Life Before Life, Death Before Death : LIFE’S DOMINION: An Argument About Abortion, Euthanasia, and Individual Freedom, <i> By Ronald Dworkin (Alfred A. Knopf: $23; 250 pp.)</i>

Ronald Dworkin supposes there are two sets of beliefs at the core of the abortion debate: beliefs about fetal rights and beliefs about the sanctity of life. These often get run together, but Dworkin demonstrates that views on the full range of abortion issues typically cannot be grounded in a claim of fetal rights to life. Hence, he supposes, the real backing for almost all positions on abortion is some vision of the sanctity of life.

What distinguishes this book from others is that the author argues not about what we ought to believe but about what we do believe.

Dworkin, also author of the influential work “Taking Rights Seriously,” argues here that for a fetus to have rights, it must first have interests. This is generally true of justifiable rights, which are derivative from interests. For example, if no one had any interest in ownership of property, it would be pointless to have property rights. Hence, Dworkin calls the view that fetuses have full rights the derivative view. Against the blanket claim that a fetus has a right to live, Dworkin notes that only a tiny minority of that group believes the fetus is a person with full rights. Such a belief would imply that we should outlaw even abortion to protect the mother’s life or to prevent birth of a radically damaged infant that would only suffer and die soon after birth. The current, doctrinaire Pope may hold such a view; few others do. It follows that the American debate over abortion is miscast as a debate about a right in which few of the debaters consistently believe.

Dworkin goes on to argue that, regarding fetal interests, Justice Blackmun’s decision in Roe vs. Wade, which claims that abortion in the first two trimesters before certain neurological developments, violates no interests but abortion after some point may, makes good sense, contrary to frequent claims that the decision is irrational and inconsistent.

Much of the book is given over to establishing a secular content for the word sacred. For the non-religious, this may seem an unfortunate move. It gives the religious a persuasive term and distorts discussion because the very force and meaning of the term are grounded in religious beliefs. Unfortunately, there may be no vernacular term for what Dworkin wants here. What he wants is some notion of the intrinsic value of life. But this will not play well on the streets. Moreover, it seems either ungrounded (you happen to have the intuition that life has intrinsic value just as George Bush has the intuition that one should not trample a U.S. flag) or metaphysical (which many may think is merely a verbose form of being ungrounded). Dworkin glances at a Kantian account of the intrinsic value of life, but he rightly does not work it out for those not already familiar with Kant and latter-day Kantian theory.

Dworkin gives a compelling descriptive account of the way a commitment to the view that life has intrinsic value seems to work for many people. That does not justify the notion, but it can justify the application of the positive law of the Constitution to those issues infected with such a value. What is wanted now is more discussion, both descriptive and analytical, to try to fill out the notion and make sense of it.

For euthanasia there has been much less politics and less said and therefore there is less to say. Most conspicuously, there has been no Roe vs. Wade for euthanasia. The Hemlock Society and Dr. Kevorkian do not match the Catholic church and abortion clinics in their impacts. At this early stage, Dworkin brings arguments from his account of abortion and the sacredness of life to bear on two classes of euthanasia cases. First, cases involving people in vegetative states and second, cases involving steady mental deterioration, as in Alzheimer’s disease. Dworkin supposes that those who hold life sacred--either in a secular or a religious sense--might reasonably wish to make their lives whole and well-rounded, or well completed. They might want integrity. Hence, their desire for euthanasia under certain circumstances should not be blocked by the state because blocking does harm to their interests in integrity. The argument seems to work readily for the first class of euthanasia, but it seems a poor fit for the second class, the Alzheimer’s cases.

As Dworkin suggests, we could view the person who has no apparent memory of her past life as different from the person who earlier would have deplored falling into this condition. Yet, Dworkin notes, if Alzheimer’s can demolish virtually everything except the body of the former person while creating a person who is relatively happy in a severely diminished state of competence, we must finally reckon with the possibility that the newly created person has at least as much claim to continued life as her predecessor had to terminate that life. Dworkin does not offer a conclusive resolution of this issue, but his discussion seems weighted toward the view that we place value on our whole lives, not merely on the episodes of living and enjoying. It is a matter of integrity that many of us wish not to linger in a vegetative or radically diminished state but to die with dignity. If the young and healthy self and the advanced Alzheimer’s self are substantially different people, however, it is no violation of our integrity that our Alzheimer’s selves outlive us. Rather, it is an odd prejudice that says the pre-Alzheimer’s self should have a right to arrange for the killing of the later Alzheimer’s self.

There are many interesting aspects of euthanasia that get no play here. Communist parties in western Europe have often been hostile to euthanasia. Why? Because in a society in which class matters for everything else, it is also likely to matter for euthanasia. If the state decides whom to kill, it might tend especially to kill the least advantaged. One might therefore support tolerance for voluntary abortion while opposing general programs for euthanasia.

It is not Dworkin’s chief burden to work out an account of constitutional interpretation that justifies Court decisions in areas that are not literally mentioned in the Constitution, such as abortion and euthanasia. But Dworkin gives an accessible, brief account of how we may see a clear constitutional protection of privacy--it is in fact a due process protection--that implies protection of procreative rights. More generally, he explains how abstract principles in the Constitution may sensibly be read to apply to changing values. For example, the authors of the Constitution may personally have countenanced flogging even while they proscribed cruel and unusual punishment. We who see flogging as cruel and unusual may coherently say it is constitutionally prohibited. In constitutional interpretation it is not our task to work out the social-psychology of the author’s beliefs about what is cruel and unusual punishment but only to work out what is cruel and unusual punishment on our best understanding and to proscribe it. Even readers who defend more restrictive interpretations of the Constitution will find Dworkin’s account circumspect and enlightening.

More generally, Dworkin holds that our interpretation of a clause of the Constitution cannot be judged simply from how logically we have deduced it or from how compelling the interpretation seems in its own right. The interpretation must also be judged by its fit with our readings of other clauses and of the Constitution in general. If this fit is good, then our interpretation has integrity. Dworkin strongly advocates such integrity in constitutional interpretation and judicial decisions. His arguments about abortion and euthanasia are also driven by concern for integrity. His most important thesis is that popular views against abortion lack integrity if they are supposed to be grounded in fetal rights because most of those who generally oppose abortion would allow it in some context.

The interest and power of “Life’s Dominion” are that Dworkin gives principal place to our actual views, not to some specific theory of the rightness or wrongness of abortion. Hence, his book has some chance of affecting public discussion of its issues, especially if the appeal to integrity in argument gains acceptance. Will it? On the view of Dworkin--and probably of most constitutional scholars, from left to right--the Constitution ensconces the primacy of individual over communitarian and religious values. The anti-abortion movement poses a challenge to the constitutional separation of church and state. If that movement loses in the courts, it may win by amending the Constitution. Dworkin might think the amended Constitution would lack integrity. It should be no surprise that the religious opponents of abortion are not as consistent as the Pope in their views. Nor should it surprise Dworkin that they might not be persuaded by claims for integrity in their views and in our Constitution.