Belshaw Christopher Abortion Sanctity

Bioethics ISSN 0269-9702 Volume 11 Number 2 1997

Discussion

ABORTION, VALUE AND THE SANCTITY OF LIFE CHRISTOPHER BELSHAW

ABSTRACT In Life's Dominion Dworkin argues that the debate about abortion is habitually misconstrued. Substantial areas of agreement are overlooked, while areas of disagreement are, mistakenly, seen as central. If we uncover a truer picture, then hope of a certain accord may no longer seem vain. I dispute many of these claims. Dworkin argues that both sides in the debate are united in believing that life is sacred, or intrinsically valuable. I disagree. I maintain that only in a very attenuated sense of intrinsic value will this be agreed upon. I consider how an account of such value might be further fleshed out, but suggest, if this is done on any plausible lines, agreement will fall away. Dworkin argues, also, that the issue of personhood, does not, contrary to widespread belief, keep the parties apart. Again I disagree. We need to distinguish the question of whether there is in fact dispute over this issue from that of whether there is, in truth, good reason for dispute. And I argue that, rightly or wrongly, the issue of personhood remains central. Dworkin suggests that the purported proximity between the two sides offers some hope of an eventual reconciliation. At least, they will agree to differ, accepting that in this area freedom of choice is paramount. I am sceptical. Even this measure of reconciliation depends upon conservatives giving up positions which, I argue, they will continue to maintain. There is a further point. Dworkin appears to be, in many ways, cautiously optimistic. I appear, in contrast, to be pessimistic. I argue, however, that only so long as we do disagree over matters of substance is there much hope that our differences might be resolved. No one can fail to be impressed by the resilience of the abortion debate. For as long as many of us can remember, this single issue has divided conservative and liberal thinkers in, at the very least, most of ß Blackwell Publishers Ltd. 1997, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.

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the English speaking world. The debate has been protracted. But it has also been extraordinarily fecund, bringing in its wake much detailed and valuable philosophical work, and casting new light upon a range of old problems. So far, however, this has left the central issue untouched ö in hospitals, courts, and universities alike the disputants are as much at loggerheads as ever they were, looking upon their opponents, for the most part, as callous murderers on the one hand, dogmatic and puritanical spoilers of lives on the other. Is there hope? It has been said that there is. For in Life's Dominion1 Ronald Dworkin argues that the traditional understanding of this debate is seriously wrong-headed. It is thought the protagonists disagree about the most fundamental issues. But in fact they agree about these issues. They disagree, admittedly, about certain of their implications, but disagreement here is less profound. When this is understood, the position will appear less hopeless, and a way will be open for some amelioration of the conflict. This reconciliation project, as I shall call it, is clearly wellintended. And it is ambitious. Dworkin has no narrow or specialised concern. Rather he intends nothing less than to refigure the public face of the debate, so addressing his book to a large, disparate and often influential readership, including politicians, lawyers, and those in the medical profession, as well as philosophers themselves. The argument reveals passion. But does it carry conviction? I am unpersuaded. Dworkin argues that the question of whether the fetus is a person, which is so often thought to divide the parties, does not really do so. Perhaps. But they really are divided, I shall maintain, by some issue at least closely connected with this. He argues that they are united in a belief that human life is sacred. Perhaps. But only if that claim is interpreted in such a way as to allow little scope for establishing much genuine agreement. And he argues that some agreement, abortion is a matter for individual conscience, might eventually be found. Again, perhaps. But only if conservatives can be persuaded to abandon many of their central beliefs. There are a number of problems with the major argument of the book. And I consider the main ones here. But though much is addressed directly to that argument, the attendant issues are, I believe, of wider concern. For, whatever else, Dworkin has brought into sharper focus the broader ramifications of the debate. That impenetrable notion, intrinsic value, is near its core, and near too are the issues of personhood, interests, and the difficult question of how moral disagreement is possible. And it is as much in hope of throwing light 1

Ronald Dworkin, Life's Dominion, London: Harper Collins, 1993. ß Blackwell Publishers Ltd. 1997

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upon, or at least mapping some of the dark around, those broader issues, as to the detail of Dworkin's argument, that a great deal of what follows is addressed.2 SANCTITY The idea that life is sacred has a long history. But it is not often, in contemporary philosophical circles, well received. Nor is it often, in those circles, well described.3 So what do those who hold to the sanctity of life believe? There are various possibilities. Theirs could be a view, first, either about people, or about all living things. Suppose it is about people alone. It could be about death, or about killing. Suppose it is about death. One view is, death is always bad, where this means, it is always worse to die than to live. This, in turn, could mean that for anyone, it is today technologically possible to put them in a state which is better than death. Some such, I take it, is the view of those opponents of euthanasia who claim that modern drugs can make any life worth living. Or it could mean, for anyone, whatever their current state, that state, even if it continues, is better than death. This is an extreme view, and is very hard to defend. But some believe it. Suppose, instead, that the sanctity of life view is about killing. It is most often taken this way. It could be maintained that whether or not it is worse for a person to die, it is always wrong to kill that person. Such a view has led to resolute pacifism, to principled opposition to capital punishment, and to outright rejection of abortion, euthanasia, and even suicide. And such a view is not uncommon. Suppose we look for a more modest interpretation. Could the view be that killing is always prima facie wrong? That it needs always to be justified? At least where human life is concerned, almost everyone believes this. Because the sanctity of life doctrine is, at best, controversial, this cannot be a defensible reading of that doctrine. Viable interpretations will all generate dissent. 2 One idiosyncracy of Dworkin's approach needs here to be noted. Often, he makes claims as to what groups of people actually believe. I express doubts about some of these claims. But often, too, he supports the claim that people believe such and such, by arguing that such and such is an independently plausible position. I sometimes argue, against this, that such and such is not plausible. These two strands, the psychological/sociological, and the more standardly philosophical are, in Dworkin's book, very much intertwined. Inevitably, they are to some extent intertwined here. But I am more interested in the plausibility than the popularity of these positions. 3 But for some useful accounts see e.g. Peter Singer, Practical Ethics. Second Edition. Cambridge: Cambridge University Press, 1993; Jonathan Glover, Causing Death and Saving Lives, Harmondsworth: Penguin 1990; Rosalind Hursthouse, Beginning Lives, Oxford: Basil Blackwell, 1987.

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This is to consider the content of the doctrine. But we can also consider its provenance. The name itself suggests a strong theological connection. And it is often claimed that life is sacred because it is the gift of God. This helps explain the emphasis on killing. Killing is wrong, because it is not for us to interfere. It less easily explains the view that death is bad. God gives life, and he takes it away. But he does only good. Still, some might think, death is a punishment. The fruit was forbidden. Is there, in this, anything that can be described as the traditional sanctity of life doctrine? Perhaps at its core is the view: the taking of human life is always wrong. So claims about plants and animals, we might say, go beyond the traditional doctrine. Similarly, claims about death's badness go beyond the traditional doctrine. But of course this traditional doctrine need not deny that death is bad, or that killing other creatures is wrong. Dworkin interprets the doctrine differently. He sees as central the claim that human life is intrinsically valuable.4 One contrast here is with instrumental value: human life is valuable as an end, and not merely as a means to an end. Another, on Dworkin's account, is with subjective or personal value: a human life has value even when it is not valued by the person whose life it is. But now it is suggested that intrinsic value can sustain a further distinction. Some things are such that the more of them, the better. Other things are not, in this way, incrementally valuable. And human life, on Dworkin's account, falls into this latter category. Though the premature5 ending of any human life is bad, we should not hold that the more lives there are, the better it is. So there is what might be considered a prima facie duty to preserve life, but not a corresponding duty to create life. It is this view, that human life is intrinsically, but not incrementally good, that Dworkin describes as the view that life is sacred or inviolable. Such a description might be resisted. First, and most important, the view does not insist that killing is always wrong. For this reason there must be some doubt as to the label `inviolable'. Second, it has no explicit religious or theological content. And for this reason there must be a corresponding doubt about the label `sacred'. But though it might be suspected that appeal to such terms is motivated by a wish to appease the conservatives, still their use might be justified. Dworkin often talks as though what is important, and the point over which all parties agree, is that we have respect for life.6 4 5 6

The claim is made repeatedly. But see especially pp. 69^74. pg. 69. The question of whether its ending at any time is bad is not addressed. See eg. pp. 70^71, 84. ß Blackwell Publishers Ltd. 1997

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Human life is of note, and needs always to be taken seriously. In this sense it is sacred. And it is never to be abused, or insulted, or treated in a manner which is profane. In this sense it is inviolable. How close is Dworkin's to what I've called the traditional sanctity of life doctrine? There is some relation. The traditional view can appear to have the revised view embedded within it. Killing, it might seem, would not always be wrong unless one were, in killing, destroying something of intrinsic value. Liberals and conservatives can agree, then, that human life is valuable, and should be respected.7 But the relation is not that close. Not only does it not follow, from Dworkin's view, that killing is always wrong, such a claim is, by him, explicitly rejected.8 And, indeed, affirming that life has intrinsic value, while yet allowing killing, is not uncommon. All that is needed here is the view, though life has intrinsic value, that value can be outweighed, such that in killing, some higher positive value is created, or some higher negative value avoided. So liberals and conservatives can buy into Dworkin's account, while still disagreeing about the wrongness of killing.9 Plainly, the disagreement here is not trivial. How do the two views compare over the further important claim, death is always bad? Here there is some complexity. I said that the traditional sanctity doctrine often maintains that death is bad. Indeed this is the most natural explanation for the wrongness of killing. The revised doctrine can agree, death is bad. But still the positions are distinct. I shall explain. A plausible, and, I suspect, ultimately defensible position is that something bad happens, whenever a human life is ended. Why suggest this? A part of the reason is that our natural reaction, at a death, is to feel a loss, or regret. This reaction should be taken seriously. And the reaction occurs even when the person is old, or wants to die, or is in great pain. Most of us do not think, even in these cases, that an unqualifiedly good thing happens when death occurs. But this claim, that something bad happens whenever a human life is ended, is not the claim, whatever one's state, death is worse, nor even the claim, whatever one's state, it can be adjusted so that death is worse. We can think, though what has happened is for the best, it is 7 I do not say they must agree about this. For as I noted, one traditional interpretation of the sanctity doctrine depends not at all on the value of life, or the disvalue in ending it. Killing is wrong, whatever the circumstances. 8 For a reiterated claim is that both conservatives and liberals will allow, and are right to allow, abortion in some cases. 9 Remember, these are merely labels for two sides within the abortion debate. Many conservatives will agree, killing is not always wrong. They support war and capital punishment. They appeal here to notions of innocence and guilt. And they are, as Dworkin notes, often persuaded to allow abortion in very special cases.

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still not good. For it may be, death is better than the life that would, or could actually be lived, but still not better than some other, albeit merely possible, life. And so, liberals can maintain that death is always bad, while still allowing that it is sometimes better to die than to live. The different claims are connected. On the traditional view, the emphasis is on killing. It is always wrong. This suggests, but certainly does not imply, that death is always bad, and worse than life. For what would be wrong with killing, where the person wants to die, if death is not bad, and worse than life? On the revised account, the emphasis is on death. It is always bad, but not always worse than life. This suggests, but again does not imply, that killing is not always wrong. For what would be wrong with killing, if the person wants to die, and death, though bad, is not worse than life? Do liberals and conservatives agree that life is sacred? I've suggested that they agree that life should be respected, and that they may well agree that there is something bad about death. But they disagree about the wrongness of killing, and they may well disagree about whether death is always worse than life. I've also suggested that these doctrines about which there is, or may well be, disagreement are, historically, central to the sanctity of life doctrine. Dworkin identifies a position over which liberals and conservatives will agree. But there must be a doubt as to the appropriateness of calling that minimalist position, the belief that life is sacred. And there must be a doubt as to whether there is, as yet, agreement on anything substantial enough to generate much hope of a reconciliation. ANALOGIES How eccentric is the view that life has intrinsic value? Not very, according to Dworkin. We are familiar with the idea of the sacred in a number of areas. When we are reminded of this, the idea of the sanctity of life10 will appear less strange. Thus, he claims, we hold to a similar position with respect to works of art, to the existence of human cultures, and to the preservation of plant and animal species.11 In each case we think that something bad 10

It should be noted that here, and hereafter, reference to the sanctity of life is to be understood in Dworkin's revised, and not the traditional manner. 11 Yet note, `It is not my present purpose to recommend or defend any of these widespread convictions about art and nature, in either their religious or secular form' (p. 81). This raises a question: does Dworkin actually endorse the thought where human life is concerned? Is it supposed to be true, or merely widely believed, that life is sacred? The question is evidently important. But I don't think a clear answer is ever provided. ß Blackwell Publishers Ltd. 1997

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happens when there is a loss, but there is not, in general, a gain from having more. Indeed, among these apparently distinct concerns the respect we have for human life plays a pivotal role. For `we treat it as crucially important that we survive not only biologically but culturally, that our species not only lives but thrives'.12 I have reservations about all of this. First, I find it not always clear whether Dworkin's view is that we believe something bad happens when a so-called sacred object is lost, or, we believe we do something wrong, in ourselves destroying, or perhaps in wantonly destroying, such an object. Certainly, much of his discussion focuses on destruction. Thus, on a Rembrandt, `the thought of its being destroyed horrifies us ö seems to us a terrible desecration . . .'13 On Tintoretto, `I would . . . be appalled by the deliberate destruction of even one of [his paintings]'.14 On species, `We think it very important, and worth considerable expense, to protect endangered species from destruction by human hands or by a human enterprise',15 and `What we believe important is . . . that a species that now exists not be extinguished by us'.16 And there are countless such examples. Some will argue that these views cannot be kept apart. If destruction is wrong, there must be badness in the loss. Why else should we complain? But this is too easy. We can complain about the sort of psychology that takes pleasure in wilful destruction, or of the calculated way in which we can put profit, or convenience, before art or nature, without thinking that there is intrinsic value in the continued existence of the thing being destroyed. The question about intrinsic value is best addressed, I think, by asking not, would it be bad if this were destroyed by us, but simply, would it be bad if this thing were to cease to exist? And so we shouldn't agree that sacredness of paintings, or cultures, or species is strongly suggested by our response to the thought of their destruction. Could it be objected, even if Dworkin often talks of destruction, still the loss of such things is thought of as bad? Do we in fact react so as to suggest they are sacred? A second reservation concerns any such claim. Take art. Dworkin begins by referring to great works, but he soon considers the gamut. I agree, it is widely held that there is something bad about the loss of great, or even very good works. We think it is bad whether they disappear by accident or by design. But I don't agree that it is widely held that something bad happens 12 13 14 15 16

p. 77. p. 72, and see also p. 73. p. 74. p. 75. p. 75. There are many more such examples. ß Blackwell Publishers Ltd. 1997

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whenever a work is lost. It may be thought that you do something bad in wantonly destroying a mediocre piece, but there are countless, indeed by far the majority of, works whose (accidental) loss does not matter a jot.17 Similarly for cultures. The Nazis had a sort of culture. It is not something we honored and respected. It is not bad that it is ended. This can seem an extreme example. But if we knew more about the cultures of the past, and if they were not, because of their age, painted in the colours of esteem then we might find many of them similarly unworthy of honor and respect. Nor do today's cultures seem, in any thoroughgoing way, to be honored or respected. They are sacrificed, with little fuss, to capitalism. And they are sacrificed to progress. Many people think that the sooner we can shift other cultures into line with ours, the better it will be. And similarly for animals. Dworkin says, we value the species, and not the individual. Many value the individual. Many don't value the species. And very few value every species. It matters to only a handful of people if some species of beetle or grasshopper or flounder becomes extinct. Can it be objected that all this is to overlook a distinction I was earlier at pains to make? Do we think, even if such losses are overall for the best, that still there is something bad about them? I don't think this helps Dworkin, who makes no such distinction. And I don't think the suggestion is plausible. Many people think it good that the Third Reich is no more. And they think it good that smallpox is (virtually) no more. Thus it is that in such cases, we countenance not only loss, but deliberate destruction by us.18 There are, then, various objections that can be made to the idea that a belief in sanctity, or intrinsic value, is already widespread. Dworkin anticipates some of them. He says that the belief in sacredness admits of degree (we value great works of art more than the nearly great) and is selective (we value art, but not commerce, and mammals, but not aggressive viruses). But these concessions are puzzling. The first does not, I think, go far enough. My claim is that many works of art are not, in fact, thought to have intrinsic value (by most of us) at all. Nor are some cultures, and nor are a great number of plants or animals. But the second, I suspect, undoes most of what has 17 Most will think their loss unimportant. And some will think their destruction desirable: `I hate half the pictures that are in the world. And I'd like to burn them.' R.B. Kitaj. The Late Show, BBC Television, June 1994. 18 And it should be noted that a claim we often make about human life is here wholly inappropriate. People die. We often say, though there is something bad about it, it is, on balance better for them if they cease to exist. Such a claim makes no sense where species, or works of art, or cultures are concerned.

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gone before. Our picking and choosing between species ö animals with flat face and big eyes (seals, pandas, owls), or, more curiously, those which happen to be large (albatrosses, whales, giant tortoises) ö gives room to the suspicion that all that is widespread is the belief that some art and some animals have subjective or personal, rather than intrinsic value. They matter to us, and not in themselves.19 Is this distinction clear? Perhaps it is not. But, I think, that is because Dworkin's account of intrinsic values is similarly unclear. Return, for a moment, to it. Many people think there is a notion of value which transcends our actual concerns. They reject the view that only that which is valued is valuable. But while some think that value must ultimately be tied to human endeavours, others believe it could be wholly independent. Take, for example, morality. Some people think that though we could all be so depraved as to be systematically in error about moral distinctions, still morality is linked in the end with human flourishing. Others, more radically, think there need be no such connection. Or take beauty. While some hold that we could, through prejudice or inexperience, overlook certain objects of beauty, others, again more radically, believe some such objects might elude us, whatever we do, and however we are. Now what is Dworkin's view, where intrinsic value is concerned? He says, `Something is intrinsically valuable . . . if its value is independent of what people happen to enjoy or want or need or what is good for them'.20 Most of this is compatible with the moderate position: what I happen to value and what is genuinely valuable need not coincide. But the last disjunct suggests the radical position: what is genuinely of value to us, and what is genuinely valuable need not coincide. Can either view be said to be widespread? Perhaps the former, more moderate, position is. Many people think that where taste and morals are concerned, we are educable. What we do, and what we should (and in better circumstances would) believe need not be the same. And such a distinction may be suggested by our attitudes to art, culture, and species. These things can have value even when not, in fact, valued by us. But I cannot believe that many hold to the radical view. Nor is such a view implied by our attitudes to art, or culture, at least. Nothing suggests that people think art is of value, even if it is utterly opaque to us. Nor that there is genuine value in, say, fascism, even if those who try hardest just cannot see 19 I don't suggest that selectivity in itself counts against intrinsic value. But the selections we typically make surely do. 20 p. 71.

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it. And so if Dworkin's is the radical view, where the value of life is concerned, it gains no support from our attitudes here. If, in contrast (and as I suspect), his is the moderate view, then there is further reason to distinguish the traditional and revised sanctity doctrines. For it is a hallmark of the traditional account that life is valuable, even when we cannot understand at all what value it has. It is sometimes held, for example, that it is wrong to hope for the ending of a human life when (perhaps because of pain) there is nothing in it that makes any sense to us. Similarly, it is sometimes (though less frequently) held that it is quite wrong to distinguish between members of different species, on the grounds of their similarity, utility, or benignity to us.21 These different accounts of intrinsic value suggest, then, another entrenched and important difference between conservative and liberal positions. Conservatives often hold to a radical interpretation of the sanctity view ö value need not be comprehensible ö which finds little favour in the liberal tradition. FRUSTRATION Suppose it is true that liberals and conservatives agree in having a respect for life. What accounts for their widely differing positions on abortion? Think first of the badness of death. How can it be measured? Dworkin appeals to the familiar idea that it depends not only on the number of years lost, nor yet on the quality of lost life, but also on the connections between the lost life, and that already lived: . . . waste of life is often greater and more tragic because of what has already happened in the past. The death of an adolescent girl is worse than the death of an infant girl because the adolescent's death frustrates the investments she and others have already made in her life . . .22 Frustration here is a term of art, used to `describe this more complex measure of the waste of life'.23 Thus, the more life is frustrated, the greater the loss. And think now of the range of misfortunes that can occur. Death is one way of frustrating life; handicap, poverty, and bad luck are others. This opens the door to a further squaring of liberal and conservative positions. For, 21

It may be, of course, that this traditional view (like its uneasy bedfellow, deep ecology) is scarcely comprehensible without some appeal to a transcendent God. 22 p. 87. 23 p. 88. ß Blackwell Publishers Ltd. 1997

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according to Dworkin, not only do both sides agree that human life has intrinsic value, they also agree that frustration of life is bad, however it is brought about. All they disagree about, apparently, is the relative weight attached to its different factors. Conservatives will tend to think that frustration brought about by death is always the most important. Liberals will allow that other forms of frustration can, in some circumstances, be greater. Evidently the distinction here connects with the disagreement I noted earlier, about whether death is always worse than life. Evidently too, Dworkin's tactic is once again to defuse the conflict by pointing to a disagreement in degree, rather than in kind. But there are two sorts of problem case. In one, we consider one person.24 And we balance that person's death against other kinds of frustration to their life. This is the major issue where euthanasia is concerned, and it is the issue where a child, if not aborted, will be born with handicaps. Here, only serious alternative frustration will be considered as a reason for preferring death. If life will be worth living, death should not be chosen. In another, we consider two people. And we balance, where abortion is concerned, the death of the fetus against some kind and degree of frustration to the life of the mother. There is, however, a range of cases. At one extreme, the mother's life not worth living. Frustration here is clearly serious. In another, non-abortion might bring about a substantial drop in the quality of the mother's life. But still it will be well worth living. In a further case, to continue with the pregnancy will result in some major shift in the mother's life plans. But there will be no overall drop in the quality of life. There might even be a gain. Finally, at the other extreme, a baby will be merely(?) inconvenient. What do conservatives think? They might insist that death is worse than life. It is always the most serious frustration. If so, they will oppose euthanasia. And they will oppose abortion of the handicapped child. But still they might allow we can kill one to save many. And they might allow we can kill the fetus to save the mother. For they might allow, though where each person is concerned, death is the worse thing, still, as investment in life varies from case to case, so one death can be worse than another. They might insist, however, that killing is always wrong. And then they will disallow killing, even where more, or more valuable lives will thereby be saved. 24

`Person' here is, as will be clear, used in a very broad sense. Alternative terms are unwieldy. ß Blackwell Publishers Ltd. 1997

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What do liberals think? Some will want to permit abortion, even where mere inconvenience to the mother is concerned. Many, these days, will not.25 But they will continue to argue for abortion, where moderate frustration is concerned. Both in some of the cases where the quality of the mother's life will otherwise fall, and in the case where, though there will be no fall, there will be a considerable shift in her life plans, liberals will say, abortion should be permitted.26 This is central. Perhaps conservatives can be persuaded that killing is not always wrong. And perhaps they can be persuaded that some forms of frustration can be worse than death. They might, on either count, give up the extreme position. So they might, as many already do, allow abortion to save the mother's life, or in cases of rape. But they will not be persuaded that one life can be ended in order to avoid moderate forms of frustration to another. It is admittedly bad if someone's life plans have to be changed. But how can the desire to avoid such a change warrant the deliberate ending of a human life? Here there is profound disagreement. Thus the abortion debate is not, I think, about what is `the most serious possible frustration of life'.27 It is about which lives count. Liberals will agree, worse things could happen to the mother. And they will agree, there is a clear sense in which the fetus loses more, if abortion occurs, than does the mother, if it does not.28 But because the fetus counts for less, or so they say, abortion can still be justified. Conservatives do not understand this. PERSONHOOD How should this disagreement about the factors in frustration be explained? Surely there must be, over and above the weighing of different factors, some dispute about the status of the fetus. Consider euthanasia. The issues here are less heated. And though there is 25 I cannot here take up Dworkin's discussion of the relation between the moral and legal issues. But my suspicion here is that many liberals now think that it is morally, and should be legally, impermissible to opt for abortion on other than very serious grounds late in term. 26 Note one important kind of case. A pregnant woman could carry the baby, and then give it up for adoption. Neither school, nor career, nor life plans need suffer. But this is unattractive. Many women realise, if they have the baby, they will want to keep it. They realise they will become good mothers. But they don't want to go ahead with that which will give them a different rich and rewarding life. 27 p. 90. 28 The fetus, unlike the mother, loses everything. I am not here claiming that liberals will agree, we can do the worse thing, but rather, we need not treat the claims as equal.

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disagreement, it is almost always allowed, the patient must come first. Decisions about euthanasia are, typically, decisions about, and for the patient. Decisions about abortion are typically, decisions about, but not for the fetus. So it must be asked, how can liberals put the mother's interests before the fetus' life? How can they do this when they wouldn't, similarly, put the relatives' or society's interests before an old woman's life? And how can conservatives so stubbornly resist this distinction? One claim will be that it is because the fetus, unlike the old woman, is not a person, that abortion can be allowed, where various frustrations to the mother would otherwise ensue. For persons come first. The counterclaim is that the fetus is a person, should be treated accordingly, and so abortion must, in most cases, be denied. Disputes about personhood, then, underscore at least the grosser disagreements about the measure of frustrations. Some such is widely held. But this, remember, is just the dispute which Dworkin denies is at the centre of the abortion controversy. I've focused on the claims about agreement, which are supposed to provide modest grounds for optimism. But there's a need here to consider the familiar account of disagreement, and the argument for its rejection. The overall strategy is plain. Dworkin wants to set to one side a traditional area of debate, that concerning the scientific or metaphysical status of the fetus,29 and focus instead on moral questions: Does a fetus have interests that should be protected by rights, including a right to life? Should we treat the life of a fetus as sacred, whether a fetus has interests or not? . . . we do not need to decide whether a fetus is a person in order to answer these questions, and these are the ones that count.30 But this does little for reconciliation. Though, in insisting upon the sanctity of human life, Dworkin attempts to distance himself from the standard liberal position, his resolute opposition to the conservative view is undeniable: the fetus, he argues, has no interests. And so it has no (moral) rights. Even if the details of the argument were convincing, the opponents of abortion would find little of comfort within it. So much for strategy. But it is in the detail that the argument goes astray. Though there are both plain truths and deep insights 29

I simply follow Dworkin in lumping scientific and so-called metaphysical questions together. The legitimacy of this raises deeper issues which, unfortunately, cannot be pursued here. 30 p. 23. ß Blackwell Publishers Ltd. 1997

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embedded within it, there are just too many points at which Dworkin fails either to clarify, or to sustain his position. Three points, not unconnected, merit focused attention. First, the attempt to set personhood to one side is unconvincing. Why is this not really the issue? Dworkin appears to think both that the question is not worth debating, and that it is not in fact debated. Consider here the first point. It sometimes looks as though he believes this matter, along with others of its ilk, is best ignored. The familiar questions, first, of whether the fetus is a human being and, second, of whether it is a person are, he maintains, `too ambiguous'31 to be of any use, and neither needs to be answered before the key moral issues are addressed. But there are difficulties with this. Are the standard questions really ambiguous? Dworkin appears not so to find them. He offers one sense in which the fetus is a human being, while suggesting no conflicting sense in which it is not. Similarly with the `more treacherous' question of personhood. The supposed difficulties with this are underexplained, and though no explicit answer to the question is ever given, Dworkin makes clear enough his position: the fetus is not a person, at least in the way that term is often, and usefully employed. Rather than avoid this traditional ground, then, it appears that Dworkin adopts, with relation to it, the standard liberal position. Second, the distinction between these scientific or metaphysical questions and those of morality is much less sharp than Dworkin would have it. The supposedly moral question, whether the fetus has rights and interests, is evidently composite. Most people will say that claims about interests are relevant to, but not themselves, moral claims. And moral questions, however construed, depend on certain non-moral considerations. A fetus' rights (if any) will vary with respect to its interests. Its interests (if any) will vary in accordance with its capacities, mental states and the like. And its intrinsic value (if any) will similarly vary with respect to further of its properties.32 The general idea underlying these claims, that moral facts supervene on the non-moral, is relatively uncontroversial. And there are no grounds for overturning it here. This is, then, to reject any suggestion that moral questions can be considered in isolation. But it is not, of course, to imply that the human being and person questions, in particular, need first to be settled. Do they? 31

See pp. 21^23. You have to think this, unless you think either that intrinsic value is a property of everything, and to equal degree, or that it varies unaccountably. 32

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The first does. Suppose we believe human life is sacred, but are as yet undecided about other forms of life. This appears to be Dworkin's position. Discover the fetus is human, and the answer to the moral question follows. Nor is there, on this question, any independent purchase. The second doesn't. Suppose we think, as many do, that having interests is a necessary condition of something's being a person. If we decide the fetus has no interests, it will follow it is not a person. So Dworkin is right, we don't have to settle the person question first. But it is shown to be answered, rather than muddled, by a negative verdict on interests. In sum, Dworkin's answers to the various questions come in pairs. Because it is a human being, the fetus has intrinsic value. Because it has no interests, it is not a person. A third point follows directly from this. Does the fetus lack interests? Dworkin's position is plain: It makes no sense to suppose that something has interests of its own ö as distinct from its being important what happens to it ö unless it has, or has had, some form of consciousness: some mental as well as physical life.33 And the fetus has no such life. But Dworkin's negative claims, like their positive counterparts, will find no easy acceptance. There are disagreements of a scientific kind. Conservatives say that the fetus early on displays pain behaviour. Mental life is present. And this shows it has an interest in staying alive. Liberals interpret this behaviour differently.34 More important, there are disagreements of a metaphysical kind. Suppose it is agreed that the fetus has no desire to stay alive. This isn't the end of the matter. There are accounts of interests which do not depend on desires, or indeed on any mental states. We can say, for example, it is in a plant's interests that it be watered, or against the interests of oysters that the sea gets too warm. In this sense, the quasi-Aristotelian sense in which a thing's natural development ought to be fulfilled, a fetus indeed has interests. And against this sense, just because it makes essential reference to the world of nature, Dworkin's contention that neither paintings, nor the raw material of Frankenstein's monster have interests, is of little avail. Of little avail, too, is his suggestion that the ovum has no interest in becoming a person, even supposing doctors can effect this, by 33 p. 16. There is not time here to consider the important asymmetry involving those that soon will be, and those that once were, in possession of a mental life. 34 One response is, this behaviour doesn't show the fetus feels pain. Another is, suppose it feels pain, still, much more is needed to show it has an interest in staying alive.

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parthenogenesis. It may become possible, but it still won't be natural.35 I am not defending this account of interests here. But, first, it is not obvious that such an account cannot be defended. And, second, it is not obvious why someone amenable to the notion of intrinsic value should not be among the first of those willing to mount a defence.36 It is not obvious, further, that there is any room for the objection, interests so understood are in any case irrelevant, as they cannot give rise to rights. If we think, as we might, that certain trees are intrinsically valuable, and that it is better all round that they grow to maturity, we may well want to protect them by law, and not allow that it is the owner's personal decision as to whether to cut them down. Similarly for the fetus. (Dworkin's argument is here, in any event, curious. It evidently does not follow, from the fetus' having interests in the sense outlined, that it is a person. Cats, trees, oysters and the like equally have such interests. Defenders of the person claim need to assert more, and in so doing may make themselves vulnerable. It is frequently argued, of course, that being self-conscious is a necessary and sufficient condition of something's being a person. The fetus isn't, and so isn't. Dworkin's argument is curious, I think, in making no mention of this.) This leaves one important matter unresolved. For remember, the major issue for Dworkin is not, is the fetus a person, but does such a question figure centrally in the abortion debate? He argues that it doesn't. First, conservatives cannot really believe the fetus is a person. For then they would not be able to admit abortion carried out by a third party when the mother's life is at risk. But most do admit this.

35

Thus `Menstruation would still not be against an ovum's interests; a woman who used contraception would not be violating some creature's fundamental right every month' (p. 16). I agree with both claims. But they are separate. Dworkin's habitual reference to the conservatives' supposed claim that the fetus is a person with rights and interests invites the thought, if it has no rights, it has no interests. But this plainly doesn't follow. 36 That is, there are those who think values, interests, goods etc., all depend on mental states. But Dworkin allows, first, it can be, quite independently of any effects for us or our mental states, bad that a painting, or a tree, is destroyed. He seems to allow, second, that it is bad for paintings to be left out in the rain, or for trees to suffer drought. It is but a short step to say that water, or its absence, is thus against the interests of paintings or trees. And I think this is innocuous. It will be plain that those who speak of interests here do not mean to imply that paintings and trees have desires, feel pain, or otherwise suffer mental states. And so it is unclear why anyone prepared to countenance this kind of value talk should draw the line at mention of interests. ß Blackwell Publishers Ltd. 1997

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Nor would they be able to admit abortion in the case of rape. But many do admit this.37 I don't know that this is a powerful argument. It seems to presuppose that people cannot have inconsistent beliefs. But they can. What if the inconsistency is brought home? Either belief can be rejected. Conservatives, if pressed, could maintain an even more doctrinaire position. And of course, a few already maintain this position. They disallow abortion, even where the mother's life is threatened. Inconsistency is one thing, incoherence another. Dworkin argues, second, that as the suggestion that the fetus is a person, with rights and interests of its own, is `scarcely comprehensible',38 we display a lack of charity in supposing this to be among the conservatives' central beliefs. He counters the charge of arrogance likely to be levelled for thus going against what conservatives appear to say: public rhetoric is one thing, people's deep beliefs another. This is less than persuasive. Take the scientific questions. Perhaps we will agree, it is clear that the fetus cannot feel pain until late in term. But this means only that we don't understand argument, and not that argument doesn't exist. Conservatives do dispute what others here maintain. (It is, similarly, clear that Darwinism is roughly right. But still there are creationists.) And take the metaphysical questions. Perhaps we will agree, Dworkin is right about interests. Still, he isn't, I've suggested, obviously right about this. And so there's nothing uncharitable in supposing conservatives hold a view different from our own. Of course it may well be, as Dworkin suggests, that after due consideration of the metaphysical issues conservatives will abandon the person claim. But that is not much reason for denying that some such is, as it seems to be, claimed by them now. AGREEMENT AND DISAGREEMENT We think, according to Dworkin, that the abortion debate centres on the question of personhood, and we think there is, between the parties, substantial disagreement about how the fetus should be regarded. When we realise the metaphysical question is not at the core, we'll realise too that there is more agreement about the moral issues than all too often there seems. I disagree about personhood. Ultimately coherent or not, it is fairly clear that this remains, for many, a pressing issue. And I disagree 37

p. 32. p. 20. But it should be noted, Dworkin hovers between the claims first that the fetus' being a person is unintelligible, and second, that this is manifestly false. 38

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about the extent of agreement that can be found between the opposing sides. Both Dworkin's sketch of how the debate is traditionally seen ö conservatives maintain the fetus has the same status as you or I, while liberals think of it as wholly inconsequential, and abortion no more problematic than digging acorns, or eating eggs ö and his proposal as to how it should be seen ö there is agreement about all but some details of how to rank frustrations ö paint too stark a picture. The old position is not recognisably that which captures the real debate, even if there is a handful of extremists on both sides. Many conservatives allow abortion in some circumstances. And many liberals want some restrictions. Disagreement about personhood, rights and interests is compatible with shared views about just how wrong abortion is. Conversely, agreement about intrinsic value (even supposing it to exist) is compatible with major disagreement about just when abortion should be allowed. The new position need not, in practice, bring the parties any closer together. But is this at odds with Dworkin? He allows, even with agreement on sanctity, some disagreement will survive. It is a question of how much. And now his general remarks about the extent of this residual divide, though not infrequent, are unsatisfying. I focus here on just a couple of examples: Almost everyone shares, explicitly or intuitively, the idea that human life has objective, intrinsic value . . . and disagreement about the right interpretation of that shared idea is the actual nerve of the great debate about abortion.39 And then later, Conservatives and liberals disagree not because one side wholly rejects a value the other thinks cardinal, but because they take different ö sometimes dramatically different ö positions about the relative importance of these values, which both recognize as fundamental and profound.40 But this distinction between disagreeing about values or ideas, on the one hand, and disagreeing about their importance or interpretation, on the other, is less than perspicuous. It could be suggested that differences in ranking correspond to significant differences in importance ö each side acknowledges the values of the other, but accords some of them a peripheral status. But this is not Dworkin's point. For the claim merely that each side gives some weight to the values the other believes are central does too little for reconciliation. 39 40

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And so the point is (as it apparently needs to be) that in spite of the different rankings, each side agrees that all the relevant values are `fundamental and profound'. But such a claim is unconvincing. Do liberals believe the value of the life of a severely handicapped and unwanted fetus is fundamental and profound? Do conservatives believe the value in a woman's being able to choose whether or not to have an abortion is fundamental and profound? Either they have no such beliefs, or, it seems, they stretch the meaning of `fundamental' quite some way. And so the contention that there is, at present, a sharing of core values, is unpersuasive. I want to claim, then, against Dworkin, first, that there remains disagreement as to scientific and metaphysical issues, and, second, that moral disagreement is deeper and more divisive than he is willing to allow. And now a further claim, that this situation, which looks so bleak, in fact gives some grounds for optimism. For if Dworkin is right, and we differ only over moral issues, then there is little reason to think that disagreement can be any further reduced. But if dissent over value connects with argument about facts, there is room for hope: settle the scientific and metaphysical questions, including that of personhood, and progress on the moral issues will follow. Yet though there may be progress, we shouldn't expect accord. Go back to the supervenience claim. Non-moral facts are relevant to moral distinctions. But, notoriously, there seem here to be no straightforward logical relations. Though evaluations are generally sensitive to factual input, they are not straightforwardly determined by it. The point is not simply that people can be inconsistent, and fail to see what is implied by the position to which they all subscribe. It is that their agreement as to the facts is genuinely compatible with a variety of moral views. And so some manner of disagreement is likely to continue, even supposing the personhood question is settled. But is this, strictly, moral disagreement? If so, it is, for Dworkin, of a special kind: Seeing the abortion controversy in the fresh light I described will not, of course, end our disagreements about the mentality of abortion, because these disagreements are deep and may be perpetual. But if that fresh light helps us identify those disagreements as at bottom spiritual, that should help bring us together, because we have grown used to the idea, as I said, that real community is possible across deep religious divisions.41

41

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Focus on the religious or spiritual dimension plays a key role in Dworkin's argument. See the debate as spiritual and you'll see how decisions about abortion should be left to individual conscience. For we agree, religious differences should be tolerated. The dictates of conscience should not be constrained by law. See the debate as spiritual, then, and hope of some reconciliation is increased. This is elegant, and first looks to be effective. Liberals do not, of course, seek to impose abortion on others. So toleration offers much of what they desire. But it is curious. Most of us are too used to the idea that religious dispute is deeply recalcitrant, and the source of (or at least a convenient mask for) endless bloody war. In this sense, seeing the disagreement as at heart spiritual is hardly cause for optimism. And it is mysterious. We thought that our disagreement derived from dispute about a metaphysical issue. Dispute over personhood appeared to underpin debate about the rights and wrong of abortion. It derives, in fact, from a spiritual issue. Our moral debate has a different kind of underpinning. But that, as it stands, is misleading. Dworkin doesn't believe that we disagree about some spiritual issue, from which disagreement about the morality of abortion then derives. Rather, his claim is, we've failed to see just how far we already agree. We've failed to see, that is, first, that our metaphysical dispute is illusory, and second, that our moral dispute, though genuine, is one over which we should agree to differ. But just how is this to go? How is argument to cease, and toleration to begin? I want, in conclusion, to sketch two ways in which this suggestion of Dworkin's might be understood. In many cases, moral disagreement connects with disagreement as to facts. It has a scientific, or metaphysical basis. But even when there is, as Dworkin here supposes, no dispute of a factual kind, moral disagreement can survive. It has here a spiritual basis. In one such case we will say, there is, strictly, no right and wrong. Disagreement is akin to a difference in taste. We acknowledge, but readily tolerate, variation. Perhaps abortion is like this. So there might come a time when, although approaches to abortion continue to differ, attempts to impose a uniform position will altogether cease. This would represent undeniable progress. And it is, I think, a view we might understand.42 Perhaps this represents Dworkin's position. But his view may be different. Perhaps he believes that even when there is no dispute as to facts, and our disagreement has a spiritual basis, still one side can be right, and the other wrong. Moral disagreement is 42 And this view, that the abortion dispute is not, strictly, one of morality, has been articulated, though perhaps for different reasons, by Jurgen Habermas, in Justification and Application (Cambridge: Polity, 1993).

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genuine, and not akin to matters of taste. Even so, it is agreed that the law should not be invoked. Because it allows for argument, this would represent progress of a lesser kind. This view is harder to understand. SUMMARY Dworkin's is a long and richly complex book. I've attempted to discuss only a very small part of it here. But some of the salient points of that discussion will bear repetition. I've expressed reservations about the positive side of Dworkin's account. I don't find him to have provided a clear or persuasive account of intrinsic value, or sacredness. It is unclear that there is any but the most minimal account to which it could be said that the several protagonists are already committed. Nor is it clear either what a developed account would look like, or that any such account would find widespread assent. And I've expressed reservations too about the negative side of the account. Dworkin is right, of course, to insist that the debate about personhood is often unfocused, and he is equally right, I think, to maintain that the protagonists exaggerate the differences between them. But I continue to think there are (whether or not there should be) some differences of a substantive kind. I've expressed reservations, finally, about his admittedly cautious optimism. Do as well as possible with the account of intrinsic value, it will still leave room for significant differences of opinion. And if these differences are not, as they often seem now to be, derived from differences as to the facts, they are all the more likely to remain. I ended, though, with the suggestion that Dworkin may believe that differences of this kind, though recalcitrant, need not generate dispute. I didn't, of course, say whether I thought such a position plausible. Acknowledgment I would like to thank Ann Gallagher, Rosalind Hursthouse and Andrew Ward for their many forms of assistance with this paper. Open University, UK

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