (applying the crime of negligent homicide to both born and unborn victims, with a few narrow exceptions);
112. id. § 13-1103 (applying the crime of manslaughter to both born and unborn victims alike, with a few narrow exceptions);
113. id. § 13-1104 (applying the crime of second degree murder to both born and unborn victims, with a few exceptions);
114. id. § 13-1105 (applying the crime of first degree murder to both born and unborn victims alike, with exceptions).
115. TEX. PENAL CODE ANN. § 1.07(a)(26) (Vernon Supp. 2006) (defining "individual");
116. cf. TEX. CIV. PRAC. & REM. CODE ANN. § 71.001(4) (Vernon Supp. 2006) (providing an identical definition of an "individual" for the purposes of the civil code).
117. See infra discussion Part I.D (inventorying the leading arguments against the UVVA). One leading critic of this view is Professor Carolyn Ramsey, who argues that fetal-homicide statutes "do not provide clear evidence that the unborn are ubiquitously becoming 'persons' under law."
118. Ramsey, supra note 4, at 737. It seems, however, that Professor Ramsey fails to sufficiently address the close definitional nexus between "human beings" and "persons" in some jurisdictions, or the fact that many jurisdictions similarly punish acts against fetuses and born persons. While a legitimate debate can be had whether fetuses have the status of "persons" under the law, it is becoming increasingly unreasonable to deny that society views fetuses as individual "human beings."
119. While this Section focuses on the embryo's status while it is inside the mother's womb, the absence of the embryo's personhood status vis-à-vis the mother seems to apply equally to embryos outside the womb. For example, third-party destruction of embryos created in vitro for scientific research is lawful because of their mothers' consent, be it explicit or implicit.
120. 410 U.S. 113, 154 (1973) (finding that the mother's "right of personal privacy includes the abortion decision").
121. 410 U.S. 179 (1973).
122. See Roe, 410 U.S. at 117-18 (referencing the Texas State Penal Code that "make[s] it a crime to 'procure an abortion,' . . . except with respect to 'an abortion procured or attempted by medical advice for the purpose of saving the life of the mother'").
123. Id. at 158.
124. Id. at 161-62.
125. But see id. at 154 (providing that a government may, under narrow circumstances, regulate abortion in order to protect "potential [human] life" and safeguard medical standards);
126. Gonzales v. Carhart, 127 S. Ct. 1610, 1632-35 (2007) (discussing the government's interest in fetal life and holding that it justifies a ban on the so-called "dilation and evacuation" method of abortion).
127. See Roe, 410 U.S. at 157 n.54 (suggesting that the Texas abortion ban would have been upheld if "the fetus . . . [were] a person who . . . [was] not to be deprived of life without due process of law");
128. Doe, 410 U.S. at 189 ("What is said [in Roe] is applicable here, and need not be repeated.");
129. Balkin, supra note 7, at 843.
130. Roe, 410 U.S. at 153;
131. Doe, 410 U.S. at 189.
132. See, e.g., Carhart, 127 S. Ct. at 1626; Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (musing that the right to liberty, which includes the right to terminate one's pregnancy, includes the freedom "to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life"). It is notable that this is not the right to define another's existence. In short, the mother's right is not one to grant or deny "personhood" status to the fetus in her womb, but rather to determine whether to terminate her pregnancy.
133. Id. at 853 (framing the issue as "[t]he extent to which the legislatures of the States might act to outweigh the interests of the woman in choosing to terminate her pregnancy").
134. Casey, 505 U.S. at 876-77 (adopting the "undue burden" standard and defining "undue burden" as a regulation that "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus");
135. id. at 846 (finding that the state's interest in protecting fetal life is insufficiently strong before viability).
136. Roe, 410 U.S. at 164-65 (finding that after viability, the state may "regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother"). This Article will refer to abortions that are necessary to preserve a woman's health as "therapeutic" abortions.
137. See Doe v. Bolton, 410 U.S. 179, 191-92 (1973) (finding that a physician may consider not only physical factors but also emotional and psychological factors when determining if the preservation of the woman's health justifies an abortion).
138. Professor Balkin contends that the constitutional right to abortion is composed of two distinct rights: the right to not be forced by the State to bear children at risk to her life or health and the right to not be forced by the state to become a mother and thus take on the responsibilities of motherhood. Jack Balkin, Abortion and Original Meaning 5 (Yale Law Sch., Research Paper No. 128), available at http://papers.ssrn.com/sol3/papers.cfm? abstract_id=925558#PaperDownload.
139. See Carhart, 127 S. Ct. at 1633 ("Congress could . . . conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition.");
140. Casey, 505 U.S. at 846 (discussing Pennsylvania's right to protect "the life of the fetus that may become a child").
141. The traditional example concerns the woman who is pregnant with a viable fetus yet who lacks a health justification to override the state's interest in protecting fetal life. See, e.g., Stenberg v. Carhart, 530 U.S. 914, 921 (2000)
142. (quoting Roe, 410 U.S. at 164-65) (observing that states may regulate or proscribe post-viability abortions except where abortion is medically necessary to preserve the mother's life or health).
143. See, e.g., ARIZ. REV. STAT. ANN. § 13-3603 (2001) (punishing the person that procures the miscarriage of the woman);
144. ME. REV. STAT. ANN. tit. 22, § 1598 (2004) (penalizing the person who performs an illegal abortion but not the mother);
145. TENN. CODE ANN. § 39-15-201 (2003) (criminalizing the conduct of those performing illegal abortions or procuring miscarriages);
146. AM. JUR. 2D Abortion and Birth Control § 118 (2005) ("Statutes defining abortion usually are directed only against the person or persons who commit or attempt to commit the act rather than against the woman upon whom the act is committed, notwithstanding it may be done with her knowledge and consent. As a general rule, she incurs no criminal liability.").
147. See ARIZ. REV. STAT. ANN. § 13-1103(B) (Supp. 2006) (exempting the mother from prosecution for illegal abortions); ARK. CODE ANN. § 5-1-102(13)(B)(iii) (2006) (same);
148. FLA. STAT. ANN. § 782.09(1) (West 2007) (same);
149. GA. CODE ANN. § 16-5-80(f) (Supp. 2006) (same);
150. IDAHO CODE ANN. § 18-4016(2) (2004) (same);
151. ILL. COMP. STAT. ANN. 5/9-3.2(c) (West 2002) (same);
152. IOWA CODE ANN. § 707.8(12) (West 2003) (same);
153. KY. REV. STAT. ANN. § 507A.010(3) (LexisNexis Supp. 2006) (same);
154. LA. REV. STAT. ANN. § 14:32.5(A) (2007) (same);
155. MD. CODE ANN., CRIM. LAW § 2-103(0 (LexisNexis Supp. 2006) (same);
156. MINN. STAT. ANN. § 609.266(b) (West 2003) (same);
157. NEB. REV. STAT. § 28-390 (Supp. 2006) (same);
158. N.D. CENT. CODE § 12.1-17.1-01(2) (1997) (same);
159. OHIO REV. CODE ANN. § 2903.09(C) (LexisNexis 2006) (same);
160. OKLA. STAT. ANN. tit. 21, § 652(E) (West Supp. 2007) (same);
161. PA. CONS. STAT. ANN. § 2608(a) (West 1998) (same);
162. TEX. PENAL CODE ANN. §§ 19.06, 22.12, 49.12 (Vernon Supp. 2006) (same);
163. TEX. CIV. PRAC. & REM. CODE ANN. § 71.003(c) (Vernon Supp. 2006) (same);
164. W. VA. CODE ANN. § 61-2-30(d)(5) (LexisNexis 2005) (same);
165. WIS. STAT. ANN. § 939.75(2)(b)(3) (West 2005) (same).
166. See, e.g., 18 U.S.C. § 1841(c) (Supp. IV 2004) (stating that the UVVA shall not "be construed to permit the prosecution . . . of any woman with respect to her unborn child");
167. KY. REV. STAT. ANN. § 507A.010(3) (LexisNexis Supp. 2006) ("Nothing in this chapter shall apply to any acts of a pregnant woman that caused the death of her unborn child.");
168. TEX. PENAL CODE ANN. §§ 19.06, 22.12, 49.12 (Vernon Supp. 2006) (exempting from its wrongful death statute "conduct committed by the mother of the unborn child");
169. TEX. CIV. PRAC. & REM. CODE ANN. § 71.003(c) (Vernon Supp. 2006) (same). While all jurisdictions prohibit certain types of drug use, and these laws apply with equal force to pregnant women, the safe harbor provisions in fetal-homicide laws ensure that a pregnant woman will not be punished for the harm her illicit drug use caused to the fetus in her womb.
170. See, e.g., State v. Deborah J. Z., 596 N.W.2d 490, 494 n.5 (Wis. Ct. App. 1999) (indicating that only one state court of last appeal has held that maternal drug use during pregnancy can result in criminal prosecution and conviction for the harm caused to her fetus).
171. This Article proceeds under the assumption that society identifies the uniqueness of the unborn upon conception. Of the thirty-six states that apply homicide laws to the unborn, a substantial majority (twenty-four) apply this conception-based framework. Other vesting points include nine weeks (1 jurisdiction), twelve weeks (1), quickening (3), viability (5), and twenty-four weeks (2). It is also notable that Congress follows the majority position and recognizes uniqueness at conception. Lastly, the conception framework seems to have significant momentum within the states, as it was adopted by four states in last year alone (Alabama, Alaska, Nebraska, and South Carolina). If the contour were alternatively placed at some later point of gestation (such as quickening), the bifurcated rights-scheme, as discussed infra in Part III, would of course still exist. In such a case, however, it would only extend to fetuses that had developed beyond the chosen gestation point.
172. 492 U.S. 490 (1989).
173. Id. at 501 (alteration in original)
174. (quoting MO. REV. STAT. § 1.205.1(1)-(2) (1986)). The preamble of the statute also stated that, to the extent permissible by the Constitution, "the unborn child at every stage of development [is entitled to] all the rights, privileges, and immunities available to other persons, citizens, and residents of this state."
175. Id. at 504 n.4
176. (quoting MO. REV. STAT. § 1.205.2 (1986)).
177. Id. at 506. The Eighth Circuit had declared the law unconstitutional, reasoning that the preamble constituted '"an impermissible state adoption of a theory of when life begins.'"
178. Id. at 570 (Stevens, J., dissenting)
179. (quoting Reprod. Health Servs. v. Webster, 851 F.2d 1071, 1076 (8th Cir. 1988)).
180. Id. at 506 (quoting Maher v. Roe, 432 U.S. 464, 474 (1977)).
181. People v. Davis, 872 P.2d 591, 599 (Cal. 1994).
182. State v. Holcomb, 956 S.W.2d 286, 291 (Mo. Ct. App. 1997).
183. State v. Merrill, 450 N.W.2d 318, 322 (Minn. 1990); State v. Alfieri, 724 N.E.2d 477, 483 (Ohio Ct. App. 1998) (explaining that, even under Roe, "there has never been any notion that a third party . . . has a fundamental liberty interest in terminating another's pregnancy"
184. (quoting State v. Coleman, 705 N.E.2d 419, 421 (Ohio Ct. App. 1997)));
185. Commonwealth v. Wilcott, 86 ERIE COUNTY LEGAL J. 1, 14-16 (Pa. Ct. Com. Pl. Jan. 24, 2003) (rejecting a challenge that the Pennsylvania Crimes Against Unborn Children Act violates Roe and its progeny because it criminalizes the killing of a fetus from the point of conception, since Roe also protects the right of a mother "to carry her child to term").
186. Ramsey, supra note 4, at 725;
187. see also supra note 61 and accompanying text.
188. 150 CONG. REC. S3136 (daily ed. Mar. 25, 2004) (statement of Sen. Santorum) (stating that the UVVA "has nothing to do with abortion").
189. Letter from Douglas Johnson, Legis. Dir., Nat'l Right to Life Comm., to the U.S. Senate (Feb. 1, 2004), available at http://www.nrlc.org/ Unborn_Victims/Senateletter020104.pdf.
190. See Ramsey, supra note 4, at 734 (stating that fetal-homicide laws tend to "track the middle ground of public opinion"); Roper Ctr. for Pub. Opinion Research, ABC News Poll, Question ID: USABC.090605 R29 (Sept. 6, 2005), available at LexisNexis, Public Opinion Online, Acc-No. 1633001 (sixty percent of those polled want the Roberts Court to uphold Roe);
191. Roper Ctr. for Pub. Opinion Research, CBS News Poll, Question ID: USCBS.080405 R56 (Aug. 4, 2005), available at LexisNexis, Public Opinion Online, Acc-No. 1631372 (noting that sixty percent of those polled described the Roe decision as a "good thing");
192. see also H.R. REP. NO. 108-420, pt. 1, at 5 (2004) (observing that "84% of Americans believe that prosecutors should be able to bring a homicide charge on behalf of an unborn child killed in the womb" by someone other than the pregnant woman or an abortion provider).
193. House Votes To Make Hurting Fetus a Crime, DESERET MORNING NEWS (Salt Lake City), Oct. 1, 1999, at A2 (quoting Kate Michelman, President of the National Abortion and Reproductive Rights Action League).
194. Memorandum from the ACLU Wash, D.C., Nat'l Office to Interested Persons on Attempts to Create Fetal Rights: The Unborn Victims of Violence Act of 2003 (S. 1019/S. 146, H.R. 1997) (June 17, 2003), http://www.aclu.org/ reproductiverights/fetalrights/125351eg20030617.html.
195. 150 CONG. REC. S3149 (daily ed. Mar. 25, 2004) (statement of Sen. Feingold). R. Alta Charo, Warren P. Knowles Professor of Law and Bioethics at the University of Wisconsin, submitted the following statement to the Senate: "If you can get enough of these bricks in place, draw enough examples from different parts of life and law where embryos are treated as babies, then how can the Supreme Court say they're not?"
196. Id. at 3127 (statement of Sen. Feinstein) (internal quotation marks omitted).
197. Id. at 3126 (statement of Sen. Feinstein). Senator Feinstein further warned that the UVVA's definition of homo sapiens "will be the first step in removing a woman's right to choice."
198. Id. She explained: "[O]nce declared legally, that law becomes the stepping-stone to refuse embryonic stem cell research and to ban abortion. Once the law defines human life as beginning at conception, stem cell research could become murder, abortion becomes murder, even in the first days of a pregnancy."
199. Id. at 3127.
200. 150 CONG. REC. H665 (daily ed. Feb. 26, 2004) (statement of Rep. Lofgren). 80 Kate Snow, Laci Peterson Family Endorses "Unborn Victims " Bill, CNN.COM, May 8, 2003, http://www.cnn.com/2003/ ALLPOLITICS/05/07/laci.bill (quoting Sen. Hatch).
201. See, e.g., Ron Paul, Pro-Life Action Must Originate from Principle, LEWROCKWELL.COM, June 4, 2003, http://www.lewrockwell.com/paul/paul100.html ("I have long been concerned with the rights of unborn people.").
202. 147 CONG. REC. 6326 (2001) (statement of Rep. Paul).
203. Nussbaum, supra note 10; accord Ben Rogers, The Good Life, NEW STATESMAN, Sept. 20, 1999, at 55
204. (reviewing JOHN RAWLS, JOHN RAWLS: COLLECTED PAPERS, supra note 11) ("[Rawls] is now often said to be the most important political philosopher of the century in any language.").
205. See generally JOHN RAWLS, A THEORY OF JUSTICE (rev. ed. 1999)
206. [hereinafter RAWLS, THEORY OF JUSTICE].
207. Id. at 3. Despite having made "a number of important revisions" to the 1971 edition, Rawls contends that he "still accept[s] its main outlines and defend[s] its central doctrines."
208. Id. at xi.
209. See Nussbaum, supra note 10 ("The ideas took hold through their own power, decisively shifting the climate of debate not only in philosophy but also in such fields as economics, law, and public policy. . . . Thirty years after publication of A Theory of Justice, with all the discussion of rights and pluralism that has ensued, it is easy to forget that a whole generation of our political and moral philosophers had virtually stopped talking about that idea . . . .").
210. See generally JOHN RAWLS, POLITICAL LIBERALISM (1993).
211. See RAWLS, RESTATEMENT, supra note 14, at xv ("The other aim [of this book] is to connect into one unified statement the conception of justice presented in Theory [of Justice] and the main ideas found in my essays beginning with 1974.").
212. JOHN RAWLS, The Idea of Public Reason (Feb.-Mar. 1990), in POLITICAL LIBERALISM, supra note 87, 212, 243 n.32
213. [hereinafter RAWLS, Public Reason].
214. RAWLS, Public Reason Revisited, supra note 11, at 605 n.80;
215. see also Jeremy Waldron, The Plight of the Poor in the Midst of Plenty, LONDON REV. BOOKS, July 15, 1999, at 6
216. (reviewing JOHN RAWLS, JOHN RAWLS: COLLECTED PAPERS, supra note 11) (discussing Rawls's ambiguous public statements regarding the justness of abortion). In contrast, one commentator has observed: It is sobering to observe that even in the hands of a careful and high-minded thinker such as Rawls, the appeal to public reason can serve to highhandedly deny the reality of competing goods and tragic choices and intractable questions - to disguise, in other words, reason's limits. The master's lapse dramatizes how readily partisan intellectuals might arrogate public reason and, thus armed, use it in the heat of public debate to dispense with reason, cut off discussion, shut down questioning, and stop the inquiring mind dead in its tracks. . . . [I]n the end it is less that Rawls is confused than that his conscientious philosophical investigations lead him to keep bumping up against fundamental tensions in the liberal spirit.
217. Peter Berkowitz, John Rawls and the Liberal Faith, WILSON Q., Spring 2002, at 60, 66-68.
218. See RAWLS, RESTATEMENT, supra note 14, at xv-xvi.
219. See JOHN RAWLS, The Idea of an Overlapping Consensus (1987), in POLITICAL LIBERALISM, supra note 87, at 133, 134
220. [hereinafter RAWLS, Overlapping Consensus], Rawls's "pluralism" should be distinguished from that of Isaiah Berlin. As Charles Lamore put it: Berlin's pluralism is a positive doctrine according to which there are many ultimate, irreducible, and sometimes incompatible ends of life. The pluralism Rawls has in mind might be better described as the existence of reasonable disagreement about the nature of the human good (Berlin's value-pluralism being one of the views in dispute).
221. Charles Lamore, Public Reason, in THE CAMBRIDGE COMPANION TO RAWLS 368, 392 n.8 (Samuel Freeman ed., 2003).
222. See RAWLS, THEORY OF JUSTICE, supra note 84, at 10;
223. see also RAWLS, Public Reason, supra note 89, at 217 (explaining that government coercion is only legitimate when "exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational").
224. RAWLS, THEORY OF JUSTICE, supra note 84, at 10-11.
225. Id. at 11;
226. cf. Berkowitz, supra note 90, at 64 ("Rawls himself sometimes notes . . . that the original position is not a point of departure for discovering morality's premises so much as a formulation of them and a means for sketching out some of their most basic practical implications.").
227. RAWLS, THEORY OF JUSTICE, supra note 84, at 446.
228. RAWLS, RESTATEMENT, supra note 14, at 19-20.
229. RAWLS, THEORY OF JUSTICE, supra note 84, at 11 ("Among the essential features of this situation is that no one knows his place in society, his class position or social status . . . . The principles of justice are chosen behind a veil of ignorance."). The concept of the "veil of ignorance" was first devised by John Harsanyi in 1953.
230. See John C. Harsanyi, Cardinal Utility in Welfare Economics and in the Theory of Risk-Taking, 61 J. POL. ECON. 434, 434-35 ("Now, a value judgment on the distribution of income would show the required impersonality to the highest degree if the person who made this judgment had to choose a particular income distribution in complete ignorance of what his own relative position . . . would be within the system chosen."). Rawls and Harsanyi, however, came to very different conclusions about how humans behave behind the veil.
231. Compare RAWLS, THEORY OF JUSTICE, supra note 84, at 278 (arguing that "one of the chief aims of justice as fairness is to construct an alternative to the classical utilitarian doctrine"),
232. with JOHN E. ROEMER, THEORIES OF DISTRIBUTIVE JUSTICE 5 (1996) ("Harsanyi purported to show that utilitarianism would emerge from the contemplation of souls behind a veil of ignorance.").
233. RAWLS, THEORY OF JUSTICE, supra note 84, at 118 (explaining that the veil of ignorance seeks to "nullify the effects of specific contingencies which put men at odds and tempt them to exploit social and natural circumstances to their own advantage").
234. See RAWLS, RESTATEMENT, supra note 14, at 18 (discussing the fairness of bargaining conditions in the original position);
235. JOHN RAWLS, The Law of Peoples, in JOHN RAWLS: COLLECTED PAPERS, supra note 11, at 529, 538 (stating the essential condition that "the original position represents the parties (or citizens) fairly, or reasonably"). Notably, when placed behind a veil, agents will rarely disagree on the governing conception; thus, conceptions are chosen, rather than bargained for, at the original position.
236. See RAWLS, THEORY OF JUSTICE, supra note 84, at 119.
237. JOHN RAWLS, The Powers of Citizens and Their Representation (April 1980), in POLITICAL LIBERALISM, supra note 87, at 47, 79 (1993) [hereinafter RAWLS, Powers of Citizens] ("Features relating to social position, native endowment, and historical accident, as well as the content of persons' determinate conceptions of the good, are irrelevant, politically speaking, and hence placed behind the veil of ignorance.");
238. RAWLS, RESTATEMENT, supra note 14, at 15 ("In the original position, the parties are not allowed to know the social positions or the particular comprehensive doctrines of the persons they represent."). In addition to concealing the ultimate personal characteristics and beliefs of the agents, the veil ensures that agents lack information to assess the probabilities as to who they might be beyond the veil.
239. See id. at 98 ("[P]arties have no reliable basis for estimating the probabilities of the possible social circumstances that affect the fundamental interests of the persons they represent.").
240. RAWLS, RESTATEMENT, supra note 14, at 87;
241. accord RAWLS, THEORY OF JUSTICE, supra note 84, at 118 ("[Parties] do not know how the various alternatives will affect their own particular case and they are obliged to evaluate principles solely on the basis of general considerations."). This conception of equality borrows from economic theories about human behavior where "role-reversibility" exists.
242. See, e.g., Francesco Parisi, The Formation of Customary Law 10 (George Mason Univ. Sch. of Law: Law and Econ. Research Paper Series, Paper No. 01-06, 2001), available at http://papers.ssrn.com/sol3/papers.cfm? abstract_id=262032 ("Similar to a Rawlsian veil of ignorance, role reversibility and stochastic symmetry induce each member to agree to a set of rules that benefits the entire group, thus maximizing her expected share of the wealth.").
243. RAWLS, RESTATEMENT, supra note 14, at 87.
244. See RAWLS, THEORY OF JUSTICE, supra note 84, at 119 ("It is taken for granted, however, that [parties in the original position] know the general facts about human society. They understand political affairs and the principles of economic theory; they know the basis of social organization and the laws of human psychology. Indeed the parties are presumed to know whatever general facts affect the choice of the principles of justice.").
245. See RAWLS, RESTATEMENT, supra note 14, at 58. Prominent among these goods are freedom of movement, freedom of thought and liberty of conscience, freedom of the person and political liberty.
246. See id. at 58-59.
247. Id. at 57.
248. Id. at 60 ("Primary goods, then, are what free and equal persons . . . need as citizens. . . . [S]ome conceptions of the good are indispensable for any account of justice, political or other.");
249. see JOHN RAWLS, Fundamental Ideas (April 1980), in POLITICAL LIBERALISM, supra note 87, at 3, 10
250. [hereinafter RAWLS, Fundamental Ideas] (explaining that a political conception of justice seeks support from these doctrines and how, despite differences within the doctrines, citizens "can still maintain a just and stable democratic society");
251. RAWLS, Overlapping Consensus, supra note 92, at 134 ("Social unity is based on a consensus on the political conception; and stability is possible when the doctrines making up the consensus are affirmed by society's politically active citizens and the requirements of justice are not too much in conflict with citizens' essential interests as formed and encouraged by their social arrangements.");
252. accord Michael J. Sandel, Political Liberalism, 107 HARV. L. REV. 1765, 1771-72 (1994) (book review) ("This means that different people can be persuaded to endorse liberal political arrangements, such as equal basic liberties, for different reasons, reflecting the various comprehensive moral and religious conceptions they espouse,").
253. See RAWLS, Public Reason Revisited, supra note 11, at 581. Rawls is clear, however, that this menu is limited to "those political conceptions that are reasonable for a constitutional democratic regime."
254. Id. at 585. The general rationale is that human beings are risk-averse, and when faced with poor information regarding their eventual position in society, they will never place their basic rights in jeopardy for the benefit of the greater good. Agents, for example, would not select a conception which tolerated slaves and masters because they would be unwilling to risk being a slave when the veil lifted. To ensure equality, agents select a conception that compensates citizens saddled with unfavorable, but irrelevant, traits or circumstances.
255. Cf. RAWLS, RESTATEMENT, supra note 14, at 64 (discussing the "difference principle" which requires that any existing inequalities in society "must contribute effectively to the benefit of the least advantaged").
256. But see Cass R. Sunstein, Hazardous Heuristics 21 (Univ. Chi. Law Sch. John M. Olin Law & Econ. (2d Series), Working Paper No. 165, 2002), available at http://www.law.uchicago.edu/academics/publiclaw/ resources/33.crs.hazardous.pdf (discussing the optimistic bias inherent in human behavior).
257. RAWLS, RESTATEMENT, supra note 14, at 9 (listing potential political conceptions of justice as including "a particular natural rights doctrine, or a form of utilitarianism, or justice as fairness");
258. RAWLS, Public Reason Revisited, supra note 11, at 581 ("There are . . . many forms of public reason specified by a family of reasonable political conceptions. Of these, justice as fairness, whatever its merits, is but one.");
259. see also JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 153 (1980) (discussing the concept of shared group norms and their relation to the "common good");
260. JOHN STUART MILL, UTILITARIANISM (George Sher ed., Hackett Publ'g Co. 1979) (1861).
261. See RAWLS, RESTATEMENT, supra note 14, at 61.
262. See RAWLS, THEORY OF JUSTICE, supra note 84, at 11-12. The principles of social justice are applied to "choos[e] among the various social arrangements which determine this division of advantages and for underwriting an agreement on the proper distributive shares." Id. at 4.
263. For instance, see RAWLS, Public Reason Revisited, supra note 11, at 608-09, stating: [A]ll reasonable doctrines affirm such a society with its corresponding political institutions: equal basic rights and liberties for all citizens, including liberty of conscience and the freedom of religion. On the other hand, comprehensive doctrines that cannot support such a democratic society are not reasonable. Their principles and ideals do not satisfy the criterion of reciprocity, and in various ways they fail to establish the equal basic liberties. As examples, consider the many fundamentalist religious doctrines, the doctrine of the divine right of monarchs and the various forms of aristocracy, and, not to be overlooked, the many instances of autocracy and dictatorship.
264. RAWLS, RESTATEMENT, supra note 14, at 194;
265. see Joshua Cohen, For a Democratic Society, in THE CAMBRIDGE COMPANION TO RAWLS, supra note 92, at 86, 113 ("So justice as fairness conceives of democratic political life as ideally guided by substantive principles of justice set out in advance principles that are said to articulate the (democratic) idea of society as a scheme of fair cooperation among free and equal persons.").
266. For criticism that this fixture of substantive principles does not facilitate actual political autonomy but rather promotes the nonviolent preservation of political stability, see Jürgen Habermas, Reconciliation Through the Public Use of Reason: Remarks on John Rawls's Political Liberalism, 92 J. PHIL. 109, 128 (1995).
267. See RAWLS, Public Reason Revisited, supra note 11, at 581.
268. See RAWLS, RESTATEMENT, supra note 14, at 189-90.
269. Id. at 90.
270. See supra notes 98-101 and accompanying text.
271. See RAWLS, THEORY OF JUSTICE, supra note 84, at 182 ("An individual recognizing religious or moral obligations regards them as binding absolutely in the sense that he cannot qualify his fulfillment of them for the sake of greater means for promoting his other interests.").
272. RAWLS, Public Reason Revisited, supra note 11, at 578 ("Thus when, on a constitutional essential or matter of basic justice, all appropriate government officials act from and follow public reason, and when all reasonable citizens think of themselves ideally as if they were legislators following public reason, the legal enactment expressing the opinion of the majority is legitimate law.");
273. RAWLS. RESTATEMENT, supranote 14, at 194 ("[A]s citizens come to appreciate what a liberal conception achieves, they acquire an allegiance to it, an allegiance that becomes stronger over time. They come to think it both reasonable and wise to affirm its principles of justice as expressing political values that, under the reasonably favorable conditions that make democracy possible, normally outweigh whatever values may oppose them. With this we have an overlapping consensus.").
274. See RAWLS, Public Reason Revisited, supra note 11, at 578 (discussing how citizens will come to "the most reasonable conception of political justice . . . even at the cost of their own interests").
275. See id. ("The criterion of reciprocity requires that when those terms are proposed as the most reasonable terms of fair cooperation, those proposing them must also think it at least reasonable for others to accept them, as free and equal citizens, and not as dominated or manipulated, or under the pressure of an inferior political or social position.").
276. Id. at 581. Rawls goes on to state that: 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. . . . [However,] [t]hey 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.
277. Id. at 606 (footnote omitted). Although Rawls uses the abortion debate as an example of public reason, I explain in the next Section why the resolution of the abortion issue is not left to public reasoning when agents settle on justice as fairness as their political conception of justice.
278. Id. at 584 ("Examples of political values include those mentioned in the preamble to the United States Constitution: a more perfect union, justice, domestic tranquillity, the common defense, the general welfare, and the blessings of liberty for ourselves and our posterity. These include under them other values: so, for example, under justice we also have equal basic liberties, equality of opportunity, ideals concerning the distribution of income and taxation, and much else.") Importantly, Rawls introduced the concept of the "proviso." This idea allows for individuals holding policy views based on unreasonable political values to participate in public reason so long as they use acceptable values in their effort to persuade others.
279. See id. ("This requirement still allows us to introduce into political discussion . . . our comprehensive [moral] doctrine . . . provided that . . . we give properly public reasons to support the principles and policies our comprehensive doctrine is said to support.").
280. RAWLS, RESTATEMENT, supra note 14, at 91-92.
281. See RAWLS, Public Reason Revisited, supra note 11, at 581-82 (discussing the content of public reason).
282. RAWLS, Public Reason, supra note 89, at 223 (writing that the principles govern "the basic structure of . . . political, social, and economic institutions as a unified scheme of social cooperation").
283. Id.
284. RAWLS, THEORY OF JUSTICE, supra note 84, at 6-7.
285. Id. at 6.
286. See, e.g., RAWLS, Public Reason Revisited, supra note 11, at 597 ("[P]olitical principles do not apply directly to its internal life, but they do impose essential constraints on the family as an institution and so guarantee the basic rights and liberties, and the freedom and opportunities, of all its members.").
287. See id. at 598 ("[A]t some point society has to rely on the natural affection and goodwill of the mature family members.");
288. cf. Nussbaum, supra note 10 ("[Rawls] gives parents a very large measure of unqualified control over the upbringing of their children, even when they deny girls equal opportunity by teaching them the unequal worth of females.").
289. See RAWLS, Public Reason Revisited, supra note 11. at 598 (stating that "the principles of justice impose constraints on the family on behalf of children who as society's future citizens have basic rights as such," and arguing that children who witness injustices within the family face difficulty in "acquir[ing] the political virtues required of future citizens in a viable democratic society");
290. see also Martha C. Nussbaum, Rawls and Feminism, in THE CAMBRIDGE COMPANION TO RAWLS, supra note 92, at 488, 504 ("[C]hildren are simply hostages to the family in which they grow up, and their participation in its gendered structure is by no means voluntary.").
291. RAWLS, Public Reason, supra note 89, at 221 n.8. For criticism of Rawls's treatment of the family,
292. see CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 193-94 (1989);
293. Susan Moller Okin, Political Liberalism, Justice, and Gender, 105 ETHICS 23, 25-28 (1994).
294. RAWLS, RESTATEMENT, supra note 14, at 11.
295. See id. (discussing the definition of a "narrow reflective equilibrium"). Considered judgments demand that a person: (1) Is aware of relevant facts about the issue in question; (2) Is able to concentrate on this question; and (3) Does not stand to gain or lose on the basis of the answer given.
296. T.M. Scanlon, Rawls on Justification, in THE CAMBRIDGE COMPANION TO RAWLS, supra note 92, at 139, 143.
297. See RAWLS, THEORY OF JUSTICE, supra note 84, at 18. Rawls notes that this is an adaptation of Nelson Goodman's model.
298. Id. at 18 n.7
299. (citing NELSON GOODMAN, FACT, FICTION, AND FORECAST 65-68 (1955)). The idea is that we should correct or revise our views about particular inferences we initially might think are acceptable if we come to see them as incompatible with rules that we generally accept and refuse to reject because they, in turn, best account for a broad range of other acceptable inferences.
300. See GOODMAN, supra, at 63-64.
301. RAWLS, THEORY OF JUSTICE, supra note 84, at 18.
302. Id.; see also Scanlon, supra note 135, at 149 ("But the process of seeking reflective equilibrium is something we each must carry out for ourselves, and it is a process of deciding what to think, not merely one of describing what we do think. . . . Moreover, it seems to me that this method, properly understood, is in fact the best way of making up one's mind about moral matters and about many other subjects.").
303. See RAWLS, THEORY OF JUSTICE, supra note 84, at 18-19.
304. Id. at 18. Rawls described this as "a society in which (1) everyone accepts and knows that the others accept the same principles of justice, and (2) the basic social institutions generally satisfy and are generally known to satisfy these principles."
305. Id. at 4.
306. See id. at 18 (describing how society will match its judgments with the principles of justice);
307. Scanlon, supra note 135, at 149;
308. Waldron, supra note 90, at 3.
309. See RAWLS, THEORY OF JUSTICE, supra note 84, at 18.
310. Id. at 42-43;
311. see also RAWLS, RESTATEMENT, supra note 14, at 30 ("When the person in question adopts [a] conception and brings other judgments in line with it we say this person is in narrow reflective equilibrium.").
312. RAWLS, THEORY OF JUSTICE, supra note 84, at 18.
313. Id. at 3. Rawls cites the example of the United States in the years leading up to the Civil War.
314. See RAWLS, Public Reason, supra note 89, at 249-50. He suggested that American society was in reflective disequilibrium due to the emerging gulf between its societal judgment tolerating slavery and its principle of justice that all members of society are free and equal.
315. See id. Ultimately, with the emancipation of slaves, the judgment shifted, thereby becoming more aligned with its underlying principle of justice.
316. See id. at 250 (mentioning how the "political force leading to the Civil War" could be seen as an effort to "bring about a well-ordered and just society").
317. RAWLS, THEORY OF JUSTICE, supra note 84, at 18 (emphasis added).
318. It is important to emphasize the distinction between judgments and considered judgments, which are: [Judgments] that seem clearly to be correct under conditions conducive to making good judgments of the relevant kind; that is, when one is fully informed about the matter in question, thinking carefully and clearly about it, and not subject to conflicts of interest or other factors that are likely to distort one's judgment. Scanlon, supra note 135, at 140, While reflective equilibrium does work from two ends, principles (and conceptions) will only conform to considered judgments.
319. See RAWLS, THEORY OF JUSTICE, supra note 84, at 42 ("[T]he principles which would be chosen in the original position are identical with those that match our considered judgments . . . ."). Regular societal judgments, on the other hand, will always conform to our principles in reflective equilibrium. If the fetal-rights scheme were not deemed a considered judgment. there would be no need to account for the possibility that our principles might theoretically adjust to it. While it is possible that, due to the strong emotions involved in the debate of fetal rights, the judgment fails to rise to the level of "considered," this Article nonetheless plays it safe and presumes, arguendo, that it does.
320. As a theoretical matter, one could also analyze a judgment's stability through inductive reasoning. This would entail: (1) devising a reasonable original position; (2) deriving its implicated principles of justice; and (3) comparing these principles to society's judgments. This inductive approach, however, is not practical. By starting with a devised original position, the outcome of the entire stability analysis would turn on the subject's arbitrary impression of whether certain personal characteristics were irrelevant. Such a methodology also fails to appreciate that a societal judgment could match principles implicated at more than one reasonable original position. Thus, the deductive approach followed in this Article is preferable as it starts from a more reliable position (current societal judgments) and accounts for the possibility that several reasonable original positions could implicate principles matching these judgments.
321. "Third parties," as used below, refers to actors that are neither the fetus's mother nor persons acting at the direction of its mother. See, e.g., Commonwealth v. Bullock, 913 A.2d 207, 215 (Pa. 2006) (stating that "the challenged distinction consists of the mother versus everyone else").
322. One could debate whether, taking into account the right to abortion, the fetus (1) lacks human rights vis-à-vis its mother, or (2) has human rights which are simply outweighed by its mother's right to privacy or liberty. Human rights are "core" rights (e.g., the right to life) which can be overridden only under discrete and well-defined circumstances (e.g., just war and certain types of self-defense). This Article works on the premise that a fetus lacks human rights in any relationship in which its right to life can be lawfully overridden for a reason falling outside the traditional list of justifications.
323. 505 U.S. 833 (1992).
324. Id. at 877 ("[W]e answer the question . . . whether a law
325. See Collins v. Heastcr, 619 S.E.2d 165, 169-70 (W. Va. 2005) (finding no precedent to support the appellant's "expansive view of implied consent," and observing "[i]t is noteworthy that these limited examples of'implied' consent from other jurisdictions involve circumstances where immediate action was necessary to avoid serious harm or risk of harm [to the consenting party]"); R v. Dudley & Stevens, (1884) 14 Q.B.D. 273, 286-87 (rejecting the theory that a cabin boy killed on the high seas would have hypothetically agreed that the defendants' lives were more important than his, and would have been willing to die so that the defendants could carry on as breadwinners for their families).
326. See, e.g., MODEL PENAL CODE § 3.04(2)(b) (1962).
327. See supra notes 23 & 25 (listing state fetal-homicide laws).
328. In both scenarios, the fetus, during at least some stages of its gestation, faces the dichotomy of having rights against third parties and no rights against its mother.
329. See Commonwealth v. Bullock, 913 A.2d 207, 216 (Pa. 2006) (holding that the legislature had a rational basis for exempting mothers from criminal prosecutions under such circumstances).
330. See Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108-105, 117 Stat. 1201, 1206 (codified as amended at 18 U.S.C. § 1531) (stating Congress's conclusion that "[t]he gruesome and inhumane nature of the partial-birth abortion procedure and its disturbing similarity to the killing of a newborn infant promotes a complete disregard for infant human life that can only be countered by a prohibition of the procedure").
331. See, e.g., Greg M. Shaw, The Polls - Trends: Abortion, 67 PUB. OPINION Q. 407, 413 (2003) (observing that there is far stronger support for abortions for women whose life or health are threatened by the pregnancy than for those who are motivated by fetal defects, financial hardship, or no desire for children); Public Agenda, Abortion: Overview, http://www.publicagenda.org/issues/overview.cfm?issue_type=abortion (last visited Oct. 9, 2007) (stating that "two-thirds of Americans say abortion should be legal during the first trimester, but . . . drops to 8 percent in the third trimester").
332. See Public Agenda, supra note 159 (explaining that more than three-quarters of Americans believe that abortions should be legal when the health of the mother is at risk).
333. But society's belief that a certain act is unnecessary and a blight (or even that "fetal life" has protectable interests) does not necessarily establish that human rights are at stake. For example, our laws have long prohibited acts of cruelty to many types of animal life. See generally David Favre & Vivien Tsang, The Development of Anti-Cruelty Laws During the 1800's, 1993 DETROIT C.L. REV. 1 (tracing the origins of anti-cruelty law in the United States from a pure property protection - e.g., prohibition on the stealing of horses - to the ensuing development of anti-cruelty law). Rawls commented: Certainly it is wrong to be cruel to animals and the destruction of a whole species can be a great evil. The capacity for feelings of pleasure and pain and for the forms of life of which animals are capable clearly imposes duties of compassion and humanity in their case. I shall not attempt to explain these considered beliefs. They are outside the scope of the theory of justice, and it does not seem possible to extend the contract doctrine so as to include them in a natural way.
334. RAWLS, THEORY OF JUSTICE, supra note 84, at 448.
335. It is important to see that the choice between Principles B and C has little effect on the analysis in subsequent Sections. The difference between the two merely relates to how far the dichotomy extends. Under Principle C, we see a rights-dichotomy for all fetuses, but with Principle B it is confined to only pre-viable fetuses. Rawlsians, I argue, should reject both principles for the reasons set forth in Part III.C.
336. See RAWLS, RESTATEMENT, supra note 14, at 61 ("The hope is that [justice as fairness] with its account of primary goods can win the support of an overlapping consensus.").
337. This is supported by the fact that Rawls "distinguishes human rights from the liberal democratic rights required by political liberalism." Samuel Freeman, Introduction to THE CAMBRIDGE COMPANION TO RAWLS, supra note 92, at 47. "To deny people the right to vote or freedom of artistic expression seriously infringes liberal justice, but it is not as egregious as denying them the right to life, torturing or enslaving them, or persecuting them for their religion."
338. Id. In such cases, people are "not seen as independent agents with a good that is worthy of respect or consideration."
339. Id.
340. (citing JOHN RAWLS, THE LAW OF PEOPLES 68 (1999)).
341. RAWLS, Public Reason Revisited, supra note 11, at 612.
342. RAWLS, RESTATEMENT, supra note 14, at 19.
343. See RAWLS, Public Reason Revisited, supra note 11, at 612. Professor Frank Michelman's work on the value of context is also instructive here.
344. See Frank I. Michelman, Rawls on Constitutionalism and Constitutional Law, in THE CAMBRIDGE COMPANION TO RAWLS, supra note 92, at 394. He argues that the necessity of public reason lies in the distinction between inalienable rights and "situation-specific" rights. The latter type of rights need a "relatively fine adjustment of the reciprocal extents of the liberties in the scheme of basic liberties that is likely to call for more contextual knowledge and finergrained, more contestable social-causal calculation than Rawls . . . believes constitutional lawmaking can effectively and legitimately bear."
345. Id. at 418. Michelman argues that public reason, due to its superior elasticity, is well-equipped to define situation-specific rights.
346. See id. (discussing how questions of basic liberties can be "too complexly situation-specific to be aptly resolvable at the level of constitutional law").
347. RAWLS, Public Reason Revisited, supra note 11, at 579. For example, Rawls explains that the prohibition on slavery is not left to public reason, but rather it is dictated by our conception of justice: "Since the rejection of slavery is a clear case of securing the constitutional essential of the equal basic liberties, surely Lincoln's view was reasonable . . . while Douglas's was not. Therefore, Lincoln's view is supported by any reasonable comprehensive doctrine."
348. Id. at 610.
349. Rawls stated that if, for some reason justice as fairness is not selected, abortion rights could be left to public reason. Rawls, Public Reason, supra note 89, at 243 n.32. Because this Article fixes the political conception at justice as fairness, principles relevant to the abortion issue, which involves fundamental status issues, are not left to public reason but arc rather given by the conception itself.
350. See RAWLS, THEORY OF JUSTICE, supra note 84, at 11-12.
351. As Rawls explained: Moral persons are distinguished by two features: first they are capable of having . . . a conception of their good (as expressed by a rational plan of life); and second they are capable of having (and are assumed to acquire) a sense of justice . . . . Thus equal justice is owed to those who have the capacity to take part in and to act in accordance with the public understanding of the initial situation. See id. at 442
352. See id. at 11-12, 144 (explaining how risk and uncertainty will cause agents at the original position "to weigh[] more heavily the advantages of those whose situation is less fortunate").
353. See, e.g., 1 BRIAN BARRY, A TREATISE ON SOCIAL JUSTICE: THEORIES OF JUSTICE 207 (1989) ("[S]ympathy for animals varies a great deal from one time and place to another and is at best concentrated mainly on pets and petlike animals rather than on those defined as food, game, or pests.").
354. Compare 16 U.S.C. §§ 1538(a)(2)(B), 1540(b)(1) (2000) (stating that people who "damage or destroy" endangered species face maximum punishments of a fifty thousand dollar fine or up to one year in jail or both),
355. with 18 U.S.C. § 1111 (b) (2000) (describing the punishments for murder as either a term of years, life imprisonment, or death).
356. One reaches a similarly inconclusive result by analyzing the principle that humans enjoy the right to die. If information were not available at the original position about which agents would become terminally ill and incapacitated, agents would likely recognize a right to die because they would not take the risk of being terminally ill without such a right. But even if agents had perfect information at the original position, and knew they would never become terminally ill, risk-averse agents could still plausibly support a right to die on the ground that it provides a benefit (e.g., lowers society's health-care costs) and imposes no risk of harm to others. One need not agree with these actual conclusions to appreciate the point that many principles do not necessarily indicate the components of their implicating original positions.
357. See RAWLS, Public Reason Revisited, supra note 11, at 598 (stating that "the principles of justice impose constraints on the family on behalf of children who as society's future citizens have basic rights as such," and arguing that children who witness injustices within the family face difficulty in "acquir[ing] the political virtues required of future citizens in a viable democratic society").
358. The fetus's rights vest against third-parties even if the mother is, for whatever reason, opposed to having the third party charged with murder. See discussion supra Part I.A. In such a case, the principle that the fetus has personhood rights against third parties will, at least in theory, not benefit all future mothers.
359. For example, agents might agree to prohibit "feticide," which has historically focused on protecting the parent's interest in the fetus, and, as such, carried a lighter social stigma and penal sanction than murder. The agents could alternatively define fetuses as "nonpersons" and classify acts causing their death as a crime more akin to trespass to chattel. Lastly, they might treat "pregnancy" as an aggravating factor in any underlying crime against a woman.
360. This information would include the mother's willingness to procure an abortion or ingest substances harmful to her fetus during pregnancy.
361. Roe v. Wade, 410 U.S. 113, 153 (1973).
362. But see ANITA L. ALLEN, UNEASY ACCESS: PRIVACY FOR WOMEN IN A FREE SOCIETY 56 (1988) ("The women's movement, education, access to affordable birth control, liberalized divorce laws, and the larger role for women in politics, government, and the economy have expanded women's opinions and contributed to the erosion of oppressively nonegalitarian styles of home life.").
363. And while Rawls was clear that agents behind the veil do not know their actual chances of being situated in a socially inferior position, it is worth noting that the odds that an agent would incur such losses are not negligible as roughly twenty percent of fetuses in the United States are aborted. See Lawrence B. Finer & Stanley K. Henshaw, Abortion Incidence and Services in the United States in 2000, 35 PERSP. ON SEXUAL & REPROD. HEALTH 6, 9 (2003), available at http://www.guttmacher.org/pubs/psrh/full/3500603.pdf.
364. The right to abortion is deemed to be fundamental by many in our society. Yet there is a wide consensus that this right is not more fundamental than the right to life. No matter how physically and psychologically damaging it might be to carry an unwanted fetus to full term, even the most strident of pro-choice advocates would acknowledge that the mother is better off than if her life were taken. The point is simply to say that the right to life (once you've decided an entity is entitled to it) is more fundamental than the right to abortion. This point is further supported by Rawls's model of justice, in which basic liberties "have a central range of application," yet "can be limited and adjusted [when] they clash with other basic liberties." JOHN RAWLS, Reply to Alexander and Musgrave, in JOHN RAWLS: COLLECTED PAPERS, supra note 11, at 232, 239. The right to life, which is regularly perceived to be the most fundamental of all rights, can only be overridden in our legal tradition in discrete and well-defined circumstances such as self-defense. And so it seems unlikely that agents without information about their mothers would ever agree on a principle that allowed for abortions that could not be justified by the self-defense doctrine (e.g.. nontherapeutic abortions).
365. RAWLS, THEORY OF JUSTICE, supra note 84, at 446 (emphasis added);
366. see 1 BARRY, supra note 173, at 210 (explaining "fortuitous" to mean "everything about people that should not play any role in determining the way in which they should be treated").
367. See RAWLS, THEORY OF JUSTICE, supra note 84, at 442 ("Moral persons are distinguished by two features: first they are capable of having . . . a conception of their good (as expressed by a rational plan of life); and second they are capable of having (and are assumed to acquire) a sense of justice . . . .").
368. See Katherine Hunt Federle, Children, Curfews, and the Constitution, 73 WASH. U. L.Q. 1315, 1320-21 (1995) (arguing that Rawls expanded the theories set forth by the traditional rights theorists, who believed that children were not entitled to "the full panoply of rights accorded to adults because of their incapacity to obligate others").
369. RAWLS, THEORY OF JUSTICE, supra note 84, at 443.
370. Id. at 445-46. Rawls explained, "[s]ince infants and children are thought to have basic rights (normally exercised on their behalf by parents and guardians), this interpretation of the requisite conditions seems necessary to match our considered judgments."
371. Id. at 446.
372. Id. at 218-19.
373. See 1 BARRY, supra note 173, at 163 ("To say that this killing or taking is rendered just by the inability of the victims to organize an effective resistance would surely be a hollow mockery of the idea of justice - adding insult to injury. Justice is normally thought of not as ceasing to be relevant in conditions of extreme inequality in power but, rather, as being especially relevant to such conditions.").
374. See RAWLS, THEORY OF JUSTICE, supra note 84, at 219 ("Others are authorized and sometimes required to act on our behalf and to do what we would do for ourselves if we were rational, this authorization coming into effect only when we cannot look after our own good."). Rawls treated children as moral primitives who must be protected from "the weakness and infirmities of their reason and will in society."
375. Id.
376. See id. ("As we know less and less about a person, we act for him as we would act for ourselves from the standpoint of the original position . . . .").
377. Rawls's distinction likely stems from the inevitability of temporary incompetence. As Eva Feder Kittay has put it: [T]here are identifiable states of our life history in which dependency is unavoidable, either for survival or for flourishing. The immaturity of infancy and early childhood, illness and disability that renders one nonfunctional even in the most accommodating surroundings, and the fragility of advanced old age, each serve as examples of such inescapable dependency. . . . These are unassailable facts about human existence. While conditioned in fundamentally significant ways by cultural considerations, dependency for humans is as unavoidable as birth and death are for all living organisms.
378. EVA FEDER KITTAY, LOVE'S LABOR: ESSAYS ON WOMEN, EQUALITY, AND DEPENDENCY 29 (1999).
379. RAWLS, THEORY OF JUSTICE, supra note 84, at 446.
380. Id. at 448. Rawls's distinction between temporary and permanent incompetence should preempt any argument that status as a nonhuman animal species, or, for that matter, one's status as an unfertilized human egg, is a fortuitous condition.
381. See George, supra note 8, at 2493 ("The significance of genetic completeness . . . is that no outside genetic material is required to enable the zygote to mature into an embryo, the embryo into a fetus, the fetus into an infant, the infant into a child, the child into an adolescent, the adolescent into an adult.").
382. RAWLS, THEORY OF JUSTICE, supra note 84, at 258 (clarifying that "[t]he present generation cannot do as it pleases but is bound by the principles that would be chosen in the original position to define justice between persons at different moments of time"). "Each generation must not only preserve the gains of culture and civilization, and maintain intact those just institutions that have been established, but it must also put aside in each period of time a suitable amount of real capital accumulation."
383. Id. at 252.
384. Id. at 514. Rawls concluded .4 Theory of Justice as follows: Thus to see our place in society from the perspective of this position is to see it sub specie aeternitatis: it is to regard the human situation not only from all social but also from all temporal points of view. The perspective of eternity is not a perspective from a certain place beyond the world, nor the point of view of a transcendent being; rather it is a certain form of thought and feeling that rational persons can adopt within the world. And having done so, they can, whatever their generation, bring together into one scheme all individual perspectives and arrive together at regulative principles that can be affirmed by everyone as he lives by them, each from his own standpoint. Purity of heart, if one could attain it, would be to see clearly and to act with grace and self-command from this point of view.
385. Id.
386. Id. at 256 (explaining that future "generations are virtually represented in the original position").
387. See id. at 11;
388. see also RAWLS, Powers of Citizens, supra note 101, at 79 ("Features relating to social position, native endowment, and historical accident, as well as to the content of persons' determinate conceptions of the good, are irrelevant, politically speaking, and hence placed behind the veil of ignorance.").
389. See RAWLS, THEORY OF JUSTICE, supra note 84, at 85-86. It should be clarified that the "moral irrelevance" of familial advantages does not suggest that principles of justice govern all familial relations. Rawls is, after all, unequivocal in his discussion of the "public domain" that principles cannot regulate those types of household activities that are not abusive to individual members. Instead, Rawls advances the narrower claim that information about one's ultimate family should be concealed from agents when they choose the principles of justice to govern society.
390. RAWLS, THEORY OF JUSTICE, supra note 84, at 64 ("[Distributive shares are decided by the outcome of the natural lottery; and this outcome is arbitrary from a moral perspective.").
391. Id. at 11.
392. Id. at 265.
393. Id. at 448.
394. Id. at 64. It is worth noting that Rawls often uses the word "born" as synonymous with "starting point."
395. See id. at 81-86. This usage is simply metaphorical, and surely does not indicate that information about pre-birth status cannot be placed behind the veil.
396. Some fetuses are conceived by women who use illicit drugs or suffer from illness, while others are conceived by women who are conscientious about pre-natal care. This is, of course, an arbitrary distribution of assets from the fetus's perspective.
397. A projection of instability prompts the question: In which direction will our judgments shift? Rawls might suggest we begin by examining the principles that would be implicated at a "reformed" version of the presumed original position. See RAWLS, THEORY OF JUSTICE, supra note 84, at 19 ("[T]he conditions embodied in the description of the original position are ones that we do in fact accept. Or if we do not, then perhaps we can be persuaded to do so by philosophical reflection." (emphasis added)). An original position is reformed when all morally irrelevant information is isolated and placed behind the veil of ignorance. As stated in Part III, information about whether mothers are likely to harm their fetuses is morally irrelevant. Agents at the reformed original position, which of course includes representatives of fetuses at all stages of gestation, would likely choose a conception with given principles that entitle fetuses to human rights against both third parties and their mothers. A contrary conception, whereby the rights of the fetus are subordinated to those of its mother, even if confined to early stages of gestation, would present an intolerable degree of risk to the agents. Similarly, leaving the decision to public reasoning would not sufficiently mitigate this risk.
398. Rawls was clear in his later writings that justice as fairness was a political conception as well as a moral conception. See JOHN RAWLS, Justice as Fairness: Political Not Metaphysical, in JOHN RAWLS: COLLECTED PAPERS, supra note 11, at 388, 411 ("Some may even affirm justice as fairness as a natural moral conception that can stand on its own feet.").
399. This would likely be achieved by treating fetuses as non-persons vis-à-vis all parties. Presumably this could be accomplished by returning to the traditional "feticide" laws, which tend to focus on protecting and vindicating the rights of the mother rather than the harmed fetus.
400. We might see the mother's liberty curtailed to the point where the only lawful abortions are those consistent with theories of self-defense.
401. See, e.g., JOHN RAWLS, The Independence of Moral Theory, in JOHN RAWLS: COLLECTED PAPERS, supra note 11, at 286, 298 (stating that utilitarian thought focuses "on valuable experiences themselves, and the only thing that counts is the net total held by all container-persons together");
402. STEVEN R. HAYNES, NOAH'S CURSE: THE BIBLICAL JUSTIFICATION OF AMERICAN SLAVERY (2002) (discussing the religious, natural law-oriented ideology which helped maintain the institution of slavery in the antebellum American South).
403. ALA. CODE § 13A-6-1(a)(3) (LexisNexis 2006);
404. ALASKA STAT. § 11.41.150 (2006);
405. ARIZ. REV. STAT. ANN. § 13-1102 to -1105 (Supp. 2006);
406. GA. CODE ANN. §§ 16-5-80, 40-6-393.1 (Supp. 2006);
407. IDAHO CODE ANN. § 18-4001 (2004);
408. III. COMP. STAT. ANN. 5/9-1.2, -2.1, -3.2 (West 2002);
409. KY. REV. STAT. ANN. §§ 507A.010-060 (LexisNexis Supp. 2006);
410. LA. REV. STAT. ANN. §§ 14:2(11), 14:32.5-14:32.8 (2007);
411. MICH. COMP. LAWS ANN. § 75.14 (West 2004);
412. MINN. STAT. ANN. §§ 609.21, .266(a), .2661-.2665 (West 2003);
413. MISS. CODE ANN. § 97-3-37(1) (2005);
414. NEB. REV. STAT. §§ 28-389(2), -391 to -394 (Supp. 2006);
415. N.D. CENT. CODE §§ 12.1-17.1-01 to -04 (1997);
416. OHIO REV. CODE ANN. §§2903.01 to .06, 2903.09(A) (LexisNexis 2006);
417. OKLA. STAT. ANN. tit. 21 §§ 652, 691, 713 (West Supp. 2007);
418. OKLA. STAT. ANN. tit. 63 § 1-730 (West 2004);
419. PA. CONS. STAT. ANN. §§ 2603-2605, 3203 (West 1998);
420. S.C. CODE ANN. §16-3-1083 (2006);
421. S.D. CODIFIED LAWS §§ 22-1-2(50A), 22-16-1.1, -15, -20, -41 (2006 & Supp. 2007);
422. TEX. PENAL CODE ANN. § 1.07(a)(26) (Vernon Supp. 2006);
423. UTAH CODE ANN. §§ 76-5-201 to -209 (2003 & Supp. 2007);
424. VA. CODE ANN. § 18.2-32.2(A) (2004);
425. W. VA. CODE ANN. § 61-2-30 (LexisNexis 2005);
426. WIS. STAT. ANN. §§ 939.75, 940.01, .02, .05-.10 (West 2005);
427. State v. Knapp, 843 S.W.2d 345, 347-48 (Mo. 1992) (en banc);
428. State v. Holcomb, 956 S.W.2d 286, 290 (Mo. Ct. App. 1997).