Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom.

• Author: Rakowski, Eric

By Ronald Dworkin.(*) New York: Alfred A. Knopf, 1993. Pp. 273. $23.00.

1. AN OVERVIEW

   Life's Dominion defends a novel claim: that disputes over the morality of abortion, assisted suicide, and euthanasia are fundamentally religious disagreements. They are religious, Ronald Dworkin contends, because most people believe that the morality of these actions depends on whether they adequately respect life's "sacred" or inherent value, and "[c]onvictions that endorse the objective importance of human life speak to the same issues--about the place of an individual human life in an impersonal and infinite universe--as orthodox religious beliefs do for those who hold them."(1)

   Two conclusions follow, in Dworkin's view. First, because we tolerate religious beliefs we consider wrong, the recognition that someone's decision to abort a pregnancy or to hasten her death typically rests on spiritual values should lead us to permit abortion and euthanasia even if we deplore them. Second, the First Amendment guarantees individual choice in both cases. Either these existential decisions turn on commitments that are religious for purposes of the Free Exercise Clause, or government action to restrain abortion or euthanasia entails public endorsement of a religious proposition in violation of the Establishment Clause.

   Dworkin also defends a related thesis about the limitations that morality places on the use of state power. The state, he maintains, may not gravely burden people to protect values other than individual rights, particularly values, like the importance of prolonging human life in any form, that are controversial and inherently religious. Abortion and assistance to people who reasonably wish to speed their deaths should therefore be permitted subject to safeguards against error or coercion, because neither abortion nor the voluntary shortening of a life violates a personal right even if one or both affront some people's understanding of life's intrinsic or sacred value.

   These striking assertions form the book's core, but originality is not its sole virtue. Life's Dominion displays in abundance the deft argumentation, elegant prose, and moral passion that characterize much of Ronald Dworkin's writing. Although its themes are not unheralded--the book reworks a number of articles that Dworkin has devoted to abortion and euthanasia over the last eight years--their contours have been sharpened through restatement. The result is a remarkably coherent argument concerning the moral and constitutional boundaries of the state's authority to regulate killing near the edges of life: during the preconscious existence of the womb and the final oblivion of the fatally ill and the irreversibly demented.

   The book's central thesis is that beneath the scalding rhetoric of partisans on both flanks of the debates over abortion and euthanasia lies a hitherto unnoticed consensus on what those debates are about. Advocates for abortion rights or living wills, like those who would curtail abortions or ban assisted suicide, are almost all seeking to answer the same question: what policies would best respect the sanctity or inherent value of human life? Few people genuinely believe, Dworkin contends, that destroying a newly fertilized ovum or aborting an embryo early in pregnancy is morally equivalent to murdering a child of ten. But few regard these as morally indifferent acts, even when they deny that a young fetus has morally protected interests of its own. What divides abortion's opponents and defenders is conflicting notions of how individuals and communities can most faithfully express their shared respect for the sanctity of human life, whatever its form.

   Those who decry abortion emphasize the divine or natural contribution to a new life. They believe "that it is intrinsically a bad thing, a kind of cosmic shame, when human life at any stage is deliberately extinguished."(2) Aortion's defenders, in Dworkin's characterization, do not dispute this claim. They too acknowledge that abortion "wastes" the natural "investment" in fetal life.(3) But unlike abortion's foes, its defenders assert that not permitting abortion would often result in a morally more important "frustration" of the likewise intrinsically valuable life of the woman seeking an abortion. Both sides' views are therefore "rooted in a fundamental unity of humane conviction," which is "more fundamental" than their quarrel over how the value of life ought to be understood.(4)

   Once people's underlying agreement on the main value in peril is brought to light, Dworkin avers, "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."(5) The bulk of Life's Dominion is an elaborate attempt to show that this commonly acceptable position is, perhaps surprisingly, virtually indistinguishable from the policy urged by many of abortion's defenders: freely available abortion through at least the first six months, apparently with no consent requirements or waiting periods, combined with public funding for women too poor to pay for their own abortions. This conclusion, Dworkin maintains, is morally required by the values that even those who condemn abortion hold dear, above all by our commitment to tolerating religious disagreement and to protecting individual liberty except where its exercise interferes with the rights of others. Furthermore, in the United States it is legally required by the Religion Clauses, and perhaps by the Due Process and Equal Protection Clauses as well.

   Dworkin's legislative prescriptions and constitutional analysis are less clear with respect to euthanasia. He argues, as before, that regard for the intrinsic value of human life explains much of the opposition to killing permanently comatose patients, permitting dying patients to obtain lethal drugs from physicians, and allowing people to make legally effective requests to withhold life-sustaining medical care. After dissecting the warring claims and values, however, Dworkin refrains from offering detailed recommendations. His sympathies plainly lie with legislation empowering competent, dying patients to solicit help in hastening their death. He also appears to favor giving effect to advance medical directives or the choices of proxy decisionmakers not to treat permanently unconscious or badly demented patients. He declines, however, to endorse specific rules for determining precisely when these decisions should be respected and what care patients should receive if they did not voice any preference before they lost consciousness or mental acuity.

   I shall not attempt to assess the cogency of all of Life's Dominion's complex philosophical and legal claims. Some are too large to compass in a review; others have already attracted able commentary. Thus, I shall say nothing about Dworkin's much-discussed theory of constitutional interpretation,(6) on which he relies here in determining the legitimacy of abortion regulation. Nor shall I examine carefully Dworkin's assertions that the Free Exercise and Establishment Clauses compel states to permit abortion during the first two trimesters and that the Establishment Clause precludes states from refusing to pay for poor women's abortions if states simultaneously provide the poor with general health care.(7) Finally, I shall not take up his assertion that lawmakers betray their office if they enact rules that cannot be traced to some principle that an individual might endorse as a principle of substantive justice.(8)

   Instead, I shall focus on Dworkin's attempt to show that most people regard individual human life as sacred, even before consciousness dawns and sometimes after it has fled forever, and his account of that belief's ramifications for the government's regulation of abortion, euthanasia, and assisted suicide. Part II examines Dworkin's argument that almost everybody believes that a fetus lacks rights or interests of its own during most of its gestation, but that fetal life is nonetheless inherently valuable. Although Dworkin is right in thinking that most people's uneasiness over abortion does not derive from their belief that a fetus is conscious throughout pregnancy,9 his analogies to the intrinsic value of art, cultures, and natural species do not, in my judgment, help to clarify the sense in which many people cherish a developing human life. Some people regard abortion as wrong because they think God forbids it. But most others who view abortion as morally problematic do so because they believe that a fetus, like an infant, is owed at least part of the respect due the reasoning, self-conscious human being it could become. Its moral claim against those who would end its life descends from its being an earlier stage of a creature with a right to live, and in many people's minds its moral claim is thus a close cousin of that right.

   If this alternative account of popular beliefs is correct, Dworkin's assertion that the state may not proscribe early abortion loses some of its power. He would then find it more difficult to describe the primary debate over abortion as religious (although that might still be possible), and his arguments based on religious tolerance and the First Amendment would be undermined. To be sure, the fact that many disagree fervently about the moral significance of an entity that is not a sentient or self-conscious bearer of rights, together with the enormous burden that pregnancy and childrearing impose on many women, does argue strongly against forbidding early abortion. But Dworkin offers scant reason to think that the concentrated burden a law would impose and societal disagreement about its propriety are decisive considerations against its passage, just because a five-month-old fetus, unlike slaves freed by the Thirteenth Amendment in the face of national dissensus and at great cost to slaveholders, is...