There are two main issues on the right of abortion. First, the individual’s right to bodily and reproductive autonomy, and second, the state’s interest to protect developing human life. Gerald Dworkin puts emphasis on the sacrosanctity of life however, he does not condemn all sorts of abortion but only puts a caveat that legal language cannot adequately answer deeper issues involved in it. Liberals argue that states should be neutral in questions involving moral and religious matters and let the individual decide what is good or bad. Michael Sandel argues that “pro-choice” in the abortion controversy is not neutral on the underlying moral and religious question. He argues that the moral question can be set aside if one first determines the catholic position is false. He says that in a moral sense, if we are confident that foetuses are different from babies, then we can confidently affirm the political conception of justice which sets aside the moral status of foetuses. This doesn’t mean banning abortion but simply acknowledging that liberty of choice and neutrality aren’t sufficient for pro-abortion. On the other hand, Nagel argues that reasoning on justice can remain neutral towards moral and religious differences. One can argue that in this scenario, Thomas Nagel cannot defend abortion rights without firstly denying that a foetus is a person. Hence the distinction between private and public morality as proposed by Nagel cannot decide this question. So if abortion is seen as infanticide then it cannot be said that it’s just a private choice.
In both circumstances, neutrality is not possible. Neutrality as an aspiration is taken differently by republicans and democrats. Republicans seek no government intervention in economic policy. They argue that imposing a tax is like a State-sponsored vision of the common good whereas Democrats demand no intervention in the social and cultural matters such as abortion rights because by doing so, one imposes the moral and religious views on others. In Sucheta Srivastava v Chandigarh Administration (2009), a mentally disabled woman challenged the order of the Court for termination of pregnancy without her consent. This case opened up unprecedented issues on the reproductive rights of mentally challenged persons such as whether abortion can be performed without taking the consent of an unsound person? Who will give consent? What happens when a pregnancy is caused by a consensual act between retarded persons? What the State can or should do in this regard. James Gustafson, who is against abortion allows an exception clause in case of pregnancy due to sexual crime or in a mentally ill person. He argues that moralists should respect the individual’s sense of responsibility in such cases.
Law of the land is somehow just the codification of moralities that existed over a time period. So, saying personal morality has no place in public policy is not right. For a just society, maximizing utility or securing the liberty of choice is not enough. We need to reason together what is the meaning of a good life and create a healthy space for dissent as conscientious people with reasoned decisions cannot arrive at the same conclusion. So, neutrality arises by tolerance of moral and religious disagreements. As the ideal form of justice would time and again compete with the changing notions, virtues and choices of individuals. Therefore, the State should not endorse one particular conception of ‘good’ nor should individuals impose their moral and religious views on others.
