Pain-Capable Abortion Bans

More than three decades ago, I went to visit a friend who was hospitalized at NIH in Bethesda, Maryland. On the way from the parking lot to her room, I encountered a group of animal rights activists protesting the use of animals in medical research. To this day I vividly remember the chant they repeated again and again: “A cat is a rat is a dog is a boy.” Operating on a hunch, I couldn’t resist asking about their viewpoint on abortion. As I suspected, the group was decidedly pro-choice, connecting their acceptance of abortion with the problem of over-population. Even at the time, I thought it strange that someone could be against animal research for medical benefit but for abortion. Thirty years later, I still think it strange.

A few weeks ago South Carolina Governor Nikki Haley signed a law that bans abortion at or after 20 weeks. Undoubtedly, the pro-choice camp will be up in arms against the law. Arkansas and other states have passed similar “pain-capable” abortion laws that remain stymied in judicial review.

Two reasons often set forth for prohibiting abortions at and after 20-weeks are the fetus’ resemblance to an infant and the fetus’ capacity to feel pain. I wish to make one point regarding the latter criterion. Specifically, I contend that one cannot be for animal rights and, at the same time, be against laws that prohibit abortions at the at the development stage of sentience.

For animal rights proponents, the launching point of their argument for animal equality and their opposition to “speciesism” is that non-human animals are capable of feeling pain like human animals, and thus, should not be discriminated against but rather accorded equal consideration. By their logic, animal rights—including the right not to be killed—flow out of the animals’ capacity to feel pain. This was the point of the animal rights protesters at NIH decades ago.

If one accepts the logic of animal rights, then shouldn’t he or she be against abortion at the point at which fetuses are capable of feeling pain? Even if one has a low view of the value of the embryonic/fetal human being in the womb, doesn’t he or she have to admit that at a certain stage in fetal development they are at minimum “pain-capable animals”? If so, don’t they have the right not to be killed?

Critiquing this key argument of the animal rights movement is not my present aim. Rather, I’m simply pointing out that it is logically inconsistent to be for animal rights and against laws that limit abortions at the point fetuses can feel pain. Thus, animal rights proponents should not be against “pain-capable” abortion laws. They cannot accord rights to pain-capable non-human animals and deny them to pain-capable human fetuses.

Of course, from the pro-life perspective, pain capability is an arbitrary threshold, since this perspective bases its opposition to abortion on the inherent value of the embryonic/fetal human being from the earliest moments of existence. Obviously, pro-choice proponents do not accept this high view of the value of embryonic/fetal human beings. However, I’ve run across a great number of people like the protestors at NIH who see themselves as promoters of both “abortion rights” and “animal rights.” It would be progress if they could come to see that prohibiting abortions at the point of pain capability is reasonable and is consistent with the logic they use to justify animal rights. For the pro-life camp, this would represent only a minimal victory. However, at the present time when some seek to defend “post-birth abortion” (i.e. infanticide), it would at least be a step in the right direction.

Can Teaching Ethics be “Safe”?

Though I’ve taught college level ethics classes for fifteen years, I’m still overwhelmed with feelings of both exhilaration and apprehension as I enter the classroom and face forty or more intellectually bright and highly motivated health care majors. For fifty minutes a day, three days a week, we talk about some of the most critical, complex, and controversial issues of our day: embryonic stem cell research, cloning, abortion, genetic engineering, artificial reproductive technology, and physician-assisted suicide among other topics. I try to come prepared, having spent hours and hours reading the latest journal articles and books. My notes, PowerPoint slides, and videos are in good order. I’ve developed a reasonable strategy for saying what I believe needs to be said, but I’m also ready to adjust to “the moment.” Who knows what each class period will bring? Over the years, I’ve found class prep and engagement with students to be exhilarating.

Lately, however, I’ve felt more and more apprehension as I launch the day’s discussion. In my morning ritual of skimming the headlines for “ethics in the news” items, I routinely stumble across another story of a university or professor in deep trouble for violating “safe zones” or failing to give “trigger warnings.” I’m filled with fear and trepidation as I realize that nothing in the teaching and doing of ethics is “safe.” Ethics, after all, is about what we ought to value and what we ought to do, not what we happen to value and happen to do. Consequently, our viewpoints and behaviors could be wrong and in need of adjustment.

If providing a “safe place” means students’ viewpoints and values will never be challenged, how do you teach ethics at all? More so, how do you discuss the important but volatile issues of our day while guaranteeing that no one will ever feel “uncomfortable”? If a professor has to give advance warning about a topic or discussion that might offend, then broadcast a “trigger warning” before every class. Ethics in general, and discussion of contemporary ethical issues specifically, is dangerous!

I believe wholeheartedly that a college class on ethics should be safe, if by “safe” you mean professor and students will respect one another, will give sincere consideration to the reasoned judgments—even the opinions—of one another, and will speak kindly and considerately to one another, especially when you disagree. “With all due respect” is still a good way to begin a dissenting opinion or an objection. Such “safe zones” invite open and genuine dialogue; encourage the revision of viewpoints when evidence or reason demands it; advance our understanding of complex issues, and foster mutual respect.

But if by “safe” you mean students must be completely sheltered from considerations and viewpoints they might find challenging, unsettling, and different from their own, then how do you teach ethics? I tell students the first day of class, “Before the semester is over, everyone probably will be upset over something that is said by me or your classmates.  The issues we’ll be discussing are too important, too complex, and too controversial not to be ruffled somewhere along the line.  We’ll endeavor to create an environment in which everyone can honestly express their own convictions, thoughtfully consider the viewpoints of others, and sincerely respect those with whom you disagree.”  Over the years, that is what I’ve meant by “safe.”  Recently, being “safe” has come to mean something very different.  In the current climate, “safe zones” may be safe for students, but very dangerous to professors who dare to encourage honest and open discussion on the important issues of our day.

Worldview Matters at the End of Life

Writing this reflection on Easter Sunday, I’m reminded of the powerful influence one’s worldview exerts on end-of-life decision-making. In my considered judgment, voluntary active euthanasia (VAE) and physician-assisted suicide (PAS) are out of sync with the Christian worldview that maintains that God made human beings in his image; that believes that God the Father was co-sufferer with Christ the Son on the cross, and even now is present with us in our suffering; that trusts that God is sufficiently sovereign, merciful, and creative to transform even the darkest night into glorious day; that affirms there is meaning in suffering in this life and in the life beyond; and that reminds disciples to live with an end-time horizon in view.

For those committed to live and die for Christ, according to his sovereign will for their lives, VAE and PAS make no sense. Even Derek Humphry—though he does not embrace the Christian worldview and is an ardent supporter of euthanasia—observes that worldview makes all the difference in one’s attitude toward VAE and PAS. In Final Exit, sort of a “how-to” book on euthanasia, he cautions readers: “If you consider the God whom you worship to be the absolute master of your fate, then read no more. Seek the best pain management available and arrange for hospice care.” (Final Exit, 3rd ed., New York: Random House, 2002, p. 3) Regarding one’s understanding of suffering and death, he asks: “Does suffering ennoble? Is suffering a part of life and a preparation of death? Our response here is that if that is your firm belief you are not a candidate for voluntary euthanasia.” (“Euthanasia is Ethical.” In Euthanasia: Opposing Viewpoints, ed. David Bender and Bruno Leone, San Diego: Greenhaven Press, 1995, p. 19) Humphry may reject the Christian worldview, but he perceives that it precludes consideration of euthanasia.

The worldview of Humphry, Peter Singer, Jack Kevorkian, and a host of other euthanasia proponents is a material one devoid of the presence and influence of a personal God who created human beings in his image and who entered into the suffering of humanity in the Incarnation. In a materialistic worldview, the dignity of human beings is diminished, the notion of redemptive suffering is nonsensical, and the possibility that the glory of eternity might bring perspective to here-and-now suffering is neutralized. Brought low in such a worldview, humanity seeks to move upward through the exercise of unbridled self-determination. Disdaining true dignity that derives from being created in the image of God, human beings conceive “dignity” merely as the exercise of absolute autonomy at the end of their lives. A shadowy “dignity” indeed!

To a young man seeking to find a bride in India, one might be tempted to say, “Good luck. You’re going to need it!” According to the most recent government census (January 2016), there are only 944 females for every 1,000 males in the burgeoning population (approximately 626 million females and 668 million males). A main factor contributing to the gender imbalance in India is sex-selective abortions of female fetuses.

The sex ratio at birth – the number of girls born per 1,000 boys – has been declining for years, falling from 962 in 1981, to 945 in 1991, to 927 in 2001, to 914 in 2011. The India government is keenly aware of the problems associated with the skewed sex ratio at birth: “The decreasing sex ratio in this age group has a cascading effect on population over a period of time leading to diminishing sex ratio in the country. One thing is clear – the imbalance that has set in at this early age group is difficult to be removed and would remain to haunt the population for a long time to come.”

The Pre-Conception and Pre-Natal Diagnostic Techniques Act (PCPNDT ACT), passed in 1994 and amended in 2002, sought to stem the tide of sex-selective abortions, a purpose explicitly stated in the preamble: “An Act to provide for the prohibition of sex selection, before or after conception, and for regulation of prenatal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorder and for the prevention of their misuse for sex determination leading to female foeticide; and, for matters connected therewith or incidental thereto.” Though parents and physicians are subject to a five-year jail term for requesting or conducting a prenatal sex test, the practice is thought to remain widespread.

As a response to the uneven results of the 1994 PCPNDT Act, Maneka Gandhi, the Indian Women and Child Development Minister, has suggested an opposite tactic, making prenatal sex tests compulsory. In her proposal, each pregnancy would be registered, the sex of the fetus would be disclosed to the parents, and the outcomes of the pregnancy would be tracked, all in an effort to minimize abortions of female fetuses. The secretary general of the Indian Medical Association, Dr. K. K. Aggarwal, thinks the idea has potential: “Such a step, if taken, will help institutionalize the safety of the girl foetus, which, in several parts of the country, is aborted because of societal obligations.”

However, not all government officials and health care workers share Dr. Aggarwal’s enthusiasm about Ghandi’s proposal. Some point to the bureaucratic nightmare of tracking each of India’s 27 million annual pregnancies. Others argue that the proposal would lead to a result opposite of its intention, the dramatic increase of sex-selective abortions.

Whether Gandhi’s proposal gains traction remains to be seen. Whether her plan would lead to the decrease or increase of female feticide is up for debate. What is clear is an irony associated with abortion practices. The right to abortion is typically hyped as a means to protect the lives, welfare, and health of women. Ironically, however, female fetuses are paying a disproportionate and deadly price for this “right” in India, China, and elsewhere. Sadly, abortion practices worldwide have led to what has been called “the missing women,” the millions and millions of female babies who were never born because of sex-selective abortions. The very “right” thought necessary to promote the value of women “already born” has, in tens of millions of cases, contributed to the devaluing of females in the womb “not yet born.”


How Slippery the Slope?

Proponents of physician-assisted suicide (PAS) and voluntary active euthanasia (VAE) tend to dismiss slippery slope arguments against their position as needless and unnecessary alarms. Ongoing events and discussions in Canada, however, suggest that the slope of assisted dying may indeed be slippery and the alarms justified.

In February 2015 the Supreme Court of Canada found that the existing ban on physician-assisted dying (PAD) violated the Canadian Charter of Rights and Freedoms. The Court initially gave the federal/provincial/territorial governments one year to pass new legislation, but later extended the deadline. As a result, PAD will be legal in Canada by June 6, 2016. Currently, the various levels of government are hammering out the details of the regulatory framework for assisted dying with the assistance of an advisory panel on PAD. Though the June deadline is still months away and the work of the advisory panel is not yet complete, some of the panel’s recommendations that are coming to light are troubling.

First, the panel maintains that “physician-assisted dying” (PAD) should encompass both PAS (the physician prescribes a lethal medication) and VAE (the physician injects a lethal medication) and should be publicly funded. The panel sees no ethically/medically significant difference between the two acts and recommends that both be permissible. Thus, Canada, from the beginning, would join the ranks of the Netherlands, Belgium, and Luxembourg in legalizing VAE. In contrast, PAS is legal in six states in the U.S. but VAE is still illegal in all fifty states.

Second, eligibility for PAD should be based on “competence” rather than “age,” theoretically removing age limits altogether. Co-chair Jennifer Gipson remarks, “Some children, especially adolescents, have the competence and the capacity to make end of life decision. What it turns on is not their age, not what their birth certificate says, but it’s really their ability to appreciate their diagnosis, their options.” While some members of the panel balk at the notion of a “competent” five or seven year old, none seem to have problems with a “competent” twelve year old, which seems to be the lower limit on which the panel has settled. Thus, from the start, Canada would be in line with the Netherlands where VAE is legal for children over the age of twelve, and potentially with Belgium that allows VAE for children without any age limit, developments that did not occur until 2014 after years of practicing more restricted VAE. In what other context does “competent adult” include children 12 years old and younger?

Third, patients requesting PAD need not be “terminal.” To have access to PAD, the Supreme Court declared that patients must have a “grievous and irremediable” condition. The advisory panel interprets this language to mean “a very severe or serious illness, disease, or disability that cannot be alleviated by any means acceptable to the patient.” The patient need not have a terminal condition. One wonders if mental conditions are included in this comprehensive redefinition.

These are not the only troubling recommendations of the committee. Another, for example, is that the “P” in PAD is not limited to physicians, but would also include a registered nurse or other health care professionals. But these are sufficient to sound the alarm. Eligibility requirements for euthanasia continue to be relaxed. Canada proposes to begin from a “relaxed” position. From PAS to VAE, from the limit of legal adult to no age limit at all, from terminal illness to any condition that makes life not worth living to the patient. Where will fixation on death end, and limits on human autonomy begin? To this writer, the slope seems as slippery as a downhill ski course!