Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom. - book reviews

Reason, Nov, 1993 by Richard A. Epstein

In Life's Dominion, Ronald Dworkin addresses two of the burning issues of our time, one dominating the beginning of life and the other its end. On the question of abortion, Dworkin marshals a wide array of philosophic and legal arguments to defend the Supreme Court's decision in Roe v. Wade, which guaranteed each woman a constitutional right to abortion. With regard to euthanasia, Dworkin defends the right of each individual, again on philosophic and constitutional grounds, to end his life when his personal condition is one of endless misery or falls into the void of a permanent vegetative state.

Dworkin's performance in Life's Dominion will entrench his reputation as a scholar able to amaze but not to persuade. His ingenuity generates breathless arguments that always seem too clever by half. His opponents will admire his verbal skills but wish they could be put to better use. His supporters will, in the end, look elsewhere to make their case. I have both reactions, for I tend to agree with Dworkin's defense of the right of euthanasia and to disagree with his defense of abortion. Why this divided response?

Dworkin's opening salvo announces the major theme of his book: "Abortion, which means deliberately killing a developing human embryo, and euthanasia, which means deliberately killing a person out of kindness, are both choices for death. The first chooses death before life in earnest has begun, the second after it has ended." Just this quickly does his argument go astray. He seeks to create a parallelism between abortion and euthanasia by the repetition of the phrase "deliberately killing" in both contexts. But this first sentence is remarkably unresponsive to the paramount questions of interest, consent, and choice.

The killing that is done in an abortion is done by the mother to the embryo, without its consent and against its interest. Yet so long as we believe in the maxim "preserve life," we would be reluctant to infer that any fetal consent is (or by a disembodied rational agent could be) forthcoming to justify the mother's actions. Quite the opposite inference seems plausible, for the destruction of the embryo or the fetus ends any and all prospects it has for human happiness and joy; yet the mother's interest in terminating pregnancy often represents a preference no weightier than postponing a child until a more convenient or less embarrassing time. On some unfortunate occasions, more-serious circumstances intervene--preservation of the life of the mother against threatened medical complications; the emotional trauma of having to give birth to a child conceived by rape or incest; or the birth of a child known to suffer from some terminal illness, such as Tay-Sachs disease.

So there is a wide range of cases to be dealt with. One possible approach is to borrow from John Rawls (whose own writing is silent on the question of abortion) and ask what choices we would make about abortion rights if forced to do so from behind a veil of ignorance. If a person does not know whether he or she will be in the position of the woman seeking the abortion or the fetus that will be aborted, what rule of decision would that person choose to maximize the welfare of both? Here it seems that the loss of one's own potential life is a far greater loss than the gains on the other side, so that a disembodied view of the subject would incline toward the protection of a fetus against the aggression of its mother, even if one does not think that the fetus is a person at the time of an abortion. If we put aside the three difficult cases just mentioned, I think that it is highly likely that each of us would be prepared to surrender any future right to abort in order to escape today the finality of an abortion.

It is in the stark nature of this choice that one finds the sensible core of a pro-life position. When Dworkin says the abortion "chooses death before life in earnest begins," he is engaged in one of his innumerable verbal ploys. Only people, not impersonal processes, are capable of making choices. Here the mother has an acute conflict of interest with her fetus, which is hardly in a position to protect itself against her actions, or to consent to the destruction thereby caused. The persistence and strength of that conflict appears to justify legal intervention to limit the mother's choice.

One surely looks askance at a mother who drinks and smokes during pregnancy, to the detriment of her offspring, because the conflict of interest is so evident. From time to time prosecutors have brought actions against women who have taken cocaine or other drugs during pregnancy. Where these efforts have foundered, it has not been on the soundness of the underlying normative theory. Rather, the prosecutions have typically failed because the applicable criminal statutes on homicide or child abuse have not given clear notice that they reach these cases, or because the entire matter has been caught up in the wake of the abortion question, or because difficulties of proof could not be overcome on such questions as whether the woman knew she was pregnant when she ingested dangerous substances. Yet whatever these statutory or practical difficulties, the desire to protect an unborn fetus, whether or not born alive, against the abuse or neglect of its mother is certainly an appropriate end of state intervention. Why, then, should we be legally indifferent to her decision to abort?