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Published online by Cambridge University Press: 01 January 2020
1 This, of course, is not an accurate way to put it. Fetal rights have been taken too seriously. Dworkin's view is that hardly anyone really believes that a fetus is a person with rights. Moreover, the question of whether the fetus is a legal person does not present a hard case. Even prior to Roe vs Wade this question was open and shut: the fetus is not a legal person.
2 Six of the eight chapters of Life's Dominion are about abortion and two concern euthanasia.
3 Of course, an anti-abortionist might regard restrictions which forbid some abortions as better than no law at all (some lives would be saved). Likewise, a liberal might deem less restrictive abortion laws a partial victory, though she sees no basis other than a political one for accepting any of these restrictions. The decisions we must live with (as to the law) are dependent on which side holds the greatest political power, on which way the supreme court has most recently been stacked.
4 The position under discussion is not a well developed philosophical theory, but the ordinary liberal man's or woman's. Its central feature is that there should not be laws which prohibit abortion. For our purposes, ‘the conservative’ position advocates legal control of abortion.
5 More clarification is needed, of course, to cover the sorts of mistakes we can make about our interests, the possibility of wanting something which we would actually find dreadful, and so on. But I will ignore these problems here.
6 Perhaps judgments of this sort are really just a type of instrumental judgment. I do not want to get distracted by that issue either.
7 It may well be that sentience, while necessary for a desire to continue living, is not sufficient. A fairly sophisticated intellectual development providing a concept of self might be a condition of a life having personal value. See Tooley, Michael ‘A Defense of Abortion and Infanticide,’ reprinted in Narveson, J. Moral Issues (Toronto: Oxford 1983) at 215Google Scholar. I return to this in Section VI below.
8 Hume need not actually restrict the account to the wants desire, interests, etc., of persons (as Annette Baier has reminded us). Any sentient creature's desires (aversions) and needs can be sources of value in a Humean world. But, this is a modification that Dworkin would accept. At various points he speaks of the protection of non-human creatures as a legitimate use of law.
9 That these terms are drawn from religious discourse is no embarrassment for Dworkin, for it is part of his argument that principles based on interpretations of the intrinsic value, sanctity, or sacredness of human life are not a proper basis for law.
10 It may be useful to remind the reader that we are talking about the beliefs of typical conservatives, not the authors of ‘right to life’ pamphlets.
11 I will return to the problem of drawing the line in Section VI.
12 There are, of course, excellent reasons for protecting from harm (e.g., from alcohol or traffic accidents) a being which will become sentient and self-conscious. This gives us some basis for speaking of ‘fetal rights.’ But it is reasonable (though too much to argue here) to treat these (as courts have treated legal rights) as conditional upon the emergence of conscious existence.
13 Dworkin is not saying, of course, that these persons differ with respect to their right to life; they are equal in that respect.
14 Again, qualification is needed. The loss of a developing fetal life can be a highly significant loss, relative to the aspirations of its parents. But, by the same token, the prospect of the birth of a child can constitute a loss relative to those aspirations.
15 Actually, it's not that the liberal state is barred from protecting that which is collectively taken to have intrinsic value. It can do this in many ways- by funding the arts and protecting a cultural heritage, for example. But the legitimate (liberal) state cannot do this in a way that abridges the fundamental rights of its citizens.
16 See Roe vs Wade (1973) 410 US 113, 35 L. Ed. 2nd 147, 93 S. Ct. 705. Excerpts reprinted in Feinberg, J. The Problem of Abortion (Belmont, CA: Wadsworth 1973)Google Scholar contain this passage at 184: ‘We need not resolve the difficult question of when life begins.’ In Morgentaler (1988) 62 C.R., the point was put in this form: it is not necessary for the court ‘to decide whether the foetus is included in the meaning of the word “everyone“ in Section 7, so as to have a right to life.’
17 Of course (Dworkin can continue) the matter is not quite this simple because there are injuries which may be harms for the conscious being which will result if the fetus is allowed to develop. That sort of problem is also addressed in the book. See 113.
18 Here is a partial list of items which Dworkin uses to exemplify the intrinsically valuable: knowledge; experience; nature; art; the horned owl (species); a primitive culture; cats of Ancient Egypt; a flag; a painting by Michelangelo; a person; a developing fetus.
19 Flags have gained their intrinsic value through ‘conventional association [my emphasis) with the life of the nation … the respect [people) believe they owe their country is transferred to the flag’ (74).
20 Of course, on any plausible view one can be mistaken about what is instrumentally valuable; what is under discussion here is mistakes about ends, not means.
21 Dworkin would not use the expression ‘folk morality,’ however, because of its skeptical overtone. He does briefly address the question of external skepticism (207-8) as he did at length in Law's Empire. His view of such skepticism is itself pragmatically skeptical: the (external) skeptic will never succeed in making any difference to what people value, what they decide to do about abortion laws, for example.
22 The Tanner Lectures provide some further insight into Dworkin's thinking about these matters. There is a correlation between the objects of intrinsic value and the concept of ‘critical interest’ of persons. See ‘The Foundations of Liberalism,’ The Tanner Lectures on Human Values, XI (Salt Lake City: Utah University Press 1990) Part V ‘Philosophical Ethics,’ at 42.
23 An earlier draft of this Notice was presented at a meeting of the Canadian Section of the International Association for Law and Social Philosophy (IVR). I would like to thank members of that association, and especially Sheldon Wein, for helpful comments.