Daniel J.H. Greenwood

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Beyond Dworkin’s Dominions:
Investments, Memberships, The Tree of Life and the Abortion Question (an Abortion Midrash)

72 Texas Law Review 559-630 (1994).
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An earlier version of Part IV of this article appears as The Tree of Life: An Abortion Midrash (1993).

LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM. BY RONALD DWORKIN. [FN*] NEW YORK: ALFRED A. KNOPF, 1993. Pp. 262. $23.00. [FN**]

Daniel J.H. Greenwood [FN***]

Copyright © 1994 by the Texas Law Review Association; Daniel J.H. Greenwood

I. Introduction

Life's Dominion, the important new book by philosopher Ronald Dworkin, attempts to provide a unified theory of abortion, euthanasia, and end-of-life medical issues. Along the way, Professor Dworkin offers an elegant recounting of his understanding of the proper way to interpret our Constitution, consisting in large part of a devastating attack on the original intent view. The bulk of the book, however, is a defense of the philosophic underpinnings of the right to abortion guaranteed by Roe v. Wade, [FN1] and it is as such that I consider it.

Ironically, Dworkin's effort centers around his recharacterization of the abortion debate to avoid the principal issue of principle that most observers have seen: whether a fetus is a person. [FN2] He claims that no one, or almost no one, really believes that a fetus is a person. [FN3] Furthermore, in his view, no serious moral or legal argument can be made that a fetus is a person with rights. [FN4] As a result, the claims that abortion must be restricted to prevent murder or preserve the rights of the fetus must fail.

The divisions on the abortion issue, Dworkin claims, result from an entirely different and hitherto little-examined issue. Most people on both sides of the abortion debate, he says, are concerned with the sanctification of life in an abstract sense and not particularly concerned with the fetus in question. [FN5]

Dworkin's reinterpretation of the abortion debate is based on a view of death that he contends is universally held. He says that "we" (abortion-rights supporters and opponents alike) believe that a late abortion is worse than an early one, just as the death of an adolescent is more tragic than the death of a young child (or an old person who has lived a full life). [FN6] To explain this bell-curved view of the tragedy of human death, he develops a theory of "investment" and "frustration," suggesting that people choose to abort in order to avoid frustrating the investments that would otherwise have been made in the aborted fetus. [FN7]

Thus, Dworkin says we all seek to sanctify life by avoiding unnecessary frustrations of the investment in life. Where we differ is in our views of the investments. For some, the key investment is made by God (or nature--Dworkin seems to see the distinction as one of little importance). These people will see the investment as largely complete at conception. [FN8] Others see the investment as largely human and so will be willing to contemplate death to avoid further frustrating human relations. [FN9] In either case, however, it is life in general, not the fetus's life in particular, that is at issue.

Having moved the rights of the fetus from the center of the debate, Dworkin hopes to show that abortion regulation is barred by a clear and decisive theory of rights--both moral rights applicable to any civilized country and legal rights embedded in our Constitution. [FN10] Morally, he contends, abortion is an issue with which each individual must struggle based on his or her own view of the meaning of life. [FN11] Legally, he claims, it is a fundamentally religious issue, and, therefore, the Establishment and Free Exercise Clauses of the First Amendment (as well as more conventional Due Process Clause analysis) prohibit the states from legislating in the area. [FN12]

Dworkin's effort is troubling for three reasons. First, his breathtakingly broad assertions about our shared moral views are wrong. Dworkin describes our views on abortion as sharing a common understanding of what it is to be human, the value to be given to human life, and how one comes to be human. He sees the bitter debate over abortion as a result of no more than a spectrum of views concerning whether to emphasize the "natural" or "human" contributions to human life. [FN13] In contrast, I see little consensus on the values Dworkin assumes we all share. The divisions among us are far deeper than he admits; religions, which influence the views even of the nonreligious, vary more than he acknowledges. We are condemned since the Tower of Babel [FN14] to speak in different languages and hear different laws. Messiah has not come, Torah does not go forth from Zion, and the Lord does not judge among the nations. [FN15] As Robert Cover puts it: "[T]he Temple has been destroyed-- meaning is no longer unitary; any hermeneutic implies another." [FN16] In this post-Babel, post-Temple, and pre-Messianic world, we speak different languages and follow different values. The abortion debate reflects deep divisions on the very issues where Dworkin sees consensus.

Because the divisions among us are so great, we must be especially careful to listen to our opponents. Dworkin, however, refuses to consider seriously the positions of his opponents. Many supporters of state intervention to prevent abortion claim both that the fetus is a person and that abortion is murder. [FN17] Contrary to Dworkin, I suggest that these positions are seriously held and, within their own terms, intelligible. Dworkin's view that they are untenable or dishonest stems, I think, from his incorrect assumption that his opponents share other beliefs that they in fact reject, as well as from his insistence on consistency within each individual's value system. [FN18]

In contrast, I suggest that two opposing views of humanity are at work. One view posits that the value of humanity is the result of a God-given and God- like soul; it is the "breath of God"--the soul--that distinguishes us from the dust of the earth. [FN19] According to this view, we must value all creatures with souls and none without (since the latter are mere dust of the earth). If fetuses had souls, the anti-abortion position would follow almost inexorably. [FN20]

The other, more secular, view of human value focuses on characteristically human traits such as reason, human relationships, love, and creativity. According to this view, we value humans principally because they have the capacity to develop these characteristically human traits. [FN21] For people holding this view, the fetus's status cannot be so clear, and many other considerations--ignored by proponents of the first view--must determine the abortion issue. For most people holding this second view, however, the fetus, whatever it is, is not a human being.

Contrary to Dworkin's presumption, then, different participants in the abortion debate start with radically different issues and questions. There is no single spectrum of responses to a uniform set of problems. Instead, the problems themselves will seem quite different to different people.

The second troubling aspect is Dworkin's characterization of the views of Roe's supporters. He asks us to believe that Roe's supporters seek to sanctify life by killing; [FN22] that they think of the fetus as a human life (though not a person) which should be allowed to live only if it has a positive expected return (to whom he does not specify) so that human "investment" in it will not be "frustrated"; [FN23] and that general principles of political theory, enacted into law by our Constitution, bar a collective decision on whether these are the right ways to sanctify life. [FN24]

Dworkin's investment view treats fetuses, and indeed all humans, as mere means to some external end--the "return" others will receive from them. It is, therefore, a strikingly illiberal concept and one that, on reflection, most liberals will probably reject. Indeed, I suspect that were Dworkin right--that the central issues of Roe are the "sanctification of life" and avoiding the "frustration" of investments in that life--many liberal supporters of Roe would conclude that they ought to change their positions. Dworkin's notions that we sanctify life by killing, or that we may end a life to avoid frustrating an investment in it, are not persuasive because they are too paradoxical and too offensive to ordinary modes of liberal thought.

Furthermore, Dworkin's description of the moral underpinnings for his bell- curved view of the tragedy inherent in death is equally problematic. [FN25] Many of Roe's supporters do share the bell-curved view. Nonetheless, the bell curve need not result from seeing children as investments that are frustrated if early death precludes others from receiving the expected return. Instead, the bell curve of tragedy is a simple result of the human capacities view [FN26] of human value. Dworkin's insight that the bell curve is related to attitudes toward abortion is clearly correct, at least for some of those holding the human capacities view, because a late-term fetus is more like a human, and more likely to become a human, than an early-term one.

Moreover, Dworkin's account is perversely fetus-centered. Although the core of his argument is that the fetus is not a person with rights and that therefore fetal rights are not central to the abortion debate, [FN27] Dworkin's account of the "liberal" position centers entirely on the fetus--a living thing entitled to respect even if not to rights. The index to the book lists no reference to fathers, mothers, parents, or even potential families. [FN28] None of these seems important to his analysis. This neglect of the people involved in childrearing, I think, is symptomatic of Dworkin's disregard for the actual processes by which a fetus becomes a child and a child becomes an adult. Even after rejecting fetal rights, he remains trapped in aclassical philosophic model of self-sufficient individuals, a model that makes no sense in this context. [FN29]

In contrast, I argue that many supporters of Roe view the issue as centering around not the rights of the fetus, but membership in the family and the responsibilities (not, perhaps, rights) that flow from that relationship. [FN30] Neither a fetus nor a child can exist in isolation; a family, if it is functioning, or a single parent or other caretaker, if it is not, must raise the fetus and the child if it is ever to become a full human being. Crudely put, the question is whether the family or the state will have the right to decide whether the family will make this commitment and take on this responsibility. The issue is one of admitting a new member and thus more comparable to immigration law than to murder. Just as a state loses the essential attribute of sovereignty if it cannot control its borders, the family's very foundation is threatened when the state may demand that it involuntarily admit another. [FN31]

The third troubling aspect of Dworkin's project is that he does not consider seriously enough the implications of our widely different views of human value for his First Amendment analysis. Traditional First Amendment analysis assumes that the government, by not taking any affirmative stance in the proscribed area, remains neutral and allows the competing views of individuals to operate without interference. But in the abortion context, the government's abstention is not neutral. The issue is more akin to whether state institutions may constitutionally close on Sunday than to whether the state may use tax dollars to finance a particular church. Simple notions of state abstention and neutrality or a wall of separation between church and state are not very helpful in analyzing this type of deep conflict in world views. [FN32]

As Dworkin concedes, state abstention on the abortion issue is not a legitimate option for anyone who views abortion as murder. [FN33] If some Americans reasonably believe that abortion is murder, then state abstention from banning abortion does not reflect a neutral decision to leave to the private sector the issue of how best to sanctify life. Instead, state abstention is a decision that abortion is not murder, that those who disagree are wrong, and that they are entitled only to the tolerance a liberal society accords its defeated minorities.

I believe Roe must be defended as such a norm-establishing decision, and the defense must include explicit support for the judgment that killing fetuses is morally acceptable (or at least not so immoral as to require that it be illegal). I would not like to have to begin that argument from the positions that Dworkin attributes to Roe's supporters: that to honor the value of human life, we should view humans as investments to be discarded if the investment is likely to be frustrated, and that killing fetuses is the best way to sanctify life.

Rather, we who believe there is a right to abortion--and sometimes a moral, if not a legal, duty to abort--are thinking about different issues altogether. We [FN34] are seeking to live our lives in a world bounded by the tragedy of finitude, knowing that we have only a limited capacity to do a limited number of things in one short life. We are struggling with an excess of responsibilities--to people to whom we are already committed and to ideals, ideas, and structures that are not human at all.

Most critically, we, unlike Roe's opponents, do not believe that we have a responsibility to an unwanted fetus. In our view, that responsibility commences only when the fetus becomes a member of the family. State intervention to ban abortion, then, forces us to assume a responsibility we are not prepared to accept. [FN35]

This set of beliefs, however, is grounded in a conviction that fetuses are not children; one who believed a fetus is a child would be unlikely to believe that we have the option of rejecting the responsibility of caring for her. [FN36] The conviction that a fetus is only a potential human, I will attempt to show, is deeply rooted in the view that the value of humanity is in its distinctively human aspects.

Our Constitution is a product of an Enlightenment view that has far more in common with this optimistic view of human value than the sincentered alternative. [FN37] The Constitution, if not all Americans, sees knowledge as good, [FN38] progress as preferable, [FN39] and humanity as something to be celebrated; [FN40] sin is not its major concern. Thus, the Constitution may well embody something like the view that humans are valuable because of their knowledge of good and evil. In that case, Roe is clearly correct: To the extent that we already have made the decision that our law will honor humanity for its humanness, abortion is a decision that must be left to individual consciences. [FN41]

The rhetorical power of this justification of Roe does not depend on the First Amendment image of removing the state from the fray and leaving the entire issue to each individual's conscience. Rather, it is based on the assertion that the Constitution cannot be understood to be neutral with respect to the two views of human value that underpin the two sides of the abortion debate, and that, as between the two views, the human-centered view is a closer fit. In contrast to Dworkin's view, this view of the Constitution does not falsely pretend to accommodate everyone or almost everyone.

My argument, then, proceeds in a dialectical manner. In Parts I and II, I challenge Dworkin's contention that we all agree a fetus is not a person by relatively technical arguments aimed at reconstructing internally coherent views of those who would criminalize abortion (and to a lesser extent, their opponents) based upon a notion of the fetus as a rights-bearing person, thus demonstrating a far wider variety of consistent, comprehensive views than Dworkin admits. Having established, I hope, that Dworkin has cut off the debate too soon--that the views of at least some opponents of Roe are too distant from Dworkin's views to allow his elegant philosophic resolution of the debate to stand--in Part III I shift to the views of opponents of legal bars on abortion. Here, I contend that Dworkin's account violates fundamental principles important to many he considers his allies; that is, his account of the views of abortion-rights supporters is internally incoherent. At least as important, it offers only an untenable base for the necessary political struggle with the proponents of criminalization. I reject Dworkin's solution simultaneously as thoroughly illiberal--in that it devalues existing human lives--and as far too liberal--in that it fails to account for the relationships in which a fetus (whose life, however nasty, brutish, or short, can never be solitary [FN42]) is enmeshed or becoming enmeshed. In Part IV, I offer an alternative explanation of the debate. Unlike Dworkin's, this account acknowledges the deep divide among us. By means of a midrash on the Book of Genesis, I seek to elucidate coherent accounts of two radically contradictory views of the worth of human beings--one of which (the more attractive, I hope) leads clearly and easily to legal abortion. Because each of these views relies on central artifacts of our common civilization, I hope both accounts will seem familiar even to those who might consider one of them reprehensible. If we can better understand the views of our opponents, perhaps the way to a political (if not philosophical) resolution (or at least acceptance of our divisions) will follow. I conclude by suggesting that the critical insight of liberal philosophy remains our best hope: liberalism is premised on the assumption that it is more important to live together in peace than to live just as we would like. To do that, however, we must accept the sometimes shocking foreignness of those we consider fellow members of our common enterprise.

II. Dworkin's Reconstructed Abortion Debate: Do We All Agree That the Fetus Is Not a Person?

The first part of Dworkin's argument on abortion insists that the conventional understanding of the debate is wrong. The central issue is not, as a cursory glance at the literature might suggest, whether the fetus is a person. That issue, he claims, has been resolved: We [FN43] are all agreed, whether we know it or not, that the fetus is not a person in any relevant moral or legal sense. [FN44] Accordingly, abortion cannot be murder; if it is wrong at all, it is wrong for some other reason. [FN45]

The argument that a fetus is not a person is essential to Dworkin's project. Were fetuses people, Dworkin argues, killing them would be murder. [FN46] Murder, in turn, is the sort of thing that must be regulated by the state. Thus, if there were any question about the fetus's personhood, that question would have to be resolved prior to any discussion of the proper resolution of the abortion controversy. To make matters worse, Dworkin believes that on this issue--the personhood of the fetus--"argument is irrelevant and accommodation impossible." [FN47] Thus, if Dworkin cannot convince us that we already believe the fetus is not a person, he does not think he has anything to say at all.

In contrast, if he succeeds in this initial project, he will have a base from which to build a universally acceptable political solution--or so he claims. [FN48] Unlike the personhood of fetuses, the sanctification of life is an issue on which reasonable people can agree to disagree, leaving the issue for purely private resolution without an official state position. Once it is clear that the true issue underlying the abortion debate is how best to sanctify life, the legal question no longer revolves around whether the state is permitting murder. Instead, the question for Dworkin is, "Should any political community make intrinsic values a matter of collective decision rather than individual choice?" [FN49] Intrinsic values, he concludes, are religious values, and so the answer to his question is No. [FN50]

The first issue, then, is whether Dworkin convincingly demonstrates that we agree a fetus is not a person. Because many abortion opponents [FN51] claim to base their arguments on precisely this position, Dworkin must show that they do not, or cannot, mean what they say.

A. Arguments from "More Is Better"

Dworkin opens his argument that no one thinks the fetus is a person by discussing several specific instances in which some abortion opponents-- including representatives of the medieval Catholic Church--explicitly stated that they did not consider the fetus a person. [FN52] As an argument that no one considers the fetus a person, this discussion suffers from an obvious flaw: that some people do not consider the fetus a person teaches little about the beliefs of others. However, these examples of abortion opponents who do not rely on the personhood of the fetus point up a far larger problem for Dworkin's thesis: at least some of these opponents also do not rely on the sanctity of fetal life in an abstract sense.

For Dworkin, life is sacred because we do not consider life an "incremental value" of which more is better, but nonetheless we do think that every existing instance of human life is precious. [FN53] Many people, however, do not view human--or fetal--life in this way. Instead, they see more humans as better and do feel an obligation to help bring about the next generation. This can lead to an entirely different analysis of the abortion debate, in which abortion--and other forms of birth control, including even celibacy--are rejected without any consideration at all of the fetus, its claims, or its sanctity. [FN54] While these views support Dworkin's notion that opposition to abortion need not be based on fetal rights, they directly contradict the second step of his argument, that the abortion debate really is about sanctification of abstract life.

Traditional Jewish law, for example, contradicts both of Dworkin's assertions. It views human life as an incremental value--and it does not view fetal life as a value at all. Like the medieval Catholics Dworkin cites, Jewish law rejects the notion that the fetus is a person. The full extent to which Jewish law devalues even a late-term fetus can be seen in the gruesome directions given to doctors confronted with a difficult birth. The Mishnah rules that until the child's head has emerged in birth, the doctor is obliged to "tear it limb from limb in its mother's womb" if necessary to protect the mother. [FN55] Jewish law protects an existing human life over a potential one; until the head has emerged, the fetus remains a potential life, not an actual one. [FN56] The fetus simply is not entitled to the respect due a person. [FN57] For the same reason, mourning for an aborted pregnancy is prohibited. [FN58]

Nonetheless, Jewish law traditionally condemned most abortions: first, out of concern for the mother's health in ages when abortion was an extremely dangerous procedure, and second, because of the biblical commandment to be "fruitful and multiply." [FN59] The commandment to be fruitful and multiply, [FN60] in at least some circumstances, is understood to mean that more is better. [FN61] Abortion, then, is reprehensible in traditional Jewish law for more or less the same reason that celibacy is: it is a mitzvah [FN62] to have children. Thus, the Jewish law position on abortion stems from a rejection of the view Dworkin claims we all hold: Jewish law, like classical utilitarianism, does view life as an "incremental value."

Utilitarian theorists following the classical utilitarian analysis have reached the same conclusion by a different route. If the goal of utilitarian morality is to maximize the sum of human happiness, the theory goes, then we ought to maximize the number of humans who can experience happiness (at least so long as the population does not increase to the point where new lives will be, on balance, unhappy). [FN63]

Those who believe that more human life is almost always better may oppose abortion regardless of their views of the status of the fetus. Dworkin claims that opposition to abortion is based on a view that "the deliberate destruction of something created as sacred by God can never be redeemed by any human benefit." [FN64] The Jewish law and classical utilitarianism, however, rely on a different notion altogether: they command some people to take affirmative action to bring children into the world. It is the neglect of that duty, not any value of the prehuman fetus, that motivates the Jewish law's opposition to abortion.

Dworkin's account of some Catholics, including Thomas Aquinas, who have condemned abortion without relying on "immediate ensoulment," [FN65] suggests that these thinkers as well believe that any limitation on the number of new humans brought into the world is suspect. [FN66] But if some people oppose abortion without agreeing that the fetus is entitled to any respect at all, Dworkin cannot be correct in claiming that the abortion debate is entirely centered around how best to sanctify life. For at least some proponents of criminalization of abortion--and, as I will show later, for many opponents of state regulation as well [FN67]--the putative sanctity of fetal life is irrelevant.

Furthermore, opposing abortion because some religious traditions and some forms of utilitarianism teach that more humans is always better is not inconsistent with opposing it because fetuses are persons and abortion is murder. One could hold both views simultaneously. [FN68]

Thus, even if Dworkin's examples of abortion opponents who do not consider the fetus a person were representative of the spectrum of antiabortion views, they could not demonstrate that the debate is focused on how best to sanctify life. At most, they show that in addition to questions about whether abortion is murder, we must also consider questions about the moral status of all forms of birth control--even forms, like celibacy, that uncontroversially prevent a new life from being formed rather than ending an already existing one. Dworkin's examples do, however, demonstrate at least the logical possibility of debate on Dworkin's terms: one can consistently oppose abortion even if fetuses are not persons. Such opposition, however, seems likely to condemn all birth control and other restrictions on the entrance of newcomers into the family, not just abortion. [FN69]

B. The Importance of Being Earnest: The Inconsistency of the Abortion Opponents

Dworkin's next argument is of critical importance to his project. Here, he seeks to demonstrate that many abortion opponents could not believe that abortion is murder or that fetuses are persons, because to do so would be inconsistent with other beliefs they unquestionably hold. Specifically, he claims that it is impossible simultaneously to believe that a fetus is a person and to allow abortion in cases of rape, incest, or other circumstances in which prohibition forces often are willing to permit legal abortion. [FN70]

Surely, Dworkin argues, no one believes that it would be justifiable to kill A, an adult, simply because A is deformed in some way, [FN71] or to kill A because her mother was raped, or to kill A to save B's life (assuming B's life was endangered through no fault of A). [FN72] Because even many abortion opponents routinely do believe that abortions are justifiable when the mother's life is in danger, or the fetus is gravely deformed, or the fetus is the product of a rape, it follows that they do not actually think that abortion is murder; and because the killing of people is murder, it also follows that they do not really think fetuses are people. [FN73]

1. Why Be Consistent?

This argument also seems weak. First, Dworkin does not explain the basis of his assumption that moral views held by ordinary people must always form a self-consistent whole. Dworkin's method celebrates "integrity"--expressed in a moral or legal scheme as consistency--as the highest value. [FN74] Many of us, I suspect, would disagree.

In pure mathematics, where internal consistency is more obviously a value than it is in morality or law, Gödel demonstrated that a system cannot be both consistent and complete; [FN75] sometimes it is more important to be complete. In ordinary morality, integrity is often subordinate to other values, including, in the case of the white lie, even mere politeness. Indeed, the common-law method of case-by-case adjudication in which only the holding, not the reasoning, is binding, suggests a certain suspicion of elevating consistency over, for example, justice in the individual case. [FN76] All of this is only to suggest the possibility that many people hold--and after reflection [FN77] would continue to hold--self-contradictory views.

Similarly, Dworkin does not seem to acknowledge the possibility--surely true for at least some vocal opponents of legal abortion--that these concessions are made purely as a matter of political expediency and are not actually part of the belief system. [FN78] And Dworkin cannot explain why, if in fact the exceptions contradict the rule, it is the exceptions rather than the rule that would be retained in a consistent system.

2. The Murder Contradiction.

Next, even assuming that (1) on reflection, advocates of legal restrictions on abortion would conclude that they must resolve the inconsistencies in their views, and (2) faced with a choice between "abortion is murder" and the various exceptions to that principle, most [FN79] of these advocates would retain the exceptions, Dworkin exaggerates the inconsistency. Many people hold views about the right to life and murder that are considerably less absolute than Dworkin's. These views permit killings of human persons under many circumstances; the permitted abortion circumstances Dworkin cites are not dramatically different.

Dworkin's argument assumes that murder of A is never justifiable by claims such as "A was crippled," [FN80] or "the murder of A would save B's life," [FN81] or "A was the offspring of her mother's rape." [FN82] Moreover, Dworkin is arguing about the beliefs of actual people rather than about the requirements of some true morality that might exist independent of actual beliefs. Thus, he must be making the strong claim that no one believes that murder [FN83] is justifiable by such claims.

Thus stated, Dworkin's premise is clearly wrong. Many people in many different historical circumstances have accepted precisely these kinds of arguments. For example, some Inuit tribes, like the ancient Spartans, [FN84]apparently have believed that handicapped people, including adults who are unable to take care of themselves, should be allowed to die, should be killed [FN85] or even should kill themselves. [FN86]

Similarly, most Americans probably believe that it is permissible-- sometimes even obligatory--to send some eighteen-year-old boys to fight, knowing that some will die and others will kill, to defend the freedom (let alone lives) of other Americans or even some non-Americans. Because it is predictable that some soldiers will die and others will kill innocent civilians, sending soldiers to war may fit the form of "killing A to save the life of B." [FN87] Regardless of whether the political elite's decision to enter a war fits this model, clearly any soldier who (when not in immediate danger) kills an innocent opponent--whether a draftee or a civilian--is killing A to save the life (or freedom) of B. I assume that all nonpacifists believe such killings are justifiable under at least some circumstances. [FN88]

Indeed, American law accepts precisely the excuses Dworkin says we all reject. It is black letter law, set out in the Model Penal Code, that one may deliberately kill an innocent person in several different circumstances. [FN89] Consider the famous mountaineer hypothetical discussed in the commentaries to the Model Penal Code: [FN90] A mountaineer is roped to a companion who has fallen off the edge; he cuts the rope to save himself. Even though the companion is entirely innocent, the killing is clearly excused by the law and, I imagine, by most moral theories as well.

Similarly, it is permissible for a householder to kill an innocent (in the sense of nonculpable) person whom he perceives, even incorrectly, as a threat to himself or another. Consider for example a psychotic, senile, or infant attacker who is legally incapable of being responsible for his actions. Under the Model Code, like the common law, the householder would be entitled to kill the innocent attacker in self-defense. [FN91] Furthermore, the law is clear that self-defense is a valid excuse even if the killer was mistaken and the suspect was not actually threatening the killer, so long as the killer's belief was reasonable. [FN92] Indeed, the killer need not even think that the suspect is a threat to someone's life; it is often enough that the killer fear an assault [FN93] or loss of property. [FN94]

This example, however, is precisely parallel to the case of the (innocent) fetus that threatens the health of the mother. Contrary to Dworkin's assertion, the law ordinarily excuses a person who kills an innocent person in the reasonable (even if mistaken) belief that the killing is necessary for self- defense. It is not a large leap to conclude that a woman would have a right to kill an innocent (in the same limited sense) fetus-person who actually is threatening her life or health.

Dworkin next argues that, in any event, no one would allow a doctor to kill an innocent person to save the mother. This, he says, is because we all agree that it is "morally and legally impermissible . . . to murder one innocent person even to save the life of another." [FN95] The law, however, is to the contrary. The Model Penal Code commentaries, for example, do not distinguish between the mountaineer example (discussed above) and the case of a person who knowingly kills one person to save others; in each case the key is to save more people than are killed. [FN96] Self-defense doctrine goes further, allowing killing even without any net savings in lives: it is widely agreed that if a victim would be entitled to kill in self-defense, other people are entitled to kill to defend the victim. [FN97] Not only juries, but also statutes and the common law, would exculpate a husband who killed a psychotic (and therefore nonculpable) burglar who was trying to kill his wife. [FN98]

While use of deadly force by the police may pose special considerations, it is clear that here is yet another exception to Dworkin's blanket rule that we all agree killing an innocent person to save the life of a third party is never legally or morally permissible. [FN99] Even after Furman v. Georgia [FN100] restricted a state's right to impose capital punishment on convicted murderers, and Roe v. Wade [FN101] established that the Fourteenth Amendment creates a state interest in the life of even unborn (viable) fetuses, the law in many states remained that police officers could kill if necessary to effect the arrest of a suspected felon-- even though (1) the underlying felony would not justify anyone's killing the suspect, (2) the suspect was merely fleeing and did not pose an immediate threat to anyone, and (3) the suspect might have been entirely innocent. [FN102] The same permission to kill was extended to ordinary citizens, at least as long as a felony had actually been committed by someone. [FN103]

Thus, the law excuses deliberate killings of persons in an assortment of situations not qualitatively different from the situations in which popular opinion demands exceptions to even rigid abortion restrictions. American law excuses killings of people who, like the fetus, are legally and factually incapable of being responsible for their actions. The killer need not be the direct victim of the threat, and the threat need not even be real. This legal consensus that intentional, deliberate, and premeditated killing is often permissible presumably reflects moral views held by at least some of us.

In short, murder is a more complicated concept than Dworkin acknowledges. Many deliberate killings of a person are not universally seen as murder. Included among these nonmurders are killings that commonly--if not necessarily correctly--are justified by precisely the kinds of arguments Dworkin cites as evidence that abortion could not be murder. In contrast to Dworkin, then, I believe that permitting a doctor to kill a nonculpable fetus-person in order to save the mother would take only the smallest extension of existing law. In sum, believing the fetus to be a person and allowing abortion to preserve the mother's life, health, or safety are not contradictory positions at all. [FN104]

3. The Rape Exception.

The rape exception is perhaps the strongest example Dworkin offers for the incoherence of the views of those who claim abortion is murder. How, he asks, could anyone who believes that the fetus is a person condone killing an innocent fetus simply because it is the product of a rape? [FN105] In this section, I suggest that there are a number of ways to do just that.

Dworkin lucidly summarizes the perhaps most powerful set of arguments for permitting abortion in case of rape, based on the violation of the primary victim of the rape: the woman. [FN106] However, he sees these arguments as presupposing that the fetus is not a person. [FN107] That conclusion seems unsupportable to me. Even were a fetus a person, it would not follow automatically that a woman who was forced to conceive the fetus by a criminal act would have a moral responsibility to care for it. [FN108]

Our law--like ordinary morality--recognizes no duty to care for strangers even at minimal cost. [FN109] Even close family members are not required to give use of their bodies to another person to save the latter's life. [FN110] The rape victim who rejects the fetus as a stranger and a continuation of the original assault on her should have far less obligation to it--even were it deemed a person--than is created by these longstanding family relationships. Thus, even if the fetus were deemed a person with a right to life, it would not follow that it would have a right to live in the rape victim's womb or that the rape victim would be obliged to care for it. [FN111] That right and obligation, it seems to me, come only when the fetus ceases to be a stranger and becomes a member of the family. [FN112]

Thus, some people may believe that abortion is justified in cases of rape because of respect for the rape victim's autonomy. Even though they may acknowledge the fetus's claims to life, they are unwilling to increase the victim's injury by demanding that she assume a massive new responsibility to raise the resulting child. Other people, I think, reach a similar conclusion-- permitting abortion without determining that the fetus is not a person--by a very different route. For them, the abortion is permissible precisely because the fetus may be punished for the rape. On this view, as in some others I discuss, moral responsibility appears without any associated individual voluntary act. [FN113]

Individual responsibility for individual acts is one of the cornerstones of modern moral philosophy. Similarly, modern criminal law generally requires intentional acts to establish culpability. [FN114] Clearly, to the extent that responsibility and culpability require intent, a rape victim cannot be responsible and can bear no shame; a fortiori, any fetus resulting from the rape is innocent and free of both responsibility and guilt. Ordinarily, we do not execute innocent victims to repair the effects of a crime; thus, there is some appeal to Dworkin's argument that anyone who would allow abortion in the case of rape does not believe the fetus is a person. Indeed, no doubt that is the case for most proponents of legal abortion.

Nonetheless, some people do seem to blame the victims--including the fetus-- of rapes, and may indeed believe that "punishing" a fetus, which they see as a person, is appropriate. The notion that only criminal intent (mens rea) can create culpability is far from universally accepted. For instance, the law is quick to impute intentions that never existed, holding people responsible for actions (or consequences) they did not intend in any ordinary sense. Criminal conspiracy law, with its doctrines of transferred intent, is perhaps the most obvious example. [FN115] Tort law invariably ignores the actual mental state of the tortfeasor by restricting its inquiry, even in negligence cases, to a theoretical intent that a theoretical reasonable person might have had in the circumstances. [FN116] Various contract law doctrines similarly hold persons responsible for acts they may never have intended or even known they were taking. [FN117]

In the rape situation, the link between voluntary action and moral responsibility often seems to break down. In ordinary American communities, for instance, the rape victim regularly seems to be blamed even when there is no rational basis for imputing responsibility to her. [FN118] Arab notions of family honor sometimes require that the family reject and even kill a woman to expunge the shame of her rape. [FN119] While most Americans would not agree with this method of eliminating the shame of rape, I suspect that many do agree that being a victim of rape is shameful, even when it is completely involuntary. [FN120] If some Americans believe that a woman is soiled or dirtied or shamed by being a rape victim, regardless of her responsibility, so too, perhaps, the resulting fetus. Maybe it will seem soiled, cursed, or shamed and less worthy of the protection and care necessary to bring it to adulthood. Again, the position Dworkin finds impossible or inconsistent is but a small step from one that is widely accepted.

The profound influence of the Bible in popular culture, and perhaps the law, also may weaken the connection between voluntary action and moral responsibility. The moral actors of the biblical stories are blood lines and families, not individuals. Thus, the biblical text never questions the morality of testing Abraham by subjecting his son to near murder--Isaac seems to be treated as a mere outgrowth of his father, with no independent moral existence at all. [FN121] Other stories with the same theme of inherited merit or punishment appear throughout the Torah, Prophets and Writings: consider, for example, God's testing Job by killing his children, [FN122] punishing David by the defeat of his descendants in war, [FN123] and rewarding David's descendants for his merits, despite their own faults. [FN124]

As the aphorism cited by Jeremiah puts it, the fathers ate a sour grape and the teeth of the children are set on edge--that is, the children are punished for something that was not their fault. [FN125] In each of these instances, the child (or descendant) is treated as a mere moral appendage of the father. In Dworkin's terms, God treats Isaac as if he were not a person. [FN126] But if Isaac at the age of thirty-seven can be treated as a mere moral appendage of his father, how much more so a fetus. [FN127] On this biblical view of moral responsibility, it may seem quite reasonable to abort a fetus conceived in sin (rape, incest, even extramarital sex) for the guilt of a parent. [FN128]

Indeed, while I cite this concept of collective, inherited responsibility to demonstrate how one could coherently believe the fetus to be a person and simultaneously permit abortion in cases of rape, it is also critical to understanding one important version of the anti-abortion argument. For some opponents of legalized abortion, bearing a child is God's punishment for fornication--or, on one common interpretation of the story of Eve and the tree of knowledge, simply for all women's hereditary responsibility for Eve's sin. [FN129] For those who believe this theory, the ruined lives--of both the mother and the child--that could be avoided by an abortion are precisely why abortion should be banned. The fathers (in this case, the mothers) ate a sour grape, and the children's teeth should be set on edge. [FN130] Permitting abortion allows the guilty woman to evade God's punishment for sleeping around (and for Eve's fruit eating).

Significantly, this explanation leads to a different treatment for rape than for extramarital sex. The formeris not (except on the most misogynistic views) the fault of the mother, and so, perhaps, God's curse does not apply. It seems highly likely that the belief held by some Christians that childbirth is a punishment for the wayward mother is an important part of the reason why exceptions for rape seem to have more popular support than exceptions for single mothers. [FN131]

In summary, it is not necessarily fatally inconsistent for an abortion opponent simultaneously to hold that a fetus is a person, that abortion is murder, and that it is permissible to abort in the case of a rape or to save the mother's life, or for other reasons. These may simply be some of the several situations in which many people see homicide as permissible.

If it is possible simultaneously to view the fetus as a person and to allow abortion in these exceptional cases, then Dworkin has failed to prove that abortion opponents do not view the fetus as a person, or that the sole issue in the abortion debate is how best to sanctify life.

C. No Sentience, No Rights

Dworkin's other line of argument for why fetuses are not persons is that a fetus is not the sort of being that could have moral or legal rights. This argument also does not seem so clearly correct as to demonstrate that no one could possibly hold the opposite view.

On a moral level, Dworkin claims that a fetus, not being a sentient being in any meaningful sense, is not the sort of thing that can have rights. [FN132] But he offers no justification for why sentience should be a condition precedent to having rights. Rather, Dworkin is content with stating that to have rights requires having interests, which in turn requires the ability to feel pain, "to enjoy or fail to enjoy, to form affections and emotions, to hope and expect, to suffer disappointment and frustration." [FN133]

But the law uncontroversially deems insentient creations, like corporations and estates, to have interests. [FN134] I do not understand why a fetus - or art, or trees, [FN135] for that matter--could not be deemed to have interests too, in either law or popular morality. Indeed, for those who believe a fetus has a soul and is a unique, irreplaceable object of God's affection and human responsibilities, it is hard to imagine how the fetus could not have interests and rights commensurate with those responsibilities. Even from the perspective of those who do not believe a fetus has a soul, a fetus who has been accepted into the family and for whom the family accepts responsibilities should be deemed to have interests. [FN136] This is why, without being inconsistent, one can support a right to abortion and simultaneously believe that an assault that causes a miscarriage is a particularly terrible thing. [FN137]

On a legal level, Dworkin points to the havoc a doctrine recognizing a fetus as a person would wreak in constitutional law because legislatures would be required to protect fetuses just as they protect adults. [FN138] Dworkin's legal argument relies principally on the Supreme Court's interpretation of the Fourteenth Amendment. As he points out, no Justice has been willing to contemplate the radical changes in the law that would inevitably follow if it were held that fetuses are persons entitled to equal protection of the law. [FN139] Here, as in the murder context, few (adult) people (and no Supreme Court Justices) are willing to treat the fetus as a true equal to its mother. [FN140]

The Supreme Court, however, has shown remarkable agility in altering the rights of Fourteenth Amendment personhood when pressed. Compare, for example, the unexplained ruling in Santa Clara v. Southern Pacific Railroad [FN141]--that a corporation is a person under the Fourteenth Amendment's Equal Protection Clause [FN142]--with the established doctrine that a corporation is not a person under the Apportionment Clause of the same Amendment. [FN143] Surely extending the rights of personhood to fetuses without requiring that doctors permit mothers to die in order to avoid an abortion would require no more mental dexterity. [FN144] I am not arguing that this is a sensible position, or that it is the best understanding of the current state of American constitutional doctrine--it is not. Rather, I am arguing only that Dworkin is wrong to believe that no one could coherently believe the insentient fetus has a claim to the legal or moral status of personhood. To the contrary, one could simultaneously believe that such a fetus is a moral and legal person and that abortion should be permitted in numerous circumstances. [FN145]

So far, then, I have argued that Dworkin is wrong to think it incoherent to hold the opinions that polls show almost half of all Americans claim to hold: that the fetus is a person but that abortion should be legal in at least some circumstances. [FN146] I have argued that these views may be consistent, and in any event, people may simply be able to accommodate, even after reflection, whatever inconsistency does exist. At the same time, I have attempted to show that the beliefs of at least some proponents of criminalization of abortion are more distant from Dworkin's views than he is willing to acknowledge, since they may simply reject Dworkin's views that all killings of innocent people are wrong and that moral culpability requires personal action. Later, I shall argue that this extreme heterogeneity of our views requires a different type of argument from the one Dworkin offers. [FN147]

III. Investments and the Sanctity of Life

Having argued that everyone agrees that the fetus is not a person and has no right to life, Dworkin next turns to his explanation of what the real debate is about. [FN148] If, as Dworkin argued in the first part of the book, we all agree that the fetus has no right to the moral respect due a person, why do we worry about abortion at all? Why do we not just treat abortion as if it involved no more important a moral decision than removing an ingrown toenail or a tumor?

Dworkin's fetal-centered question produces a fetal-centered answer. He asks, in effect, What is this fetus that we should care about it? As a result, he does not follow through on the central insight of the book. Having argued that fetal personhood is not the center of the debate, he then creates a theory of a subhuman fetus that still insists on being the center of attention. Dworkin's theory remains focused on the fetus's life.

Thus, Dworkin misses the most powerful point of proponents of legal abortion: Our focus is on the (undisputed) humans involved and their relationships, obligations, rights, and families--not on the fetus. For those who accept any responsibility to plan their life, [FN149] the issue is serious, because like all decisions to bring, or not to bring, a new person into the world, it involves the most important commitments human beings can make. [FN150] And for those of us who also reject the claim that the fetus is human, the decision is not really about a fetus at all--it is a decision about twenty years or more of child rearing. [FN151] It is a decision about the future of our marriages, our careers, our finances, the heritage we will leave, and the family we will have. It is not, first and foremost, a decision about our philosophic views of the meaning of life, as Dworkin suggests, but rather about who we are or wish to be and to whom we are committed. In the terms Dworkin uses in his discussion of dying, it is a decision about the "shape" of one's life and about "what is really important in life." [FN152]

A. Detached and Derivative Views

Dworkin distinguishes two ways in which one might be concerned about preserving life. First, one might seek to vindicate the living creature's right to life. This he refers to as a "direct" or "derivative" concern (depending on whether the creature itself, or another on its behalf, seeks to vindicate the right). [FN153] Direct and derivative concerns for the fetus's right to life would be irrelevant, of course, were Dworkin correct that we all agree a fetus is not a person and therefore has no right to life.

The alternative he calls a "detached" concern, because it exists independent of whether the fetus has rights or not. Here the concern is preserving "life," not vindicating the right to life of any particular person. [FN154] Dworkin argues that the detached concern for life can even be counter to the rights or interests of the life being saved. [FN155] This possibility is one reason the book also addresses issues of euthanasia and the right to die. Thus, when a person reasonably concludes that she is better off dead, the direct (or if the person is no longer capable of defending her own interests, the derivative) view clearly directs us to permit suicide, while the detached view may still direct us to preserve life. [FN156]

Dworkin's argument, then, is that "for most people the abortion controversy is not about whether a fetus is a person with a right to live but about the sanctity of life understood in a more impersonal way." [FN157] That is, the debate is about a detached interest in preserving the life of the fetus, not about a derivative one. This somewhat arcane distinction leads to one of Dworkin's key moves. A debate centered around the particular fetus's (direct or derivative) right to life demands a collective decision and state intervention. If the fetus is a person, abortion is murder, and murder is not the sort of thing that can be left to individual consciences. Rather, the state must actively prevent it. [FN158] In contrast, a debate about vindicating detached interests in life lends itself to a ready political solution. Dworkin thinks that the "how to sanctify life" debate can be resolved with the traditional liberal solution of a limited state. [FN159] While we may have radically different views on how best to sanctify life, Dworkin wants to persuade us that we can all agree that the political issue is merely "the state's right to mandate an official interpretation of the inherent value of life." [FN160] And if that formulation sounds quite religious, it is intentional. Dworkin aims to convince you that the abortion issue is an Establishment Clause issue and should be dealt with just as we have dealt with most issues of religion--by state abstention. [FN161]

B. Dworkin's Investment Theory of the Sanctity of Life

Dworkin, then, seeks to build from the premise that the abortion debate is about the vindication of the sanctity of life from a detached view. From this premise, he reaches a conclusion requiring toleration of differing views of how to sanctify life modeled after the First Amendment. But for his premise to have any plausibility at all, he must explain how--if we all agree that the fetus is not a person and that we must vindicate the sanctity of life in an abstract way--nonetheless we disagree so dramatically about abortion. This step in his argument, then, requires further elucidation of the detached view.

Dworkin explains that we--supporters and opponents of abortion regulation alike--are concerned with preserving the "creative investment" in a human life. [FN162] Dworkin explicates this concern with a peculiar account of the worth of human life: "[W]e treat the preservation and prosperity of our own species [FN163] as of capital importance because we believe that we are the highest achievement of God's creation, if we are conventionally religious, or of evolution if we are not . . . . " [FN164] Having thus based human value in our supposed belief in the creativity and progressivity of God or Evolution, [FN165] Dworkin argues that this value is based on the "investments" made by Evolution-God on the one hand, and by humans on the other. He then argues that the spectrum of our abortion views results from different weighting of the relative contributions to human life from each of these sources. [FN166]

According to Dworkin, everyone agrees that an early death "frustrates" the investment of the eternal order or of other humans in the decedent. [FN167] However, some people care principally about the investment of God or deified Evolution, which, in Dworkin's view, is complete at conception. [FN168] Others are more concerned with the ongoing human investment in the living person. If you are among those, you "will accordingly see more point in deciding that life should end before further significant human investment is doomed to frustration." [FN169] I find this account bizarre for several reasons.

First, neither "conventional religion," whatever that is, [FN170] nor evolutionary theory consistently teach that "we are the highest achievement of God's creation . . . or evolution." As for "conventional religion," at least some religions teach that the point of the story about God creating everything is that everything--not just humans--is God's creation. [FN171] Thus, for those who take the beginning of Genesis seriously, Dworkin's anthropocentrism is mere unjustified hubris. [FN172] In any event, the God of the Hebrew Bible, in most interpretations, creates by fiat, ex nihilo, yesh me'ayin: God said, "Let there be light, and there was light." [FN173] This God is no romantic starving artist laboring long hours to create a masterpiece. Nor does this conventionally religious view maintain that God invested great resources in creating humanity: "And Adonai God created the human of dust from the earth." [FN174] One does not value God's creations because of the investment and sweat with which they were made, but because of their own value (or their Creator's value). As for evolution, it was a nineteenth-century perversion of evolutionary theory to believe that man is evolution's "highest creation." [FN175] Modern theorists, however, almost uniformly agree that evolution does not come with higher and lower creations: what survives, survives. [FN176] Humans have survived, so far; the only conclusion evolutionary theory draws from this fact is that we exist, as of the moment. Dworkin's romanticized preservationists who "say that the extinction of a species is a waste of nature's investment," [FN177] apparently paid remarkably little attention in their evolutionary biology class.

Nature, then, does not invest any more than it creates--it just is. [FN178] Similarly, none of the widely held conventional religious views, so far as I am aware, treats human life as a matter for discounted present value analysis. [FN179]

C. Killing to Save Them

Regardless of whether anyone (much less all of us) actually believes Dworkin's investment account of human value, no one should. Dworkin's metaphor urges us to think of human lives or relationships as an investment, to be commenced only if the discounted present value of the expected return exceeds the investment. Thus, it contradicts the principal virtue of the liberal (in the philosophic sense) tradition: treating humans as ends in themselves, not as means to some other end. [FN180]

When Dworkin applies his investment theory to explain the views of "liberals," the results are stranger still. Liberals, he says, think that abortion is permissible when birth would have a "very bad effect on the quality of lives." [FN181] The strongest case for abortion, then, is where grave physical deformities "would make any life deprived, painful, frustrating . . . and in any case short," [FN182] or where "family circumstances are so economically barren, or otherwise unpromising" [FN183] that the investment people will make in the life will inevitably be frustrated, and it is therefore appropriate to kill. In Dworkin's view, the liberal makes a "more impersonal judgment: that the child's existence would be intrinsically a bad thing, that it is regrettable that such a deprived and difficult life must be lived." [FN184]

Like Dworkin's basic position that human worth is the result of investments, this is an astonishingly illiberal--and dangerous--view. Personal or impersonal, judgments regarding whether a "child's existence would be intrinsically a bad thing" emit the faint odor of the gas chambers. If it is better that such a life not be lived, why ever allow it to come into existence or to continue after it begins?

Abortion as mercy killing is an ugly sight indeed--a third party with no knowledge whatsoever of the future child's views on the matter (because a fetus can have none yet) plays God and ensures, by killing it, that the child never comes into existence to second guess this judgment regarding how best to honor its life. [FN185] Were liberals to adopt this understanding of abortion, they would probably be compelled to reverse their commitment to Roe. [FN186] In this post-Holocaust era, liberals at least should know to avoid judgments regarding which lives (of other humans) are or are not worth living.

D. Fetal-Centeredness or Family Responsibilities?

Dworkin offers his investment theory to explain why people who conclude that abortion should be legal--or even that it is morally required under some circumstances--nonetheless feel regret. Almost no one, he says, treats abortion as a morally indifferent act, [FN187] and he is no doubt correct. The explanation, however, has little to do with future returns.

The problem is that Dworkin continues to focus on the fetus. His discussion seems primarily concerned with the tragedy of an unnecessary fetal death. [FN188] I believe many people focus on a different issue altogether: the disrespect for our responsibilities toward the living demonstrated by giving birth to a child who will not be raised properly or whose birth will leave the parents unable to fulfill other responsibilities. [FN189]

I believe these people see a human being, a soul, a citizen, or a mensch [FN190] as something that must be created by the joint work of the child and the parents over five, thirteen, or eighteen years after birth. [FN191] On this view, a prospective parent who cannot or will not make the necessary commitment should not be a parent. These Americans, I believe, consider it immoral--not just inconvenient--to carry a pregnancy to term when the potential parents are unable or unwilling to then raise the child properly. For them, "an unwarranted or frivolous choice" [FN192] not to have an abortion is at least as immoral as the opposite decision, the decision on which Dworkin focuses.

This liberal view, then, is based on the premise that one can properly raise only a very limited number of children in a lifetime. [FN193] Therefore, one must carefully consider before accepting the responsibilities of a new one. The focus of thought is not on the fetus as an individual being, but on the parents' family--an institution with a pattern and demands of its own. [FN194]

Thus, for some people, the central issue in a decision to give birth or not (whether by abortion, contraception, or abstinence) is one of responsibilities, not rights: [FN195] responsibilities first and foremost to one's family, [FN196] to existing children, to a career, to oneself and one's spouse, and to one's religion and its traditions; even responsibilities to beings that do not exist yet: to the children one might have someday. [FN197] Will we be able to take care of those (future) children properly?

Thus, despite the political rhetoric about choice, many people who decide to have an abortion talk not about choice, but about obligations to themselves and others. [FN198] They confront not a choice, but a conflict of responsibilities in which it may be perfectly clear which responsibility prevails--pre-existing commitment over commitments not yet made--and yet terribly painful to refuse to accept the new responsibility.

If this account is generally true, prochoice supporters do not think of the decision to have an abortion as a free choice in the manner of a choice to go swimming or bicycling this weekend. Rather, they view the decision to abort as an important moral or life decision that may be compelled by life circumstances and existing obligations. A better label for the position of abortion-rights advocates accordingly might be "freedom of conscience" rather than "freedom of choice." The most important objective of abortion-rights advocates is not to vindicate the individual's right to self-fulfillment through a voluntarily chosen life plan or the right to freedom from interference in decisions (like the type of clothes one wears) that are of little importance to others. Rather, their focus is on the right to live according to one's most important values, to obey the dictates of conscience, or to follow a higher (moral) law.

Dworkin claims that the regret of abortion is, for all of us, the regret of a frustrated investment. [FN199] In contrast, I suggest that for those who focus primarily on the responsibilities of raising a child, the regret of abortion (when there is regret) comes from the knowledge that the world is a tragic place where desires and responsibilities often conflict. People who want children, now or in the future, may have a sense of loss when a child is not brought into the world--whether by abortion, contraception, or celibacy--even if it is also clear that it would be utterly irresponsible to give birth now. This feeling of loss may grow after conception, and continue to grow later in pregnancy, as the potential becomes closer to realization--not because an embryo is more human than an unfertilized egg, but because it is more likely to become a human, just as it is more painful not to get a job after six interviews than after merely sending out a resumé. Nor is investment the issue here in any normal sense of the word. It is more painful to lose the lottery on a recount after you thought you had won than in the usual way. The former seemed so much closer to realization, though the investment was equally minimal. [FN200]

Thus, the loss and pain of an abortion is the loss of a child that someone wanted, even if only on an instinctual level reflecting the demands of a presocial biology, or that we wish someone wanted, if only on that same instinctual level. But we generally do not live our lives according to our biological urges, and that loss, as painful as it sometimes is, is not an ultimate value. [FN201] All sorts of things may outweigh it. Most clearly, a child is not something one can simply "have." Children must be brought up, and a proper upbringing must begin with freely given love, love that may be hard to give except when the child is wanted, even desperately wanted. For others, the problem may be not bringing up this child, but fulfilling other commitments: raising a (or another) child necessarily means giving up many other possible ways to spend a brief life. [FN202] Nonetheless, the loss remains, although it is outweighed by other aspects of an unhappy, because finite, reality. [FN203]

E. Are Fetuses People, Redux

Oddly, Dworkin has not only failed to take seriously the views of those who believe the fetus is a person, he seems as well to have failed to understand the extent to which many supporters of legal abortion deny the humanity of the fetus. Dworkin's "investment" picture does not distinguish clearly between fetuses and children. [FN204] In contrast, the responsibility-based reasoning I outlined in subpart III(D) allows legal abortion only if you believe--more than Dworkin seems to--that the fetus is only a potential child, not yet an actual child.

An actual child is an individual enmeshed in existing relationships, not an abstract idea or potential. With real people, one must live with their deformities, work to love or at least tolerate their deficiencies, and appreciate who they are rather than some abstract ideal they do not meet. [FN205] If their lives are "deprived and difficult," the family must try to improve what can be improved and cope with what cannot. With real children, it would be shocking or worse were a parent to "regret that such a deprived and difficult life must be lived" in Dworkin's sense of wishing the child were dead and taking steps to fulfill that wish. [FN206]

I distinguish sharply, then, between the sorts of decisions that may be made about potential family members and those that may be made about actual, existing ones. Potential members may be rejected for many reasons and perhaps for none at all, much as a sovereign state may reject potential immigrants on virtually any basis, including racial and ethnic bases barred in all other areas of domestic law. [FN207] The same reasons, however, carry no weight with respect to those already admitted: International law bars virtually all expulsions of citizens, and the same family that would not have hesitated to abort a severely deformed child will devote themselves to the child once born.

Hidden in this analysis are two analytically separate issues: (1) when the child begins to exist, and (2) when the child becomes a member of the family. However, "child" is not a preexisting analytical category: In practice, I think it is usually a label applied to indicate our conclusion that the time has passed to make the membership decision. That is, we all agree that children are members of the family already, regardless of whether they came to be there by fully informed choice, gross coercion, or something in between. [FN208]

Thus, the decisions whether or not to accept a new child, to abort a pregnancy, to have sex, and to use birth control can only be made before the child enters the world (or at least, in the case of adoption, before it enters the family). Once a child is accepted into the family, the family must care for her; parents cannot rethink their decision to raise a child when she turns out to have colic or an extreme case of the "terrible twos," or when she becomes a rotten adolescent. Opponents of criminalization must therefore believe (as Dworkin says we all believe) that the fetus is not a person, or at least that it is not yet a member of the family.

In sharp contrast to this antiregulation view, some who support banning abortion really do believe that the fetus is human, that the soul enters full born at the moment of conception, and that the fetus is already the family's child. [FN209] For them, humanity is not an evolutionary process--it either is or is not. For these people, too, the abortion issue may center around assuming responsibilities, but the responsibility attaches earlier. If the fetus is already a child, the time to decide whether to admit it into the family already has passed.

The essential difference between the pro- and antiregulation views, then, is that in the proregulation view, one makes the commitment to accept a new child into the family, with all the attendant consequences, when one chooses to have sex in the first place. [FN210] For the principled abortion opponent, backing out on the fetus after the amniocentesis is no more a possibility than backing out on the teenager after a motorcycle accident. [FN211] In short, the divisive question is whether the fetus is a child for whom one is already responsible.

Unlike Dworkin's investment account, this explanation of the antiabortion position gives a plausible account of the logic behind the widespread willingness of those who call the fetus a person nonetheless to allow some abortions. It may be eminently sensible to view the fetus as a person--that is, something to which responsibility has already attached [FN212] - and yet have many exceptional situations in which abortion would be permitted. Where there is no "real" choice to have sex--such as in cases of rape, incest, or statutory rape--there is no moment at which responsibility could have been rejected by the woman. [FN213]

However, for other abortion opponents, the entire issue of choice may be irrelevant. Not all responsibilities are a matter of choice. Responsibilities and obligations are sometimes thrust upon us without any voluntary act of our own--when a parent becomes sick, for example. Regardless of their views on abortion, virtually all Americans would agree, I suppose, that parents have an obligation to continue caring for their two-year-old child even after they discover it has a major deformity. Those who see the fetus as a full individual could, consistently with this view, believe a pregnant woman has a similar obligation to the fetus inside her, even if she is a victim of rape or knows the child is going to be born severely retarded. It is not a matter of choice, but simply one of the tragedies of life. [FN214]

F. The Implications of the Responsibility Approach

If the issue is whether responsibility attaches at conception, the fetus-as- person argument returns. But the issue is somewhat different from Dworkin's framing of it. His claim that the fetus has no interests because it is not sentient [FN215] seems almost irrelevant. We--and here I do mean "we" in the broadest sense--surely all believe that we have responsibilities toward many things that are not currently existing sentient beings: work, morality, ancestors and their traditions, our country, the People, integrity, religion, Art, even trees. The issue is not whether the fetus has rights, but whether it is the object of a full responsibility or only a developing, partial one.

It seems clear that those who feel obligated to have an abortion do not feel they have a responsibility to the aborted fetus, or at least not as great a responsibility as they have to other family members or even to the not-yet- conceived child of the future. This is a fundamental difference, deeper than Dworkin acknowledges, from those who believe the commitment is complete and responsibility has attached at conception because the fetus is a fully formed soul.

Dworkin's investment account of the abortion controversy, then, fails on two important levels. First, in its attempt to describe our views, or our views as they would be in reflective equilibrium, his investment account fails to take seriously the actual views of many participants in the abortion debate, because it is based on his incorrect theses that we all agree the fetus is a person and are concerned with the sanctification of life in an abstract sense. Second, to the extent that Dworkin intends this theory to be prescriptive and persuasive-- an alternative to, rather than an exposition of, existing views--it is simply unattractive. Human relationships and human lives should not be valued based on the return they provide to others' investments. [FN216]

In addition, under the responsibility approach, the state is left with fewer "neutral" options than Dworkin imagines. On his account, the central issue in the abortion debate is how to sanctify life. [FN217] Dworkin concludes from this that the state should largely abstain from interfering in an essentially religious issue. But almost everyone would agree that one way to sanctify life is to think seriously before taking it. Thus, Dworkin's account suggests that the state would be entitled, and perhaps required, to take steps such as instituting a mandatory waiting period designed to ensure that women do not frivolously decide to abort. [FN218] In contrast, if the issue is one of assuming a tremendous responsibility, the state should be at least as concerned with women who frivolously decide to bear a child. Waiting periods designed to persuade women not to abort are not neutral between the two views. [FN219] Most importantly, however, the "neutral" First Amendment abstention approach is not available. The state must decide either that fetuses are already members of the family for whom the family must take responsibility, in which case it surely must regulate abortion just as it must regulate infanticide or refusal to feed a child, or that fetuses are not yet part of the family, in which case it has no business forcing a citizen to assume life-changing new roles and obligations without her (or his) explicit consent.

IV. Two Views of Human Nature

The central issue in the abortion debate, then, is the status of the fetus, notwithstanding Dworkin's claims to the contrary. In this Part, I explore two different ways of understanding the various views of fetal status.

First, in subpart IV(A), I consider the problem as one of fungibility. If the fetus is a replaceable, undifferentiated mass of cells, the extensive responsibilities one has to it can be shifted to its replacement. Conversely, if it is an irreplaceable, unique soul or human being, it is hard to see how one can treat it very differently from a child.

Then, in subpart IV(B), I examine the notions of humanity that seem to underlie the abortion debate. Some people see humanity as essentially developmental and progressive: something that must be created and recreated in each individual's life over a course of many years. Others see humanity as something that was created in the Garden of Eden; nothing is left for us. These two views of humanity lead to different conceptions of why human life is valuable and, correspondingly, to radically different understandings of the issues in abortion and childrearing.

A. Fetal Nature: The Problem of Fungibility

Some people view a fertilized egg at two or three months as relatively undifferentiated and easily replaceable. If this egg is lost, another functionally identical egg can replace it a few months later. Indeed, some common practices in our culture seem designed to further that perception: some of us conceal our early pregnancies and do not name the fetus, thereby promoting a sense of its fungibility and lack of individuality and, not incidentally, mitigating the pain that would result from losing the fetus.

People who hold such a view recognize that a newly fertilized egg has only a small chance of coming to term. [FN220] In their view, this month's egg, even fertilized, is not much different from last month's or next month's until it has shown that it is likely to survive. But if the blastula is fungible, then any responsibility the parents have to it can easily be shifted to another one. The responsibility the parents have is to bring a loved, whole child into the world in a situation where the parents can properly help it to become a mensch, [FN221] not a responsibility to this particular mass of cells, any more than to a particular sperm or egg. [FN222] For these people, any responsibilities they may have are to a sort of abstraction--not so abstract as Dworkin's life in general, [FN223] but abstract nonetheless. The responsibility is to a fetus that will become one's child, but not necessarily to this particular fetus.

This distinction explains an apparent contradiction in the judgments of some people who strongly support a right to abortion-at-will and even believe that a woman who becomes pregnant before finishing basic schooling has a responsibility--to herself and her future family--to abort. When thepregnancy is planned and wanted, the same people may expect the mother to carefully abstain from coffee, alcohol, and activities that pose even slight threats to the fetus. On a fetal-centered view, the two positions are clearly contradictory: surely if the mother has a right to kill the fetus deliberately, she also has a lesser included right to risk injury to it. But on a responsibility-centered view, the judgments are consistent. The mother's responsibility is to the future child, not to the fetus. Only in the latter case has it become clear that the fetus will likely become that future child. [FN224]

For others, in contrast, the fertilized egg is an individual from the beginning. Anyone who accepts the Catholic doctrine that a unique soul (itself identified as the valuable, God-like part of a not-yet fallen human) enters the protoblastula at conception, [FN225] should, if consistent, [FN226] fall into this category. For these people, the fetus cannot be fungible. The responsibility attaches at conception, and the obligation is not to a future, hypothetical child but to this one.

Should fungibility or uniqueness matter? In the sense in which I have been discussing it, the answer is almost automatic. Something replaceable cannot have the same value that something irreplaceable does, if for no other reason than that the replaceable may be replaced. [FN227]

But in another sense, the fungible/unique distinction is empty. Fungibility is not an aspect of the physical world. In a world in which time runs in only one direction, everything is unique because each moment and each object will never again be just as it is. Only our judgment that the differences between two items in four-dimensional space-time are unimportant allows us to call them substitutes for each other, or even to refer to an object as existing through time. As Heraclitus's aphorism has it, the river never runs twice. [FN228] Indeed, if the particular eddies of the river were important to us, we might not think of it as a river at all: Even the unity of the object is a human decision that this eddy (last week) and that eddy (next week) are part of the same thing. [FN229]

Fungibility and uniqueness, then, result from how we perceive the adequacy of a replacement or continuation of something that no longer exists. Arguments to sanctify something will often include claims that the object of the sanctification is unique, while the opposition will claim that it is more or less fungible. Preservationists, for instance, may find uniqueness in an endangered species that is irreplaceable, such as the snail darter, or in a 3000-year-old sequoia with its own particular, irreplaceable history. Their opponents see only a small fish or a large tree, fungible with many other small fish or large trees. [FN230] Similarly, when human beings are viewed as merely "masses" or "quarrel[lers] in a far-away country between people of whom we know nothing," [FN231] rather than unique individuals, their lives no longer seem to require sanctification. [FN232]

But if a perception that something is unique often leads us to value it, the reverse is equally true. Only by deciding that something is significant can we even see it as unique. When we decide something is important, by that very decision we make it, at least to some extent, irreplaceable. Is a sequoia a replaceable tree or a 3000-year-old individual? Is a snail darter a fungible fish or a unique species? Are people who die statistics on a chart (highway accidents) or individuals (a child stuck in a hole)? Are the victims of war distant people of whom we know nothing or a mother holding her dead child on the television news? These are all differences of moral classification, not physical reality. The distinctions are in the realm of "ought," not "is." [FN233]

The result for the abortion debate is that the two sides will often be speaking at cross purposes. Some see the fetus as a unique individual human, a person to be sanctified. Others see something of little importance--just the raw materials from which a human will be constructed at some later date, easily replaced by other materials. Rather than Dworkin's picture of a consistent, universally held view that human life must be sanctified, with a spectrum of views regarding how best to achieve this common goal, [FN234] I see only a shared abstract philosophy with radical divisions in the moral content. Surely most Americans agree that unique individuals are in some sense sacred. That principle offers no hope for universal agreement, however, because it is empty: Only those things that are in some sense sacred have any hope of qualifying as unique individuals.

B. Human Nature: The Tree of Life and the Abortion Question

In this subpart, I suggest another way of analyzing the abortion debate. In my view, the strongly conflicting political views of the proper role of the state in regulating abortion reflect deeper divisions in the way we view humanity and value human life. By means of a midrash, or parable, on the biblical story of the tree of knowledge of good and evil, [FN235] I hope to elucidate two--inevitably caricatured, ideal type--views of humanity.

1. Genesis.

The story of the apple [FN236] in the book of Genesis divides the account of the origins of humanity into two radically different parts. The beginnings of the biblical story tell how man and woman were created from the dust of the earth and the spirit of God. [FN237] But it is the spirit of God that seems to predominate--the description of life in Eden seems most unearthly. In the Garden of Eden, it is not man but God who works: God plants the Garden, God irrigates it, and God makes food grow on trees. [FN238] The first man and woman apparently live without labor, without needs, and without wants. They are unconscious of sexuality or of the differences between the sexes. [FN239] They do not live by laws, because nothing, or almost nothing, is forbidden them. In any event, they would have no need for law, since nothing is lacking them. [FN240] As far as we are told, they do not work, play, create, destroy, love, hate, pray, or have sex. They do not even have individual names or identities: Adam is referred to as "the man" and Eve as "the woman" until after the apple. [FN241]

Indeed, the text suggests that Adam and Eve are immortal. God tells the man that on the day he eats the fruit of the tree of knowledge he will die, [FN242] yet Adam lives for several hundred years after the apple incident. [FN243] Thus, unless God's threat was empty, the curse must have been not that Adam would drop dead on that day, but that he would become mortal on that day. [FN244]

After the apple, all this changes. Now mortal, Adam and Eve are forbidden for the first time to eat the fruit of the tree of life. [FN245] They are exiled from Eden and forced to work for a living. [FN246] Instead of eating the fruit of trees planted and tended by God, they must eat the produce of the earth, which until then had been barren for lack of a man to work it. [FN247] Adam, now with a proper name and not merely "the man," must earn his bread by the sweat of his brow; Eve will give birth in agony. [FN248] Their eyes open, and they see that they are naked--knowledge of sex, embarrassment, and fear appear for the first time. [FN249] In short, Adam and Eve, now knowing mortality and morality, begin to acquire the status--so clearly important to the biblical author--of neither God nor animal, a status fully achieved only after the Flood, when laws are first introduced. [FN250] Eating the apple makes them into humans.

2. Exile v. As One of Us: Was the Apple the Fall or the Rise of Humankind?

The biblical story suggests at least two different views of what makes humans human, of what happened when man and woman ate the apple. One view is probably more familiar to those who learned Christian Bible stories as children. While it may be implicit in the Jewish sources, this view is fully developed only through the Christian concept of original sin. [FN251] The apple of knowledge, by this view, marks the fall of man. Man started out God-like, but by eating the apple, sinned and ceased to be God-like. The sin is a matter of some difficulty: It is not clear how God-like creatures could sin, and even if they could, why choosing mortality and morality over unquestioning obedience to authority would be sinful. In any event, the result of sin was knowledge, the knowledge that they were naked and had sinned. By eating the apple, Adam and Eve lost their innocence and lost their godliness.

This view suggests that the valuable part of humanity is whatever remains of Eden. We should aspire to be like the man and woman before the fall, when they were still godly and apparently without law, love, knowledge, lust, moral responsibility, or sin. Those parts of us that are most like Adam and Eve in their days of innocence are the parts most worthy of respect and protection.

There is a radically different interpretation at least equally implicit in the biblical text, and it too is familiar to students of Western philosophy, although not often studied in the context of Genesis. I will refer to it as the humanist view. [FN252]

In the humanist analysis, as well, eating the fruit of the tree of knowledge is what makes Adam and Eve into humans. The essence of humanness, however, is not sin, but self-knowledge; eating the apple separates us not from God, but from the other creatures. [FN253] In short, the understanding that we are naked [FN254] differentiates humans from the other creatures and makes us worthy of special consideration. Indeed, knowledge leads God to fear that Adam and Eve, if they were to regain their immortality, would be gods themselves. [FN255] Similarly, on this view, creative work is not merely the result of our fall and exile from God in Eden; rather it is another way that we, after eating the apple, become like God, the first Creator.

Both views agree, then, that only after Adam and Eve attain self-knowledge are they fully human; but according to the humanist view, in sharp contrast to the apple-as-fall view, being fully human is good, not bad. We have been exiled from Eden not because we are fallen, but because we have risen frighteningly close to the level of gods ourselves. One way to view the distinction might be that the first interpretation sees knowledge as causing the fall of man - as separating man from God - while the second view sees knowledge as making humans unique and worthy - both as separating humans from the other animals and as constituting the God-like component of humanity. On the first view, knowledge leads to mortality and exile from God's Eden; on the second, it is knowledge that makes us truly "as one with God, knowing good and evil." [FN256]

The two views lead to two fundamentally different understandings of the worth of human beings. Implicit in the notion of the fall is that the worth of the human is the breath of life, the spirit of God that makes the dust of the earth into a man. The soul is what we must treat with respect, for all the rest is just earth. [FN257] Indeed, on a strong version of this view, the spirit of God is the very antithesis of knowledge; after all, knowledge of morality originates in sin. On the humanist view of the apple as the rise of man, in contrast, knowledge is what makes us distinctly human, and it is knowledge--and particularly the knowledge of good and evil--that we must honor and value. It is wisdom, not innocence, to which we should aspire.

Furthermore, the two views give rise to radically different views of God. The first God is the authoritarian known from Christian readings of the Old Testament. The second God, alienated from man precisely because He is like man, has the more complex relationship with His creatures (or creators) implicit in the biblical story of Abraham trying to convince God to behave like a mensch at Sodom or its Hasidic and modern variants, such as Rabbi Levi- Yitzhak of Berditchev's tailor who should have refused to forgive God on the Day of Atonement until justice was done, or Amos Oz's story of a Jewish refugee arguing with and losing God on the way to Palestine. [FN258] In this Essay, however, I do not wish to further enter that thicket.

3. The Fall of Man and the Abortion Question.

Both views of humanity are powerful influences in Western thought, and each of us, no doubt, accepts parts and implications of each one. Nonetheless, examining them separately may help to elucidate some of the more difficult philosophical questions we face today. One case in which the two stories lead to opposed results is abortion.

In the first view, humans after the fall have two essences: a good and valuable one, which is the spirit of God that Adam and Eve had in their innocence, and a bad and deplorable one, namely, the sin they acquired with knowledge. Simple arithmetic shows that the "innocent children," in this view, are the most valuable humans of us all. They have the full God-like component-- a soul, or the dose of breath of God that gives them life--while they are still lacking in knowledge, and thus in the capacity for moral responsibility. Like Adam and Eve before the apple, they do not know good and evil. Children are thus closer to God and more worthy than normal adults. [FN259] This theory leads further to placing a high value on innocents of all varieties, even the unborn, once they are determined to be living humans (and thus possessed of the spirit of God).

It is the soul that is uniquely valuable and that makes us of God and not merely the dust of the earth. It seems to follow, then, that the most valuable human is the one with the most soul. The Jewish and Christian traditions, however, generally have insisted that all humans, but no nonhumans, have a soul and that all souls are equal. [FN260] The only variable between individuals, then, is the negative side of the balance, knowledge and sin. It follows inexorably that the most innocent and the least responsible, that is, those with the least knowledge and the least ability to sin, will have the most positive balance and be the most valuable. Because the worth of a human is in the God-like part, the less human one is, the better.

Clearly, then, this system puts a great deal of weight on the boundary between human and nonhuman or, in its own terms, on determining who has a soul and who does not. Any creature that has a soul but does not have the postfall human capacity of self-knowledge and responsibility is innocent of sin and thus more valuable than all postfall self-aware humans. Under this view, the most valuable creature will often be the one who--on any other view--is the least human because he is the least capable of post-apple work, love, desire, or knowledge.

The response to abortion by those who see eating the apple as the fall, then, will focus on one key issue: When does a fetus enter the category "human"--when does it have a soul? We can now explain President Ronald Reagan's otherwise nonsensical comment that he would support a right to abortion only if it were proven that embryos are not "alive." [FN261] Clearly, whether embryos are alive is in itself irrelevant, because, in this society at least, almost no one believes that all life (cockroaches, for instance) has such great value that it outweighs all the claims of a pregnant woman and her already existing family. If President Reagan believes the soul enters the human with the beginning of life itself, however, then his concern begins to make sense.

The misconception that the answer to the abortion problem depends on when life begins is not President Reagan's alone. The Court in Roe v. Wade [FN262] incomprehensibly stated, "There has always been strong support for the view that life does not begin until live birth." [FN263] To the contrary, ordinary scientific definitions of life clearly include not only embryos but unfertilized egg cells (which probably are not considered to be humans by anyone) and human skin cells (which, unlike the egg, at least contain a full set of human genes). [FN264] The question is not the factual one of whether embryos are alive, but the legal and moral one of whether they are "persons": [FN265] independent, full, human lives; children; members of the family; and beings for whom we have accepted a responsibility to care or for whom we are morally obliged to accept that responsibility.

Of course, nothing in the concept of a soul dictates that the soul must enter at conception, birth, bar mitzvah, or age thirty-five (when one may become President), or even that all biological humans have souls and no nonhumans have them. Christian slave owners on occasion sought to exclude their slaves from the consideration due to humans by deciding that the slaves lacked souls; [FN266] dog owners on occasion act as if they believe dogs do have souls. [FN267]

Some theory of who does and who does not have a soul, however, is essential. If the soul entered a child only at birth, the fetus would be of no importance. It would be simply dust of the earth, with no claim on our consciences at all. But if the soul enters at conception, the fetus is more valuable than its mother. By hypothesis each has the same valuable element, the soul, but the fetus, unlike the mother, is innocent and without responsibility for its situation. The decision as to how to value these two creatures if their interests conflict is clear under either view--clear, but radically different.

This view of humans as fallen gods, combined with a second theory that the soul enters a human embryo at conception, underpins the equation ofabortion with murder. Indeed, if applied consistently, this theory must lead to the conclusion that abortion is a particularly heinous kind of murder--a murder of a fully innocent, more godly, prehuman, still in Eden. For a consistent holder of this vision, [FN268] the problem of abortion can have only one solution: The rights of the fetus must be paramount, even at the cost of the mother's life. For how could we have the right to sacrifice an innocent person to save a less innocent one? [FN269]

The position that animal rights theorists like Tom Regan have taken also follows directly from this view. Regan postulates a group of creatures, including various humans and a dog, on a raft; all will drown unless one is thrown overboard. He asks whether one should be sacrificed and if so, which one. [FN270] One might consider the relative responsibility of each one for the predicament that they are in. Those who are more responsible should have to suffer the consequences of their actions before those who were less able to influence the outcome or who less freely chose to put themselves in the predicament (perhaps this is the logic behind the ancient seafaring principles that the captain should be the last to leave the sinking ship or "women and children first").

It should be clear that if you consider the dog to be a full moral subject, that is, if you conclude a dog has a soul, the dog is going to have the strongest right to be saved of the whole group. A dog, like a fetus, is not capable of making a moral decision. It, unlike the humans, did not choose to purchase a ticket on the boat or to live in a house by the flooded river. Unlike the humans, the dog has no responsibility for its situation. Thus, only the dog is innocent; it has not eaten of the apple and thus cannot have sinned. Because it has the least responsibility, if the dog also has a soul, it has the strongest claim to be saved. [FN271]

4. The Rise of Humanity and the Abortion Question.

The interpretation that views the eating of the apple as the beginning of wisdom differs dramatically. Here, humanity and godliness are not contradictory. Experience, knowledge, productivity, and menschlichkeit, [FN272] not innocence, are our valuable qualities. According to this view, humanity does not