Seeking the Common Ground

...According to this view, "human life is sacred just in itself...

...All that is required is clear thinking, careful step-by-step analysis, and tolerance toward every voice in the argument...

...Dworkin would probably respond that examining motives is a violation of a woman's right to privacy...

...He claims the potentiality of the fetus is no different from that of the assembled body parts, but it is hard to believe very many people would agree with him...

...Also missing is a clear exposition of how the state might properly preserve a reverence for life...

...He easily refutes the contention that because the Constitution nowhere specifically mentions abortion or privacy, the Court overstepped its prerogatives in deciding Roe v. Wade...

...Life's Dominion should have been a longer book—or a shorter one...

...A state has no business prescribing what people should think about the ultimate point and value of human life, about why life has intrinsic importance, and about how that value is respected or dishonored in different circumstances.'' Individuals must remain free to decide for themselves how they will respect life's sacredness...

...Where pro-life and pro-choice advocates differ, Dworkin explains, is on the question of how much consideration should be given to each of these aspects of human life: "People's opinions become progressively less conservative and more liberal as the balance they strike gives more weight to the importance of not frustrating the human investment in life...

...Consequently, "abortion is wrong in principle" because it "violates someone's right not to be killed, just as killing an adult is normally wrong because it violates the adult's right not to be killed...

...Or a woman with three daughters who is unhappy because she has conceived a girl again...

...For that matter, so might dead baby parts...

...There are numerous instances where the state has interfered with religious practices and beliefs, or could properly choose to do so...

...Only a relative handful of absolutists would refuse abortions where rape and incest are involved, and yet, as Dworkin points out, if abortion is murder, then it is murder in those instances as well...

...Moreover, should some Dr...

...But the strength of Dworkin's reasoning becomes most evident when he turns to the detached position...

...Fortunately, Life's Dominion does not stand or fall on its author's ability to reach the (perhaps impossible) goal he has set for himself...

...Take a woman having her sixth abortion who freely admits that for her the operation is simply a form of birth control...

...Why shouldn't the state, in its effort to preserve a reverence for human life, be permitted to look into the reasons for an abortion and to refuse those that are clearly sought without regard for human life...

...Anyone would profit from spending a few hours with him as he dissects the most contentious issue of our time...

...Still, Dworkin's discussion of abortion stimulates thought and compels introspection, as does, to a lesser degree, his analysis of euthanasia...

...It is not obvious why a person's right to privacy should take precedence over the state's concern with human life...

...Debate has become polarized between pro-choice and pro-life factions...

...more liberal views emphasize, in various degrees, that a human life is created not just by divine or natural forces but also, in a different but still central way, by personal choice, training, commitment, and decision...

...This is important, because Dworkin's argument as presented could conceivably produce more restrictions on abortion than one suspects he would be happy with...

...he will not be this year's winner of whatever is the equivalent in domestic policy of the Nobel Peace Prize...

...It seems to me that anyone who says the abortion issue should be settled by the courts rather than by popularly elected legislatures is likely to fall back eventually on a freedom-of-religion justification, and Life's Dominion is a powerful expression of that argument...

...But since he has already agreed that the gov-ernment can restrict abortions to assure a respect for human life, this response begs the question...

...This, Dworkin notes, is the reason antiabortionists are willing to make exceptions for rape and incest...

...Reviewed by Barry Gewen New York "Times Book Review," preview editor In his thoughtful and provocative new book, Ronald Dworkin comes on like gangbusters...

...And this, says Dworkin, is the common ground between the two sides...

...Compromise is possible, he insists, because the two camps are actually closer together in their fundamental beliefs than either realizes: "A responsible legal settlement of the controversy, one that will not insult or demean any group, one that everyone can accept with full self-respect, is indeed available...

...These are what Dworkin seeks to provide in the three-quarters of his book devoted to the abortion debate...

...It does not follow that the body parts have any rights before the switch is thrown, he says, and a fetus, a life form without consciousness or viability, lacks rights as well, including the right to be protected against murder...

...Dworkin is a lucid, imaginative, knowledgeable writer who ranges easily over matters of law, politics, history, and philosophy...

...Dworkin next proceeds to examine the Supreme Court's role in the abortion controversy...

...It would be contradictory to insist that a fetus has a right to live that is strong enough to justify prohibiting abortion even when childbirth would ruin a mother's or a family's life, but that ceases to exist when the pregnancy is the result of a sexual crime of which the fetus is, of course, wholly innocent...

...What a state cannot do is outlaw abortion entirely or restrict it according to a single interpretation of the sanctity of life, even if that interpretation is held by the majority of the nation's citizens...

...They are persons...

...Or a woman who has had a fight with her husband and wants an abortion out of revenge...

...The Supreme Court has been right all along...

...Both history and current practice, he concludes, support the Court's rejection of the derivative view...

...Neither side can offer any argument that the other must accept," Dworkin writes...

...The problem with his treatment of death and dying is that it is presented in a mere 60 pages and, coming after his careful investigation of abortion, seems rushed, almost the outline of an argument rather than the argument itself...

...But I wish Dworkin had gone further than he does...

...He asks us to imagine a machine that could create a human being out of body parts...

...If we are worried about government intrusion into privacy, it might be better to do away with the sanctity argument altogether, though of course Dworkin's entire structure would then come tumbling down...

...Or a white woman who has slept with a black man and simply does not want to have a half-black child...

...In other words, any handicapping or frustrating of a person's potential from conception to death is a violation of the sanctity of life...

...It could in the future ban or severely restrict all kinds of religious rituals, from animal sacrifice to orgies in the moonlight...

...Frankenstein scenario...

...Public discussion about the issue has taken on the intensity of a "war," reminding him of nothing so much as the 17th-century religious conflicts that tore Europe apart...

...the sacred nature of a human life begins when its biological life begins, even before the creature whose life it is has movement or sensation or interests or rights of its own.'' Although prolifers employ the derivative rhetoric, most of them, Dworkin asserts, in fact oppose abortion on the detached ground, "as they might realize after reflection...

...He offers lengthy, intelligent discussions of the meaning of "sacred," and why we can speak of otherwise nonreli-gious people as subscribing to a belief in the sanctity of human life...

...Dworkin is much more sympathetic to the detached notion...

...Yet—and this is the great good news of Life's Dominion—Dworkin claims to see a way out of the impasse...

...Apparently, "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...

...To end the suspense, I do not believe that he succeeds in reconciling the seemingly irreconcilable...

...One wants more from him and, as a result, feels frustrated...

...Dead babies, among others, might be found to have rights they do not enjoy at present...

...It prohibited polygamy among Mormons in the past...

...Abortion, the subject that consumes most of his attention and energy here, is tearing the country apart, he says, "distorting its politics and confounding its constitutional law...

...What about those people who exhibit no feeling for human life's sacredness—who, one might say, desecrate life...

...His main point in this part of the book, however, is that human life is sacred not only at the moment of conception but throughout an individual's existence, and not only in the biological but also in the experiential sense—what, in an unhappy, bookkeeperish phrase, he calls the "human investment...

...and answering the "originalism" theorists, who argue that judges must abide by the Framers' original intentions, is child's play for him...

...It can regulate abortion to assure "responsibility," and some of the restrictions now being considered by various legislatures might very well be appropriate...

...Dworkin suggests that "difficult cases" do arise when the practice of religion conflicts with the public welfare, yet he never attempts to spell out the principles by which the courts decide, or should decide, these cases, nor does he explain why abortion might not be such a case...

...Racism would seem to demonstrate little concern for life's sacredness...

...Dworkin presents a number of criticisms of this position, some weak, some strong...

...Dworkin obviously felt the scenario was needed to meet the (at least arguable) contention of some antiabortion-ists that while a fetus might not be considered a person as such, it should be thought of as a potential person, with special rights of its own...

...Few upholders of a woman's right to choose would argue that an abortion is of no greater significance than the removal of a wart, that there is no moral issue here...

...As for the Roe ruling itself, he presents a cogent defense of the much-maligned finding that the fetus is not a constitutional person entitled to equal protection of the law...

...What is more, almost all who are pro-choice similarly adhere to the view that human life is sacred...

...He says the government cannot impose a particular interpretation of the sanctity of human life, though it can uphold the sanctity of human life in general...

...In prohibiting abortion, governments are protecting people from murder...

...A state, he says, does have a legitimate interest in demanding "that its citizens treat decisions about human life and death as matters of serious moral importance...

...A more compelling argument against the derivative notion is Dworkin's observation that very few antiabortionists really advocate it consistently...

...Among the weakest is his Dr...

...Dworkin winds up where most of his previous readers would expect him to wind up: as a supporter of Roe v. Wade, a woman's right to choose, and judicial activism...

...For (and this is the crux of the argument) any law that imposes a particular vision of the sanctity of human life against all others—that says, for example, reverence for life requires the prohibition of most or all abortions—would be a violation of the First Amendment's guarantee of religious freedom...

...Yes, even those who disagree with him about abortion would have their thinking sharpened...

...Frankly, I cannot imag-ine any ardent pro-lifer reading this book, then slapping her forehead and exclaiming, "Now I see...

...Frankenstein of the future invent a wonderful life-giving machine, we can be sure that the laws governing potential human life would change...

...The key to Dworkin's argument is a distinction he makes between what he calls a "derivative objection to abortion" and a "detached objection to abortion.'' The derivative stand is based on the view that fetuses are individuals with interests and rights from the moment of conception...

...Genuflections to the First Amendment do not close the subject, even on his own terms...

...they, too, recognize that the sanctity of the mother's experiential life takes precedence over the sanctity of the fetus' biological life...