The Killing Grounds

Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom, by Ronald Dworkin, New York: Alfred A. Knopf, 273 pages, $23.00

In Life's Dominion, Ronald Dworkin addresses two of the burning issues of our time, one dominating the beginning of life and the other its end. On the question of abortion, Dworkin marshals a wide array of philosophic and legal arguments to defend the Supreme Court's decision in Roe v. Wade, which guaranteed each woman a constitutional right to abortion. With regard to euthanasia, Dworkin defends the right of each individual, again on philosophic and constitutional grounds, to end his life when his personal condition is one of endless misery or falls into the void of a permanent vegetative state.

Dworkin's performance in Life's Dominion will entrench his reputation as a scholar able to amaze but not to persuade. His ingenuity generates breathless arguments that always seem too clever by half. His opponents will admire his verbal skills but wish they could be put to better use. His supporters will, in the end, look elsewhere to make their case. I have both reactions, for I tend to agree with Dworkin's defense of the right of euthanasia and to disagree with his defense of abortion. Why this divided response?

Dworkin's opening salvo announces the major theme of his book: "Abortion, which means deliberately killing a developing human embryo, and euthanasia, which means deliberately killing a person out of kindness, are both choices for death. The first chooses death before life in earnest has begun, the second after it has ended." Just this quickly does his argument go astray. He seeks to create a parallelism between abortion and euthanasia by the repetition of the phrase "deliberately killing" in both contexts. But this first sentence is remarkably unresponsive to the paramount questions of interest, consent, and choice.

The killing that is done in an abortion is done by the mother to the embryo, without its consent and against its interest. Yet so long as we believe in the maxim "preserve life," we would be reluctant to infer that any fetal consent is (or by a disembodied rational agent could be) forthcoming to justify the mother's actions. Quite the opposite inference seems plausible, for the destruction of the embryo or the fetus ends any and all prospects it has for human happiness and joy; yet the mother's interest in terminating pregnancy often represents a preference no weightier than postponing a child until a more convenient or less embarrassing time. On some unfortunate occasions, more-serious circumstances intervene—preservation of the life of the mother against threatened medical complications; the emotional trauma of having to give birth to a child conceived by rape or incest; or the birth of a child known to suffer from some terminal illness, such as Tay-Sachs disease.

So there is a wide range of cases to be dealt with. One possible approach is to borrow from John Rawls (whose own writing is silent on the question of abortion) and ask what choices we would make about abortion rights if forced to do so from behind a veil of ignorance. If a person does not know whether he or she will be in the position of the woman seeking the abortion or the fetus that will be aborted, what rule of decision would that person choose to maximize the welfare of both? Here it seems that the loss of one's own potential life is a far greater loss than the gains on the other side, so that a disembodied view of the subject would incline toward the protection of a fetus against the aggression of its mother, even if one does not think that the fetus is a person at the time of an abortion. If we put aside the three difficult cases just mentioned, I think that it is highly likely that each of us would be prepared to surrender any future right to abort in order to escape today the finality of an abortion.

It is in the stark nature of this choice that one finds the sensible core of a pro-life position. When Dworkin says the abortion "chooses death before life in earnest begins," he is engaged in one of his innumerable verbal ploys. Only people, not impersonal processes, are capable of making choices. Here the mother has an acute conflict of interest with her fetus, which is hardly in a position to protect itself against her actions, or to consent to the destruction thereby caused. The persistence and strength of that conflict appears to justify legal intervention to limit the mother's choice.

One surely looks askance at a mother who drinks and smokes during pregnancy, to the detriment of her offspring, because the conflict of interest is so evident. From time to time prosecutors have brought actions against women who have taken cocaine or other drugs during pregnancy. Where these efforts have foundered, it has not been on the soundness of the underlying normative theory. Rather, the prosecutions have typically failed because the applicable criminal statutes on homicide or child abuse have not given clear notice that they reach these cases, or because the entire matter has been caught up in the wake of the abortion question, or because difficulties of proof could not be overcome on such questions as whether the woman knew she was pregnant when she ingested dangerous substances. Yet whatever these statutory or practical difficulties, the desire to protect an unborn fetus, whether or not bom alive, against the abuse or neglect of its mother is certainly an appropriate end of state intervention. Why, then, should we be legally indifferent to her decision to abort?

Euthanasia is also normally about consent. I know of no one, either in Holland or in the United States, who thinks that physicians, even when acting out of mercy, should have the right to decide whether their suffering patients should live or die. Rather, those who support euthanasia generally argue that when persons find themselves in positions of extreme pain and suffering, they should be allowed to end their own lives. And if incapable of doing so, they should be able to ask someone to help them achieve one of life's ends, even if that end is death.

The opposition between abortion and euthanasia is not the simple temporal opposition that occurs because one takes place at the beginning of the life cycle and the other at its end. It is that one takes place with the consent of the party killed and the other takes place without it; it is that one process opposes interest, and the other follows it. Too often the right-to-life movement, in its uniform opposition to both abortion and euthanasia, ignores these distinctions. Likewise Dworkin for his own ends manages to obscure these critical differences by making the inverse error. The basic respect for individual autonomy, which grounds the right to make choices about one's own life's chances, supports his position on euthanasia. By the same token, it cuts squarely against his abortion position.

Dworkin, then, is swimming downstream on euthanasia but upstream on abortion. His upstream activity requires far greater attention. Dworkin's key effort to win over his wary audience on the right to abortion is to make what he deems to be "a critical distinction" between the "derived" and the "detached" forms of opposition to abortion. The intended meanings of these terms do not leap out at the reader. In Dworkin's novel lexicon, a "derivative" claim holds "that a fetus already has interests and rights of its own from the instant of conception, and that abortion is wrong for that reason." A "detached" claim, by contrast, says "that from the moment of conception a fetus embodies a form of human life which is sacred, a claim that does not imply that the fetus has interests of its own."

Dworkin's basic position is that all of us, friends and foes of abortion alike, will discover, once we reflect on the question, that in truth we believe in the detached and not the derived form of the claim. Indeed, precisely because Dworkin believes that both sides of the debate share the same philosophical commitment, that rapprochement is possible. But he does not offer a fair exchange. The pro-life people come away with the consolation prize of knowing that the interests they seek to protect are "sacred," but the pro-choice crowd brings home the bacon because sacred interests do not give rise to any legally enforceable claims against the mother. Sacred concerns are matters of conscience, or more often religion, and for that reason Dworkin believes they are not the stuff of law.

How does Dworkin know that the pro-life position is detached rather than derived? He argues that any search by pro-life forces for an intermediate position implicitly repudiates the notion that the fetus has protectable interests of its own from the moment of conception. He claims pro-life forces would realize this point if only they stopped to reflect on the question. They are trapped, as it were, by their capacity for rational discourse. If they believed that the fetus had interests of his own, then, says Dworkin, they could not accept the possibility of abortion in defense of the mother's life, in the case of rape or incest, or for Tay-Sachs disease. But he never explains why the acceptance of abortion for cause, however defined, is tantamount to saying that the fetus has no interest protected under the law.

Indeed, just the opposite inference is in order. No one would say that ordinary people have no legal protection against murder because of our detached view that human life is sacred. Ordinary people recognize that they have rights; yet they think that these rights could be forfeited for a number of reasons. Person A may be permitted to kill Person B if subject to B's serious personal attack that cannot be avoided by escape or neutralized by lesser force. And it is the better view, I believe, that the right in question could be exercised even if the assailant is insane or otherwise excused from criminal responsibility. To be sure, in such a case both the assailant and the victim are "innocent," but one has the innocence of a victim and the other that of an aggressor. I can pick between these two persons in a do-or-die situation.

The self-conscious effort to balance interests in this example offers some clue as to how to think about abortion. Initially, no one takes a detached view of fetal life, any more than they do of other life. Certainly the pro-life forces use their powerful films on what an abortion does to make their opposition as visible and concrete as possible. Yet there is still the question of balancing interests, even if abortion is presumptively wrong. For example, the life of the fetus may be sacrificed if it endangers the life of the mother, so long as lesser means cannot avert the conflict.

Not all justifications take the form of self-defense: With the Tay-Sachs infant, the argument is that the life of the fetus is not worth living, so abortion (or infanticide) is justified by very stringent criteria. The hardest cases are perhaps those of rape or incest, where the offspring is innocent, but the mother has been subject to a manifest violation of her own rights that is now said to create obligations that could last a lifetime. Yet to engage in sorting out these cases is not an implied admission that a fetus has no rights, save those allowed under Dworkin's detached view. It is better to say that a fetus has a prima facie right to life that can be overridden on some special showing.

Nowhere does Dworkin explore these possibilities or expose their complexities. He thinks the only choices are that abortion is homicide or that it is legally protected, notwithstanding the fact that any decision to abort is morally more problematic than a tonsillectomy. But any discourse that recognizes the soundness of abortion for cause necessarily undercuts the case for abortion at will. Where justifications fail, we could think of excuses for the mother that mitigate the severity of the charge, even if they do not justify her choice. We may understand why the mother aborts, yet think that third parties should be punished for supplying the abortion. None of these nuances surface anywhere in Dworkin's lengthy argument.

Contrary to Dworkin, we have this rich set of legal choices because life "in earnest" does in some sense begin at conception. Consider the implicit commitments on the status of the fetus when the danger to it comes from any party other than the mother. Do we want to say that a forced abortion by a third person at any stage of pregnancy is simply an attack on the mother, and perhaps an affront to some diffuse moral interest? Or are we willing to say that the attack on the mother is also the taking of her child's life? That is just how she would describe it in her grief. The latter view seems correct. So the normative debate is about the extent and grounds for legal intervention, not solely about moral philosophy. Everyone on the pro-life side takes the "derived" view, and rightly so. Dworkin's critical distinction is a non-starter.

Dworkin is no more successful in his efforts to disentangle the question of abortion from the law by taking a (scarcely acknowledged) leaf from Laurence Tribe's early writing, which argued that abortion should not be subject to criminal sanctions because the opposition to it so often rests on religious grounds. Tribe has fortunately abandoned such a position, but Dworkin continues to press a variation of it, insisting that our collective inability to resolve the matter requires the social order to respect the mother's choice. Yet here again the obvious counter-argument is that abortion poses difficulties even for those who rely solely on secular moral philosophies. First, one could easily oppose abortion with Rawlsian veil-of-ignorance arguments of the sort set out above. Alternatively, one could insist on the protection of innocent persons, defining persons so as to bring abortion within the exception to the Millian rule that individual freedom should be unfettered except where it results in harm to others.

The serious doubts about Dworkin's philosophical approach undercut his constitutional defense of Roe v. Wade. If the fetus is a person, how can its life be routinely ended for the mere convenience of the mother? And even if "life in earnest" has not started, the fetal interest might well justify the abridgment of the mother's freedom. As John Hart Ely observed 20 years ago, we legally prohibit cruelty to animals even though animals are not people. Why, then, does the state have no right to protect a fetus, which in the ordinary course of affairs will become a full-fledged person without further conscious intervention and assistance of others? In a sense, therefore, Dworkin may be correct when he insists that it is irrelevant to the debate whether the fetus is a person. But only because he loses the conceptual case in both directions.

Dworkin neglects some promising lines of attack on the pro-life position. For example, one could argue that a Rawlsian or Millian approach leads to absurdities of its own: Is it clear that, based on these approaches, legal protection should begin at conception? Or should protection be afforded to unfertilized eggs or sperm? Another tack is to argue that even if abortion is a wrong, it is one that can be prevented only by massive state intrusions leading to massive abuse: invasions of privacy, powerful investigative procedures, the risk of favoritism and bribery, the need to prevent women from running across state lines for abortions, and the distasteful peril of back-alley abortions.

These practical issues quickly come front and center in most ordinary discussions of the question. They are omitted from Dworkin's conceptual treatment of the issue, because, I suspect, their empirical and contingent power do not support Roe's categorical prohibition of criminalizing first-trimester abortions. Forsaking the nitty-gritty issues of enforcement drives Dworkin back to ingenious but flawed normative arguments for the right to abortion that are congenial to his own philosophical inclinations. It is because these arguments don't work that Life's Dominion is both a forensic tour-de-force and an intellectual failure. The elegance of Dworkin's prose is simply not matched by the strength of his arguments.

Richard A. Epstein is James Parker Hall Distinguished Service Professor of Law at the University of Chicago.