55 Pages Posted: 20 Jan 2008 Last revised: 9 Jul 2008
This article evaluates American fetal homicide laws in the light of John Rawls's political philosophy. In particular, it seeks to discern whether fetal homicide indicates a societal recognition of fetal personhood, and, if so, whether such recognition renders the right to abortion inconsistent with our principles of justice.
The article proceeds in three parts. The first part outlines the contours of the bifurcated fetal-rights scheme and demonstrates that it is an established societal judgment with robust institutional support. The middle part introduces Rawls's philosophy, and explains how it can, under certain circumstances, provide us with insight into the stability of public policies. The final part, which constitutes the core of the article, uses Rawls's philosophical model to gauge the stability of the bifurcated fetal-rights scheme. Specifically, it demonstrates that, in a Rawlsian society, the emergence of fetal-homicide laws necessarily reflects a public understanding that fetuses are represented at the "original position." This part then goes on to evaluate the circumstances in which the current fetal-rights scheme - a blend of fetal-homicide laws and abortion rights - could be affirmed by a Rawlsian. The article concludes by briefly speculating about how Rawls's philosophy might impact our views on fetal rights in the coming decades.
Keywords: Homicide, Fetal Personhood, John Rawls
Suggested Citation: Suggested Citation
Milligan, Luke, A Theory of Stability: John Rawls, Fetal Homicide, and Substantive Due Process. Boston University Law Review, Vol. 87, No. 5, 2007; University of Louisville School of Law Legal Studies Research Paper Series No. 2008-04. Available at SSRN: https://ssrn.com/abstract=1085291