I. PERSONHOOD IN ABORTION ARGUMENT

When we argue about abortion, what should we argue about? When a topic is so enmired in moral complexity, it can be difficult to gain clarity on just what one's starting point ought to be. Nevertheless, precisely where the locus of debate should reside is not just an interesting inquiry in its own right but an essential first piece of the puzzle when it comes to thinking through the rights and wrongs of abortion. For many discussants, the argumentative priority of determining whether a fetus is what we understand to be a person with strong moral rights is self-evident. Conversely, some serious and influential contributions to the abortion debate seek to establish that the personhood status of the fetus is neither morally nor legally decisive for abortion and is even rendered redundant by other philosophical considerations, some of which have clear legal analogues.

Putting it simply, there is more than one way of telling someone that she is asking the wrong question about a contentious subject matter. Some significant contributions to the abortion debate attempt to diminish or bypass the personhood question by claiming that it is, in the end, simply not morally or legally dispositive of the issue. Take the following claim:

GST claims that abortion is always or almost always permissible whether the human fetus is a person or not. In effect, it sidelines the personhood question by stating that it is never—or hardly ever—morally obligatory for a woman to carry a pregnancy to term, even to save the life of another person. The best-known iteration of GST comes in the way of an analogy drawn by Judith Thomson between pregnancy and a hypothetical situation in which a person is kidnapped by a musical society and forcibly connected to a famous, ailing violinist, whose unique kidney condition means that he needs to be connected to that person's body for the next nine months in order to survive.Footnote ¹

Another personhood-bypassing challenge of a slightly different sort claims the following:

JHT begins by pointing out that our moral and legal principles make exceptions to the general prohibition on killing other persons, for instance in situations of self-defense or absolute necessity, where killing one person, perhaps one who is doomed to die imminently anyway, is the only way of saving more endangered human life.Footnote ² It then claims that if the fetus were a person, abortion would often or always fit those exceptions. JHT differs meaningfully from GST in analyzing abortion as an act of killing, not just the refusal to save. Hence the two theses construct abortion's permissibility in different ways. On JHT, abortion is an example of justified killing, and on GST, of a justified refusal to save life. Both are similar, however, in presenting a possible route to the moral and legal permissibility of abortion that does not depend upon the fetus's personhood status.

In his 1993 book Life's Dominion, Ronald Dworkin presents an argument about abortion that also, in effect, attempts to sideline the question about fetal personhood, although in a way that can be distinguished from GST and JHT.Footnote ³ Dworkin does not proceed by claiming that in the final analysis the permissibility of abortion does not depend upon whether the fetus is a person. Rather, through an intriguing retelling of the abortion debate, he sets out to show that the personhood question is a fundamentally misconceived starting point for philosophical discussion and legal reasoning about abortion—that it altogether lacks relevance or salience in abortion argument.

The cornerstone of Dworkin's compelling revision of the abortion problem is his claim that the traditional debate about prenatal personhood is in fact only a proxy for an essentially distinct and more religious-like conflict about the intrinsic value of human life. Far from being about whether the human fetus is truly a person in the philosophical sense, Dworkin argues, the real dispute over abortion revolves around different understandings of human life's intrinsic value and whether abortion insults that value. Of second great importance is Dworkin's related claim that failing to diagnose correctly the true nature of the conflict is liable to induce another mistaken belief: that abortion disagreement is politically intractable and resistant to principled compromise. Whereas the personhood-centered view of abortion argument leaves, as Dworkin sees it, little hope for principled resolution, once we are able to understand what abortion argument is really about, a route to principled legal resolution within the context of continuing moral disagreement opens up through the doctrine of religious toleration. Dworkin's account thus, as he puts it, “contradicts the pessimistic conclusion that argument is irrelevant and accommodation impossible,” which seems so plainly to follow from the traditional view of the debate.Footnote ⁴

Dworkin's thesis is set apart from other personhood-bypassing accounts of the abortion problem such as GST or JHT in a way that gives it a certain argumentative priority over them. If he is correct to hypothesize that prenatal personhood is not in any event salient to the abortion problem, there is little need to evaluate the other theses I outline above, both of which set out to show that despite appearances, whether the fetus is a person does not matter for our analysis of abortion. Consequently, there is good reason to attend to a thesis such as Dworkin's right at the outset of any fresh examination of the rights and wrongs of abortion—at the beginning of the beginning, if you like.

If correct, Dworkin's main claims about abortion argument might also point toward a more profitable pedagogy when engaging in abortion discussion. If, as he surmises, those who believe that the rights and wrongs of abortion turn on prenatal personhood are, in truth, debating something of a wholly different order, then showing those discussants what an acceptable resolution could look like is less a matter of refuting those personhood-centered claims as it is a matter of getting them to appreciate their real reasons for making them. Lawyers and constitutional scholars in particular have no doubt found themselves drawn to the promise Dworkin holds out for directing legal reasoning about abortion away from the intractable question of what constitutes personhood and into the more manageable territory of religious disagreement and toleration.

Be that as it may, in what follows I set out to show that Dworkin did not manage to displace the philosophical or legal primacy of the personhood question in abortion argument. In particular, the main putative payoff of Dworkin's thesis—that a principled political answer can be reached without positing an answer to the personhood question—is not forthcoming. I also contest Dworkin's descriptive claim that prenatal personhood is not, in truth, what contestants in the public abortion debate are disputing. My argument for this draws partly from the ascertainable ways in which the shape of that public disagreement has developed since Dworkin made his novel claim and from asking whether those developments bolster or undermine it.

Last, although I hold Dworkin's view of the abortion problem to be incorrect, his argument in Life's Dominion is replete with important and instructive insights for anyone approaching abortion from a moral or legal perspective. In the course of underscoring the core weaknesses of Dworkin's contentions, I hope to bring into sharper focus the valuable contributions his thesis made to abortion argument, contributions that should continue to enrich and direct our thinking about this perennially difficult issue.

II. THE RED HERRING

Before tracing the detail of Dworkin's account, it is important to clarify the meaning of “person” in the context of this discussion, especially in relation to the separate descriptor “human being.” Most moral philosophers distinguish between the classifications “person” and “human being,” and Dworkin follows convention in this respect.Footnote ⁵ The ascription “human being” is a biological categorization, capturing any living creature that is genetically a member of the human species. Any human fetus or, for that matter, newly formed zygote, is at least a human being in the bare sense that it is an individual human organism. It is definitely not a dog or a cow.

The ascription “person,” on the other hand, refers to those beings that possess a certain kind of moral status, typically elaborated in terms of interests or rights and yielding a cluster of normative implications concerning how it is morally acceptable to treat such beings. Precisely what all of these normative implications are is a matter of some dispute. At the very least, though, personhood status is taken to entail strict rules about the permissibility of killing creatures in possession of that status. It is never permissible to kill persons, no matter how painlessly, for reasons of convenience or (on most views) even to promote an appreciable level of welfare among other creatures or persons. The same is not generally believed to be true of nonpersons.

The analytical distinctness of human beings and persons is apparent from the fact that we can at least conceive of nonhuman persons: intelligent aliens, angels, perhaps even some nonhuman animals can fit our concept of a person without being biologically human. So “human being” and “person” do not mean the same thing. It may be true, nevertheless, that all human beings are necessarily persons. This would be so if all members of the human species also happened to meet the conditions for personhood, making overlap between the categories 100 percent. The analytical separateness of the categories simply means that it is an open and hence an intelligible question whether this is so. Those who distinguish persons from humans think that the equivalence fails in both directions. Just as all humans are not necessarily persons, all persons are not necessarily humans.

Embracing this distinction, Dworkin addresses himself to the question of whether disagreement about the personhood of the fetus is at the center of conflict over abortion. In essence, he argues that the personhood issue is little more than a red herring in abortion argument and fails to capture the real nature of the conflict, which he describes in the following way: “Opposing armies march down the streets or pack themselves into protests at abortion clinics, court houses, and the White House, screaming at and spitting on and loathing one another. Abortion is tearing America apart.”Footnote ⁶

Argument about abortion is, Dworkin observes, both “fiercer and politically more important” than any other public battle, including that over euthanasia.Footnote ⁷ Moreover, when conducted in the traditional terms of argument about prenatal personhood, that conflict also appears to be entirely intractable. This impasse owes substantially to the fact that, as Dworkin says, “neither side can offer any argument that the other must accept,” since different conclusions about the personhood of the fetus are only, ultimately, a matter of “primitive conviction.”Footnote ⁸ As he writes:

On Dworkin's view, those who see the fetus as equivalent to an unborn child from conception and those who view it as no more than a cluster of cells cannot hope to persuade each other differently by recourse to reason, for their beliefs are not grounded in reasoned argument to begin with, but only in basic intuition. Fundamentally, either we see the fetus as a person or we do not. Neither can discussants who give different answers to the personhood question be expected to harbor much sympathy for the political goals of their ideological opponents. Those for whom the fetus is morally analogous to a born human being will not be moved by women's rights arguments that on their view are blind to the fact that if a fetus is a helpless unborn child, “then permitting abortion is permitting murder, and having an abortion is worse than abandoning an inconvenient infant to die.”Footnote ⁹ Conversely, those who conceive of a fetus as something hardly different from a body part cannot help viewing the opponents of legal abortion as “either acting in deep error” or acting out of bigotry, unreflective religiosity, or vindictiveness toward those whom they regard as fallen women.

As well as lacking any comprehension of or sympathy for one another's positions, Dworkin believed that contestants in the abortion debate conflicted over the question of prenatal personhood have no hope of reaching any principled compromise, for their convictions do not permit that. Those who believe that the human fetus is a full-fledged person cannot accept legal abortion on the basis of its democratic pedigree any more than dissidents in a genocidal state can accept its atrocities as the will of the masses. On the other hand, those who regard the notion of prenatal personhood as positively laughable cannot be expected coolly to accept the legal prohibition or restriction of abortion, with all of its profoundly negative implications for the lives of women, merely because enough of the population believe in a ludicrous proposition. And so Dworkin concludes:

But Dworkin did not believe we should resign ourselves to this gloomy prognosis. This is because the entire personhood-centered picture of the abortion conflict is, to his mind, based on a serious “intellectual confusion.”Footnote ¹¹ A good indication that the real nub of that disagreement is something other than as first appears comes in the way of what Dworkin calls “signal inconsistencies” in attitudes to abortion on both sides of the divide. Opponents of abortion rights, for instance, commonly make concessions when abortion is necessary to save the life of the pregnant woman or when pregnancy is the result of incest or rape. Furthermore, many are willing to allow that although abortion is immoral, it should nevertheless be legally permitted, that it ought not to invoke the same penalties as murder, or that despite their moral objection, they would support their own wife, daughter, or friend if she decided to obtain one.

Some “signal inconsistencies” can echo on the “prochoice” side too. While supporters of abortion rights clearly do not regard abortion as murder, some do characterize it as a kind of a “cosmic shame” and a “grave moral decision,” not to be undertaken lightly or for trivial reasons, for example because the pregnancy will interfere with a booked holiday. Consequently, they may support some legal restrictions on abortion choice, notwithstanding their beliefs that the fetus is not a person in the philosophical sense.

Dworkin points out that on the personhood-centered picture of abortion argument, these results seem “baffling.”Footnote ¹² For how could someone who truly believes that abortion kills a person consign the abortion decision to the realm of personal morality or make concessions when pregnancy is brought about through rape? And why would someone who, say, thinks that abortion is not very different from a tonsillectomy view it as something obviously to be regretted or the appropriate target of any legal restrictions? The concessions and exceptions commonly made on both sides are, he suggests, flatly inconsistent with the traditional account of the abortion conflict. Regarding the concessions made in particular by moral opponents of abortion, he remarks:

However, Dworkin argues, the signal inconsistencies are explicable once the conflict is recast in a different light. Central to a better understanding of abortion disagreement, he claims, is a distinction between two very different grounds of objection to abortion captured by the interest in “protecting fetal life.” That interest can, in the one place, refer to what he calls the derivative objection to abortion, or, put in more familiar terms, the objection that abortion violates the fetus's right not to be killed, a right that all persons possess. On this understanding, the wrongness of abortion stems from the fetus's individual right to life.

But “protecting fetal life” can implicate a very different ground of abortion opposition. Dworkin labels this the detached objection to abortion, because it does not depend on ascribing any rights or interests to the individual fetus. The detached objection claims that all human life has a sacred or, in secular terms, intrinsic value, like the value we might ascribe to a brilliant work of art or find in natural beauty. The objection claims that abortion is wrong not because it violates a fetus's right to life but because it “disregards or insults” that intrinsic value.Footnote ¹⁴

The detached objection differs critically from the derivative one in that it does not rely in any way on the claim that a fetus is a person or has rights and interests of its own. Nevertheless, Dworkin argues, someone who does not regard the fetus as a person may still “object to abortion just as strenuously as someone who insists it is” if his objection is rooted in detached grounds.Footnote ¹⁵ Just as someone might object to turning off the life support of a patient with an incurable and intolerable illness not because of the belief that death is against her interests but because the act of killing insults the intrinsic value of human life, so, too, might a person object to abortion not because she regards the fetus as having an interest in continued life but because she views the extinguishing of any human life as an unacceptable affront to life's intrinsic value.

Since the terms “derivative objection” and “detached objection” are Dworkinian terms of art and not self-explanatory, I leave them mostly behind in what follows here and speak in terms of the difference between the fetal rights, or “personhood,” issue and the “quasi-religious” issue concerning how best to respect the intrinsic value or the sanctity of human life. Dworkin believes that almost all of those who object to abortion practice truly object to it, “as they might realise after reflection,” on the sanctity-of-life rather than the personhood ground.Footnote ¹⁶ In other words, the ground of their objection is not their belief in the personhood of the fetus, even if they take it to be thus, but rather their commitment to the more impersonal, intrinsic value of human life, similar in its nature to the value we attribute to beautiful works of art or to endangered animal species whose preservation we take to be a good in itself.

Once we understand this, Dworkin claims, we can make far better sense of why some people think that abortion is wrong but ought to remain legal whereas others think it acceptable but legitimately regulated. It is perfectly “consistent,” he says, for someone who objects to abortion on detached grounds to hold that it is “intrinsically wrong” to end a human life but that the decision of whether to end that life in utero must be left to the pregnant woman.Footnote ¹⁷ Moreover, on the sanctity-of-life picture of abortion disagreement, supporters of abortion rights actually share this appreciation of human life's intrinsic value. They too believe that all human life is extremely valuable and that its destruction is always regrettable—always a “cosmic shame.” Thus we should not be surprised that defenders of abortion rights are still sobered by the need for abortion and frequently support some restrictions.

This all raises a question, however. If disputants on both sides of the debate share a commitment to the intrinsic value of human life, what are they arguing about? Dworkin's answer is that people interpret this value in drastically different ways. He writes:

Later in the book, Dworkin offers an account of how different interpretations of life's intrinsic value might sponsor radically different conclusions on the abortion question. More fully, he distinguishes between two different sources of human life's intrinsic value: natural creation and human creative investment. Those who place more stock in natural or biological creation are more likely to conclude that the intrinsic value of human life is always insulted when abortion is carried out. But not everyone will agree that premature death in the womb is the most serious frustration of human life.Footnote ¹⁹ Others may believe that performing an abortion is consistent with human life's intrinsic value if it prevents significant human creative investment in the life of the pregnant woman from being squandered. Disagreement about abortion is, in short, disagreement about which “mode” of life's intrinsic value has the greater moral importance. Whereas conservatives in the abortion debate are likely to think that natural investment in the form of biological life is preeminent, liberals more frequently believe that it is a bigger frustration of life's miracle when an adult human being's expectations are disappointed and talents wasted than when a fetus dies before any comparable investment in its life is made.Footnote ²⁰

From all of this, Dworkin draws his significant conclusion about political resolution of the abortion question. Crucially, he argues that disagreement about the meaning and nature of life's intrinsic value has a “quasi-religious” quality. Our personal interpretations of that value are, he says, “essentially religious beliefs,” relating, as they do, to questions about the meaning of life and death. The end picture is therefore of a conflict that is “at bottom spiritual.”Footnote ²¹ But recognizing the religious nature of abortion argument has important implications for the possibility of principled compromise. For once the conflict is translated into these terms—into a matter of religious-like difference—a pathway to principled resolution is laid out by the doctrine of religious toleration. As Dworkin remarks, “We think that it is a terrible form of tyranny, destructive of moral responsibility, for the community to impose tenets of spiritual faith or conviction on individuals.”Footnote ²² In modern pluralistic democracies, the protection of free exercise of religion therefore undergirds a permissive answer to the question of abortion's legality. Since everyone must be free to express her religious beliefs, for or against abortion, the state cannot coercively remove the abortion option. This is a conclusion, Dworkin suggests, that all those morally opposed to abortion have reason to accept if they are committed to religious toleration.

Finally, when equipped with the “detached” account, Dworkin believes we can better make sense not only of the moral controversy but also of the constitutional saga over abortion in the United States—particularly the legal arguments surrounding Roe v. Wade, the landmark Supreme Court ruling that first recognized a fundamental constitutional right to termination of pregnancy.Footnote ²³ Building on his assimilation of abortion disagreement with religious disagreement, Dworkin argues that freedom of choice about abortion has a clear textual basis in the U.S. Constitution. If, as he claims, beliefs about reproductive freedom are “essentially religious,” then the right to make one's own decisions in such matters can be construed out of the First Amendment, which guarantees the free exercise of religion. Contrary to common assumptions, he suggests that the ongoing constitutional dispute about abortion is not whether individual states have the constitutional power to declare the fetus a person, for, he argues, they plainly do not. Rather, the pressing question becomes whether state legislatures have the constitutional power to dictate the intrinsic values that their citizens must respect and how they must respect them. In short, can a state “impose the majority's conception of the sacred on everyone”?Footnote ²⁴

This account, Dworkin argues, accords far better with the central legal question in Roe and the existence of scholarly objection to it. As was made evident in Justice Blackmun's majority opinion, it was never conceivable that the Roe court could have declared the fetus a person for the purposes of constitutional protection, or so Dworkin claims. Since all good constitutional lawyers presumably appreciate this, he suggests that the real ground of lawyerly objection to Roe must concern some other part of the ruling, as the wealth of critical focus on the issue of state autonomy over abortion law would suggest. Unlike the personhood issue, the question of if and when a government can coerce respect for an intrinsic value and determine the form that respect must take is an altogether more complex constitutional question about which we should anticipate serious scholarly disagreement.

III. “SIGNAL INCONSISTENCIES” AND THE DESCRIPTIVE CLAIM

As shown above, a key aspect of Dworkin's account is the descriptive claim that prenatal personhood is not, in actual fact, at the root of public controversy over abortion—that it is not what people are arguing about—and that the features of that controversy can be better explained when adopting the “detached” account of abortion's contestedness. It is with this claim that I wish to start. Scrutinizing it involves asking first, whether there is anything about public abortion conflict that stands in need of a special explanation (such as that people are mistaken about the grounds of their disagreement), and, second, whether that explanation cannot be found within the personhood-centered account of abortion conflict.

One of Dworkin's main arguments is that “signal inconsistencies” on both sides of the abortion divide are simply a bad fit with an account that casts abortion disagreement as disagreement about prenatal personhood. He does not reach far, however, for alternative explanations of those putative inconsistencies that are more in keeping with that view, despite the fact that some convincing ones are available. In truth, we should not be at all surprised to find that many people hold ambivalent and even somewhat contradictory views on such a philosophically complex, politicized, and emotively charged subject as abortion. Such inconsistencies, which are not special to abortion argument, could be due to any number of things. In the first place, the holders of those views may simply have not thought through their position with much analytical rigor, sheer lack of reflectiveness being, presumably, the most common source of argumentative incoherence. Alternatively, disputants may be led to embrace inconsistent concessions because of emotional or psychological biases, fear of social reproach, or even the need disingenuously to advocate compromise positions for politically strategic reasons.

Of all these possible explanations, strategic necessity strikes me as the most plausible reason for why political opponents and supporters of abortion rights often make concessions that look like signal inconsistencies. Ideological opponents of abortion may support exceptions in cases of rape, incest, or grave risk to the pregnant woman's life for a host of pragmatic reasons: to avoid alienating moderates, to focus firepower on the more winnable battles, and so on. If the strategic explanation were correct, we might well expect to see those opponents withdrawing the traditional concessions as and when political climates change and platforms can be radicalized without risking too much of the overall objective: to preserve as much fetal life as possible. The “ironing out” of some signal inconsistencies might be observable from the introduction of new state laws criminalizing negligent pregnant behavior (such as drug taking) that results in harm to or death of the fetus.Footnote ²⁵ The putative inconsistency here is the lack of willingness to subject such women to the same consequences in law they would face for negligently harming their born children. If the fetus is morally equivalent to a child, why should the criminal consequences of causing it harm differ? The more that fetal-harm laws are brought into line with laws prohibiting child abuse, the more this “inconsistency” begins to look merely like an inauthentic concession of long standing by opponents of abortion.

Moreover, the personhood or fetal-rights account explains perfectly well why putatively inconsistent concessions such as rape or risk-to-life exceptions could be justified for opponents of abortion. If the fetus is indeed the moral equivalent of a helpless child, any strategy that promises to gain the most ground in the wider political battle could be rationally defensible, even if it involves advocating disingenuous compromise positions. Theoretical consistency does not count for much when weighed against the value of preventing as much infanticide as possible. Hence, antiabortion protest that seeks to direct a special degree of moral opprobrium at late abortion will be intelligible on the derivative account if there is any reason to think that it presents the best shot at preventing some fetal deaths (say, because it is easier to mobilize general opposition to late abortion than to early abortion), even if contradicts the protesters’ true convictions that all abortion is tantamount to homicide.

On the other side of things, ostensible inconsistencies embraced by defenders of abortion rights could also be explained by a political need to make concessions. Abortion rights defenders might admit that abortion is always sad or a shame, even when justified. Although this admission does not chime well with the extremely low moral status they accord to the fetus (if nothing of significant moral standing is lost, why such a shame?), it can help to placate moderate sensibilities.

As well as being tenable, prosaic explanations like these are perfectly consistent with the preeminence of prenatal personhood in abortion disagreement. Rather than offering an explanation according to which what disputants in the abortion debate say they believe about fetal personhood does not reflect their true beliefs, this explanation suggests that the attitudes that demonstrate signal inconsistencies are themselves inauthentic.

Aside from skepticism about whether the signal inconsistencies really run deep, it might be thought that Dworkin's appeal to them as evidence that disputants are not really arguing about fetal personhood also relies on a claim that we should hesitate to accept: that no one could be seriously engaged in a particular theoretical dispute unless her position in that dispute were coherent through and through. Frances Kamm labels this the “No Wrong Belief View,” that is, the view that no one engaged in abortion debate could hold an inconsistent belief, and hence that nothing about the moves in that debate could be explained by sheer inconsistency.Footnote ²⁶ As Kamm argues, there is no basis whatsoever for Dworkin to maintain the complete coherence of public attitudes as a premise in his investigations. By ruling out the possibility that disputants could simply be inconsistent on some points, Dworkin jumps far too quickly to the conclusion that abortion disagreement must be about something else.

Perhaps Kamm is unfair to attribute such a plainly unreasonable view as the No Wrong Belief View to Dworkin. Rather than suggesting that there are no such things as inconsistent beliefs, we might take Dworkin to be simply presenting the signal inconsistencies as compelling evidence that the personhood debate is a red herring. Perhaps abortion disagreement is about fetal personhood, notwithstanding those perplexing attitudes, but they are at least good reason to think otherwise. An argument like this would not commit Dworkin to the No Wrong Belief View. But by failing to consider credible alternative explanations for some inconsistent positions, Dworkin nevertheless gives them an unreasonable amount of credence as evidence against the derivative account.

I suggest above that Dworkin may be wrong to take “signal inconsistencies” at face value. However, inasmuch as the dichotomous attitudes he describes are genuinely held by protagonists in the abortion debate, one might question whether they are necessarily inconsistent with the personhood-centered account. Take, for instance, those abortion opponents who do not appear to equate abortion with murder in all respects. One reason they may fail to do so is not because they equivocate about fetal personhood but because they entertain the possibility (consciously or not) that abortion is an instance of justified homicide or that it amounts to the mere failure to be a Good Samaritan. Uncertainty about those questions—in other words, about JHT and GST—is entirely consistent with the belief that the fetus has the same interest in continued life as all born human beings. (Indeed, the claims of JHT and GST become most relevant once fetal personhood is presumed.)

Someone who regards abortion as something other than murder for either of these reasons would continue to regard it as extremely morally grave and regrettable—something to be avoided as much as possible, as is true of justified killing in self-defense. Still, even on this picture, fetal personhood remains squarely at the center of abortion disagreement. For, whether she equates abortion with murder or not, the moral and legal issue with abortion comes, for the abortion opponent, from the fact that the death of the fetus is tantamount to the death of a person. It is only this belief that renders abortion so morally problematic for the protestor—the kind of act that only stops short of being murder if GST or JHT were true. For defenders of abortion rights who think fetal personhood a ludicrous proposition, abortion does not have such a morally troublesome character to begin with.

But defenders of abortion rights may nevertheless acknowledge some value in the fetus or concede that abortion is always in some measure a “cosmic shame” without thereby contradicting their fundamental belief that the fetus is not a person or belittling the importance of that belief in their wider argument. There is no inconsistency in denying the personhood of the fetus while affirming the intrinsic value of all biological human life. To this Dworkin could have no objection, since he suggests that all contributors to abortion debate share a reasonable belief in that intrinsic value, no matter what their views on prenatal personhood. Again, none of this uproots the centrality of fetal personhood, or its denial, for abortion disagreement. The refusal to attribute personhood status to the fetus is still pivotal for the abortion rights advocate's failure to treat abortion as in any respect akin to murder and hence for her broad support of abortion practice, even if it involves extinguishing something of value.

In sum, then, there may be little about the public abortion conflict that is left inexplicable on the fetal-personhood account. But for what it is worth, what Dworkin calls the “derivative” account also commands its own share of explanatory power and in some respects outperforms the detached account in this regard. Dworkin duly notes that the abortion conflict is uniquely ferocious compared with practically all other public disagreements. Yet this feature accords far better with the personhood-centered than with the sanctity-of-life version of the controversy. The escalation to violence that has punctuated that conflict at times is certainly more explicable when opposition to abortion is understood in terms of the claim that abortion unjustly kills a human child. The shooting of abortionists is at least intelligible, if not justified, as a response to the belief that abortion murders children. This does not hold in the same way when such actions are understood as the expression of just one interpretation of the intrinsic value of human life.

Of course, the content of traditional antiabortion rhetoric lends a good deal of support to the fetal-personhood view of abortion opposition. Verbal and pictorial protest messages invoke the language and imagery of murder, both implicitly and explicitly drawing a moral equivalence between fetuses and babies. Anticipating this evidence in favor of the “derivative” view, Dworkin counters that opponents of abortion in fact employ the rhetoric of murder only in order to emphasize their objection based on the sanctity of human life.Footnote ²⁷ Talk of murdering babies simply packs more punch than spiritualistic rhetoric about life's sacred value, although the real basis for opposition was always the latter, he argues. Dworkin's retort has some initial plausibility. But the idea that the antiabortion movement's assimilation of abortion with murder is mere empty rhetoric is increasingly difficult to accept, especially in light of the numerous recent attempts at state level to enact “personhood amendments,” which would redefine constitutional personhood as beginning from conception.Footnote ²⁸ If successful, such amendments would have the effect of outlawing most, if not all, abortion in the given states, in direct contravention of Roe. Less conspicuously, they would also presumably have the effect of prohibiting embryo research and fertility treatments, such as in vitro fertilization, which involve embryo wastage, an implication that has not deterred their proponents.

The “personhood movement” is the most unequivocal demonstration of the antiabortion movement's depth of commitment to the belief that personhood begins at conception, and it unquestionably goes beyond mere rhetoric. But “personhood amendments” are by no means the only legislative attempts to restrict abortion that have at their heart the suggestion that the fetus is a morally considerable subject and/or the aim to present it in such a way to those contemplating abortion choice. Measures of this kind include the expansion of criminal liability for the abuse and neglect of fetuses (The federal Unborn Victims of Violence Act 2004 recognized a “child in utero” as a potential legal victim if killed or injured during the commission of a number of violent crimes),Footnote ²⁹ abortion restrictions that rely on the proposition that “fetal pain” is experienced during abortion,Footnote ³⁰ and most recently, mandatory preabortion ultrasound scanning and information laws (dubbed “women's right to know” laws), which seek to dissuade women from abortion choice by requiring medical staff to show or describe to them sonogram images of their fetuses.Footnote ³¹ Legislative moves such as these foster the prenatal personhood narrative, either being rationalized by or attempting to facilitate revelation of the belief that the fetus has interests similar or equal to those of born human beings.

All of this renders the fetal-personhood account of abortion conflict quite difficult to resist. To be sure, Dworkin may respond by insisting that these are yet more red herrings, indicating that opponents of abortion are at most rhetorically committed to the notion of prenatal personhood, not that they are truly, deeply committed to it. But the wisdom of Occam's razor should prompt us to reject his alternative explanations in the absence of a clear need for them. Dworkin believed that the rhetoric and ferociousness of the abortion conflict is explained by the fact that disputants are conflicted over an essentially spiritual matter while being mistaken about the true grounds of their disagreement. The far simpler and more obvious explanation is that one side in the conflict really does believe that murder is at stake, while the other side believes that idea so preposterous that bigotry and oppression is all that they can see to be marshaled against them.

Last, if today's abortion opponents really are mistaken about their grounds of opposition, then it seems they are quite deeply and irreversibly mistaken. And if the mistake is indeed so deeply entrenched, one may even wonder how worthwhile it is to attempt to reconceive their entire argument for them rather than address that objection on its own terms. This point about fruitful abortion dialogue also implicates the further question concerning what space Dworkin thought exists between vehemently believing one's grounds of opposition to a practice are X and one's grounds actually being X. It may be true that in one way moral thinking is less the process of changing one's mind than it is discovering what, upon reflection, one already believed to be true. But this is no more true of our beliefs about the moral status of the fetus than it is about anything else. If critics of abortion are firmly enough convinced that their objection lies in the belief that the human fetus is as much a person as the typical adult human being and that abortion and homicide are therefore of a piece, it might need to be asked in what sense their “actual” claims consist in something different.

IV. THE “ANTIPERSONHOOD” ARGUMENT AND THE CONSTITUTIONAL DISPUTE

Up to this point, I am examining the proposition that prenatal personhood is not what public abortion argument is about. But one might indeed ask why, as philosophers or lawyers, we ought to be interested at all in the nature of public discourse, coherent, rigorous, or otherwise. After all, the terms of that discourse do not necessarily bear any relation to the philosophically and legally pertinent issues in abortion. Why should it even matter what people are or take themselves to be arguing about?

It is clear that Dworkin's claims about the nature of abortion controversy are not meant to be mere descriptions of the public argument. That is, Dworkin is also making the stronger claim that prenatal personhood—or the “derivative” question—is not what is philosophically and legally salient in abortion. One important argument for that claim comes in the way of his contention that no one could sensibly regard the fetus as a person with rights and interests of its own, “in particular an interest in not being destroyed,” from the moment of its conception, since the fetus has never possessed any mental life, something Dworkin sees as an essential prerequisite of having such interests.Footnote ³² Comparing early fetuses to the assemblage of body parts on Dr. Frankenstein's table before the lever is pulled, he argues, “it makes no sense to suppose that something has interests of its own—as distinct from its being important what happens to it—unless it has, or has had, some form of consciousness: some mental as well as physical life.”Footnote ³³

He may, of course, be right about that. But as Frances Kamm points out, Dworkin's assertion here strikes one less as an argument for the irrelevancy of prenatal personhood in abortion than as an “anti-personhood argument.”Footnote ³⁴ The fact that Dworkin himself finds the notion of prenatal personhood quite implausible (a claim that apart from asserting the necessity of mental states for interests, he does not support with a great deal of argument)Footnote ³⁵ does not go to show that the personhood or fetal-rights view of the abortion problem is false. This is because the primacy of the personhood question in our philosophical inquiries about abortion can still be demonstrated simply by attending to the fact that if the fetus were a person, abortion would appear to be (absent justification) tantamount to murder. Dworkin cannot therefore dismiss the philosophical importance of the “derivative” question just by saying that no sensible discussant would classify the fetus as a person.

Nor does the antipersonhood argument further Dworkin's descriptive claim that the personhood issue fails to characterize the content of the claims on either side of the abortion conflict. In underlining the ludicrousness of the idea that a being lacking in mental states could be a rights-bearing person, Dworkin seeks to provide yet more reason to believe that disputants must be arguing about something else. However, that reason is one that in essence just presses the argument of one side of the personhood debate. The strength of Dworkin's own conviction that personhood must supervene on particular mental states does not make it implausible or any less likely that many take the conditions for personhood to be different from the conditions he articulates and object to abortion for precisely the reason that they take the conditions for personhood to be something other than mental states.

Dworkin's claims about the true nature of the abortion problem are not, however, restricted to the moral realm. Alongside his arguments about the moral controversy, Dworkin makes the parallel claim that the sanctity-of-life dispute, rather than the personhood dispute, is what lies at the heart of legal constitutional disagreement about abortion. He argues that the main features of that disagreement—and especially the nature of scholarly objection to Roe, the landmark case that recognized the constitutional (albeit qualified) right to terminate a pregnancy—reflect disagreement about the sanctity of human life far more so than about fetal personhood. In short, different views about prenatal personhood are not what explain disagreement about abortion's constitutionality.

One reason for this claim stems from Dworkin's observation of a particular “signal inconsistency” inhering in scholarly objections to the Roe decision when disagreement about prenatal personhood is thought to be the crux of the constitutional argument. In the wake of Roe, scholars critical of the decision largely contested the ruling not because of the Supreme Court's refusal to recognize the fetus as a person under the U.S. Constitution, a proposition for which Texas had unsuccessfully argued, and the outcome of which Dworkin claimsFootnote ³⁶ was legally inevitable. Rather, scholarly criticism of the Roe Court's decision to grant a constitutional right to abortion focused on the contention that the Court should have left individual states free to determine their own abortion laws as they always had done. As Dworkin explains, however, this core objection to Roe, based on the value of state autonomy, is in a significant way incompatible with the view that the fetus is a person for the purposes of the Constitution and that the Roe court erred in determining differently. This is because, he suggests, those whose objection to Roe sprang from the belief that the fetus is a person under the Constitution should not be able to argue, as in fact they did, that the Court should have left states free to prohibit or permit abortion as they choose. For, as he argues, if the fetus is a constitutional person, “then states not only may forbid abortion but in some circumstances must do so.”Footnote ³⁷

Put differently, if fetuses are indeed owed equal protection under the Fourteenth Amendment, then states cannot be left free to choose the abortion laws they wish, since permissive abortion laws would breach fetuses’ constitutional rights. From this Dworkin concludes that academic opponents of Roe who have directed their scholarly objection at the issue of state autonomy over abortion law cannot at the same time object to Roe on the ground that the fetus is a constitutional person.

This tension dissipates, however, as soon as soon as the constitutional disagreement is translated into sanctity-of-life terms, or so Dworkin argues. On this view, scholars objecting to Roe do not really do so on the ground that the fetus is owed constitutional personhood but because of the belief that states may have “a compelling detached reason for prohibiting abortion”: to protect the inviolability of human life.Footnote ³⁸ Those scholars who abjure Roe in defense of state autonomy could presumably claim that states ought to be free to legislate to protect fetal life if they so chose but not that the Constitution requires them to forbid abortion, which would follow from a recognition of fetal constitutional personhood. On this understanding, the core legal question then becomes whether a state government should “attempt to dictate to its citizens what intrinsic values they will recognise, and why, and how,” including what this means for abortion.Footnote ³⁹ In other words, should states be permitted to impose the majority's conception of the sacred on everyone? The matter being within the realm of what Dworkin terms the “quasi-religious,” his answer to this is no; the value of religious freedom prescribes otherwise.

This view of the core legal dispute, Dworkin thinks, accords well with the prominence of the state-autonomy issue in academic argument, with those objecting to Roe believing that individual states ought to be allowed to dictate to their citizens what the intrinsic vale of human life means vis-à-vis abortion, and those supporting Roe believing that they should not be allowed to do so.

Dworkin's detached reading of the constitutional issue is bolstered by his claim that there is simply no legally respectable objection to the Roe Court's conclusion that the fetus lacks the status of a person under the Constitution. At the time Roe was decided, the fetus had never been recognized as a constitutional person under U.S. law. Texas, the state whose abortion legislation was under scrutiny, argued before the court that the fetus was indeed a person within the meaning of the Fourteenth Amendment. Justice Blackmun firmly stated that the law had never treated fetuses as constitutional persons and could not expand the category now.Footnote ⁴⁰ This was despite his acknowledgment that had the fetus held the status of a person under the Fourteenth Amendment, it would be entitled to equal protection, and abortion would be rendered largely unconstitutional.Footnote ⁴¹ Dworkin accepts this conditional claim about what would follow if the fetus were granted constitutional personhood but emphatically endorses Roe’s ruling that it lacked such protected status. In fact, he regards it as legally unthinkable that the Court could have come to any other decision on this point. As he writes, “almost all responsible lawyers” agree that Justice Blackmun's opinion on the personhood question was correct, since there was no precedent in U.S. law for the proposition that the fetus is a person and the Supreme Court surely lacked the power to recognize new kinds of constitutional persons.Footnote ⁴²

Dworkin concludes from this that there is no credible ground of scholarly objection to the Roe Court's conclusion on the personhood question. If Roe and its main successor case, Planned Parenthood v. Casey,Footnote ⁴³ were bad law, this could not be because of any legal mistake about fetal personhood.

Dworkin's exposition of the tension between the claim that the fetus is owed constitutional personhood and that states ought to be left free to determine their own abortion laws is incisive for constitutional scholars. As between fetal constitutional personhood and state autonomy over abortion, it is, apparently, one or the other; a state's freedom to grant abortion rights cannot be tolerated if the fetus is a person. Still, it does not necessarily follow that Dworkin is correct about the main question for the constitutionality of abortion.

To start with, lawyers who disagree with Roe because they regard the fetus as quite clearly a person in the moral sense are not barred from objecting to Roe on other legal grounds. Even those who concede the legal inevitability of that part of Roe’s ruling can have good reason to challenge the decision on alternative grounds, especially if those grounds present the more promising routes to reversing the decision and curtailing abortion rights. In conservative states at least, a legal defeat of Roe based on the Supreme Court's misappropriation of state autonomy would still yield the desired result: the prohibition of abortion. And if, as those who hold the “derivative” objection believe, abortion unjustly kills persons, any effective legal argument against the constitutional right to a termination is presumably as good as any other.

Next, scholars objecting to Roe on state-autonomy grounds need not embrace incoherence if they are also committed to the normative claim that being a person (as they see it) in the moral sense, a fetus ought to have its personhood recognized by the Constitution. A legal case in favor of states retaining autonomy to permit or prohibit abortion as they see fit could begin by granting, for the sake of argument, Roe’s conclusion on the personhood issue. In other words, a lawyer might argue that once it was accepted by the Court that the fetus lacks constitutional status, the correct legal conclusion was that states should be free to determine their own abortion laws. Correct or not, there is nothing inconsistent about this position, which in no way commits its proponents to endorsing the Roe majority's refusal to extend constitutional personhood to the fetus.

This said, a considerable amount of contemporary objection to Roe does explicitly target its ruling on fetal personhood, as the “personhood amendment” movement demonstrates.Footnote ⁴⁴ This brings us to Dworkin's stronger claim that the fetus's personhood status is simply not constitutionally salient. As seen, this claim rests on what Dworkin perceives to be the undeniability of Roe’s conclusion on fetal personhood as a question of law. Since there was no precedent for recognizing the fetus as a subject of protection under the Fourteenth Amendment, Dworkin argues that a contrary ruling would have been legally unsupportable. He does, however, acknowledge the fact that the Supreme Court has been known to upend conventional understandings of the Constitution on questions as fundamental as this, citing Brown v. Topeka Board of Education Footnote ⁴⁵ as a standout example. What, then, of the possibility that the Supreme Court could have similarly broken with tradition in Roe and declared the fetus a constitutional person because it regarded it as a person in the philosophical sense?

Dworkin responds to this by restating that the idea of fetal personhood “is scarcely intelligible and few people believe it.”Footnote ⁴⁶ Yet this is only a reiteration of the antipersonhood argument. Dworkin may think the idea that fetuses are persons unintelligible, but certainly more than a few people believe it. For those who do, the Roe majority's refusal to extend equal constitutional status to the fetus was surely its greatest error. The upshot is that Dworkin fails to dislodge the primary significance of the personhood question for the constitutionality of abortion. Even if, as Dworkin claims, little of the academic criticism surrounding Roe concerns the personhood ruling, his argument does not avoid two key propositions:

It follows from these joint propositions that whether the fetus is correctly regarded as a person in the philosophical sense in indeed integral for the constitutional argument about abortion. Consequently, Dworkin cannot use the antipersonhood argument to dismiss the constitutional primacy of what he calls the “derivative” question, which has constitutional primacy especially for those who do in fact defend the philosophical personhood of the fetus.

V. INTRACTABILITY AND PRINCIPLED COMPROMISE

As seen above, Dworkin believes that if the personhood-centered view of abortion conflict is correct, then that conflict is inherently intractable and resistant to principled compromise. Misunderstanding the real root of the disagreement therefore has serious consequences for resolving abortion politically. As he states, “the confusion between the two kinds of objection [derivative and detached] has poisoned public controversy about abortion and made it more confrontational and less open to argument and accommodation than it should be.”Footnote ⁴⁷

Dworkin's pessimistic characterization of the derivative debate rests on his claim that what is believed about the moral status of the fetus can only ever be a matter of “primitive conviction.” The personhood question is a philosophical dead end in the abortion debate partly because it cannot sponsor any reasoned exchanges. He makes the point that it is not even clear in theory what it would take for all participants in that debate to be persuaded one way or the other. As he puts it, “there is no biological fact waiting to be discovered or crushing moral analogy waiting to be invented that can dispose of the matter.”Footnote ⁴⁸ It is not just that there have been no winning shots in the personhood debate; we cannot even be sure of what one would look like.Footnote ⁴⁹

Insofar as philosophical tractability is thought to be a virtue of any account of the abortion problem, we should of course ask whether the detached view fares any better in that regard. If, as Dworkin argues, the basis of disagreement has in fact been the sanctity of human life all along, the very fact that the disagreement shows no signs of abating might be offered up as evidence in itself that conflict over what it takes to respect the intrinsic value of human life is no more tractable than conflict about fetal personhood. This should not be such a surprise. If Dworkin is correct that the nature of abortion dispute is “essentially religious,” intractability is precisely what one would expect. It would be strange if a conflict rooted in religious-like commitments fostered more reasoned exchanges or was any more philosophically soluble than argument about the conditions for personhood.Footnote ⁵⁰ At the same time, if intractability really were a feature only of the personhood debate, then the continuation of profound disagreement would count as good evidence for the fetal-personhood account.

It is not at all clear, then, that between the two kinds of disagreement, the “derivative” one is especially philosophically intractable. One might also think there is some measure of tension between Dworkin's claims that the personhood question is not amenable to reasoned argument and his own reasoned argument against fetal personhood, based on their lack of mental states and hence interests. Let us put these complaints to one side, however, and consider Dworkin's main argument about the political resolution of the abortion dispute. This is that if he is correct that abortion disagreement is “essentially religious” disagreement, as the sanctity-of-life account suggests, a settled constitutional basis for compromise is provided by the doctrine of religious freedom. In practical terms, he argues, this means that a permissive stance on abortion practice is constitutionally required. The First Amendment right to free exercise of religion protects the equal right of all citizens to follow their convictions on “profoundly spiritual matters,” with the result that states may not impose an official line on the abortion question.Footnote ⁵¹ This constitutional basis for the abortion right is, he argues, one that all those committed to the free exercise of religion have a reason to accept, even if they continue to disagree, “religiously,” about the morality of abortion.

Some will no doubt quibble with Dworkin's suggestion that abortion beliefs can be assimilated into essentially religious ones.Footnote ⁵² But let us assume that he is right about that. The next question is whether it follows, as Dworkin seemed to have believed, that the fetal-personhood question is not pertinent to the constitutionality of abortion. Dworkin is guilty here of a fundamental oversight regarding the limits of the doctrine of religious toleration if he believes that it can ground the abortion right irrespective of one's answer to that question. His mistake was in supposing that as soon as religious beliefs are at issue, the “derivative” worry about causing harm to persons ceases to be relevant for the legal resolution of disputes. The plain falsity of this is apparent when bringing to mind any exercise of religious belief that entails bodily harm to individuals we are certain are persons. Liberal democracies do not, for example, extend tolerance to practices of ritual child sacrifice, slavery, or female genital mutilation if and when those who practice them do so as a matter of religious conviction. The doctrine of religious toleration has clear limits: toleration ends where the infringement of people's rights begins. And the infringement of the right to life is the clearest red line of all.

Dworkin was wrong, therefore, if he believed that applying the doctrine of religious toleration to abortion does not rest on a view about fetal personhood or presuppose it. If the fetus were a person, as one side of the abortion debate insists, the right to abortion could not be defended using the religious freedoms of those that take the opposite view, for the doctrine of religious toleration does not protect homicide. Indeed, if the religious nature of abortion beliefs mandates toleration of their expression even where that entails harm to persons, we would have to ask why Dworkin's principle does not protect the killers of abortion doctors. Consequently, by appealing to the doctrine of religious toleration as a basis for political resolution, Dworkin presupposes a particular answer to the philosophical question of prenatal personhood. Toleration of abortion choice, even as a mode of religious expression, cannot be justified if the fetus is a person. And this consideration propels the fetal moral-status question right back to the forefront of our reasoning about abortion.

VI. ARGUING ABOUT PERSONHOOD

What if the notion of fetal personhood really does strike one, as it did Dworkin, as “scarcely intelligible”? In the eyes of some, the assignation of personhood to fetuses is wrong not merely in that it is a miscalculation—because it is, in the end, false. It is wrong for being conceptually incoherent. On this thinking, our shared concept of a person can no more admit human fetuses within its boundaries than it can admit rocks, or trees, or insects. To be sure, someone might protest that a rock, a tree, or an insect is in fact a person and that we have always been mistaken in thinking otherwise. To such a protest there may be little to say except that the person making it does not grasp the concept of a person if she is willing to make such claims. If anything is true about persons, it is that a rock cannot be one. A dispute about whether rocks in fact are persons could not, therefore, be an argument about the boundaries of the concept but only an instance of discussants failing to invoke the same concept at all.

Dworkin seems to view the fetal-personhood debate in somewhat similar terms. As Marquis comments, “for Dworkin, apparently, the central claim needed to support the conclusions of those opposed to abortion hardly rises to the dignity of being false.”Footnote ⁵³ In Dworkin's view, anyone who does not understand that the possession (or at least past possession)Footnote ⁵⁴ of conscious states are necessary features of a person simply lacks any comprehension of what persons most basically are. It is also possible to see from this just how Dworkin's antipersonhood argument undergirds his descriptive claims concerning what abortion argument is really all about. If the notion of fetal personhood is not even comprehensible, then it is hardly likely that abortion opponents believe it. Far more likely is that abortion discussants are just employing different concepts and talking past each other.

If Dworkin was right about the conceptual incoherence of fetal personhood, then the personhood issue might seem to lose much of its argumentative relevance for abortion for this reason alone. It would be preeminent only in the sense that something nobody believes and that is “scarcely intelligible” would have serious implications for the legal and moral status of abortion if it happened to be true. This is surely irrelevance of an important kind. Likewise, if insects happened to be persons, this would have profound implications for the permissibility of pesticide use. Yet this does not entail that the permissibility of pesticide use hinges most fundamentally on the question of “insect personhood” (as opposed to the possible ecological harms of using pesticides), for we know that proposition to be plainly false.

I do not want to commit myself here to any substantive view about fetal personhood, taking as my subject instead the prior question of whether the personhood issue is critical for our moral and legal calculations about abortion. One thing Dworkin's enterprise may reveal is just how difficult it is to form a judgment about this prior question that is hygienically separate from one's beliefs about the conditions of personhood. If fetal personhood is a plainly unintelligible proposition, the personhood question will seem to have little place in explaining the moral complexity of abortion, if indeed any complexity then remains.

But I believe Dworkin overstates the case if he relegates the notion of fetal personhood to the realm of the conceptually incoherent. The human fetus is distinctly unlike rocks, trees, and insects in ways that render ascriptions of personhood more intelligible with respect to them. Without wishing to expand much on those features here, three in particular stand out. The first is the human fetus's biological membership in a species whose typical adult members are unquestionably persons, making it a worthwhile question whether all human species members are persons, and if not, on what basis some (such as fetuses) are excluded. The second is the fetus's biological continuity with developed (and hence unquestionably personhood-possessing) human beings. Human fetuses are at least potential persons in that if they continue to thrive, they will in most cases be organisms biologically continuous with beings that are persons on the mental-states view of personhood.Footnote ⁵⁵ In this respect, fetuses are not like insects or trees or rocks, making it a pressing question to ask when, in the life span of the human being, personhood materializes, and whether that moral quality might animate human beings earlier than we may have assumed.

The third reason for taking the fetus's candidacy for personhood more seriously than that of inanimate objects or unconscious life forms has to do with the historical errors of denying personhood status to some groups of biologically human beings. In every other case in history when some biological human beings have been denied status, or full status, as persons, the denial has sponsored terrible moral atrocities. The category “human subperson” could well be considered what constitutional lawyers call a “suspect classification.” If we are correct to deny the personhood of fetuses, it will be the first and only time we have applied that classification appropriately and without catastrophic consequences. In light of this, there is surely reason to consider the possibility that the traditional denial of personhood status to fetuses is erroneous.

There are reasons, then, for taking the suggestion of fetal personhood more seriously than the notion that rocks or trees or insects might be persons. Moreover, the shadow of doubt clearly looms larger at the margins of gestation and birth, where the physiological differences between the fetus and neonates are much reduced.Footnote ⁵⁶ And insofar as there is reason to take seriously the proposition that fetuses could be persons, the implications of an affirmative answer make it the first port of call in a serious discussion about abortion.

What, though, if the signal inconsistencies Dworkin illuminates hold independent rational appeal for us? What is someone to make of the personhood-centered account of the abortion problem if she finds merit in the notion that having an abortion is not just like cutting one's hair or having a tonsillectomy, while being, nonetheless, a far cry from murder? For Dworkin, as shown above, these cross-cutting judgments could only go to show that arguing about abortion by way of debating prenatal personhood is fruitless. But perhaps he is too hasty in ruling out the possibility that a richer conception of personhood will somehow account for intuitions such as these. Where Dworkin sees inconsistency, he might instead see ambivalence or nuance. He might see discussants grasping at an intermediate category of being—a being that lacks the full status of a person but is not entirely without some of its value.

Interestingly, by underscoring putative inconsistencies in hostile and favorable attitudes toward abortion, Dworkin appears to demonstrate at least one way to reason constructively about fetal personhood. In pointing out the surface inconsistencies in each other's positions, contestants in the debate can appeal to one another through more than just “primitive conviction.” There is clear argumentative merit in pointing out, for instance, that someone's failure to treat abortion as in all respects like murder or as equal to infanticide challenges her commitment to the belief that a fetus is a person in the fullest sense. Equally, asking someone who flatly denies fetal personhood what salient differences hold between late-term fetuses and neonates can surely form part of a potentially persuasive argument. Whether they are ultimately winning or not, these are reasoned forms of engagement that seek to change minds by drawing on discussants’ own judgments and distinctions and attempting to reveal inconsistencies within them.

Still, if fetal personhood really is the touchstone of abortion disagreement, the question might arise as to why contestants in the abortion debate do not more explicitly engage one another on that very question. As I suggest above, discussants’ motivations for framing their position as they do may be multifarious, but a part of the explanation for the lack of a developed public dialogue about the personhood question is, I believe, that defenders of abortion rights in particular often fail to make their denial of fetal personhood explicit or fully appreciate its importance in the wider debate. Failure to foreground this important premise might be due to more than one thing: a belief that the fetus's subperson status is so self-evident as to not warrant pointing it out, or the inability to see any way of arguing for it that does not rely on its self-evidentiary quality. Either way, the result is a failure to meet the core tenet of abortion opposition head on. Mary Anne Warren states the problem this way:

Nor does Warren think that supporters of abortion rights should settle for a legal answer that views the terminating act as, albeit justified, “comparable to killing in self defence,” when the basis of their own conviction is, quite differently, “the realisation that a fetus is not a person and thus does not have a full-fledged right to life.”Footnote ⁵⁸ This frequent neglect of what is really a foundational premise in the abortion rights argument can go a long way toward explaining why it may seem as though the two sides must be disagreeing about something else.

On Dworkin's view, the “quasi-religious” nature of our beliefs in matters of life and death places the abortion issue firmly in the realm of private morality and out of reach of the law's coercive power, albeit not necessarily its noncoercive influence. In no context, however, is the fundamental right to life of born human beings subordinated to religious beliefs in this same way. Homicide crimes are never constructed so as to tolerate someone's acting on such a belief. “Honor killings,” for instance, cannot be shielded by a principle of religious toleration, though they are, in one way, the expression of a view about life's intrinsic value and what does and does not insult it. If the situation is different for human fetuses, this can only be because they are earmarked from the outset as differently morally positioned. If a fetus is morally on a par with born humans, then something very different from tolerance toward diverse interpretations of the sanctity of life will be required to explain the moral permissibility of abortion.

It may be asked whether, in the end, what Dworkin calls the “detached” inquiry about the intrinsic value of human life captures questions that are truly morally distinct from questions about the fetus's personhood status. On one rendering, the question at the center of the sanctity-of-life version of the disagreement is simply when, in the life span of a biologically human organism, that organism comes to possess the attributes that grant it strong moral protection, most pointedly protection against being killed in the cause of salvaging creative investment in the lives of others. Is this just the personhood question in another guise? However the substantive conditions for personhood are filled out, the “detached” account still hypothesizes a point in the development of human life when terminating that life for anything but the most urgent reasons is an impermissible affront to the sanctity of human life, the relevant question then being just what it is that ushers in this new moral status.

To the extent that the sanctity-of-life and personhood questions are really two sides of the same coin, Dworkin's reflections on the relative importance of natural and creative investment in human life introduced a new and valuable point of discussion: Is biological humanity or human creative investment in a life more constitutive of moral status? Far from consigning the personhood inquiry to irrelevancy, however, this further question only presents a different and potentially illuminating way of thinking about what constitutes a person.