POLITICS JUNE 14, 1993
Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom
by Ronald Dworkin
(Knopf, 273 pp., $23)
Liberals urgently need a constitutional philosophy, and Ronald Dworkin is eager to provide one. In his important writings over the past three decades, he has tried to work out a comprehensive theory of law, as well as a principled approach to the American Constitution. With few apologies, he has defended the Warren Court against a parade of conservative critics -- from the Burkean prudentialism of Alexander Bickel to the purported historicism of Robert Bork. But Dworkin's new book is his first sustained attempt to make his thinking accessible to a general audience. He wants to project his ideas beyond his cult of academic disciples, "to succeed," as he says, "in the political forum."
The book has two more specific goals: to stake out moral and philosophical common ground in the acrimonious debate over abortion and euthanasia; and to support the Supreme Court's general approach to the abortion question in Roe v. Wade and Casey v. Planned Parenthood. On the first count, at least, Dworkin is provocative, and therefore useful. He argues that the abortion debate has failed to distinguish between two very different objections to abortion. The first, which he calls the "derivative" objection because it is derived from individual rights and interests, insists that human life begins at conception, and that abortion violates the fetus's right not to be killed. The second objection, which he calls "detached" because it is not grounded in the interests or the rights of anyone in particular, insists that abortion is wrong because it disregards the intrinsic value of human life.
"Almost everyone who opposes abortion really objects to it," Dworkin declares, "on the detached rather than the derivative ground." The pro-life movement -- following the lead of the Roman Catholic Church, which has held, for little more than a century, that every human being has a "right to life" from the moment of conception until death -- has framed its argument in the rhetoric of rights. But Dworkin believes that few people, if they thought hard about it, would really take this position. Only the detached objection, Dworkin argues, can account for the almost universal view that abortion should be permitted in cases of rape and incest, or when necessary to save the mother's life, since any exception, after all, is inconsistent with the belief that a fetus is a person. Only the detached objection can account for the growing majority who say in the same breath that abortion is "like murder" and that the decision should be left to the mother. And only the detached objection can make sense of the debate over euthanasia, which has less to do with a clash between the right to live and the right to die than with competing ideas of how best to respect the sanctity of life.
An unsettling vanity runs throughout Dworkin's work. He seems to believe that if people thought hard about an issue they would realize that their intuitions are less coherent than his own. And yet some of Dworkin's confident syllogisms are open to question. It does not necessarily follow from the derivative objection to abortion, for example, that once a fetus is viewed as a person, abortion must always be punished as murder. Criminal law recognizes a host of excuses, mitigations and justifications for the taking of life, killing an innocent person, for example, in the course of escaping from slavery -- that Dworkin does not explore. It is ironic, too, that a scholar who has argued so eloquently for rights as trumps now assails rights-based rhetoric for distorting public debate. Still, if Dworkin is sometimes too categorical, and if he has too little patience with irrationality in matters of belief, he performs an important service by showing how the moral debate over abortion and euthanasia could be far less divisive if people thought about the issues more consistently than they actually do.
But Dworkin is not content to present his ideas as philosophical speculations. For him, moral reasoning is a form of constitutional reasoning; and he insists that his various conclusions are not only philosophically powerful but also legally compelled. And it is as legal argument that his very abstract book fails to persuade. Dworkin presents a Manichaean choice between a "Constitution of Detail," which he attributes a bit facilely to Antonin Scalia, and what he calls a "Constitution of Principle," which he prefers. Under the first view, the Constitution should mean only what its Framers expected it to mean; under the second, the Bill of Rights should be interpreted as a series of "abstract commands that American government respect the most fundamental principles of liberty and political decency and treat all citizens with equal concern and respect."
Dworkin has little trouble debunking the first view, a caricature of originalism that only Edwin Meese championed with enthusiasm. The "Constitution of Detail" is impossible to reconcile with Brown v. Board of Education, since the framers of the Civil War amendments saw nothing wrong with segregated public schools. Instead of focusing on the particular results that the Framers expected to achieve, Dworkin argues convincingly, interpreters should identify instead the general principles that the Framers endorsed. (But again, that conceit: if the Framers could think again, they would realize that they were wrong and he was right.) He punctures Bork's sanctimonious claims about objectivity by showing that even Bork acknowledges the need for judges to make subjective choices about the appropriate level of generality on which each clause should be interpreted.
Yet Dworkin's alternative to the most extreme version of originalism is equally extreme. If Meese always chooses the most specific level of generality, Dworkin always chooses the least specific. He interprets the Bill of Rights so abstractly, in fact, that the various clauses lose their distinctiveness altogether, and merge into a general mandate for judges to engage in what he calls "substantive moral theory." Despite his rhetoric about beginning with the principles that the Framers identified, then, he is not really interested in the Framers' understanding of the words that they chose. Life's Dominion, like Dworkin's previous work, is all but bereft of references to constitutional history and structure.
Dworkin promises to reason from the "inside out," beginning with practical problems such as abortion and euthanasia, and then asking what philosophical issues are necessary to resolve them. But there is no real need, in "inside out" reasoning, for close readings of constitutional text, history and structure: Dworkin has altogether abstracted away the need to consult a written, historically rooted document. He calls his theories, in a revealing and unfortunate metaphor, "bespoke, made for the occasion, Savile Row not Seventh Avenue."
In fact, Dworkin acknowledges one modest restraint on judges: actual legal practice. Any interpretation of the Constitution, he says in a distinction developed more carefully in Law's Empire (1986), should be subjected to two tests: the test of justice and the test of "fit." And the most just interpretation, which is the interpretation that "best reflects people's moral rights and duties," should always be preferred, unless it is "wholly inconsistent" with actual legal practice. When push comes to shove, however, legal practice does not seem to constrain Dworkin in any meaningful way. There is not a single point in his book where Dworkin is willing to forgo the "best, most accurate understanding of liberty and equal citizenship," even when it is patently inconsistent with legal practice, such as Dworkin's suggestion that government has a constitutional duty to fund abortions for poor women.
The cornerstone of Dworkin's legal argument about abortion is Griswold v. Connecticut, the 1965 decision that struck down Connecticut's ban on the use of contraceptives. "Once one accepts that case as good law, then it follows that women do have a constitutional right to privacy that in principle includes the decision not only whether to beget children but whether to bear them." But instead of carefully scrutinizing the constitutional underpinnings of Griswold, Dworkin prefers sweeping assertions: "The right to procreative autonomy follows from any competent interpretation of the due process clause and of the Supreme Court's past decisions applying it.... The Griswold decision has apparently been accepted by the American people."
Dworkin's thesis -- that the Court "cannot logically" accept Griswold and reject Roe -- is hardly self-evident. In the Casey decision last July, the four conservative dissenters -- Rehnquist, Scalia, White and Thomas -- announced that Griswold should be upheld and Roe should be overturned, because "unlike marriage, procreation and contraception, abortion involves the purposeful termination of potential life." But the conservatives were no more precise than Dworkin in their attempts to defend Griswold and to distinguish it from Roe.
Griswold has become the mad grandfather of American constitutional law: virtually everyone embraces it, but with averted eyes. A less squeamish look at the contraceptives case is a useful way of testing Dworkin's thesis. A review of the positions of the various justices in Griswold, from the narrowest to the most abstract, suggests that neither Dworkin nor the conservatives are particularly scrupulous about the relationship between Griswold and Roe. Dworkin exaggerates when he says that the two cases "cannot logically" be distinguished; but the conservatives, having accepted Griswold, fail to distinguish abortion from contraception as convincingly as they might.
If the Court in Griswold had simply held that the ban on contraceptive use was irrational, it could have struck down the Connecticut law without planting the seeds of Roe. Byron White hinted at this argument in his Griswold concurring opinion, and Richard Posner develops it more convincingly in Sex and Reason. A wave of statutes forbidding contraceptive use had been passed during the late nineteenth century; but they had been repealed, by the 1960s, in all but two states, Connecticut and Massachusetts. While the Connecticut law remained on the books, the only efforts to enforce it -- and they were successful, despite Bork's claim to the contrary -- were directed against birth control clinics, whose clientele was dominated by the poor and uneducated. Most middle-class women, however, had unrestricted access to contraceptives through their gynecologists. The law, in other words, could be seen as an arbitrary burden on the poor and uneducated, rather than a rational means of discouraging "promiscuity."
But other members of the Griswold majority rejected White's narrow argument. In a much broader opinion, John Harlan wrote that Connecticut's ban on the use of contraceptives touched "a most fundamental aspect of `liberty,' the privacy of the home in its most basic sense." Dworkin seems to endorse Harlan's opinion, declaring that "any competent" interpretation of the due process clause of the Fourteenth Amendment must include some fundamental right of procreative autonomy. On this point, all nine justices of the Rehnquist Court seem to agree with Dworkin: in the Casey abortion decision, Harlan was cited no less than ten times, by the moderate majority and the conservative dissenters. But the cult of Harlan is hard to fathom. For Harlan's approach is not a restrained approach; and recent scholarship has exposed the creakiness of its historical joints.
Harlan had a personal view about privacy that he was eager to express in Griswold and in the case that preceded it, Poe v. Ullman. "Justice Harlan had a patrician manner about him, and he was outraged at this interference with personal privacy," Harlan's law clerk Phillip Heymann told Harlan's biographer, Tinsley Yarbrough. "It was government going into places it simply shouldn't." (Heymann, now deputy attorney general designate, recalled being "sort of skeptical" about the constitutional merits of Harlan's view.)
But Harlan also had a broader judicial agenda: preserving wide discretion for judges to decide which rights they thought were fundamental and which were not. Since 1947 Hugo Black had argued that the due process clause of the Fourteenth Amendment fully "incorporated" the first eight amendments to the Constitution, but did not bind the states in any other way. (The Bill of Rights had originally applied only to the federal government and not to the states.) Black's claim that the incorporation doctrine should "restrict the reach of Fourteenth Amendment Due Process," Harlan countered, was as "unacceptable" as his claim that it should also "impose upon the States all the requirements of the Bill of Rights." Instead, Harlan wanted to preserve for judges the sweeping power to pick and choose among the various amendments, enforcing some, rejecting others and adding an unspecified number of unenumerated rights, discerned from "the traditions and conscience of our people."
Dworkin's apparent enthusiasm for Harlan, a conservative icon, seems less peculiar when the sheer assertiveness of Harlan's view of judges is exposed. But the real weakness of Harlan's vision is that it rests on discredited claims about constitutional history. Harlan relied heavily on a 1949 article by Charles Fairman, a legal historian. After 130 pages ridiculing Black's position, Fairman concluded that the principles of "fundamental fairness" and "ordered liberty" are the best way of measuring the scope of the Fourteenth Amendment. It is now clear, however, that Black's historical insights were more sound than Fairman's. In a ground-breaking article last year in the Yale Law Journal, Akhil Amar reviewed the Fourteenth Amendment debates, which Fairman had quoted selectively. The amendment's supporters, Amar found, repeatedly affirmed their understanding that all the "privileges and immunities" guaranteed in the original Bill of Rights should be protected against state infringement.
In his enthusiasm for the grandiose vision of "ordered liberty," Dworkin does not bother to examine the historical errors underlying Harlan's breezy dismissal of the textual Bill of Rights. As a result, Dworkin is not convincing when he claims that "any competent" interpretation of due process would reach the same result. Yet if one accepts Harlan's opinions in Poe and Griswold, as all nine justices of the Rehnquist Court say they do, then is Dworkin correct that a right to abortion inevitably follows? Or are the conservative dissenters correct when they insist that contraception and abortion can be somehow distinguished?
In Casey, Rehnquist suggested three reasons for embracing Griswold and rejecting Roe. Although Rehnquist sketched his arguments in the most cursory manner, each of them can be developed more persuasively. The first is an argument about "tradition." Even if the privacy of the marital bedroom has traditionally been respected, Rehnquist insisted, "the historical traditions of the American people [do not] support the view that the right to terminate one's pregnancy is `fundamental.'" The single paragraph that Rehnquist devotes to this claim is too vague to be adequate. Rehnquist maintains that in 1868, when the Fourteenth Amendment was adopted, twenty-eight out of thirty-seven states had laws "banning or limiting abortion." He emphasizes that the common law made abortion after fetal "quickening" an offense. He fails to emphasize, however, that from the time of founding until well into the nineteenth century, few states banned abortion before fetal quickening.
Based on the common law understanding, it is at least arguable that the "traditions" of the American people do support a right to terminate pregnancy before quickening. But Rehnquist's position is also plausible: in light of the nineteenth-century movement toward more restrictive abortion laws, perhaps the tradition supporting a right to abort before quickening is not deeply rooted enough to be considered "fundamental." This much, at least, is clear: having decided to acknowledge "tradition" as an independent source of constitutional rights, the conservative justices have an obligation to explain, much more carefully than they did in Casey, exactly how and when "traditions" get measured. In other words, what is the relevant historical period? The Founding? Reconstruction? An uninterrupted stretch from the mists of Runnymede to the mists of Reagan? And how long must the tradition endure for judges to enforce it?
In language that Dworkin ignores, Harlan stressed that the "conclusive issue" for him in Griswold was the "utter novelty" of the Connecticut law. When Roe was decided, by contrast, most states prohibited abortion except when the life or health of the mother was threatened. Rather than rummaging haphazardly among unwritten traditions, in other words, the justices might anchor their search for the "conscience of our people" by looking for a consensus among the state constitutions and state laws that are currently on the books.
The second way of distinguishing Griswold from Roe is an argument about legal precedent rather than tradition: perhaps Blackmun simply read the contraceptive decisions too broadly. Harlan's fundamental right to marital privacy was centrally concerned with government snooping around activities customarily performed in bed. It rested on the idea that enforcement of the Connecticut law would have been virtually impossible without an unacceptable intrusion into the privacy of the home. In this sense, it was really a right of informational privacy, and it relied most heavily on the First, Fourth and Fifth Amendments, which limit the ways government can gather information about the private lives of citizens.
A decision about abortion is "at least as private" as a decision to use contraception, Dworkin declares. In his leap to generalize, however, he obscures the crucial distinction. Abortion, unlike sex, is rarely performed in the bedroom. Roe is hardly a case about government snooping. If the privacy right recognized in Griswold is merely a shield against unreasonably nosy law enforcement, rather than a broad guarantee of "procreative autonomy," then restrictions on abortion providers seem much more defensible than restrictions on contraceptive users. (Anti-sodomy laws, by contrast, seem more analogous to anti-contraceptive laws, and the conservative attempts to distinguish them look less persuasive.)
The third and most important difference between abortion and contraception -- and the only difference that Dworkin addresses directly -- is the presence of a fetus. "Unlike marriage, procreation and contraception, abortion involves the purposeful termination of potential life," Rehnquist announced in Casey. White had pressed this point in earlier decisions, suggesting that the presence of a fetus alters "the characterization of the liberty interest itself."
The conservative argument, as Dworkin is not the first to point out, is exquisitely circular. It begs the central question: whether, and when, a state can regard a fetus as a person. Blackmun acknowledged in Roe that if a fetus were a person, the state would undoubtedly have a compelling interest in protecting it. But given irreconcilable differences of opinion on the subject, he held that states were not free, by adopting one theory of life, to override the rights of the pregnant woman. In Dworkin's view, Blackmun's conclusion on this point disposes of the abortion question entirely. No state, Dworkin argues, is free to deny rights that the Constitution does establish by recognizing rights that it does not establish. Instead, as long as the fetus isn't a person, the state's only power to protect it must flow not from the idea that fetuses have the right not to be killed, but from the idea that life is sacred.
Here is where Dworkin gets very slippery. From the moment of conception, he says, states have a legitimate interest in "maintaining a moral environment in which decisions about life and death are taken seriously and treated as matters of moral gravity." But it turns out that this interest isn't very compelling after all, since it is not strong enough to justify even modest restrictions on access to abortion, like parental consent requirements or a waiting period. According to Dworkin, there are "better methods to encourage women to reflect about" the moral gravity of abortion, such as providing financial aid to poor mothers.
Dworkin also insists that the "detached" interest in encouraging people to think hard about abortion isn't compelling enough to justify a complete ban on abortion from the moment of conception. Only at the point of fetal viability -- when the fetus first experiences sensations and therefore first develops interests -- does the state's interest in potential life become strong enough to justify a ban.
The argument is philosophically debatable. It is also constitutionally dubious. As John Hart Ely pointed out in a famous essay on Roe, the Supreme Court has never said that compelling state interests exist only when a person is threatened with harm: dogs are not "persons in the whole sense," but that doesn't mean the state can't prohibit you from slaughtering them. (Dworkin responds vaguely that government can't protect dogs in ways that cause "serious damage to one group of people," which should not make him popular with the animal rights movement.) And as Jed Rubenfeld has noted, it seems odd to suggest that the Constitution, in addition to establishing the rights that states must protect, should also be read to establish all of the interests that states may protect.
Dworkin is not content, in the end, to rest on Harlan or the due process clause. "The general structure of the Bill of Rights is such that any moral right as fundamental as the right of procreative autonomy is very likely to have a safe home in its text," Dworkin argues; and so restrictions on abortion violate several overlapping amendments at once. At this point, Dworkin reveals himself to be the heir not of Harlan but of William Douglas, whose majority opinion in Griswold found a right to privacy in "penumbras, formed by emanations" from various unrelated clauses of the Bill of Rights. (Douglas had originally wanted to rest squarely on the First Amendment right of freedom of association, since "marriage flourishes on the interchange of ideas"; but Black objected that the right of married couples "to assemble in bed is ... new ... to me.")
After shopping leisurely, Dworkin decides to anchor his argument in another part of the First Amendment: the religion clauses, which provide that Congress shall make no law "respecting an establishment of religion, or prohibiting the free exercise thereof." Dworkin's First Amendment argument goes something like this. Because opinions about abortion rest on different interpretations of a shared belief in the sanctity of human life, they are themselves "essentially religious beliefs." Government cannot, without violating the free exercise clause, "prescribe what people should think about the ultimate point and value of human life."
Some women, Dworkin concedes, choose abortion for reasons that cannot remotely be traced to views about the sanctity of life. But even if the free exercise clause does not apply in their case, they would be protected by another, unspecified part of the First Amendment (presumably the establishment clause), which Dworkin interprets to forbid government from "commanding one essentially religious position over others." Dworkin then praises the majority opinion in Casey, which did not mention the First Amendment explicitly, but was "studded with religious allusions," such as its reference to "the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life." This demonstrates, Dworkin suggests, the "striking overlap" between the First Amendment and other constitutional provisions on which the justices relied more openly; and it proves that "redundancy is [no] constitutional vice."
The argument perfectly distills the hazards of Dworkin's broader constitutional project. It is worth noting (since Dworkin oddly fails to note it) that Laurence Tribe outlined a similar argument in 1973 and then recanted five years later, conceding that he had underestimated the importance of allowing religious groups to express their convictions in the political arena. Tribe also came to appreciate the power of moral convictions about abortion that have nothing to do with religious beliefs.
Such distinctions are lost in the sweep of Dworkin's abstractions. He has no interest in exploring the relationship between the various words in the two clauses or the broader purposes for which they were ratified. The First Amendment does not, after all, say that "Congress shall make no law respecting the mystery of human life." Nor are there any apparent limits to Dworkin's vision. He suggests offhandedly that the Hyde Amendment, which prohibits public funding for abortions and which the Court has long approved, should be struck down because it is "tantamount to establishing one interpretation of the sanctity of life as the official creed of the community." In a breath, Dworkin transforms the establishment clause, whose overriding purpose is to maintain neutrality between religion and irreligion, into a perverse requirement that government must subsidize abortion because many religions find it abhorrent.
The most unfortunate result of Dworkin's appetite for abstraction is that it leads him to rush past the most plausible textual home for the right to choose: the equal protection clause. In his chapter on the morality of abortion, Dworkin discusses some of the more outrageous feminist objections to the privacy doctrine. Catharine MacKinnon, for example, rejects the idea that sex is a private matter, since it implies that government has no legitimate concern with what happens to women behind the bedroom door, where sex is often like rape.
But the more sensible equality argument, which many liberals now acknowledge is less farfetched than the privacy argument, goes something like this: restrictions on abortion (and contraception) are a form of sex discrimination, since they place the risks and burdens of pregnancy and child-rearing on women but not on men. Government does not require fathers to devote their bodies to save their children, even when a kidney transplant is necessary to prevent the child's death. By conscripting women's bodies into service, forcing them to conceive, to bear and to raise unwanted children, the state perpetuates constitutionally unacceptable stereotypes of women as incubators. And the wave of late nineteenth-century abortion restrictions, at least, was unambiguously motivated by discriminatory ideas about the proper role of women in society.
In his eagerness to defend the privacy logic of Roe and Griswold, Dworkin dismisses the equal protection argument with a single sentence: "Abortion normally requires a physical attack on a fetus, not just a failure to aid it." Well, what of it, if the fetus is not yet a constitutional person? Besides, some abortions take the form of induced labor, and do not require an attack on the fetus at all. Dworkin is simply begging the question of whether a biological difference can be used, for constitutional purposes, to justify the bodily conscription of women but not men.
A more troubling objection is that abortion restrictions today, unlike those in the late nineteenth century, may be motivated exclusively by views about the sanctity of life, and may not reflect stereotypes about women in any way. To avoid the dangers of Dworkinian abstraction, more careful work also remains to be done about whether the ratifiers of the equal protection clause meant to single out sex discrimination for special scrutiny, as a 1988 student note in the Yale Law Journal suggests they did; and why. The challenge is not to be tethered to their specific intentions, but to have a more historically nuanced understanding of their general principles.
Perhaps the effort to locate the right to choose in the equal protection clause will prove no more convincing, ultimately, than previous efforts to locate it in the First, Fourth, Fifth, Ninth, Thirteenth and Fourteenth Amendments. Perhaps Roe will remain what Richard Posner calls the Wandering Jew of the Constitution, searching hopelessly for a textual home. But the fact that a historically rooted equal protection argument has yet to be refined is an indictment of liberal and conservative justices, like Blackmun and Harlan, who confused the abortion debate with their misleading metaphor of privacy; and of scholars like Dworkin, who have defended and expanded the metaphor further than logic and history can bear.
Despite his energy and his intelligence, Dworkin does not achieve the overarching goal that he has set for himself, of "transcending the perennial conflict between strict constructionists and liberal expansionists." For the abstract expressionism of his constitutional vision is as self-serving as the pointilism of his conservative opponents. Like them, he chooses the level of interpretive generality that is most likely to coincide with his moral intuitions. Other legal scholars, meanwhile, are managing to avoid these extremes. The most exciting liberal constitutional theorists today have weaned themselves of Dworkinian abstraction and are immersing themselves in constitutional text, history and structure with a rigor that some of their predecessors managed to avoid. Call them New Legal Historicists, or Neo-Federalists; but do not call them irresponsible. For liberals in search of a constitutional philosophy, their work is the place to look.