94 Take, for example, a fetus that does not know in advance whether it will be aborted or not. Behind the “veil of ignorance,” a fetus would presumably choose principles of justice consistent with the goal of having an equal opportunity to be born. The same may be said of an embryo that seeks to avoid a fate of exploitation and destruction. Both the fetus and embryo are in the same position as people who 86 W ILLIAM A. G ALSTON , L IBERAL P URPOSES : G OODS , V IRTUES , AND D IVERSITY IN THE L IBERAL S TATE 174 (1991). 87 See id . at 175. 88 Id . at 274. 89 W ILL K YMLICKA , C ONTEMPORARY P OLITICAL P HILOSOPHY 56 (2002). 90 Id . at 59. 91 J OHN R AWLS , A T HEORY OF J USTICE 12 (1971). 92 K YMLICKA , supra note 89, at 55. 93 R AWLS , supra note 91, at 12. 94 Id .
228 Issues in Law & Medicine, Volume 20, Number 3, 2005 entrust their moral equality to the government so they would be protected from being killed by any oppressor. The role of the justice system is to choose principles of justice that promote what individuals need or will want in order to lead the “good life.” 95 However, to state the obvious, leading the good life is impossible when the principles of justice fail to protect life itself. Anita L. Allen muses that a hypothetical fetus might be willing to sacrifice its life and accept its fate of abortion without abandoning its sense of equal worth, “simply through appreciation of the equal worth of the pregnant woman by whom it must be borne and her potential as a person.” 96 The hypothetical fetus is “justi- fied” in innocently placing its trust and life in its mother “because it does not have to believe itself less worthy of respect than other human beings in order to accept that the law will not compel women to see each pregnancy to term.” 97 Allen’s hypothetical does not consider that the basic instinct of the reasonable fetus is to survive. Moreover, it may be the highest duty of the pregnant woman to subordinate her civil liberties and even sacrifice her life out of love for her fetus. How can taking the life of an innocent human being out of necessity ever be justi- fied in order to preserve the personhood potential of the woman from the respon- sibilities and joys of motherhood? Lord Coleridge, in finding Dudley and Stephens guilty of murdering a cabin boy on the high seas, feeding on his flesh and drinking his blood, rejected this kind of reliance on the defense of necessity. 98 The Court rejected “the choice” made by Dudley and Stephens that the cabin boy would hy- pothetically agree that their lives were more important than his and would be will- ing to die so they could carry on as breadwinners for their families: Who is to be the judge of this sort of necessity? By what measure is the compara- tive value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the neces- sity which will justify him in deliberately taking another’s life to save his own. In this case the weakest, the youngest, the most unresisting was chosen . . . .
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