Abortion rights and restrictions pose a special challenge to the justificatory test for legitimate coercion in the law that I’ve defended in my work in political philosophy. That principle says, roughly, that for coercion to be legitimate, it must be publicly justified, or based on reasoning that is public in the requisite sense. For example, on Rawls’ view, public justification is grounded in reasons that all can reasonably accept. The test excludes reasons that are not reasonably acceptable to all from being able to do justificatory work and so prevents these reasons from being a legitimate basis for law.
For a variety of reasons I won’t rehearse, I favor a more recent specification of the principle by Jerry Gaus at the University of Arizona. His view is more permissive in that any of a citizen’s reasons may play a part in justifying laws. Laws can be justified to each citizen on the basis of their complete set of beliefs, values and commitments, so long as these are intelligible. Any intelligible reason can feature within the overall public justification of a law. However, people whose beliefs, values and commitments provide them with an intelligible rationale for rejecting it have a defeater for it and, when that’s true, it’s illegitimate to subject them to it. The law would lack authority from their point of view.
What does this view make of the abortion controversy? First, notice how easy things would be if this disagreement weren’t based on reasonable considerations. If it were flatly unreasonable to deny fetal personhood, then it would be much easier to justify a law against abortion. And if it were flatly unreasonable to ascribe personhood to fetuses, then there would no accounting for such a law. But reasonable people disagree about fetal personhood.
More: both parties to this disagreement reasonably believe that the other side is involved in imposing serious harms to the interests of others. This means that abortion law will lack authority for pro-choicers if pro-lifers have their way politically. It’s relatively obvious how this is so: pro-choicers have an intelligible rationale grounded in their beliefs, values and commitments for rejecting various restrictions on abortion. These restrictions violate privacy or bodily autonomy. But abortion law will also lack authority for pro-lifers when pro-choicers have their way politically. The reason is that, since pro-lifers reasonably believe that fetuses are persons with a right not to be killed, they have adequate justification for protecting them by imposing coercive measures that increase the costs of people killing them. Pro-lifers have an intelligible rationale for rejecting laws that carve out space for women to kill their child.
This situation, then, describes something like a moral state of nature between the two sides. We’ve failed to achieve coordination. Pro-choicers know that, even after engaging in careful and respectable reflection on the relevant moral and empirical evidence, pro-lifers won’t acknowledge the right of women to have an abortion. Public reason has run out. But this doesn’t mean that they just let pro-lifers violate women’s bodily autonomy. Pro-choicers are left as their only option taking up what P.F. Strawson called the objective attitude towards pro-lifers. They will see pro-lifers as a force to be reckoned with, managed and kept at bay as best they can as they go about their affairs, but that’s different than exercising genuinely normative authority over them.
In the same way, pro-lifers know that abortion-seekers won’t acknowledge the personhood of fetuses, even after careful and respectable reflection on the relevant moral and empirical evidence. Public reason has run out for them, too. But this doesn’t mean that pro-lifers just let women seeking abortions kill their children. From the pro-life perspective, women seeking abortions are doing something similar to driving a car towards a person in the street they can’t see. They have reason to stop her or make her swerve. In other words, pro-lifers similarly must treat abortion-seekers as mere objects of social policy rather than people with whom they are interacting on genuinely moral terms.
Disagreement doesn’t always lead to this kind of social breakdown of public reasoning and moral community. I can think of some other examples, but it’s relatively rare, which is a good thing. It also seems pretty isolated most of the time -- thankfully, a disagreement and breakdown in this area hasn’t led to a more general breakdown of moral relations among people who are on opposite sides of the abortion issue. Most people even have friends who disagree with them about abortion.
In fact, I suspect that this lends some credibility to the explanation of the abortion debate that I’ve offered here. It’s a case where we are forced to take the objective attitude towards our opponents because it turns out that they aren’t true moral subjects of the proposed requirements. Strawson’s participant reactive attitudes wouldn’t be warranted since they suggest serious culpability for violating something everyone is in on and knows better than to do. Sure, one side calls the other “murderers” and the other calls the one “women-haters” but we don’t generally act like we regard each other as such.