What if the signal inconsistencies Dworkin illuminated do hold independent rational appeal for us? What is someone to make of the personhood account of the abortion issue if she finds merit in the notion that having an abortion is not just like cutting one’s hair or having a tonsillectomy, whilst being, nonetheless, a far cry from murder? For Dworkin, as we have seen, these cross-cutting judgements only went to show that arguing about abortion by way of debating prenatal person- hood is profitless. But perhaps he was too hasty in ruling out the possibility that our concept of a person will somehow account for intuitions such as these. Where Dworkin saw inconsistency, he might instead have seen ambivalence or nuance. He might have seen discussants grasping at an intermediate category of being—a being that lacks the full status of a person but is not entirely without some of its features and value.
Interestingly, by underscoring putative inconsistencies in hostile and favourable attitudes to abortion, Dworkin demonstrated at least one way to reason fruitfully about fetal personhood. Through pointing out signal inconsistencies in each other’s positions, contestants in the debate can appeal to one another through more than just ‘primitive conviction’. There is clear argumentative merit in noting, for instance, that someone’s failure to treat abortion as in all respects like murder, or as equal to infanticide, challenges her commitment to the belief that a fetus is a person in the fullest sense. Equally, asking someone who flatly denies fetal personhood what meaningful differences hold between late term fetuses and neonates can surely form part of a potentially persuasive argument. Whether they are ultimately winning or not, these are reasoned forms of engagement that seek to change minds by drawing on discussants’ own judgements and distinctions, and attempting to reveal inconsistencies within them.
On Dworkin’s view, the ‘quasi-religious’ nature of our beliefs in matters of life and death places the abortion issue firmly in the realm of private morality and out of reach of the law’s coercive power, if not its non-coercive influence. In no context, however, is the fundamental right to life of born human beings subordinated to religious beliefs in this same way. Homicide crimes are never constructed so as to tolerate someone’s acting on such a belief. (‘Honour killings’, for instance, cannot be shielded by a principle of religious toleration, though they are, in one way, the expression of a view about life’s intrinsic value and what does and does not insult it.) If the situation is different for human fetuses, this can only be because they are earmarked from the outset as differently morally positioned. If a fetus is morally on a par with born humans, then something very different from tolerance towards diverse interpretations of the sanctity of life will be required to explain the moral permissibility of abortion.
It may be asked whether, in the end, what Dworkin called the ‘detached’ inquiry about the intrinsic value of human life captures questions that are truly morally distinct from the ‘derivative’ one. On one rendering, the question at the centre of the detached dispute is simply when, in the lifespan of a biologically human organism, that organism comes to possess the attributes which grant it strong moral protection, most pointedly protection against being killed in the cause of salvaging creative investment in the lives of others. Is this just the per- sonhood question in another guise? The detached view must still hypothesize a point in the development of human life when terminating that life for anything other than saving the lives of a greater number is an impermissible affront to life’s sacred value, the obvious question then being just what it is that ushers in this enhanced moral status. In other words, whose life is sacred, and why? These questions lie right at the heart of the personhood inquiry as commonly understood.