Books in Review

Life's Dominion

Copyright (c) 1997 First Things 38 (December 1993): 53-58.

Getting It Wrong

Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom. By Ronald Dworkin. Knopf. 273 pp. $23.

Reviewed by Russell Hittinger

"It is a major theme of this book," Ronald Dworkin writes at the outset of Life’s Dominion, that the abortion debate "is based on a widespread intellectual confusion we can identify and dispel." "Once the confusion has been identified," he says, "we will see that a responsible legal settlement of the controversy, one that will not insult or demean any group, one that everyone can accept with full self-respect, is indeed available."

The "confusion" concerns two quite different positions regarding the responsibility and authority of government in respect to protecting human life. Not surprisingly, these, in turn, stem from the different ways in which human life can be valued. On the one hand, it can be valued in terms of the sentience that renders a life capable of bearing "interests" and "rights." On the other hand, human life can be valued as "intrinsic," "sacred," or "inviolable," even when that life is not the bearer of interests and rights.

Dworkin dubs arguments based on the first position "derived" objections to abortion. Assuming that the fetus is a creature with interests, and hence rights, no one could consistently hold that government cannot protect the life of the fetus. In fact, it would seem that government must protect its rights. This position is "derived" insofar as the duties of government are taken from the principle of rights. The "detached" objection starts from the premise that human life is "sacred" or "inviolable." Putting the case in this way means that taking a human life is not wrong because it is "unfair" but solely because it is an "intrinsically regrettable" action that fails to honor and admire the value of life. Dworkin calls it the "detached" position because the obligation of government is not "derived" from rights.

With these definitions in place, we now can summarize the course of Dworkin’s argument. "[W]e cannot understand the moral argument raging around the world," he proposes, "if we see it as centered on the issue of whether a fetus is a person." Fetuses do not have sufficient neurological development to have "interests," and therefore cannot be bearers of rights. Dworkin repeatedly insists that "very few actually believe" the premises of the derived objection. As evidence for this allegation, he cites polls indicating that a large part of the citizenry, both in America and abroad, believe both that abortion should be legal and that abortion is, in one sense or another, morally wrong. Since reasonable people could not hold that abortion is murder and that government ought not to proscribe it, Dworkin concludes that "most" people believe that abortion is morally wrong for reasons independent of the "derived" position. That is, they really hold a "detached" objection. Therefore, an answer to the abortion problem must stand or fall on the soundness of the "detached" objection.

Can the political community rightly make these intrinsic values a matter of collective decision? In short, can the government prohibit or strongly regulate abortion for the reason that abortion offends the sanctity (though not the rights) of human life? Dworkin’s answer is no. But why not? After all, government uses its coercive power and monetary resources to protect and promote all kinds of intrinsic values, from wilderness areas to valuable works of art. Dworkin contends that procreational liberty is different because it involves a judgment of religious conscience. Therefore, citizens have a First Amendment right to exercise their own religious conscience in this profound and troubling matter. In summary, Dworkin purports to have clarified, explained, and possibly resolved both the popular mind and the mind of the Supreme Court on the subject of abortion. Government can weigh in on the debate about the sanctity of life only insofar as it places no "undue burden" in the path of a woman seeking an abortion. Government can express reverence for life by means of some regulations, so long as they do not unduly touch upon the exercise of the right.

At his best, Dworkin is able to sharpen arguments on all sides of a given issue. Sadly, both in its conception and execution, Life’s Dominion is not Dworkin at his best. There is no careful analysis of the case law, no competent analysis of the philosophical premises and arguments of his opponents, no distinction between the variety and authority of sources. The position of the Catholic Church, in particular, is so misrepresented by Dworkin as to be almost unrecognizable. Nor is the book well argued. Positions are identified and evaluated according to such boilerplate as "very few actually believe," "most people," "for almost everyone," etc. Supreme Court dicta and opinion polls, indeed, even stories from Irish tabloids, are marshalled willy-nilly for the purpose of their rhetorical weight. Indeed, the argument, such as it is, is entirely rhetorical.

True enough, the middle three chapters of the book, consisting of his exposition of the legal issue of abortion, are clear and straightforward. To no one’s surprise, Dworkin defends the Roe/Casey Courts’ jurisprudence of abortion. But even here, one would do better to read his other published work on the subject, including his occasional essays in the New York Review of Books.

Nevertheless, there are aspects of his "argument" which, however clumsily handled by the author himself, bear some notice and comment. Of particular interest is his understanding of how religion bears upon the moral and legal facets of the abortion debate.

Dworkin’s bid to clarify and resolve the abortion debate depends almost entirely upon his characterization of the so-called "detached" objection. For it is precisely in this respect that Dworkin claims to disclose something about the problem that we do not already know—or do not know clearly enough. What he intends to show is that on all sides of the debate, we have a common reverence for the intrinsic value of life.

Examples of intrinsically valuable things that can or ought to be honored include human ova, works of art, traditional crafts, flags, and endangered species. What all these have in common, at least in Dworkin’s view, is a certain inherent value that transcends the interests of particular rights-bearing persons. Hence, those who hold the detached view will argue, whether they realize it or not, that government has the responsibility and authority to prohibit or regulate abortion in order to protect or promote the sanctity of human life. Again (whether they realize it or not), opponents of abortion are not making arguments about justice but rather about other ends that government ought to serve.

Assuming for the sake of argument that many or most people do actually hold a "detached" objection to abortion, Dworkin still does not make the "detached" position very plausible. Why would someone press the "detached" position so insistently in the public forum of justice? It is not difficult to understand how certain aesthetic and quasi-religious conceptions of global ecology, art, and national symbols can spill over into the political arena, and once there, become confused with strict issues of justice. In our political and legal culture, any number of issues bearing upon the common weal get confused with issues of rights. But we should recall that legal restrictions on abortion prior to 1972 were at criminal law. It is dubious that this represented a confusion between "derived" opposition to abortion and legislative desiderata about values other than justice that government ought to promote. Citizens who desire more wilderness areas ordinarily do not make their case at the level of criminal law.

Moreover, scholars have long noted the fact that social movements like abolitionism, temperance, and feminism were symbolic crusades, urging moral reform at the personal and domestic as well as national levels. So, too, we should not be surprised that both the anti-abortion and pro-choice movements would have multiple aims encompassing quite different kinds of rhetoric. The pro-choice position, for instance, is hardly a mere argument about constitutional rights. Dworkin, however, does not allow hybrid positions. By definitional fiat, opposition to abortion must be either a derived or a detached position.

With respect to the Catholic opposition to abortion, the usual cast of suspects is cited in support of the idea that the Church’s authentic mind consists solely of a detached view: e.g., Garry Wills, Mario Cuomo, and Father Donceel, to mention only a few. Incredibly, Dworkin also quotes (selectively) from Cardinal Bernardin, Pope Paul VI, the late Paul Ramsey, and Richard John Neuhaus to support his contention that "most people" having principled reasons against abortion actually hold a detached rather than a derived position. That is to say, the opposition rests solely upon reverence for life rather than a commitment to justice for human persons.

Precisely what is a person? Dworkin insists, without much argument, or, for that matter, without much originality, that a person is an entity having "personal," viz., self-conscious, "interests." Since he also maintains that the definition of personhood is "practical," resting on how we think persons ought to be treated, either at law or at the bar of common opinion, the definition certainly appears to be circular. In more than one place, Dworkin speaks of rights being "acquired." If indeed rights are acquired, why can’t they be attributed; and if attributed, why not to the unborn?—except, perhaps, that the Supreme Court has rejected the more inclusive point of view. Clearly, this appeal to the authority of the Court cannot count as a philosophical answer to the problem of who ought to have rights, and how they are grounded. In any case, the author provides no careful consideration of alternative understandings of personhood, particularly alternative conceptions held by those traditions and constituencies that Dworkin claims hold a "detached" opposition.

Having contrived the distinction between "derived" and "detached" opposition to abortion, and having insisted the most people confusedly hold the "detached" view, Dworkin then mounts his argument against imposing the "detached" view sub lege. Estimations of the value and sanctity of life, he argues, are necessarily "controversial" and "contestable." Why these ideas are more controversial and contestable than the "rights" discerned and imposed by the Court, or why the fact that something is controversial should be a criterion for either moral or legal purposes, are questions he does not bother to address.

Dworkin’s main argument against governmental intervention in the sanctity of life debate is that the sanctity of (human) life, in contrast, say, to the intrinsic value of a hoot owl, necessarily enters into an agent’s conception of the value of his own life. As Dworkin puts it, "Each person’s own conception of what that idea means radiates through his entire life." Here, then, is the nub of his case. Estimations of the sanctity of life are "essentially religious."

Thus, what began as a clear, though somewhat contrived, distinction between "derived" and "detached" is re-absorbed into another "derived" position, this time on behalf of the fully, or adequately, sentient citizen: namely, citizens have a First Amendment right to freely exercise their "religious" judgments about the sanctity of life.

Of course, Dworkin proceeds as though he has an easy fund of evidence in the case of conventional religion. He finds any number of ecclesiastical documents and position papers which declare that life is sacred by dint of its divine creator. He selectively quotes religious spokesmen to the effect that abortion wrongfully frustrates and dishonors the divine design.

These quotations, however, are so egregiously selective that one is at a loss to explain Dworkin’s mind. As noted earlier, he construes Vatican documents on the issue to reflect a "detached" argument; and even when the quotes clearly indicate that their aim was to explicate reasons for the injustice of abortion, Dworkin is forced to surmise that they are confused. For example, the fact that Vatican doctrine on abortion has become more specific and detailed over the centuries is interpreted by Dworkin to suggest that the newer statements cannot be authentic Catholic doctrine (not, of course, in the legal sense, but "authentic" in the philosophical or theological sense). Cardinal Ratzinger will be surprised to learn from Dworkin that his argument in Donum Vitae (1987) is not adequately grounded in "traditional Catholic theology" precisely because the Prefect of the Congregation of the Faith emphasized "rights."

One can grant to Dworkin that there is some germ of truth to the idea of the confusion of "derived" and "detached" opposition to abortion in the case of the so-called "seamless garment" position. The notion of a "seamless garment" encompassing all the different aspects of "respect for life" perhaps does not adequately explain differences between the moral wrong of killing the innocent (e.g., abortion), the moral wrong of taking life for whatever other reason (e.g., capital punishment), and the moral wrong of having a vicious disposition about matters of life and death. Furthermore, the "respect for life" position is often communicated as part of a public relations campaign, the point of which is to frame the pro-life message in less threatening code words. For the purpose of tee-shirts, buttons, and television commercials, "Choose life, it’s natural," is a code for "Don’t murder, it’s morally wrong." Frankly, the only thing more naive than the public relations gimmick itself is someone who would take it literally as the complete moral doctrine of the Church. Be that as it may, the ecclesiastical officials such as Cardinal Ber nardin who advocate the "seamless garment" have not argued, at least to my knowledge, that the moral wrong of abortion consists only in the fact that the sanctity of human life is not adequately respected.

Throughout the book Dworkin assumes that anyone who would give ontological reasons for the value of (all) human life must ipso facto be giving reasons unrelated to the subject of justice and rights. That someone might point to or assert as fact that human life is created by God is reason enough for Dworkin to conclude that the argument is intended to follow the path of a detached position. For example, Dworkin quotes the late Paul Ramsey to the effect that human dignity (also for the fetus) rests chiefly on its subordination to God rather than in rights or even in the ontological status of the fetus, considered simply in itself. Dworkin does not consider the fact that Ramsey was speaking of what he, Ramsey, regarded as a tough case: viz., the morality of intrauterine contraceptives. In tough cases, one can expect a theologian to revert to more general theological convictions to get his bearings. Nor does Dworkin pause to consider the specifically theological context of Ramsey’s admonition, which concerns the proper ordering of values in charity and in life freely bestowed. This is not meant to exclude duties of justice. Even a cursory reading of Ramsey’s work on just war would make the point clear enough.

One who cannot distinguish between moral admonitions concerning the creature’s proper relation and duties to God, and discussion of the details and problems of human justice, is simply not prepared to read classic texts in Christian theology. Whether Catholic or Protestant, traditional Christian theology does not take its point of departure from the "rights" of creatures. In fact, the theonomous ethic advocated by theologians like Ramsey represents something very nearly the opposite of Dworkin’s notion of a "detached" argument which proceeds from an affirmation of the intrinsic value of creatures under some vague rubric of "sanctity."

The point here is not whether someone agrees with the Christian tradition, much less the tradition represented by Ramsey. Rather, the problem is whether in the first place he understands what he is reading. To be fair, theology is not an area of Dworkin’s expertise. Unfortunately, rather than being doubly careful on that account, Dworkin pushes ahead, confidently informing the reader on the real meaning of the religious traditions and doctrines, while forcing them to mean something different from what they say.

If it is true that Christian theology has obfuscated the issue of abortion (and one can admit that some theologians have obfuscated issues in the past), Dworkin is singularly unprepared to tell us why this is so. One suspects that the real issue for Dworkin has nothing immediately to do with his expository device of derived and detached positions, but rather concerns whether or not an argument depends upon, is related to, or is a component part of, revealed theology. Had Dworkin argued that religious opposition to abortion rests entirely upon premises drawn from revelation, or that the opposition to abortion is derived from a divine command, he would have been able to clarify where things stand without playing the role of Procrustes who must cut positions down to fit his categories of "derived" and "detached." He might have argued that while the religious opposition to abortion is authentically an argument about justice, the premises of the argument cannot count as public reasons in our polity. But to pursue this lead, Dworkin would have had to sort through the different ways these theological traditions distinguish between faith and reason. Dworkin did not do his homework in this area, and the credibility of Life’s Dominion suffers as a result.

From the secular side, Dworkin’s understanding of the "religious" nature of the debate relies mostly on various and sundry Supreme Court dicta. When citing the documents of religious traditions, Dworkin almost never attends to the context of the quote. In the case of the Court, however, he is on firmer ground. His analysis of what the Court means when it speaks of religion is quite accurate. The Seeger (1965) case, for example, defined religion very generally to include whatever has "a place in the life of its possessor parallel to that filled by the orthodox belief in God." It is also true that Justices Stevens, Souter, and Blackmun have used this accordion-like definition of religion for purposes not only of First Amendment liberties, but also in their jurisprudence of abortion.

Not surprisingly, then, Dworkin makes a beeline for the dictum of the joint opinion in Planned Parenthood v. Casey (1992): "At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." The joint opinion in Casey, he notes approvingly, is "studded with religious allusions." Here Dworkin is, literally speaking, correct. But what is the upshot?

Among other things, the upshot is that Supreme Court dicta count as a public philosophy. Dworkin argues that this liberty of self-definition, so "fundamental to our overall moral personalities," is basically the right to be immune from the imposition by the state of any "detached" position concerning the religious meaning(s) of the sanctity or inviolability of human life. Were the state to impose a conception of the sanctity of life, it would be a "bleak day"; for as Dworkin explains, "It would mean that American citizens were no longer secure in their freedom to follow their own reflective convictions in the most personal, conscience-driven, and religious decisions many of them will ever make." Dworkin’s rhetoric often paraphrases Court dicta, especially those of Justice Blackmun, which in turn often contain some paraphrase of an idea taken from law professors like Professor Dworkin himself. One is reminded of the medieval reliance upon collections of etymologies that could be recycled for nearly any purpose or argument. The fact remains that Dworkin provides no philosophical argument for this broad conception of religious conscience.

Life’s Dominion begins with the ominous remark that abortion has ignited a new religious "war" as terrible perhaps as the seventeenth-century wars, when humans killed each other in the name of religion. Dworkin invokes both the specter of fundamentalism and the nefarious means by which the Catholic church "orchestrates" political opposition to abortion. The reader realizes at the outset that this book has a rendezvous with religion.

It is perhaps a measure of how far we have come in the modern experiment that citizens must now, according to Dworkin, enjoy a fundamental right to kill other human beings in the interest of protecting their religious liberty. Nor is this being ironic—it is, in fact, his position. He has framed the problem in such a way that there can be no other conclusion but that the good of religion requires citizens to have liberty to use, at their private discretion, lethal force against other members of the species. Many religious people will be as horrified by this idea as by the problem of abortion itself. It is hard to imagine that the peace of the Republic will be made secure by mixing religion and rights together in justification of lethal behavior. Unfortunately, this is precisely what is being advertised in this book as light at the end of the tunnel of the abortion debate.

While we must take Dworkin at his word, that he wants to find a resolution of the issue that "everyone can accept with full self-respect," his religious argument only raises the stakes of the debate. If nothing else, Dworkin has given the proponents of the Religious Freedom Restoration Act (RFRA), debated in the pages of this journal, fresh reason to reconsider the wisdom of such a measure.

Russell Hittinger, a member of the Editorial Advisory Board of First Things, teaches in the School of Philosophy at the Catholic University of America.