Ronald Dworkin is our leading public philosopher. Over the past twenty-five years, mainly in these pages, he has taken up some of the most difficult issues facing us as a nation: military conscription and civil disobedience, affirmative action and the meaning of equality, the scope and meaning of the First Amendment, the case for public funding of the arts, the question of abortion, and the nature of constitutional interpretation. Since Dworkin is a lawyer and legal theorist as well as a philosopher, and in view of our well-known national tendency to turn difficult questions of politics and value into legal questions, it is not surprising that most of these topics have obvious legal implications, and that the issue of constitutional interpretation lurks in the background of almost all of the others. But Dworkin has not addressed these issues as technical questions of law. Indeed, in his view, fundamental constitutional issues are rarely technical and usually pose questions of political morality. Accordingly, his articles are probing and reflective inquiries into how the values at stake in these controversies can best be understood.
These articles are partisan: each defends a distinctive position, usually a controversial one. But they do this by means of a Socratic inquiry into the reasons that might be offered for Dworkin’s own position and for positions he opposes, carefully formulating and reformulating these reasons and checking each formulation to see if its implications are acceptable, much as Socrates did in his famous dialogue with Euthyphro on the nature of piety. In Life’s Dominion Dworkin applies this Socratic method with characteristic brilliance and subtlety to the values at stake in the agonizing problems of abortion and euthanasia. The result is an exciting, thought-provoking, and potentially very constructive book.
The book divides into three parts. In the first, Dworkin argues that we misunderstand both sides of the abortion debate which so troubles the country if we take that debate to be about whether the fetus is, from the very early stages of pregnancy, a creature with rights and interests that abortion would violate. In order to make sense of what most people on both sides of the debate actually believe, Dworkin says, we must see them as taking seriously a quite different moral idea, which he calls the sanctity of life. The disagreement about the moral status of abortion is, fundamentally, a disagreement about how this essentially religious idea should be understood. The second part of Life’s Dominion is devoted to the constitutional jurisprudence of abortion, specifically to the argument that, given what the abortion debate is really about, something very close to the position taken in Roe v. Wade is the correct constitutional standard for laws regulating abortion. Finally, in the last two chapters of the book, Dworkin applies the distinctions he has drawn between rights, interests, and the intrinsic sacredness of life to the difficult case of euthanasia.
The book is consistently clear and a pleasure to read, despite the fact that each of its three parts makes a complex argument which would repay, and will no doubt receive, much careful study. In this review I will concentrate on the central claim of each part, and attempt to make clear why these claims are both exciting and controversial.
The rhetoric of anti-abortion activists suggests that they are fighting to prevent murder. Dworkin argues, however, that the views of most of those who oppose abortion, as revealed in opinion polls, public statements, and the writings of religious leaders, cannot be coherently understood in these terms. Most of those who oppose abortion believe that it should not be illegal in cases where pregnancy is the result of rape or where abortion is necessary to save the life of the mother. But it is difficult1 to square these beliefs with the belief that a fetus is, from the moment of conception, a creature with rights and interests on a par with those of an infant. Nor are the beliefs of most of those who favor legalization of abortion adequately represented by the views, first, that the rights and interests of the fetus are the only ground for moral reservations about abortion and, second, that at least in the first twenty weeks of pregnancy, say, the fetus has no such rights. For this leads to the view that a fetus is a “mere blob of tissue” with no distinctive moral importance, and that a decision to have an abortion during this period is morally no more serious than a decision not to conceive in the first place. But, as Dworkin argues, in a part of the book that recently appeared in these pages,2 very few people on the “pro-choice” side actually take this view.
So we cannot account for the views of those on either side of the abortion debate if we suppose that individual rights and interests are the only moral values at stake. To explain what most people seem to believe we must recognize the existence of a further moral value, just as astronomers, in order to explain the observed motions of the heavenly bodies, must posit the existence of a new and so far unobserved planet. This further value is what Dworkin calls the intrinsic value or sacredness of human life. “The great majority of people who have strong views about abortion—liberal as well as conservative—believe, at least intuitively,” Dworkin writes,
that the life of a human organism has intrinsic value in any form it takes, even in the extremely undeveloped form of a very early, just-implanted embryo. I say “at least intuitively” because many people have not related their views about abortion or euthanasia to the idea that human life has intrinsic value. For them, that idea is the undiscovered planet that explains otherwise inexplicable convictions.
But while the intrinsic value or sacredness of all human life is a value that is recognized by liberals and conservatives alike, Dworkin argues, there is wide disagreement about how exactly this notion is to be understood. Some believe that respect for human life rules out abortion in almost all circumstances. Others hold that a regard for this value—as manifested in the fetus’s life and in the mother’s—is compatible with allowing abortion in many cases, and sometimes even speaks in favor it, such as when the fetus would develop into a horribly deformed child or when the birth of a child would have grave consequences for the mother’s life. This is where the central disagreement about the morality of abortion lies, according to Dworkin.
It is slightly misleading to say, as Dworkin does in the passage quoted above, that “many people have not related their views about abortion or euthanasia to the idea that human life has intrinsic value.” A great many people might well use the phrase “human life is intrinsically valuable” in explaining why they think that abortion and euthanasia present moral problems. But perhaps few of them make a clear distinction, as Dworkin does, between the idea that “human life, even fetal life, is intrinsically valuable” and the claim that “a fetus has a right not to be killed.” Indeed, they might well regard such a distinction as mere wordplay or dialectical trickery, the sort of thing only a meddlesome (or even devious) Socrates would propose. But there is in fact an important distinction here, one with serious consequences.
Rights and interests belong to that part of morality which has to do with what we owe to other individuals. By contrast, what Dworkin calls the sanctity of life is a form of impersonal value whose demands are independent of the claims of other people. Consider, for example, the question of whether to terminate life support for a patient who is brain dead and has previously expressed a desire not to be kept alive in a vegetative state. Some maintain that respect for the value of life requires us to continue life support in such cases even when doing so is contrary to both the rights and the expressed interests of the person in question.3 The value they are appealing to must be an impersonal one, not grounded in “what we owe to” the person. Dworkin calls such values “detached” to indicate that they do not, as other “derivative” values do, “depend on or presuppose any particular rights or interests.”
In this respect, the sanctity of life is like other forms of intrinsic value, such as the value attributed to great works of nature and art. To carve my initials in the Pietá or cut down an ancient redwood just to see how my new chain saw works might violate my obligations to other human beings, whose enjoyment and wealth would thereby be decreased. But these acts of desecration can also be seen as objectionable for a further reason: they fail to respect (Dworkin uses the term “insult”) the intrinsic value of the tree and the statue. He suggests that in a similar way abortion, when not supported by the proper reasons, “insults” the intrinsic value of human life.
Exactly what respect for the intrinsic value of human life demands of us is, Dworkin says, a matter of dispute. It is quite plausible to claim, however, that these demands vary with the stage of development of the life in question. Cutting down an ancient redwood is a more serious matter than uprooting a seedling. Similarly, the idea of the “sanctity of life” can explain why there is a stronger moral objection to abortion in the twentieth week than in the first. Dworkin suggests this is so because of the greater “investment” of human and nonhuman creative potential in the life in question. He writes,
Fetal development is a continuing creative process, a process that has barely begun at the instant of conception. Indeed, since generic individuation is not yet complete at that point, we might say that the development of a unique human being has not started until approximately fourteen days later, at implantation. But after implantation, as fetal growth continues, the natural investment that would be wasted in an abortion grows steadily larger and more significant.
By contrast, it is difficult to see how the idea that the fetus has rights and interests could account for the widely shared view that there is a significant moral difference between earlier and later abortions even before the stage at which fetal consciousness might begin.
The main tendencies of recent moral philosophy have concentrated almost exclusively on notions such as rights, interests, duties, and obligations.4 At least within the academy, then, it is a significant departure to give impersonal intrinsic values such an important place. This is especially true for Dworkin, who has been a leading exponent of the approach emphasizing rights and interests. But, as he recognizes in this book, there is a wide gulf here between academic moral philosophy and conventional moral thought. Consider for example sexual morality, which has such a central place in the moral views of many Americans. If, as most contemporary moral philosophy suggests, morality can be simply identified with the sphere of rights, interests, duties, and obligations (i.e., with “what we owe to others”)5 then there is no distinctive morality of sex. Sexual activity is judged to be right or wrong by the same categories that apply to every other sphere of life, categories such as deception, coercion, consent, and (physical and psychological) injury. In this view, rape is morally odious but there is no basis for the idea that masturbation, consensual sodomy, and the use of contraception might be in themselves morally objectionable; and the sex of the participants is totally irrelevant to the moral status of an act of intercourse. As we are painfully reminded by the current furor over the issue of gays and lesbians in the military, these views are sharply at odds with what many Americans believe. But they are more or less immediate consequences of the way morality is understood in most contemporary moral philosophy.
The recognition of impersonal intrinsic values as an ineliminable part of morality changes this picture. If there are such values, then it is open to someone at least to argue that masturbation, contraception, or homosexuality is wrong because it is incompatible with proper respect for the values at stake in procreative activity. We may still reject this argument, as Dworkin certainly would, but it is no longer simply ruled out from the start.
In the light of this, some liberals might be inclined to reject Dworkin’s thesis, which opens a door they would prefer to keep shut. He would reply, I believe, that honesty rules out this course, at least for many people. Liberals who believe that abortion is morally justifiable, and should be legally permissible, also generally believe that even early abortions are a serious matter, and that there is a moral difference between earlier and later abortions. They also believe that there is an important difference between, on the one hand, abortion in cases of rape and, on the other, using abortion as a means of birth control simply because one does not want to take the trouble to use readily available forms of contraception. Dworkin’s point is that the intrinsic value he describes provides the most plausible explanation for these convictions, and that those who share them should therefore acknowledge that value unless they can come up with some other explanation of their beliefs.
Turning now from morality to law, what state interest could be cited to justify laws forbidding abortion? Dworkin’s first response to this question is to argue, as he has previously in these pages,6 that the interest in question cannot be that of protecting the rights and interests of fetuses. Hardly anyone in the abortion debate, he says, has consistently maintained that the fetus is a constitutional person, a view from which it would follow that the Fourteenth Amendment guarantee of equal protection of the laws requires every state to forbid abortion. The interest that must be appealed to is, rather, an interest in making sure that the intrinsic value of human life is respected or, in a slightly surprising phrase that Dworkin uses several times, an interest in “maintaining a moral environment in which decisions about life and death are taken seriously and treated as matters of moral gravity.”
The Constitution does not, in general, bar states from acting to promote intrinsic values, or even from doing so in ways that significantly limit individual liberty, as laws protecting endangered species or forbidding changes in historic buildings often do. Why, then, can a state not forbid most or even all abortions on the ground that they are inconsistent with respect for the inherent value of all human life?
“A state may not,” Dworkin argues, “curtail liberty, in order to protect an intrinsic value, when the effect on one group of citizens would be special and grave, when the community is seriously divided about what respect for that value requires, and when people’s opinions about the nature of that value reflect essentially religious convictions that are fundamental to moral personality.” The application of this general principle to the issues at hand yields what Dworkin calls the principle of procreative autonomy: governments may not demand that all citizens conduct their sexual and procreative lives in accord with one particular conception of what respect for the inherent value of human life requires.7
Many people believe, for example, that a proper respect for the value of human life speaks strongly in favor of abortion when the fetus is so severely deformed that it could have at best a short life, filled with pain. But it would, Dworkin writes, be clearly unconstitutional to enact this belief into law and require all women to have abortions in such cases. The principle of procreative autonomy explains why this is so and also explains why it would be equally objectionable, for the very same reasons, to forbid almost all abortions in the early months of pregnancy on the ground that they conflict with another understanding of the inherent value of human life.
States may, according to Dworkin, forbid abortions in the third trimester. This for two reasons: after about the twenty-third week of pregnancy, when fetal consciousness may have begun, the case against abortion becomes stronger on virtually any understanding of the value of life. Indeed, Dworkin writes, since a fetus may be able to feel pain in this later stage of pregnancy, and may even develop rudimentary forms of expectation, it makes sense to decide that at that point a fetus has interests of its own that a state may wish to protect. Moreover, forbidding these late abortions (which are in fact very rare) is in most cases a much less serious infringement of the liberty of the mother, who has usually had ample opportunity to seek an abortion if she so desires. Before this time (in roughly the first two trimesters of pregnancy) states may not forbid abortion but they may regulate it in ways designed to promote “responsible choice” and to foster a moral environment in which the moral gravity of such decisions is appreciated.
Dworkin’s principle of procreative autonomy thus supports the general conclusion of Roe v. Wade on grounds that tie it closely to the prior decision in Griswold declaring laws against the sale of contraceptives to be unconstitutional. At the same time, the principle makes clear how the issue at stake in Roe is independent of those involved in subsequent decisions such as Webster and Casey, which dealt with regulations such as waiting periods and notification of husbands. Dworkin endorses the test, proposed in Casey, that such regulations are constitutional if they do not create an “undue burden” on a woman who chooses abortion by posing “substantial obstacles” to her choice. But he would interpret that test more strictly than the Court has done: he holds that both a requirement that the husband be notified and the twenty-four-hour waiting period required by the Pennsylvania statute at issue in Casey constitute an “undue burden.”
Aside from his emphasis on the idea of the sanctity of life itself, the main theoretical innovation in Dworkin’s argument is the claim that because this value is “essentially religious,” the principle of procreative autonomy is supported by the religion clauses of the First Amendment as well as by the Fifth and Fourteenth Amendments’ protections of due process and equal protection. This is a striking claim. Many people have felt, intuitively, that the state laws struck down in Griswold and Roe were unconstitutional because they violated freedom of religion in some general sense, but so far no one has carried through this argument satisfactorily.8 For while abortion has been condemned on religious grounds, and much of the opposition to it comes from organized religious groups, there are also secular arguments against it. The mere fact that it is an issue on which religious groups have taken sides does not rule out laws against abortion any more than it rules out laws against murder or rape, which churches also have condemned. Dworkin believes, however, that when we shift away from the idea that laws against abortion are aimed at protecting the rights and interests of the fetus, and see that they rest instead on the “essentially religious” idea that human life has intrinsic value, then we can see why it is after all appropriate, as many people have thought, to appeal to the First Amendment to explain why these laws are unacceptable. This claim raises two difficult and extremely interesting issues.
The first is whether a conception of the intrinsic value of life is “essentially religious” in a sense that would not apply as well to conceptions of justice or to other moral ideas which the state clearly can enforce. A belief is essentially religious, Dworkin argues, if it has a part in the life of those who hold it that is similar to the part played by most religions and if it is sufficiently similar in its content to what are plainly religious beliefs. Conceptions of the meaning and importance of human life meet this test. But why do ideas of right and justice fail to do so? Moral ideas have been central to the content of most religions. And, speaking for myself, I would say that a conception of my rights and duties as an individual is more important to my sense of self—of my standing and dignity as a person—than is any impersonal idea of the meaning and value of human life. Dworkin suggests that conceptions of the intrinsic value of human life are more fundamental than rights and interests because they take up the question of why our lives matter and try to answer this question by linking them to impersonal values. But even if this is so, why should they be less enforceable by the state?
Dworkin gives an answer when he says that “the most important responsibility of government is to identify the sometimes competing rights and interests of people for whom it is responsible, and to decide how these rights may best be accommodated and these interests best served.” In short, the very idea of legitimate political authority belongs to the moral sphere of “what we owe to each other,” and it is an essential function of government to define and enforce these obligations even when their content is, inevitably, controversial, as in such issues as how progressive our tax system should be and to what extent, if any, people can be prohibited from insulting the feelings of minorities.
Governments must take positions on such matters of justice, which concern the rights and interests of individual people, but there is no corresponding need for governments to define controversial intrinsic values. In fact, as Dworkin also says, there is good reason for them not to do so, since not only our conception of individual rights but also widely shared conceptions of the distinctiveness of human life give an important place to individuals’ capacities to adopt and define their own sense of life’s meaning. Protecting this capacity against government intrusion is the central aim of the religion clauses of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The only ground for excluding beliefs about the intrinsic value of human life from the reach of this amendment would be, Dworkin argues, the claim that it applies only to beliefs involving a god, a claim that the Supreme Court has explicitly rejected in its decisions regarding conscientious objection.
This is a promising argument for the claim that the sanctity of life is an essentially religious idea within the meaning of the First Amendment. Even if this argument succeeds, however, there remains the second, very interesting question of whether the religion clauses of the First Amendment, if they do apply in this case, actually support the position Dworkin adopts. This position has a dual character: first, that states may not forbid abortion in the early months of pregnancy but, second, that they may regulate it in ways designed to express the moral seriousness of the choice involved. The second component of this position responds to a powerful current in the present debate, namely dissatisfaction with the idea that we must choose between outlawing abortion and saying that it is perfectly all right, a choice like any other. This discontent is emphasized in a new book, The Politics of Virtue: Is Abortion Debatable? by Elizabeth Mensch and Alan Freeman. They quote an editorial in Christian Century following the Casey decision, which said in part,
Supporting “choice” as a public policy easily implies that all choices have the same moral weight and that whatever one decides is morally irreproachable. The best public policy response to this dilemma is to seek abortion laws that, while allowing abortion, restrict it (except in the obvious exceptional cases) to the early weeks of pregnancy and regulate it in such a way as to convey the moral (and medical) seriousness of the act.9
This position may be appealing to many people, but I am not certain it remains available once the sanctity of life has been classified as an essentially religious idea for the purposes of the First Amendment. A natural interpretation of the idea of “nonestablishment” would require the state to take precisely the view that the editorial writer was decrying: that for citizens to decide one way or the other on any “essentially religious” question is equally acceptable. Citizens themselves are not, of course, expected to take this view, but if they accept the separation of church and state they should see why this is nonetheless the only proper view for the state to take.
Now Dworkin’s suggestion is not that the state should endorse any particular understanding of “the sanctity of human life” but that it should endorse and encourage citizens to accept the “second order” view that arriving at and acting in accord with some understanding or other of this value is a matter of the utmost seriousness, deserving of careful thought and attention. An analogous argument might be that the state could take steps to foster a “moral environment” in which the great seriousness of a decision whether or not to believe in God is properly appreciated. Would it be constitutionally acceptable for a government to do this, say by sponsoring an advertising campaign? I have my doubts, although it might be argued that state governments pursue the same end now through tax exemptions for religious, and other, institutions.
As Dworkin says, “It is controversial how the clauses of the Constitution that guarantee ‘free exercise of religion’ and forbid the ‘establishment’ of a religion should be understood, and the Supreme Court’s rulings on these matters are markedly unclear.” If the scope of these clauses is taken to include not only “religions” in the traditional meaning of the term but also a wider range of “essentially religious” intrinsic values then the question of the proper scope of state action may become even more complex.
Dworkin maintains that laws forbidding abortion in the early months of pregnancy constitute an “establishment” of religion that also interferes with “free exercise”: they impose on a woman one particular conception of what the value of life requires, possibly preventing her from acting in accord with her own understanding of that value. Regulations involving an “undue burden” are objectionable on the same grounds, he says, but not every form of regulation, or governmental advocacy, has this fault. In the case of traditional religious belief, however, the establishment clause seems to forbid some forms of governmental advocacy or support, such as putting crèches on public property, even if they do not threaten free exercise of religion. My examples are intended to raise the question whether similar objections might apply to some forms of “second order” advocacy analogous to what Dworkin would allow. Perhaps the advertising campaign I mention would in fact burden free exercise, or would not be objectionable if it did not. Alternatively, it might be argued that the particular conception of “establishment” that has developed in regard to the government’s relation to organized religions is a special historical case which should not be applied in exactly the same form to government activity regarding every “essentially religious” question, including abortion. So Dworkin’s argument raises a host of interesting issues.
Dworkin casts helpful light on moral issues concerning the end of life by characterizing and clearly distinguishing three values: the idea of autonomy, the idea of what is in a person’s best interests, and the impersonal value of life itself. These are distinct values. Autonomy—the value of each person’s sovereign control over his or her own life—may require us to respect a healthy and competent person’s decision to commit suicide. It is quite coherent to believe, however, that we would be acting in the person’s best interests, although violating autonomy, if we were to frustrate that suicide attempt. And, as is shown by the opinions of Rehnquist and Scalia in the Cruzan case—in which the parents of a young woman in an incurable vegetative state were forbidden to withdraw life support—respect for the intrinsic value of life can, at least on some interpretations, speak in favor of prolonging life even when this is contrary both to autonomy and to the best interests of the person. This third value, which many would be tempted to dismiss but which Dworkin treats seriously and sympathetically, provides the link between the chapters on euthanasia and his earlier discussion of abortion. The main argument of these chapters, however, concerns the other two ideas: autonomy and a person’s “best interests.”
What is in a person’s best interests? “Having as good a life as possible” is a natural answer, and it is common to go on to identify the quality of a life with the quality of the experience that makes it up. What is in my best interests, on this view, is having a life made up, as far as possible, of the most desirable experiences, with as few as possible of the undesirable ones. Dworkin points out that if we take some form of this experiential view to be correct then we cannot explain how it could be in a person’s interest to go on living, despite great pain, because she holds it as a matter of principle that she not give up in the face of adversity. Nor could we explain how it could be either in a person’s interest or contrary to that interest to be kept alive in a persistent vegetative state. If experience is all that matters to our interests then we should be indifferent about what is done to us under these conditions. But most people are not indifferent.
In order to make sense of what many people say about life and death, then, we must allow that the quality of a life can depend not only on the quality of the experience that makes it up but also on the degree to which that life meets certain critical standards: on the kind of accomplishments that it involves, for example, or on the degree to which it is a courageous life, or an independent or a loyal one. People differ in the particular standards that they want their lives to meet—in what Dworkin calls their “critical interests”—but almost everyone recognizes some standards of this kind and many people care greatly about meeting them.
Death is of overwhelming significance not only because, for better or worse, it brings experience to an end but also because its nature and timing affect the quality of the life as measured by the person’s critical interests. It can be important for a person to live longer, even despite great pain, in order to finish her life project, or in order to be present at an important family event, or just in order to have fought well and struggled to the end. But this depends on what the person’s critical interests are. Dworkin suggests that being kept alive in some circumstances can be contrary to a person’s best interests not only when it is painful but also simply because it is so incompatible with the way that person wanted her life to go, and to end.
To see what these conclusions come to, consider how they would apply to the case of a person in a persistent vegetative state. If we suppose that our best estimate of that person’s views, when competent, is that he would not want to be kept alive in his present condition, then respect for autonomy would count in favor of not giving medical treatment if he should fall ill, say of pneumonia. Would this be contrary to his best interests? As far as experience is concerned, there is no gain in being kept alive when unconscious. As far as critical interests are concerned, it is certainly unlikely to be a benefit to the person to be kept alive and could even be strongly contrary to his interests if, for example, he regarded activity and independence as the central goods of life and found the thought of being kept alive in such a state abhorrent.
What about the intrinsic value of life itself? As we have already seen, Justice Scalia and Chief Justice Rehnquist have maintained that a state’s interest in this value can justify it in requiring that a person be kept alive even when this runs contrary both to that person’s wishes and interests. Dworkin emphasizes, however, that the sanctity of life is open to many interpretations. He suggests that if life is to be respected mainly because of the natural (or even divine) creative capacity that is invested in it, then one will agree with the justices. If, on the other hand, one holds that the intrinsic value of life derives mainly from the creative human capacity that is invested in defining and living it, then one may reach the opposite conclusion, that prolonging a vegetative state is not regulated by, and may even be incompatible with, the respect for life, properly understood. This is, Dworkin says, the basis of the difference between conservative and liberal understandings of the sanctity of life which shows up in disagreements both about abortion and about euthanasia.
Given the nature of this disagreement, Dworkin argues, it is inappropriate here, just as in the case of abortion, for the state to enforce one particular conception of what the sanctity of life requires, particularly when doing so runs contrary to both the autonomy and the best interests of the person in question. In the strongest conclusion of this part of the book, he writes, “Making someone die in a way that others approve, but he believes is a horrifying contradiction of his life, is a devastating, odious form of tyranny.”
Matters become more difficult when we turn to the case of a person who is conscious but suffering from such severe dementia as to be incapable of connected thought. Dworkin considers the example of such a person, who despite her condition seems quite happy and gives every indication of wanting to go on living. Suppose, as in our previous case, that this person has pneumonia and will die if not treated, but could easily be saved with antibiotics. If, when competent, she left explicit instructions that under such circumstances she should not receive treatment, should it be withheld?
Dworkin makes two claims that seem to weaken objections to withholding treatment. First, it might be supposed that what we have here is a clash between two expressions of autonomy: between the person’s present desire to live and her past wish not to go on living a life of this kind. But there is no such clash, according to Dworkin, since a past judgment stands as the voice of autonomy unless overruled by competent reconsideration, and this person, as described, is not capable of making such a reconsideration.
Perhaps, then, this choice is difficult because it involves a clash between respecting autonomy and doing what is in the person’s best interests. This might be so, Dworkin says, but it need not be. Continued life may be in the experiential interests of the demented person, but given the great importance Dworkin attaches to critical interests this does not settle the matter. If years of childlike, even infantile, dependence are entirely at odds with the kind of life that the person expressly wanted to lead, then being saved from pneumonia may be, on balance, contrary to her best interest in Dworkin’s view. Should we then withhold treatment, if both autonomy and the appeal to “best interests” support this?
Dworkin draws back from this conclusion, which he describes as “very troubling.” What light does his analysis shed on the possible grounds for this reluctance? One possibility, which he mentions, is “that in circumstances of dementia, critical interests become less important and experiential interests more so, so that fiduciaries [i.e., the people responsible for deciding the patient’s treatment] may rightly ignore the former and concentrate on the latter.”
I might put the point more generally, and question the identification of what is in one’s “best interests” with what makes one’s life on the whole best, as judged by the relevant critical standards. Judgments of the latter kind, in which one views one’s life as a whole and asks how best to perfect it, are quite intelligible, but only a few people give such judgments a dominant role in their lives. It is therefore far from clear that what kindness or beneficence generally requires when we are dealing with anyone, demented or not, is that we ask how best to help realize the plan of their life. Perhaps this is what beneficence would require in the case of someone like Friedrich Nietzsche, for whom the realization of a certain ideal was an all-consuming passion. But for the rest of us the idea of doing what is “in our best interests” may point more humbly in the direction of comfort and reassurance insofar as these can be provided.
Dworkin makes an important point in saying that the quality of a life depends on critical as well as experiential interests. And he is quite right to point out that a person’s critical interests may make continued life under certain circumstances undesirable. But we should not slide too quickly to the conclusion (which is not required by his overall argument) that acting in accord with these interests is what true beneficence generally involves.
Little has been said here about the idea of the sanctity of life, which provides the unifying thread of the book. In the penultimate section, on “Dignity,” Dworkin links this idea to the idea of critical interests, which I have been discussing, in the following way:
A person worries about his critical interests because he believes it important what kind of life he has led, important for its own sake and not simply for the experiential pleasure that leading a valuable life (or believing it valuable) might or might not have given him. A person’s right to be treated with dignity, I now suggest, is the right that others acknowledge his genuine critical interests, that they acknowledge that he is the kind of creature, and has the moral standing, such that it is intrinsically, objectively important how his life goes. Dignity is a central aspect of the value we have been examining throughout this book: the intrinsic importance of human life.
This is a moving passage but also a puzzling and perhaps revealing one. It is puzzling because it seems to link the “detached” intrinsic value of life so closely to the idea of an individual with moral standing, a right to be treated with dignity and a right to have his or her critical interests acknowledged. Dworkin argues that respect for human life remains distinct from a concern for the interests of the person whose life it is. Convicted criminals, he says, may justly be imprisoned because they have forfeited their claims to have their rights and interests (e.g., in liberty) fulfilled. They nonetheless retain a right to dignity, which limits how we may treat them, because they are still “full human being[s]…whose fate we continue to treat as a matter of concern.” But is this claim to be treated with dignity a “detached” one—part of what is demanded by proper respect for the value of human life? Or is it what he calls a “derivative” claim—derived from the rights criminals still have as individuals, even though they may have forfeited certain of their rights? Dworkin’s repeated references to “the importance of human life” suggest the former. I incline toward the latter. But the distinction has become difficult to draw. 10
Dworkin’s discussion of abortion was predicated on just this distinction—between “detached” and “derivative” objections—and it is supposed to provide the link between the problems of abortion and euthanasia. In fact the distinction is much clearer, at least for liberals, in the case of abortion than it is in general.
In euthanasia and related cases, we are concerned with a life that is, or was, the life of a person. It is therefore quite natural that in these cases we frequently do not distinguish our respect for life from our powerful concern for the person whose life is in question. Where these are clearly distinguished, as in Rehnquist and Scalia’s remarks, the value of life itself seems, to me at least, to be drained of much of its moral significance. Standing alone, it is a consideration which could not possibly be given priority over the interests of an individual. In a case of abortion this value does stand alone, even more starkly than in the case of a person in a persistent vegetative state. There is as yet no person whose moral standing, right to dignity, or critical interests can give this notion its content or lend it moral force, and it is consequently rather weak.
Perhaps what I am revealing here, and what Dworkin reveals in the passage just quoted, is that we hold a liberal view in the sense he has distinguished: for us, unlike Rehnquist and Scalia, a life derives its intrinsic value primarily from the “human investment” that has been made in it. If so then the conclusion may be that when this investment is great, as it is at the end of a long life, then the sanctity of life has great force, but it is not so clearly “detached” since its moral force is difficult to distinguish from that of the rights and interests of the person whose life it is. When this investment is small, or has yet to begin, as in abortion, liberals may recognize human life as having an intrinsic value that is genuinely “detached,” but it is difficult for us to accord this value the degree of moral force that the rather grand phrase “sanctity of life” might suggest.
Dworkin’s book is appealing partly because it seems to hold out the hope of a compromise on abortion, a way out of the bitter and divisive conflict in which compromise has seemed impossible. Liberals are asked to recognize a value that conservatives took them to be denying; conservatives are asked to recognize that the value they are defending provides only a limited basis for legal regulation. This proposal is like a compromise in one familiar respect: it is likely to be attacked from both sides. Liberals are likely to ask why they should recognize a value that might be misused to justify curtailing sexual and reproductive freedom. Conservatives are likely to ask why they should accept a characterization of their moral position that relegates it, legally, to lesser status.
But the idea of compromise, of making one concession in return for another, in fact plays no role whatever in Dworkin’s argument. What he asks of us, as participants in the abortion debate, is not compromise but honesty. Like Socrates, he offers us an account of our own values and challenges each of us to judge the accuracy of this account, to look for counterexamples, and to come up with better accounts if we can. This Socratic ideal of forthright self-examination is very different from compromise, which goes with the idea of a struggle in which there are contending sides, each looking for a way to gain advantage at the expense of the other. If the sanctity of life does indeed provide the best account of what many liberals believe about abortion, then they are not giving anything up when they acknowledge this. Similarly, if many conservatives find that this value, rather than a supposed right to life, provides the most coherent explanation of their views, then they make no concession when they give up the claim that abortion is always murder.
Whether Dworkin’s interpretive claims are correct or not, the kind of reflection required to assess them may be hard to come by in a situation that is as polarized as the abortion debate has become. Leaders of interest groups may say that forthright reexamination of one’s position is fine in the seminar room, but in the public forum or the legislative chamber it is naive and dangerous. In contrast to such counsels of political prudence, the Socratic approach that Dworkin’s book exemplifies and commends to us seems boldly optimistic—trustingly democratic in the best sense. Our politics would be far healthier if it had more of this kind of philosophy in it.
July 15, 1993
Difficult does not mean impossible. For a penetrating discussion of these issues that takes as its starting point-the idea that the fetus is a person with rights and interests see F. M. Kamm, Creation and Abortion: A Study in Moral and Legal Philosophy (Oxford University Press, 1992). ↩
See “Feminism and Abortion,” The New York Review, June 10, 1993. ↩
Both Justice Scalia and Chief Justice Rehnquist cite such a value as a possible ground for state regulation in their opinions in the case of Nancy Cruzan. ↩
One leading exception is Charles Taylor. See his Sources of the Self (Harvard University Press, 1989), especially Part I, in which he criticizes what he takes to be the prevailing view in moral philosophy in large part because it neglects what I am here calling impersonal intrinsic values. ↩
Kant famously included sexual morality of the kind I have mentioned within the sphere of what he called “duties to oneself.” (See Metaphysics of Morals [Ak. 424–426].) In this respect his views differ sharply from those of most contemporary philosophers, including many whose work is in some respects “Kantian” in inspiration. For us, the idea of a duty to oneself is almost an oxymoron. For him, on the other hand, the ethics of duty and obligation was not separate from, and even depended on, the ethics of self-perfection and proper regard for the distinctive value of human (rational) life. (Ak. 417–418.) ↩
See “The Great Abortion Case,” New York Review, June 29, 1989. ↩
Dworkin believes that this principle provides the best justification for Justice Brennan’s remark that “if the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Brennan was speaking for the Court in Eisenstadt v. Baird 405 US 438 (1972), a case in which the Supreme Court ruled that a state may not prohibit the sale of contraceptives even to teen-agers. ↩
Laurence Tribe advanced such an argument in 1973 but later rejected it. For his subsequent reflections on this change, see Tribe, American Constitutional Law, second edition (Foundation Press, 1988), pp. 1349–1350. ↩
David Heim, “Pro-Choice: Saying Something Theological,” Christian Century, Vol. 109 (1992), pp. 699–700. Quoted from Elizabeth Mensch and Alan Freeman, The Politics of Virtue (Duke University Press, 1993), pp. 151–152. ↩
This may indicate that, for Dworkin, the distinction between impersonal values and obligations to others (or, in his terminology, between “detached” and “derivative” objections) is less sharp than I described it as being in Section I above. As he says, the idea of critical interests “complicates” and qualifies the distinction. What his argument suggests, then, is not simply that the contemporary moral philosophy of rights, duties, and obligations neglects a distinct form of impersonal intrinsic value (the “hidden planet”) but rather that it gives an incomplete account of the values that it does recognize, and that the moral force of the rights and interests of persons has to be understood as an aspect of the distinctive value of human life. It may be significant that in the passage I have just been discussing he invokes Kant’s idea of treating people as ends, never merely as means. (See my remarks on Kant in footnote 5 above.) ↩