Intractability and Compromise
As was seen, Dworkin believed that if the personhood-centred view of abortion conflict is correct, then that conflict is inherently intractable and resistant to principled compromise. Misunderstanding the real nature of the disagreement therefore has serious consequences for resolving abortion politically. As he wrote:
the confusion between the two kinds of objection [derivative and detached] has poisoned public controversy about abortion and made it more confrontational and less open to argument and accommodation than it should be.29
As we also saw, Dworkin’s pessimistic characterization of the derivative disagreement stemmed from his claim that what is believed about the moral status of the fetus can only ever be a matter of ‘primitive conviction’. The personhood question is a philosophical dead end in the abortion debate partly because it cannot sponsor any reasoned exchanges. He made the point that it is not even clear in theory what it would take for all participants in that debate to be persuaded one way or the other. As he put it, ‘there is no biological fact waiting to be discovered or crushing moral analogy waiting to be invented that can dispose of the matter’.   It is not just that there have been no winning shots in the personhood debate; we cannot even be sure of what one would look like.
Insofar as philosophical tractability is thought to be a virtue of any account of the abortion problem, we should of course ask whether the detached view fares any better in that regard. If, as Dworkin argued, the basis of abortion disagreement has in truth been the sanctity of human life all along, the very fact that it shows no signs of abating might be offered up as evidence in itself that the detached dispute is no more tractable than the derivative one. This would not be such a surprise. If Dworkin was correct that the nature of abortion dispute is ‘essentially religious’, intractability is precisely what one would expect. There is no reason to imagine that a conflict rooted in religious-like commitments would foster more reasoned exchanges, or be any more philosophically soluble, than argument about the conditions for personhood.31 At the same time, the very fact that the public abortion debate has proved so intractable should, by Dworkin’s lights, count as good evidence for the derivative account, since intractability is, on his view, a defining characteristic of the personhood conflict.
It is not at all clear, then, that of the two kinds of disagreement, the derivative one is uniquely philosophically intractable. One might also think there is some measure of tension between Dworkin’s claims that the derivative question is not amenable to reasoned argument and his own argument against fetal personhood, based on fetuses’ lack of mental states. Let us put these complaints to one side, however, and consider Dworkin’s main argument about the tractability of the abortion dispute. This was that if he is correct that abortion disagreement is ‘essentially religious’ disagreement about the intrinsic value of human life, a settled constitutional basis for compromise is provided by the doctrine of religious freedom. In the legal realm, he argued, this means that a permissive stance on abortion practice is constitutionally mandated. In the United States, the First Amendment right to free exercise of religion protects the equal right of all citizens to follow their convictions on ‘profoundly spiritual matters’, with the result that states may not dictate an answer to the abortion question.32 This constitutional basis for the abortion right is, he argued, one which all those committed to the free exercise of religion therefore have a reason to accept, even if they continue to disagree, ‘religiously’, about the morality of abortion.
Some would no doubt quibble with Dworkin’s suggestion that abortion beliefs can be assimilated into essentially religious ones, as well as with the claim that abortion practice counts as an expression of those religious beliefs. But let us assume that he was right about those things. The next question is whether it follows, as Dworkin believed, that the personhood issue is not pertinent to the constitutionality of abortion. Dworkin was guilty of a fundamental oversight regarding the limits of the doctrine of religious toleration if he thought that it can ground the abortion right irrespective of one’s answer to that question. His mistake was in supposing that as soon as religious beliefs are at issue, the derivative worry about causing harm to persons ceases to be relevant for the legal resolution of disputes. The plain falsity of this is apparent when bringing to mind any exercise of religious belief that entails bodily harm to individuals we are certain are persons. Liberal democracies cannot, for example, extend tolerance to practices of ritual child sacrifice, slavery, or female genital mutilation if and when those who practice them do so as a matter of religious conviction. The doctrine of religious toleration has clear limits: toleration ends where the infringement of people’s rights begins. And the infringement of the right to life is the clearest red line there is.
Dworkin was wrong, therefore, if he believed that applying the doctrine of religious toleration to abortion does not rest on derivative grounds, or presuppose them. If the fetus were a person, as one side of the abortion debate insists, the right to abortion could not be defended using the religious freedoms of those that take the opposite view, for the doctrine of religious toleration does not extend to homicide. Indeed, if the religious nature of abortion beliefs mandates toleration of their expression even where that entails harm to persons, we would have to ask why Dworkin’s compromise principle does not protect the killers of abortion doctors. Consequently, by even appealing to the doctrine of religious toleration as a basis for political resolution, Dworkin presupposed a particular answer to the philosophical question of prenatal personhood. Toleration of abortion choice, even if a mode of religious expression, cannot be justified if the fetus is a person. And this consideration propels the derivative question right back to the forefront of our reasoning about abortion.
At this point, however, another one of Dworkin’s arguments becomes relevant. As well as claiming that fetal personhood is not at the heart of moral debate about abortion, Dworkin argued that the extension of constitutional personhood to fetuses in the United States is quite unthinkable, and that for this reason alone, the personhood question is not constitutionally poignant. If Dworkin was right about this, then his conclusions about the legal resolution could be left intact, even if the denial of fetal personhood is significant for the morality of abortion.
When Roe v Wade recognized the constitutional right to termination in 1973, the Supreme Court addressed itself to the question of the fetus’s status under the Constitution.  At the time Roe was decided, the fetus had never been recognized as a constitutional person under US law. Texas, the state whose abortion legislation was under scrutiny, argued before the Court that the fetus was indeed a person within the meaning of the Fourteenth Amendment. Speaking for the majority, Justice Blackmun held that the law had never treated fetuses as constitutional persons and could not expand the category now. This was despite his acknowledgment that had the fetus possessed the constitutional status of a person, it would be entitled to equal protection and abortion would be rendered largely unconstitutional.
Dworkin accepted Justice Blackmun’s conclusion about what would follow if the fetus were granted constitutional personhood, but emphatically endorsed Roe’s ruling that it lacked such protected status, arguing that the Court could not have come to any other decision on this point. As he wrote, ‘almost all responsible lawyers’ agree that Justice Blackmun’s opinion on the personhood question was correct, since there was no precedent in US law for the proposition that the fetus is a person, and the Supreme Court lacked the power to recognize new constitutional persons.35 In light of this, Dworkin argued that a contrary ruling would have been legally unsupportable. He did, however, acknowledge the fact that the Supreme Court has been known to upend conventional understandings of the Constitution on questions as fundamental as this—citing Brown v Topeka Board of Education as a standout example.36 Why, then, could the Supreme Court not have broken with tradition here and simply declared the fetus a constitutional person because it regarded it as a person in the philosophical sense?
Dworkin responded to this by restating that the idea of fetal personhood ‘is scarcely intelligible and few people believe it’Th Yet this is only a reiteration of the ‘anti-personhood’ argument. Dworkin may think the idea that fetuses are persons unintelligible, but certainly more than a few people believe it. For those who do, the Roe majority’s refusal to extend equal constitutional status to the fetus was surely its greatest error. The upshot is that Dworkin’s argument still fails to displace the primary significance of the personhood question for the constitutionality of abortion. Even if, as Dworkin claimed, little of the academic criticism surrounding Roe concerned the personhood ruling, the following two propositions still appear to be true:
- 1. A finding of constitutional personhood on behalf of the fetus would entail that abortion practice is contrary to the Constitution, and
- 2. A correct belief in the philosophical personhood of the fetus is a basis for granting it constitutional personhood, even if this breaks with constitutional tradition.
It follows from these joint propositions that whether or not the fetus is correctly regarded as a person in the philosophical sense is indeed integral to the constitutionality of abortion. Consequently, Dworkin cannot use the ‘anti-personhood’ argument to dismiss the constitutional salience of the derivative question, especially to those who do, in fact, defend the personhood status of the fetus.
-  ibid 10.
-  It might be suggested that all moral disagreements are in some way intractable past a point—the point at which their answer depends on more deep-seated philosophical commitments, argumentabout which is bound to be interminable.
-  32 Dworkin (n 5) 165.
-  The definition of religious belief to which Dworkin appeals seems, rightly, to look to the contentof the belief rather than the fervency with which it is held, although the content requirement itself isa fairly loose one, capturing everything that, he says, ‘touches on’ the ‘ultimate purpose and value ofhuman life itself’. One might think that abortion beliefs are often religious in a different way, which isthat they are mandated by the religious institutions to which many people are affiliated (as is surely trueof American evangelicals, Catholics, and so on). On the question of what does and does not count asreligious ‘expression’, it must be borne in mind that not every act which is performed on the strengthof a religious belief is an instance of religious expression which warrants protection under the right tofree exercise of religion. Attending religious services is an important expression of a religious belief, butthe persecution of non-believers is not, though it may be carried on the strength of those same beliefs.
-  410 US 113 (1973). 35 Dworkin (n 5) 110. 36 347 us 483 (1954).
-  З7 Dworkin (n 5) 112.