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Published online by Cambridge University Press: 26 January 2009
Ronald Dworkin claims in Life's Dominion that our tradition of religious toleration shields decisions to abort a pregnancy and to end one's life with the assistance of others because they pivot on judgements about the value of human life that are essentially spiritual. He further maintains that the state may regulate these decisions to ensure that they honour appropriately life's sacred or intrinsic value. This article disputes the first of Dworkin's claims. Tolerating other people's religious practices does not entail acquiescing in conduct that is not religiously motivated but springs instead from normal moral judgements. This article also questions whether governments justifiably may protect entities or processes simply because some citizens deem them intrinsically valuable. If, despite these doubts, one concludes that the state may assume this protective role, I argue that it probably can enact tighter constraints on abortion and assisted suicide than Dworkin thinks permissible.
1 All parenthetical references are to Dworkin, Ronald, Life's Dominion, New York, 1993Google Scholar.
2 Dworkin also sketches an argument of American constitutional law to the same effect. Because his interpretation of constitutional provisions depends heavily on which principles of political morality he believes are correct, Dworkin's legal analysis closely tracks the arguments considered in this essay and it founders if they do. But Dworkin's legal analysis also turns on the proper reading of a number of American judicial decisions, for no interpretation of the Constitution's text is likely to persuade if it strays far from precedent. Even if his moral argument is persuasive, his constitutional argument might not be. I shall not assess Dworkin's legal argument separately, although it is worth noting that his argument is not unprecedented and that its forbears have convinced very few American legal scholars.
3 I cannot think what ‘special’ might add to ‘grave’, unless it is meant to reinforce what is implicit in the phrase ‘one group’, namely, that the same heavy burden would not be borne by everybody equally. Presumably, this constraint on legislation is not the sole limit on policies designed to advance intrinsic values. Some laws would not gravely hamper people yet lie beyond a liberal state's legitimate power to promulgate. Imagine a dress code for adults purporting to serve the intrinsic value of beauty, with an exception for religiously mandated attire. Its burden could be made moderate, but that hardly suffices. How tightly a law pinches in its attempt to promote an intrinsic value thus cannot be the only test of its legitimacy. It seems impossible to describe what more is needed, however, without assessing the weights of the competing values in particular instances, which is exactly the type of moral evaluation that Dworkin seeks to avoid in his book.
4 Dworkin's argument that the state may not effectively abridge a woman's right to decide whether to bear a child but may forbid abortion once a foetus has some mental life tracks the analysis in Rubenfeld, Jed, ‘On the Legal Status of the Proposition that “Life Begins at Conception”’, Stanford Law Review, xliii (1991)Google Scholar.
6 Not everybody accepts this claim, of course, and not all who do would offer the same reason for accepting it. For one argument in its favour, see Thomson, Judith Jarvis, ‘Self-Defense’, Philosophy and Public Affairs, XX (1991), esp. 305–10Google Scholar.
7 For careful analysis of numerous arguments for the permissibility of abortion that assume a foetus is a moral person with a right to live, see Kamm, Frances M., ‘Abortion and the Value of Life: A Discussion of Life's Dominion’, Columbia Law Review, XCV (1995), esp. 185–220Google Scholar.
8 The parallel is stronger though hardly perfect in the case of advance directives governing the care somebody receives after she becomes profoundly demented, to the extent that one believes the demented patient is in important ways a different person from her earlier self. I shall not discuss the problem of advance directives for severe dementia here. A powerful defence of precedent autonomy that largely agrees with Dworkin's is Cantor, Norman L., ‘Prospective Autonomy: On the Limits of Shaping One's Postcompetence Medical Fate’, Journal of Contemporary Health Law and Policy, Viii (1992)Google Scholar. For trenchant criticism of Dworkin's view, see Dresser, Rebecca, ‘Missing Persons: Legal Perceptions of Incompetent Patients’, Rutgers Law Review, xlvi (1994)Google Scholar.
9 The legalization of euthanasia or assisted suicide also raises important worries about possible harms to those who do not choose either. The most common fears are that the medical care offered to terminally ill patients might explicitly or tacitly be reduced, that incentives to develop better palliative treatments might diminish, that some people might mistakenly be left to die or be killed, that patients might inappropriately be pressured to choose death and that some might intentionally be killed against their wishes if illegal killings can more easily be hidden. Apart from possible pressures to end a pregnancy, these concerns do not exist or are not prominent with respect to the legalization of abortion.
10 I develop a notion of hypothetical consent that may justify killing some people to benefit others in Rakowski, Eric, ‘Taking and Saving Lives’, Columbia Law Review, xciii (1993), esp. 1104–50Google Scholar.
11 Between the onset of sentience and the point at which a human being acquires a right to live, claims of intrinsic value presumably can be combined with claims based on the foetus's interests in opposing abortion. Dworkin seems to rely on this conjunction when he says that the beginning of foetal sentience is the most appropriate point for the state to choose for banning abortions if it does decide to impose a ban (p. 170).
12 Briefly, I think that Dworkin exaggerates the similarities between the way people value pre-conscious foetuses and the way they value natural species or art. It is hardly accidental that nobody attributes rights to abstract entities (like species) or to painted canvas, as many people do to foetuses. Dworkin's assertion that some people tie the prima facie wrongness of abortion to the increasing natural investment in the developing foetus, moreover, seems to me to explain little, given that people do not attribute positive normative significance to everything that occurs naturally. Indeed, often they are loath to interfere with natural processes not out of an approving respect for nature's creative energy but out of an instinctive dread of awakening its terrifying power. See Williams, Bernard, ‘Must A Concern for the Environment Be Centred on Human Beings?’, Reflecting on Nature, ed. Gruen, Lori and Jamieson, Dale, New York, 1994, p. 51Google Scholar. Tying the prima facie wrongness of abortion to the increasing divine or human investment in the foetus fares no better, because we do not conceive of a creator-God as an investor with finite time and resources, more of which will be squandered if an investment is cancelled later rather than earlier; nor do we think that the morality of abortion turns on whether a woman planned her pregnancy or spent a great deal of money or heartache undergoing some form of assisted conception but rather on what her reasons are for ending her pregnancy when she does. Finally, grouping the diverse sources of many people's revulsion at abortion under the vague label of ‘investment’ seems not only to overgeneralize but to overintellectualize reactions that are often visceral and incapable of coherent expression. I spell out these and other misgivings at length in Rakowski, ‘The Sanctity of Human Life’, 2066–81. For other doubts about Dworkin's account of investment and the difficulties his theory encounters in distinguishing ‘sacred’ from ‘incremental’ intrinsic values, see O'Day, Ken, ‘Intrinsic Value and Investment’, Utilitas, xi (1999)Google Scholar; Barclay, Linda, ‘Rights, Intrinsic Values and the Politics of Abortion’, Utilitas, xi (1999)Google Scholar.
13 For an example of this view, see Steinbock, Bonnie, Life Before Birth, New York, 1992, pp. 60–2, 68–71Google Scholar.
14 As illustrations, see Marquis, Don, ‘Why Abortion Is Immoral’, Journal of Philosophy, lxxxvi (1989)Google Scholar, and Quinn, Warren, ‘Abortion: Identity and Loss’, Philosophy and Public Affairs, xiii (1984)Google Scholar. For criticism, see McInerney, Peter K., ‘Does A Fetus Already Have a Future-Like-Ours?’, Journal of Philosophy, lxxxvii (1990)Google Scholar.
15 Parfit, Derek, Reasons and Persons, Oxford, 1984, pp. 351–79Google Scholar. Critiques of Parfit's view include: O'Neill, John, ‘Future Generations: Present Harms’, Philosophy, lxviii (1993)Google Scholar; Hanser, Matthew, ‘Harming Future People’, Philosophy and Public Affairs, xix (1990)Google Scholar; Woodward, James, ‘The Non-Identity Problem’, Ethics, xcvi (1986)Google Scholar. This claim might suggest that human life is incrementally valuable rather than sacred, though Dworkin would deny it. I assume that he would say that the human race as an entity already exists, hence that humanity can be seen as intrinsically valuable, with an important story that it would be a shame to end prematurely.
16 See Stroud, Sarah, ‘Dworkin and Casey on Abortion’, Philosophy and Public Affairs, XXV (1996), esp. 161–6Google Scholar.
17 Rakowski, , ‘The Sanctity of Human Life’, 2081–4Google Scholar; Scanlon, T. M., ‘Partisan for Life’, New York Review of Books, 07 15, 1993, esp. 48Google Scholar. Sarah Stroud argues that, if Dworkin's claim that choosing abortion typically entails making a religious decision, virtually no regulation of abortion could be justified, at least consonant with the U.S. Constitution, including laws aimed at fostering responsible decisionmaking. ‘Imagine, for example, that rabbis were forced by state law to provide all those who wished to join a temple with material prepared by the state outlining the majority's objections to the Jewish religion … [o]r were told they needed to consider their decision further for another twenty-four hours and then come back.’ Stroud, 152.
18 What counts as encouragement or discouragement depends, of course, on where the baseline is set. For example, Dworkin evidently does not regard public subsidies for women who elect to give birth either as discouraging abortion or as inducing childbirth (at least not impermissibly), for he condones them. His reason is that child-rearing subsidies ‘encourage women to reflect about abortion and understand its moral gravity’ without feeling the pressure of ‘financial necessity’ (p. 174). Others might easily see these subsidies as a departure from the morally required neutrality on which Dworkin insists.
19 The court's judgement was expressly premised on the right of a foetus to live after implantation (at the latest), however, not on the intrinsic value of human life in general. Urteil des Zweiten Senats vom 28. Mai 1993,1993 EuGRZ 229, 242 (BVerfG 1993) (‘Die Schutzpflicht für das ungeborene Leben ist bezogen auf das einzelne Leben, nicht nur auf menschliches Leben allgemein.’).
20 See Stith, Richard, ‘On Death and Dworkin: A Critique of his Theory of Inviolability’, Maryland Law Review, lvi (1997), esp. p. 312Google Scholar, n.127.
21 A lucid, detailed statement of that view is contained in Feinberg's, Joel four-volume work, The Moral Limits of the Criminal Law, New York, 1984, 1985, 1986, 1988Google Scholar.
22 Dworkin, Ronald, U.S. Congress, Office of Technology Assessment, Philosophical Issues Concerning the Rights of Patients Suffering Serious Permanent Dementia (1987), p. 47Google Scholar.
24 Dworkin, Ronald et al. , ‘Assisted Suicide: The Philosophers' Brief’, New York Review of Books, 27 03, 1997Google Scholar.
26 Thanks to Samuel Scheffler and Jeremy Waldron for helpful comments.
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