1 Will Dworkin convince the conservatives who claim that society must and should uphold the sanctity of life at all costs? Smct right-to-lifers will not be budged, but abortion and euthanasia conservatives who are open to reasoned discussion may end up more tolerant of opposing views, at least where legal policy is concerned.Google Scholar

2 The initial awkwardness of the terms fades with use, and they soon become a useful way to identify a crucial distinction in grounds for valuing human life.Google Scholar

3 As might occur in cases of rational suicide or consensual euthanasia to avoid severe pain in terminal illness.Google Scholar

4 Valuing things intrinsically has a complex structure that includes the possibility of degrees of valuation and the possibility that intrinsic value does not necessarily require that more of the same be created (at 70-71).Google Scholar

5 The allusion here is to abortion of handicapped fetuses, who may be viewed as not having a fully realized life.Google Scholar

6 Dworkin's answer to the danger of judicial abuse of power is to have judges discuss their views in the confirmation process, to have them insist on good argument, and to have them make decisions on principle, not compromise or strategic or political accommodation.Google Scholar

7 347 U.S. 483 (1954).Google Scholar

8 Dworkin (at 130) argues that the claim against unenumerated rights is incoherent because “the Bill of Rights consists of broad and abstract principles of political morality, and correct application of these principles depends upon moral sense, not linguistic rules. The distinction between specific rights that are enumerated and those that are not is therefore simply irrelevant.”Google Scholar

9 Judith Thompson's “A Defense of Abortion,” 1 Phil. & Pub. Affairs (1973), gives reasons why such exceptions would not necessarily be inconsistent with a view of the fetus as person. However, it is clear that abortion conservatives do not rely on her argument, for it leads to the conclusion that abortion is justified in many circumstances which they would not accept, such as in cases of failed contraception.Google Scholar

10 In his extensive discussion of different religious positions, he shows that the Catholic position is also best understood as an example of the detached view—abortion is wrong because it “insults God's creative gift of life,” rather than because of a consistent commitment to a derivative view that fertilized eggs, embryos, and fetuses are actual persons with rights (at 39).Google Scholar

11 He cites Catharine MacKinnon, who objects to a privacy analysis because it would keep government out of homes and bedrooms where much violence to women occurs, and because it implies that government has no obligation to provide funds to women to exercise this right of privacy. In response, Dworkin points out that in this context privacy is used in the sense of liberty, not territory or secrecy. Recognition of a woman's sovereignty over whether her body is used for procreation should thus provide greater, rather than lesser, protection against men (at 53-54).Google Scholar

12 Religions that view the natural as expression of God's creativity will value human life independently of human investment or that life's chances, regardless of whether the life in question has actual status as a person. On the other hand, persons who find human life valuable to the extent of human investment will find abortions acceptable to avoid frustrating the investment women have made in their own lives. Between extremes of natural or human investment as a basis for giving human life intrinsic meaning lie a variety of more complex positions involving compromise and accommodation among these competing values.Google Scholar

13 An eloquent critique of Life's Dominion on this basis is made by Daniel Greenwood, “Beyond Dworkin's Dominions: Investments, Memberships, the Tree of Life and the Abortion Question,” 72 Tex. L. Rev. (1994).Google Scholar

14 For an excellent account of the differing stages, see Grobstein, Clifford, “The Early Development of Human Embryos,” 10 J. Med. B Phil. 213 (1985).CrossRefGoogle ScholarPubMed

15 This also explains the ambiguity and difficulty we have in finding a language to talk about early stages of human life—is the fetus a human life, a human being, a person, a life, a potential life, a potential person?Google Scholar

16 One could assess different religious views on consequentialist grounds, but there is no convincing evidence that a conservative or liberal position on abortion has better consequences. For example, there is no way to show that a liberal abortion regime threatens human life in other circumstances because there are too many variables, e.g., ready access to firearms, drugs, and breakdown of urban family structure, to account for violence. Some very violent societies have very strict abortion laws, while some countries with liberal abortion policies have a low rate of violence.Google Scholar

17 The question will be how callous one may be about the intrinsic value of life without violating moral norms. Short of extreme practices such as cannibalism or necrophilia, it is difficult to argue that a person's refusal to respect human life on intrinsic grounds when no duties to persons are involved is violating a moral norm. Even in those extreme cases, the duty violated may be to community norms of proper respect for deceased persons, not a moral duty to respect the rights and interests of particular individuals.Google Scholar

18 For example, he never argues that a woman who chooses to have an abortion is exercising her religion and therefore warrants protection under the free exercise clause, as his rhetoric about a First Amendment right to abortion might suggest.Google Scholar

19 See John A. Robertson, Children of Choice: Freedom and the New Reproductive Technologies 24-26 (Princeton, N.].: Princeton University Press, 1994) (“Robertson, Children of Choice”).Google Scholar

20 381 U.S. 479 (1965).Google Scholar

21 405 U.S. 438 (1972).Google Scholar

22 This conclusion does not follow as easily as the Court and Dworkin think. If the fetus is a constitutional person, then two persons would be competing for the same bodily space. See Thompson, 1 Phil. & Pub. Affairs (cited in note 9). It would not always be true that a state that preferred the woman's interest or right to her body over the fetus-person's interest would always be violating the equal protection or due process rights of the fetus-person. It would depend on the basis for the preference and other circumstances. For further elaboration, see Regan, Donald, “Rewriting Roe v. Wade,” 77 Mich. L. Rev. 1569 (1977).CrossRefGoogle Scholar

23 Other derivative arguments also fail, such as increasing population, which isn't rational, or avoiding the cheapening of life, because there is no compelling reason for thinking that that will occur from a high frequency of abortion.Google Scholar

24 Santa Clara County v. Southern Pac. R.R., 118 U.S. 394 (1886); First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978).Google Scholar

25 Thus the Court found no need in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), to address whether Missouri's definition of fetuses as persons for all purposes except abortion violated constitutional rights. No claim of how such a definition violated the rights of existing constitutional persons was presented.Google Scholar

26 Indeed, recognition of corporate personhood in those cases might be seen as respecting the rights and interests of persons whose interests are represented in the corporate form or who have an interest in hearing corporate speech.Google Scholar

Note that the same analysis would apply if the state defined comatose and retarded persons as dead and therefore as persons no longer. The Court would then look behind the label to see if the entities defined out of existence had rights or interests that the relabeling affected. See Robertson, John A., “CNzan and the Constitutional Status of Nontreatment Decisions for Incompetent Patients,” 25 Ga. L. Rev. 1139, 1196–99 (1991).Google ScholarPubMed

27 “Our beliefs about human life are decisive in forming our opinions about all life and death matters…. Indeed their power is even greater because our opinions about how and why our own lives have intrinsic value influence every major decision that we make about how we live” (at 155).Google Scholar

28 His test is one of content and not subjective importance, so aesthetes who want to tear down old houses that the government wishes preserved for historical reasons are not protected (at 163,165).Google Scholar

29 Dworkin takes pains to note, however, that even though the government is barred from banning abortion, it may take steps to have its citizens treat “decisions about life and death as matters of serious moral importance” as long as it respects “the crucial difference between advancing that goal and wholly or partly coercing a final decision.” It may not bar abortions, but it may require that citizens be informed about the nature of the abortion decision and counseled about it, as long as those efforts respect individual differences and are not subterfuges to coerce particular outcomes.Google Scholar

30 The state would be requiring people to observe the majority's view that divine or natural investment makes life sacred.Google Scholar

31 380 U.S. 163 (1965). Seeger is the leading case for determining when strongly held beliefs deserve protection as religious beliefs.Google Scholar

32 110 S.Ct. 1595 (1990). The assumption here is that protecting the life of fetuses is a valid social purpose. If that purpose is also an establishment of religion, as Dworkin suggests, then Smith would not be controlling. The law would be invalid on establishment grounds regardless of the free exercise claim of the woman seeking abortion.Google Scholar

33 Dworkin makes precisely this point; see at 175.Google Scholar

34 It thus explains why when there is no consensus about the value of prenatal life, the state should have to defer to individual choice. Compare the Court's statement in Roe: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.” 410 U.S. 159.Google Scholar

35 When fully analyzed, the equality claim does not present independent reasons for a right to abortion but rather amplifies the case for recognizing autonomy in abortion: because it will lessen the unequal social impact of child rearing and gestation on women's work roles and other opportunities.Google Scholar

36 505 US., 112 S.Ct. 2791 (1992).Google Scholar

37 Id. at 2780.Google Scholar

38 This last metaphor is drawn from Justice Harlan's concurring opinion in Griswold v. Connecticut, 381 U.S. 479 (1963, that a resort to penumbras and emanations from the Bill of Rights is nor necessary to find a right of married couples to use contraceptives, because “The Due Process Clause of the Fourteenth Amendment … stands on its own bottom.” 381 us. 500.Google Scholar

39 Though as previously noted, if abortion laws violated the establishment clause, arguably informed consent and waiting period requirements for abortion would as well.Google Scholar

40 Dworkin offers a test for such a distinction: Does the state action make deliberations more reflective and responsible? Will they stop women who have responsibly thought about abortion from having them? And are there less restrictive alternatives for achieving the same kind of responsibility? (at 173-74). On these criteria, Casey's upholding of 24-hour wait is open to challenge, since many women will have thought about their decision, and a 24-hour wait after seeing a physician is unlikely to make their decision any more responsible, but it will stop some women from proceeding because of the logistical difficulties the waiting period creates. Also, the same information could be provided by mail or over the telephone.Google Scholar

41 For example, the initial impression that these techniques harm offspring turns out to be mistaken, because without the technology in question, the offspring whose welfare is in question would never have been born, and the novel situations into which they are brought do not amount to wrongful life. See Robertson, Children of Choice 75-76 (cited in note 19).Google Scholar

42 The same analysis would apply to any of the technologies, as I argue in Children of Choice. Google Scholar

43 National Institutes of Health Revitalization Act of 1993, Pub. L. No. 103-43, § 112, 1993 U.S.C. C.A.N. (107 Stat.) 122 (to be codified at 42 U.S.C. § 498B(b)).Google Scholar

44 See my discussion of these issues in Children of Choice 211-14.Google Scholar

45 Thus a right to split or clone embryos in order to enhance the chance of giving birth to biologic offspring might follow as well. See John A. Robertson, “The Question of Human Cloning,” 24 Hastings Center Rep., March-April 1994, at 6.CrossRefGoogle Scholar

46 The term “euthanasia” applies both to active and passive euthanasia, to withholding or withdrawing life-sustaining treatment, as well as assisting suicide or actively killing in a variety of circumstances. It is not always clear whether Dworkin is arguing for a right to active euthanasia or only a right to have treatment withheld (passive euthanasia).Google Scholar

47 The abortion section of the book draws on previous work reported in the New York Review of Book and the University of Chicago Law Review. Aside from a New York Review of Books article on the Cruzan decision, Dworkin's only previous writing on end-of-life decisions was an article on decision making for dementia on the Milbank Quarterly (based on a consultant's paper he did for the Office of Technology Assessment).Google Scholar

48 Decisions to withdraw essential medical care are characterized as “passive euthanasia,” while injections or other actions that directly cause death are considered “active euthanasia.”Google Scholar

49 He also notes that “when we ask what would be best for him, we are judging not only his future and ignoring his past. We worry about the effect of his life's last stages on the character of his life as a whole, as we might worry about the effect of a play's last scene or a poem's last stanza on the entire creative work” (at 199).Google Scholar

50 As he states, “There is no doubt that most people treat the manner of their deaths as of special, symbolic importance: they want their deaths, if possible, to express and in that way to vividly confirm the values that they believe most important to their lives” (at 211). In one sense, this is actually a weaker claim than the one stated in the text, because it states only that a person wants to have death occur in a certain way, not that the meaning of his entire life hinges on it.Google Scholar

51 Yet this assertion can be questioned. The shape of an entire life is not known until all the experiences of that life are lived. A terrible accident thus would seem to be the start of a new chapter in the narrative of one's life, rather than a wholly different narrative.Google Scholar

52 As Dworkin puts it, “if one's death is to express a virtue central to their lives,” such directives should be honored (at 213).Google Scholar

53 “[I]f they have made no provision, the law should so far as possible leave decisions in the hands of relatives or other people close to them whose sense of their best interests shaped by intimate knowledge of everything that makes up where their best interests lie is likely to be much sounder than some universal, theoretical, abstract judgment born in the stony halls where interest groups maneuver and political deals are done” (at 213).Google Scholar

54 Requiring that a person so inclined avoid death out of respect for the inviolability of human life begs the question of what most respects the intrinsic value of human life, “because he thinks dying is the best way to respect that value” (id.).Google Scholar

55 The earlier discussion appeared to be devoted to competent conscious patients and those like Nancy Cruzan who are in a persistent vegetative state or permanent coma.Google Scholar

56 Dignity is a concept that applies even when a person's best interests are not being served, as when a prisoner is incarcerated. It is thus more fundamental than beneficence and is not tied to experiential interests: “Dignity is a central aspect of… the intrinsic importance of human life” (at 236). It is another version of the Kantian dictum that people should be treated as ends, never as means.Google Scholar

57 Although Dworkin never explicitly uses the term “substituted judgment,” it is clear that he believes that in the absence of a prior directive, the proxy decision maker should attempt to ascertain what decision best fits with the values and critical interests the person had when competent.Google Scholar

58 To Dworkin's credit, he recognizes the possibility of such conflict, which most commentators on living wills do not.Google Scholar

59 Dworkin would do so even if the person requests the transfusion in his demented state and regardless of whether he would recover competency. No doubt he would also refuse the transfusion if there were no prior directive but a proxy stated that “this is what the patient would have chosen if competent.”Google Scholar

60 These questions apply not only to the terminally ill but also to patients in coma or with dementia who may live for many years.Google Scholar

61 See Robertson, 25 Ga. L. Rev. at 1174-77 (cited in note 26).Google Scholar

62 110 S.Ct. 2841 (1990).Google Scholar

63 Only a minority of states now prohibit assisted suicide, but all prohibit active euthanasia. A ban on assisted suicide is more difficult to justify because the deceased is the proximate cause of her own death. The person has to request help and then complete the act himself. There is still room for coercion and persuasion, there are problems with determining accuracy of the free wish because of illness and depression, and the medical profession is still involved, but these concerns ate that much greater than those that arise with having treatment withheld.Google Scholar

64 I have criticized the conceptual basis for living wills and the problems that orthodox thinking about living wills may pose for some incompetent patients. See Robertson, John A., “Second Thoughts on Living Wills,” 21 Hastings Center Rep. 6 (1991).CrossRefGoogle ScholarPubMed

65 Some state laws are subject to that charge. See Robertson, 25 Gn. L. Rev. at 1181-82.Google Scholar

66 Thus Justice O'Connor's apparent acceptance of a right to appoint a health care proxy and presumably make an enforceable living will in Cruzan was premature. The issue was not presented in that case, and all ramifications of recognizing such a right were not considered.Google Scholar

67 See Robertson, 25 Ga. L. Rev. at 1181-85.Google Scholar

68 See, e.g., Ariz. Rev. Stat. Ann. 8 36-3231 (Supp. 1992); Tex. Rev. Civ. Stat. Ann., §§ 672.006, 672.009 (1992).Google Scholar

69 This position was rejected in Cruzan and, in my view, rightfully so.Google Scholar

70 See Robertson, 25 Ga. L. Rev. at 1191-95.Google Scholar

71 This is true even when application of the best interests test yields a prudential judgment in favor of maintaining life as a good. This is a derivative, not a detached, concern because maintenance of life is deemed to be a good for this individual, thus serving her interests. It is not chosen merely because human life should be respected regardless of the interests of individuals.Google Scholar