By Ronald Dworkin. New York: Alfred A. Knopf 1993. Pp. 273. $23.
Reading Ronald Dworkin's(1) ambitious and fascinating attempt to find a middle way out of the increasingly heated public battles over the legal regulation of abortion and euthanasia,(2) I found myself thinking -- for reasons that I trust will presently become apparent -- of an automobile accident a little more than a decade ago. That accident threw a young woman named Nancy Beth Cruzan into a ditch where rescue workers found her unconscious. After restoring her vital functions, they took her to a nearby hospital, where doctors further stabilized her condition and eventually transferred her to a state rehabilitation facility.(3)
Over the next several years, as she failed to regain her mental faculties and slid into what physicians call a persistent vegetative state, her parents slowly and reluctantly concluded that she would not have wished to be sustained in her condition by feeding tubes or other medical intervention. When hospital officials rejected their request to withdraw treatment, her parents sought -- and a court awarded -- formal guardianship with authority to order termination of all life support.(4) The Missouri Supreme Court reversed the trial judge's order on the ground that the state's "interest in preservation of life" overrode any interest that Ms. Cruzan might have in being free of such death- delaying interventions. The state's interest, held the court, "embraces two separate concerns: an interest in the prolongation of the life of the individual patient and an interest in the sanctity of life itself."(5)
The U.S. Supreme Court affirmed the Missouri ruling, holding that a state does not violate the Due Process Clause when it refuses to allow the forgoing of a patient's life support, absent clear and convincing evidence that the patient had expressed such a wish while still competent.(6) The Court also reasoned that the state's interest in protecting human life was sufficiently strong to outweigh a guardian's conclusion that further treatment is not in the patient's best interest.(7) The notion that the state has an interest in the "preservation of human life" independent of the patient's own interests drew stinging dissents from Justices Brennan and Stevens:
[T]he State has no legitimate general interest in someone's life, completely
abstracted from the interest of the person living that life, that
could outweigh the person's choice to avoid medical treatment.(8)
However commendable may be the State's interest in human life, it cannot
pursue that interest by appropriating Nancy Cruzan's life as a symbol
for its own purposes. Lives do not exist in abstraction from persons,
and to pretend otherwise is not to honor but to desecrate the State's
responsibility for protecting life.(9)
Given the degree to which the dispute in Cruzan involved the sacred value of human life, one is not immediately encouraged to find that this concept is central to Life's Dominion, in which Dworkin proposes to offer an escape from the overheated rhetoric of the abortion and euthanasia debates. At first, Dworkin's alternative analysis -- replacing a debate over rights and interests with a discussion of the intrinsic value of life -- seems merely to shift the terms of engagement without ending the war. Indeed, it is hard to believe that Dworkin seriously thought that his alternative would produce a new era of calm analysis and rational disagreement. Yet, however much Life's Dominion makes him seem like the Don Quixote of public policy, he has once again written an interesting book that is well worth reading for its arguments and insights about the importance of returning to the moral question -- "What is life's intrinsic value?" -- if not for the armistice it attempts to impose on the right-to-life/quality-of-life wars.(10)
ABORTION AND THE SACRED VALUE OF LIFE
Most of Life's Dominion is concerned with abortion, first in philosophical and then in constitutional law terms. Dworkin begins by demonstrating that even those who speak in right-to-life language -- such as President Bush and Vice-president Quayle during the 1992 campaign -- do not actually believe that a fertilized egg from the moment of conception is a person whose abortion would always be murder. As the polls show, most people would allow abortion in the case of rape or incest or severe fetal abnormalities;(11) this demonstrates that however much they value a fetus, they do not regard it as a child or other person. As Dworkin points out, even the Catholic Church has not always held its present position (p. 39). Moreover, the Catholic position is at odds with the writings of theologians such as Thomas Aquinas, who grounded his theory of ensoulment on the Aristotelian notion of hylomorphism, or the idea that the human soul only exists in an identifiably human body, which by our present understanding would be one with a functioning neocortex -- the organ required for spiritual activity, among other forms of conscious reflection, not functional until late in gestation (pp. 40-42).
Thus, Dworkin argues that the opponents of abortion have misdescribed the moral claim on which their opposition rests. He labels the conventional view the derivative objection to abortion "because it presupposes and is derived from rights and interests that it assumes all human beings, including fetuses, have" (p. 11). He believes, however, that the antiabortion position is better understood as being detached from any presupposed rights or interests and as resting instead on the claim
that human life has an intrinsic, innate value; that human life is sacred
just in itself; and that the sacred nature of a human life begins when its
biological life begins, even before the creature whose life it is has movement
or sensation or interests or rights of its own. [p. 11] Unlike the derivative view, framed in terms of rights and interests, the detached view leads not to conclusions about the claims that people can make on others for action or forbearance but instead to more impersonal conclusions about whether a particular action would fail to respect -- or would "disregard and insult," as Dworkin puts it (p. 11) -- the intrinsic value of an entity.(12)
If conservatives have it wrong when they claim that abortion is immoral because it violates the fetus's "right to life," liberals also have it wrong in suggesting that all that is at issue is a woman's right to control her body. Again, Dworkin suggests that once we set aside political rhetoric, we will see that feminists do not view abortion simply in terms of women's rights (pp. 50-60). To illustrate his thesis, he examines the positions of leading feminists and finds ways in which their views are -- or can be made to be -- consistent with his thesis that the fetus is something of intrinsic importance, albeit not a rights-bearer.
For example, Catharine MacKinnon rejects Roe v. Wade's right-to-privacy theory partly because it links pregnancy to other situations in which the more powerful one of two connected entities asserts a sovereign right to end the connection.(13) Instead, MacKinnon articulates the pregnant woman's perspective that the fetus "is both me and not me. It 'is' the pregnant woman in the sense that it is in her and of her and is hers more than anyone's. It 'is not' her in the sense that she is not all that is there."(14) MacKinnon further contends that...