Dworkin and the Red Herring
Is it possible, though, that the questions whether, when, and to what degree unborn humans are persons fall far from the true, philosophical heart of the abortion problem? In his book Life’s Dominion, Ronald Dworkin set out a compelling argument for believing the personhood question to be, in the main, a red herring in the abortion debate.5 Rather, he argued, that debate is in truth only a proxy for the genuine disagreement at the root of abortion conflict, grounded in the sanctity of human life, or, more precisely, differing interpretations of the sanctity of life and what is required to show that value appropriate respect.
Dworkin’s account begins with certain observations about the nature of the public abortion debate. Drawing attention to the fiercely adversarial nature of that debate which, he rightly observed, outdoes practically all other public conflicts in the United States in its upper limits of intensity, Dworkin observed that when conducted in the traditional terms of argument about prenatal personhood (meaning, whether or not the fetus is a person), the abortion conflict appears to be intractable. This owes substantially to the fact that, as Dworkin claimed, ‘neither side can offer any argument that the other must accept’, since different conclusions about the personhood of the fetus are only, ultimately, a matter of ‘primitive conviction’.  He wrote:
[T]here is no biological fact waiting to be discovered or crushing moral analogy waiting to be invented that can dispose of the matter. It is a question of primitive conviction, and the most we can ask of each side is not understanding of the other, or even respect, but just a pale civility, the kind of civility one might show an incomprehensible but dangerous Martian.7
Fundamentally, either we see a fetus as a person or we do not. This, in Dworkin’s eyes, makes debate about fetal personhood interminable, for there will be no trump cards, so to speak. Those who view the fetus from conception onward as equivalent to an unborn child and those who view it as no more than a cluster of cells cannot hope to persuade each other otherwise by recourse to reason, for their beliefs are not grounded in reasoned argument to begin with, only in gut intuition.
Next, so long as abortion disagreement is directed at the moral status of the fetus, that debate will not only be interminable, but also, Dworkin argued, resistant to compromise. Such compromise is ‘unrealistic’, he claimed, for those who view the fetus as morally analogous to a born human being will not be moved by women’s rights arguments which, on their view, are blind to the fact that if a fetus is a helpless unborn child ‘then permitting abortion is permitting murder, and having an abortion is worse than abandoning an inconvenient infant to die’.8 Conversely, those who conceive of a fetus as something hardly different from a body part probably cannot help viewing the opponents of legal abortion as ‘either acting in deep error’ or out of bigotry, unreflective religiosity, or vindictiveness towards those whom they regard as fallen women. Dworkin concludes:
Self-respecting people who give opposite answers to whether the fetus is a person can no more compromise, or agree to live together allowing others to make their own decisions, than people can compromise about slavery or apartheid or rape ...
If the disagreement really is that stark, there can be no principled compromise but at best only a sullen and fragile standoff, defined by brute political power.9
But he did not believe we should resign ourselves to this gloomy prognosis. This is because the entire personhood-centred picture of the abortion conflict was, to his mind, based on a serious ‘intellectual confusion’.10 A good indication that the real nub of that disagreement is something other than as first appears comes in the way of what Dworkin called ‘signal inconsistencies’ in public attitudes to abortion on both sides of the divide. Opponents of abortion rights, for instance, commonly make concessions where abortion is necessary to save the life of the pregnant woman, or where pregnancy is the result of incest or rape. Furthermore, many are willing to agree that, although abortion is immoral, it should nevertheless be legally permitted, that it ought not to invoke the same penalties as murder, or that despite their moral objection, they would support their own wife, daughter, or friend if she decided to obtain one.
Some ‘signal inconsistencies’ echo on the ‘pro-choice’ side too. While supporters of abortion rights clearly do not regard abortion as murder, they do frequently characterize it as a kind of ‘cosmic shame’ and a ‘grave moral decision’,n not to be undertaken lightly or for trivial reasons, for example because the pregnancy will interfere with a booked holiday. Consequently, supporters of abortion rights often support some legal restrictions on abortion choice, notwithstanding their professed belief that the fetus is not a person in the philosophical sense.
Dworkin pointed out that on the personhood-centred picture of abortion argument, these results seem ‘baffling’Th How could someone who truly believes that abortion kills a person consign the abortion decision to the realm of personal morality or make concessions where pregnancy is brought about through rape? And why would someone who, say, thinks that abortion is not very different from a tonsillectomy, view it as something obviously to be regretted, or the appropriate target of any legal restrictions? The concessions and exceptions commonly made on both sides seem flatly inconsistent with the traditional account of the abortion conflict as hinging on the personhood issue. In particular, Dworkin claimed:
No one can consistently hold that a fetus has a right not to be killed and at the same time hold it wrong for the government to protect that right by the criminal law. The most basic responsibility of government, after all, is to protect the interests of everyone in the community, particularly the interests of those who cannot protect themselvesd3
However, Dworkin thought that these signal inconsistencies are explicable once the conflict is recast in a different light. Central to a better understanding of abortion disagreement, he claimed, is a distinction between two very different grounds of objection to abortion captured by the interest in ‘protecting fetal life’. That interest can, in the one place, refer to what he called the derivative objection to abortion. The derivative objection says that abortion violates the fetus’s right not to be killed, a right which all persons possess. But ‘protecting fetal life’ can implicate a very different ground of abortion opposition. Dworkin labelled this the detached objection to abortion. The detached objection does not depend on ascribing the moral status of persons to any individual fetus. Rather, it claims that all human life has a sacred or, in secular terms, ‘intrinsic’, value, like the value we might ascribe to a brilliant work of art or a place of natural beauty. The objection holds that abortion is wrong not because it violates a fetus’s right to life but because it ‘disregards or insults’ that intrinsic value.14
Dworkin argued that someone who does not regard the fetus as a person may still ‘object to abortion just as strenuously as someone who insists it is’ if his objection is rooted in detached grounds.15 Just as someone might object to turning off the life-support of a patient with an incurable and intolerable illness not because of the belief that death is against her interests but because the act of killing insults the intrinsic value of human life, so too might a person object to abortion not because she regards the fetus as having an interest in continued life but because she views the deliberate extinguishing of any human life as an insult to life’s intrinsic value, analogous to destroying valuable works of art.
Dworkin believed that almost everyone who objects to abortion practice truly objects to it, ‘as they might realise after reflection’, on the detached rather than the derivative ground.^ Once we understand this, he thought, we can make far better sense of why some people believe that abortion is wrong but ought to remain legal, while others think it acceptable, but legitimately regulated. It is perfectly ‘consistent’, he said, for someone who objects to abortion on detached (sanctity of life) grounds to hold that it is ‘intrinsically wrong’ to end a human life, but that the decision whether or not to end that life in utero must be left to the pregnant woman.17
Moreover, on the detached picture of abortion disagreement, supporters of abortion rights actually share this appreciation of human life’s intrinsic value. They too believe that all human life is extremely valuable, and that its destruction is always regrettable—always a ‘cosmic shame’. Thus we should not be surprised that defenders of abortion rights are still sobered by the need for abortion and, frequently, support some restrictions.
This all raises a question, however. If disputants on both sides of the debate share a commitment to the intrinsic value of human life, what are they arguing about? Dworkin’s answer was that people interpret this value in very different ways. Later in the book, he offered an account of how different interpretations of life’s intrinsic value might sponsor radically different conclusions on the abortion question. More fully, he distinguished between two different sources of human life’s intrinsic value: natural creation and human creative investment. Those who place more stock in natural or biological creation are more likely to conclude that the intrinsic value of human life is always insulted when abortion is carried out. But not everyone will agree that premature death in the womb is the most serious frustration of human life.18 Others may believe that performing an abortion is consistent with respecting human life’s intrinsic value if it prevents significant human creative investment in the life of the pregnant woman from being squandered. Disagreement about abortion is, in short, disagreement about which ‘mode’ of life’s intrinsic value has the greater moral importance. Conservatives in the abortion debate are likely to think that natural investment in the form of biological human life is pre-eminent. Liberals, on the other hand, more frequently believe that it is a greater frustration of life’s miracle when an adult human beings expectations are disappointed and talents wasted than when a fetus dies before any comparable investment in its life is maded9
From all of this, Dworkin drew an important conclusion about political resolution of the abortion problem. Crucially, he argued that disagreement about the meaning and nature of life’s intrinsic value has a ‘quasi-religious’ quality. Our personal interpretations of that value are, he said, ‘essentially religious beliefs’, relating, as they do, to questions about the meaning of life and death. The end picture is therefore of a conflict which is ‘at bottom spiritual’.-20 And recognizing the religious nature of abortion argument has implications for the possibility of principled compromise. For, when the conflict is translated into these terms—into a matter of religious-like difference—a pathway to principled resolution is laid out by the doctrine of religious toleration. ‘We think that it is a terrible form of tyranny’, he wrote, ‘destructive of moral responsibility, for the community to impose tenets of spiritual faith or conviction on individuals.’-! In liberal democracies, the protection of free exercise of religion therefore underwrites a permissive answer to the question of abortion’s legality. Since everyone must be free to express her religious beliefs for or against abortion the state must not coercively remove the abortion option. This is a resolution which, Dworkin suggested, those who are morally opposed to abortion have reason to accept if they are committed to religious toleration.
Dworkin went on to spell out the ramifications of his argument for the constitutional legality of abortion in the United States in particular. If, as he claimed, beliefs about reproductive freedom are ‘essentially religious’, then the right to make one’s own decisions in such matters can be construed out of the First Amendment, which guarantees the free exercise of religion. Consequently, state prohibitions on abortion are an unconstitutional restriction of US citizens’ First Amendment rights. The religious nature of the disagreement settles the constitutional question permissively.