Monday, April 12, 2021

Nobis and Dudley on Abortion

 Nathan Nobis and Jonathan Dudley have an article in Salon in which they argue that the case against abortion is ethically weak, and it is so absurd as to be almost funny. The essential idea is right -- a very large number of pro-choice arguments do not touch on moral questions at all, or only obliquely, whereas almost of the primary pro-life arguments are moral to their root. But their grand argument that the pro-life arguments are weak is....an argument from analogy.

Their first step is based on living organ donation:

First, in every U.S. state and most countries, if a person elects to be an organ donor, their organs can be removed for transplant when that person suffers complete brain death—even if their body is still alive. Organ harvesting involves cutting living human beings open and their organs being removed one-by-one until, at last, the heart is detached and the human being dies, having been directly killed by the procedure. 

Almost everybody thinks that this is acceptable, they say, so it goes to show that really we all believe that "it's not always wrong to kill human beings", even innocent ones.

I'm afraid, alas, that I literally burst out laughing when I originally read this first step of their argument, and I'm still having difficulty keeping from doing so in going over it again for this post. There is of course one very, very important word in their set-up that complicates this supposedly lucid case, namely, that they explicitly say that they are already talking about human beings that are regarded as having already died for other reasons -- "complete brain death", i.e., irreversible cessation of brain functions so that the person can be regarded as dead. What Nobis and Dudley have really shown in their first step is that people generally don't think you can kill a human being who is already dead, so the moral worries that would come with killing a human being don't arise for people who have reached the point of their brain irreversibly shutting down so as to be classified as dead. Their argument depends on recognizing that a body can be dead one way (brain death) and still alive for a while another way (until heart death), and then assuming that only the latter actually matters. Needless to say, the people Nobis and Dudley are talking about are not treating the latter case as the point of death for the human being. Thus it's simply false to say that they are treating the case as one where it is acceptable to kill a human being, because they obviously hold that the human being is already dead and the body is just still undergoing its shut-down process, and the organs can more easily save lives if taken from this dead person now rather than late. Contrary to what Nobis and Dudley, suggest, there are in fact pro-life people who worry about the moral questions involved in such live organ donation, but the many who don't have a moral problem with it quite clearly do not themselves see it as killing a human being, no matter how Nobis and Dudley might think of it. We can even assume that Nobis and Dudley are right, if you'd like; it doesn't follow that people are actually interpreting the case in this supposedly-right way. Most people make the judgment of moral permissibility they do in this case because they take it that a person can be irreversibly dead while parts of their body are still alive, and thus assimilate to the case of taking organs from the recently dead (in cases where both brain death and the stopping of the heart have happened) for precisely the reason that they regard it as nothing but taking organs from the even more recently dead.

The second step of their argument is based on the case of anencephalic infants -- i.e., infants who are born without a large part of the brain. These are generally delivered and simply given palliative care; because they lack brains capable of adequate functioning, they eventually inevitably die. Nobis and Dudley say that this practice "ends their life, but is not morally wrong". Well, no, what ends their lives is not having a brain capable of supporting life for very long; reverting to only palliative care even for adults would not generally be regarded as 'ending someone's life', because that suggests deliberate killing. That is precisely not what is happening in palliative care cases; you have a reached a point where death is not actually avoidable, more aggressive interventions might make things worse, and so you focus instead on trying to make the inevitable easier.

Where they are heading with this is the combination argument: as we don't mind killing brain-dead people and we don't mind 'ending the life' of anencephalic infants with inadequately formed brains, we should not mind abortion in cases where the brain is not yet fully developed. The problem with this argument by analogy is that Nobis and Dudley clearly think that the morally key point of similarity among the cases is the lack of a fully working brain, whereas this is definitely not what pro-lifers regard as the key point in all these cases -- the fact that anencephalic infants are given palliative care is proof in and of itself of that. Rather, it's clear that the key issue in the moral decisions people are making about this is inevitability -- in particular, unavoidable death. Those who have undergone brain death have reached the point where nothing can be done to save their life; with organ donation -- as you will find people explicitly saying when asked why they are donors -- at least they can save other people's lives. Nothing can be done to save anencephalic infants (they are not infants born simply with survivable brain problems); they are given palliative care, just like adults who have reached a point of no return. In both these cases the reason for this is the brain, but it could happen in other cases for other reasons (e.g., palliative care for those with radiation poisoning), showing that the brain is not actually the essential component, and it is clear that what people take to be significant here is that we have reached a point where actual remedy is no longer possible at all. But while there are cases in which embryos are nonviable, and so forth, these are not what we are usually talking about in discussing abortion; most abortions are of embryos and fetuses that have not passed any point of no return. Their lack or limitation of brain function is because they are still developing, and it will pass in time. There is nothing inevitable about the death of the one in the womb in the case of most abortions; it's deliberately induced on one who would probably survive, and reach full functioning, if they were not aborted.

And it is very noticeable that, while the key analogy in an a moral argument should be directly linked to the acts taken in each case, this is precisely not the case as Nobis and Dudley frame it. We have the following cases and common responses:

BRAIN-DEATH: having received prior permission, we wait until they are pronounced irreversibly dead so that we cannot possibly save their life, and then take their organs specifically for the very major good of saving someone else's life.

ANENCEPHALY: as we are unable to save their lives, we give them palliative care until their inevitable death.

ABORTION: for reasons that vary quite widely, we surgically rip them apart to make sure they won't survive and usually throw away the remains as medical waste.

These are not the same kinds of moral actions. The analogy on the most salient point for moral questions -- our actual response to the situation -- is somewhat lacking. If, on the other hand, you tweak the circumstances of the last so that response can be closer to one of the other two, it quickly becomes obvious that pretty much any pro-life position can in principle handle these cases consistently. For instance, opponents of abortion almost universally recognize that cases in which you are saving the life of the mother are different moral cases for which the usual considerations are inadequate -- because (as with the organ donation case) you have introduced the great good of saving the life of another, in this case the mother. This makes both situation and response much more similar to the organ donation case, and you find correspondingly a general sense among opponents of abortion, regardless of their specific views about this kind of case, that this situation introduces further moral considerations that at least have to be addressed.  But in either direction -- whether one nuances and qualifies in this very specific case or not -- there is no fundamental inconsistency; it depends on exactly the role you see for the good of saving the life of another, and your conclusion can't be assumed to generalize to other cases in which this is not even in view.

And if we looked at making our response more like that of the anencephaly case, then we would be giving 'palliative care' until it was no longer necessary -- which, since most pregnancies are not inevitable death cases, sounds awfully like seeing the pregnancy through until they are born.

Thus the sophomore undergraduate attempt to force a dilemma doesn't actually work. Nobis and Dudley say:

Pro-life intellectuals argue that organ donors are not really "human beings." But surely they are human beings—they are living human organisms, with heartbeats. The pro-life premise that it's always wrong to kill human beings implies that organ donation practices are wrong, so this is a good reason to reject the assumption and its application to abortion.

It is in fact not the case that "it's always wrong to kill human beings" is a "pro-life premise"; for instance, defense to save one's own life or another's is often not considered wrong. (This is a problem throughout the argument, since Nobis and Dudley in all their reading of "pro-life 'intellectuals'" have apparently only managed to pick up a kindergarten-version of the pro-life position.) But Nobis and Dudley are committed to saying that you can kill people who are recognized as dead, which is the real point at which you are going to find people baffled here. The reason we call it 'brain death' is that it is regarded by people as a clear case of irreversible death. (There is, of course, 'reversible death', i.e., cases where people die in some sense but can be brought to life, which has always been recognized as a thing that rarely happens and in our age of medical wonders actually happens a fair amount. But even there we generally take it that if there's a real chance of reversing it, one should try. By definition, in the irreversible cases there is no point in trying.) Nobis and Dudley perfectly well could argue that 'brain death' is not death in the right sense for moral judgments here; there are (contrary to what they imply) actually quite a few pro-life people who hold this. What they can't do (but which they in fact are trying to do) is argue that people who do regard brain-death, an irreversible state, as actual death are being inconsistent in saying that they are dead and thus aren't being killed when their organs are used to save the lives of other people, or that they are inconsistent in holding that prohibitions against killing don't apply to those they regard as dead, but only to those that they regard as alive. And again, Nobis and Dudley perfectly well could argue that embryos are human beings in exactly the same sense as the brain-dead, but what they can't do (and yet try to do) is argue that people who think that this is false are inconsistent in treating it as false. (It is, of course, also the case that live organ donation of the sort being discussed is not so sacrosanct that concluding that it is wrong would danger anything in the way they suggest. There are lots of things we rightly refuse to do in order to have a supply of transferable organs; you can't just assume that the fact that something is one kind of organ donation that it is automatically a morally acceptable kind; this has to be established.)

A further fundamental problem is that arguing against "It's wrong to kill human beings" is not adequate. For instance, if I murder somebody and try to justify my actions by saying that there are rare cases where it's not wrong to kill human beings, even if we suppose I was right about those cases, it does not actually address the issue, which is that you can't just regard yourself as having the right to go around killing human beings. That is, the fact that there is some case to which we don't think the principle applies (if that is so) does not establish that in fact you need no justification to say it does not apply here. Thus, while it would establish that we couldn't completely handle the matter at the level of general principle, it wouldn't establish that if one case is fine the other must be; that would have to be argued at the level of specific justification. There are reasons people say things like, "It's wrong to kill human beings", even if this is just a shorthand for a much more complicated principle; and, not having addressed the reasons, you haven't actually established that similarities between the case are related to this more complicated principle in the same way. And it is, in fact, generally the case that it's wrong to kill human beings, and it remains generally the case even taking it in a sense in which it admits of exceptions, and therefore continues to be relevant. If I argue that I should be able to kill a sedated person for their organs because I claim it's a lot like the brain-death case, which shows that it can be OK to kill human beings, I would rightly be regarded as both intellectually stupid and morally obtuse. But this is precisely what both Nobis and Dudley are doing. The person who insists that killing a sedated person for organ donation can't be done because it's wrong to kill human beings is still at least more right and reasonable than someone who thinks it's enough to say that "Well, sometimes you can kill human beings" and then points out a few quick similarities between those supposed cases and this. No, even if you think there are exceptions (and as I've noted, almost everyone does to this particular statement as Nobis and Dudley insist on stating it), it's still a very good rule, and you still need a positive justification for why it doesn't apply here.

It's difficult not to be harsh about such a blatant case, but in fairness it should be said that on this particular point, Nobis and Dudley are making an error I often see people make, due to the fact that even professional philosophers often don't really have a very clear idea of how counterexamples work. If you have a general principle, P, and you have a counterexample, C, it's common to assume that C refutes P; but this is not in fact the case. What C does is show that, if there is a domain in which P is true, it is at least a domain that doesn't include C. The only way to refute P is to show that it can't apply to any relevant domain; counterexamples just show that the principle at least has to be restricted. And even if you've established a counterexample -- neither of which is this case in Nobis and Dudley's argument, since the principle is "It is wrong to kill human beings" but the examples are not cases that would usually be characterized as killing (in one case, the person is usually taken already to be dead, and in the other the person dies on their own because we have no way to help them) -- even if, I say, you've established a counterexample, any other example has to be established as sufficiently similar in precisely those points that contribute to the counterexample's being a counterexample. 

Suppose it is in fact OK to kill human beings sometimes. Does that establish it as OK in any given case? It does not. And all Nobis and Dudley have to offer for going beyond this is their own vague sense of analogy between cases -- not, as they repeatedly mischaracterize it, how people generally see the matter. This is very weak argument, since it really means that they've given an argument not that opponents of abortion should not have the positions they do but that they, Nobis and Dudley, given how they see it, are committed to rejecting the pro-life position. And it is an argument that depends for what little strength it has on assuming that Nobis and Dudley haven't missed important relevant differences (which, as we've seen, they have) and that there is not some other, more accurate principle involved that nonetheless still distinguishes these particular cases in the way the crude, rule-of-thumb way does (which they don't even consider).

Nobis and Dudley do at least try to give some kind of positive argument as well as negative argument for thinking abortion morally permissible. It isn't very good; in their formulation of it, based on the idea that interests are what grounds rights, they gloss over both the fact that there is a great deal of controversy over the best way to characterize interests and the fact that there are, in fact, arguments that those in the womb have interests from the beginning -- indeed, it's hard to make sense of most actual medical advice to pregnant women without assuming that they do, since it seems to be able to require being able to recognize healthy development, and health a reason for attributing interests, and to recognize that what you do now can affect their lives later, which is a reason for attributing interests. (Indeed, given that there have been arguments for decades that plants have interests, arguments that are increasingly popular, it's a little baffling that their argument depends on the by-now very old-fashioned assumption that all you have to look at is the brain. It's like being teleported to the 80s and 90s.)  And, of course, there is always the position, more common than Nobis and Dudley suggest, that interests, while relevant to rights, are not what actually grounds them (since, among other things, some of the ways we characterize some interests seem to suggest that we already are presupposing rights). Of course, one can still reasonably hold that some version of their argument holds by holding that this particular formulation is just a handy approximation  -- but as Nobis and Dudley don't allow any room for such formulations on the opposition side, they can hardly complain if someone refuses to allow them that same room.

The best I can handwave in favor of the authors is that their real audience is supporters of abortion rights, and that their real argument is not the permissibility of abortion but that it's reasonable for such people to stake their ground on definitely moral arguments. But that's a weak defense, since it would really require showing that the moral arguments have powerful bite when arguing against opponents of abortion, which they haven't really done. Their most substantive arguments depend on (1) assuming a controversial view of what cut-off we should regard as death specifically for moral purposes relevant to the killing of human beings and (2) treating a fact about whether the brain is functioning as in and of itself the decisive issue, rather than a contributing factor. But it seems doubtful that it's a good strategy for pro-choicers to chain themselves to the assumption that irreversible brain failure is not a morally significant change, and most people, I think, would hold, perhaps rightly, that it would be better to bypass assumptions like these if that's possible.

So, in short, it's true that the real issues here are moral, and it is plausible that this is where it is best to focus if possible (although it is entirely understandable that people would prefer to avoid this difficult terrain if they could); nothing in what I've said suggests that this can't be done by supporters of rights to abortion; but Nobis and Dudley's overly quick and amateurish attempt is not a model for doing so, and it is all the worse for not being someone's rough first-approximation but being put forward as if it were some kind of model. And, of course, this is all before we even get to the political and social complications; there are good reasons why the pro-choice movement has tended to do a lot of elaborate work to avoid any kind of argument that makes them sound like a Kill-Human-Beings movement, reasons that are obviously not being considered by those, like Nobis and Dudley, whose first instinct is to argue that it is morally permissible to kill human beings.

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