Merrill Ring

Ronald Dworkin's argument concerning abortion in Life's Dominion (1993) will probably sink without effect. His ambitions for the book and the argument were large. He had noticed how the immense difference of opinion about abortion in the United States was seriously distorting our political life. His aim in the book was to produce a new perspective on abortion which would reduce the intellectual gap between the opposing views and, in consequence, reduce the social and political conflict generated by abortion.

It does not look as if those aims have been, or will be, even modestly achieved. Of course, in a slightly longer run, Dworkin's solution might come to seem acceptable and produce a reduction of tensions. I doubt that it will, however. For both Dworkin's solution and his analysis of the intellectual issues involved in the abortion discussion are inadequate.

His project was, first, to claim that the real issue about abortion does not have to do with whether a fetus is a person. While there is truth, as I shall note below, in holding that that is not the real issue, the question becomes: what does Dworkin offer as the issue? He attempts to make the discussion revolve around the notion of "the sacredness of human life". The reconciliatory move is then is to insist that both sides (or all sides) in the argument about abortion agree that life is sacred. If so, the gap between the contending parties is greatly narrowed - no more is the problem a 'Yes or No' issue about whether a fetus is a person, but a matter of working within a common framework about the importance of life (or at least human life.)

Of course, it does not take much insight on the part of anti-abortionists to recognize that defenders of abortion need not, and do not, in any interesting way, regard life as sacred. Consequently, the anti-abortionist is not going to be led by Dworkin's account to feel in the slightest reconciled to the other side. It is a simple matter to observe that Dworkin himself claims human life is sacred and yet countenances abortion in many circumstances. Conversely, many, though far from all, who find abortion permissible, will hold their noses when told that they view human life as sacred. They may actually breathe a sigh of relief when their opponents aren't taken in by Dworkin.

One must sympathize with Dworkin's aims of reducing the political tension in the United States over abortion. But effecting a reconciliation of the intellectual positions concerning abortion is not the way to accomplish that mitigation of tension. In the past, my own thought was that perhaps abortion could be traded for gun control: the left allowing abortion to be made illegal, the right in exchange allowing gun possession to be illegal. That would be a purely political horse-swap without any idea of intellectual reconciliation. Of course that trade turns out to be most unlikely, but at least that program does not do what Dworkin attempted: to make the views over the permissibility of abortion to be more alike than they are or can be.

That leads to the central question: What has the argument about abortion to do with? There are two major troubles, one of which Dworkin, vaguely, and others more clearly, have noticed.

A columnist of conservative bent wrote recently that he had come to realize that anti-abortion groups were all religious. He may have been more than a little dense, but the connection between being actively opposed to abortion and having certain religious views is the central fact in the entire discussion. And Dworkin, being not at all dense, was not oblivious to that connection: that is precisely why he attempts to perform his reconciliation by asserting that all parties view human life as sacred. That description is a concession to the anti-abortion party that religion is centrally involved in the argument.

At bottom, the argument over abortion has to do with whether or not a religious understanding of human life shall hold sway. The anti-abortion party finds their religious form of thought under attack by policies which make abortion permissible.

That form of thought will not be reconciled by any argument, such as Dworkin's, which tries to smooth over the differences in conceptions of human life.

Moreover, Dworkin is wrong in saying that the issue is not about whether the fetus is a person. For it is, again, precisely in that issue where the underlying disagreement about whether the universe and human life is the province of a divine being is expressed. The anti-abortion party holds that something is made a person by the possession of a soul, that souls are supplied by God, and that provision of a soul is held, in the modern doctrine, to occur at conception.

Now of course, that is a complex set of theses. The position might be changed by believers coming to hold that it is not at conception but sometime later that God supplies a soul to a fetus. If that change were made, then abortion would probably lose its status as a social/political flash point. However, I see no evidence that such a possible manner of altering the debate is in the offing, even remotely plausible. The anti-abortion party has dug in its heels, and conception is the only time when they will allow that God intervenes in the normal course of the development of a person.

I am less concerned here, however, with the religious issue involved in the abortion discussion than I am with what I earlier claimed to be an additional fundamental intellectual difference between the contending parties. The reason is that this second background matter is much less noticed in understanding the differences about abortion than is the religious difference. Consider the contention that what makes a fetus into a person and so a member of the moral community is that at some point in its history, specifically at conception, God inserts a soul into the fetus. What this amounts to, putting the religious aspect aside, is the idea that there is something definite about that entity, the fetus, which determines whether it is a person or not. To learn whether it is a person, what we have to do is, as it were, look very carefully at the thing itself. Now of course, one doesn't see a soul - in this instance one has to rely on, as it were, theory, that is religious belief, that the soul is there.

Many of those who think that abortion is permissible, Dworkin for instance, talk as if the situation is more or less as the opponents of abortion describe it, as being one of finding some fact about the entity, the fetus, which will entitle us to say that it becomes, when that feature is exhibited, a person. Dworkin holds, as do many others, that the crucial point arrives when there are enough synaptic connections in the fetal brain for there to be a physical possibility of sensation, etc.

But to present the situation as one in which the opponents and supporters of abortion agree (religious matters aside) that the issue is one of when the relevant person-making, and so morality-making feature, appears in the fetus, is to smudge over a huge chasm in the views.

For what most of those, many of those, Dworkin seemingly aside, who find abortion permissible are assuming is that it is not a matter of discovery where to draw the line between personhood and not. Rather the view is that there is nothing fixed, in the nature of things, about where the line is to be drawn. We humans have to come to some rational conclusion, taken in view of the facts and perhaps theories and perhaps other, broader, considerations about human life as it is being lived, that such and such would be the best place to classify some developing entity as a person.

On the other hand, those who oppose abortion think that there cannot be any choice, even rational, about the matter. They are searching for a place to say 'Lo a person', where there is a fact of the matter, where something about the entity makes it inescapably necessary for any human agent under any set of circumstances to say 'A person'. Conception does that nicely - though if God were recorded to have said, e.g. 'The 24th day', that then would be the end of the matter.

That is why I wish to say that opponents of abortion are realists in this matter and the view which allows abortion is (Dworkin aside) anti-realist. That may sound odd, as we think that provision of a soul is not a realist position, but I think it is intended to be exactly such a view, although the realism does not derive from scientific considerations as is typical. In contrast, once one starts looking for a reasonable place to draw a line, it is being allowed that there is no fact of the matter which determines the outcome, but rather a host of facts, of various sorts, and in consequence a socially made judgment. That sort of view is of the sort which is called anti-realist in today's philosophical lexicon.

And different decisions, reasonable decisions, might be made under different circumstances. I have been impressed for a long time with reports of a tribe (the details I have forgotten) who suffered under significantly high newborn mortality. As a consequence, they did not give their newborns a name until after the period of time they had determined was the most dangerous had passed (3 days as I recall). Up to that time, though no doubt the newborn was very well cared for, if the infant died it was (no doubt with some sadness) tossed on the trash heap. After naming, after induction into the social order, it became a person and was entitled to be treated as persons would - though this did not mean with increased care.

I hold that under the circumstances that was a perfectly rational and morally acceptable practice.

Personally I think that the most defensible line for us has been and perhaps still is birth - for that is when the infant does become part of the social world, a separate being with all the standing of a person.

Notice how this is so contrary to the view implicit in the pro-life account. It is held that there is some fact of the matter, where that means some fact independent of human decision and practice, which rationally and morally determines that such and such is a person. They are realists - both in terms of classification and in terms of morality. I am urging that we should see the abortion-permissible position as anti-realist, but not nominalist. The decisions are not arbitrary - how we decide is tied to the facts of the situation and the case. But we are not marking out the only possible way of drawing a line. And I am further advocating that it is with entrance into the world, that one might very reasonably indicate that it is that social decision making which rules.

The anti-abortionist fear of human decision making comes out in Dworkin's Life's Dominion in a different context. Dworkin is famous for distinguishing two different interpretations of the American Constitution under the headings 'a constitution of detail' and a 'constitution of principle'. The 'constitution of detail' is connected with the better known phrase 'the doctrine of original intent'. Why is that view of the nature of the constitution favored by conservatives, the same people who oppose abortion?

Dworkin says that the attraction of the doctrine of original intent is based on a fear of judicial power, the power to interpret the Constitution. Hence Scalia, Bork et al. search for some unassailable facts, specifically intentions of the framers, which will definitively settle the meaning of crucial constitutional phrases. Scalia, et al. are realists, wanting to understand meaning in terms of intentions of utterers, while Dworkin is on this issue an anti-realist, allowing that the Constitution must be understood in changing historical contexts, though constrained by, among other things, the plain meaning of the words in which it is written.