Starting with moral conclusions vs. foundational principles

By Steve Phillips

Last week I wrote about how Jeremy Williams’ moral position on sex-selection abortion was influenced by his position on abortion itself. Reflecting a little more on what he wrote raises the question of what comes first in our reasoning about a moral issue. Do we start with fundamental principles or with previously held moral conclusions? It is not a simple question.

Abortion is such a significant issue that it tends to dominate bioethics at times. Ethicists who defended the permissibility of a woman choosing abortion in the 1970s seemed to begin with the idea that abortion was permissible and then work back to reasons to support that position. Those reasons included an analogy of a violinist being attached to a person without her permission and the idea that some human beings were not actually persons. However, this process of starting with a conclusion is not exclusive to those who support abortion. Many of my students begin with a strongly ingrained belief that abortion is wrong without a good understand of why they believe that. They then address other issues according to how that would affect their belief that abortion is wrong.

My first reaction is that proper moral reasoning should begin with foundational moral principles, but those who take the casuist approach to ethics say that rigidly following principles can lead us astray. They say we should we should begin with a paradigm case in which the moral conclusion is clear and then determine how much the situation we are considering is like and unlike the paradigm case. Even Beauchamp and Childress who have helped to define the principles of biomedical ethics say that those principles are in a significant way influenced by our considered moral judgments and not just based on ethical theories.

So why do I think we should start with foundational principles? That goes back to why I think there is such a thing as moral right and wrong. I believe that morality itself exists because we were created by and live in a world created by a moral being who is by nature good. God’s innate goodness causes ethics to exist. If we were the result of chance and unguided evolution, we would have no reason to believe that such things as right and wrong exist. If ethics exists due to the moral character of God, then God’s moral qualities are the foundation of ethics. His expression of those qualities in scripture and through his incarnate Son form the foundational principles for ethics. That is where we need to start.

Noninvasive prenatal testing and sex-selection abortion

By Steve Phillips

The National Health Service in Great Britain has decided to implement the use of noninvasive prenatal testing (NIPT) and that has raised some concerns. It would seem natural for there to be concern about this test used to detect prenatal genetic conditions such as Down syndrome, which commonly leads to the choice to abort the fetuses with those conditions. However, according to a recent article in The Conversation by Jeremy Williams one of the major concerns is the use of this technique to facilitate sex-selection abortion. Williams states that one of the major political parties has proposed a policy of banning the use of NIPT for sex determination and has described sex-selective abortion as “incredibly unethical”.

Williams concedes that the idea that sex-selection abortion is morally wrong and ought to be prevented is widely held even by those who otherwise have no moral objection to abortion but suggests that taking that position is problematic for those who believe that a woman has a right to choose to have an abortion. Williams lists several reason that people give for why the sex-selection abortion is wrong. These include idea that sex selection abortions are done due to a trivial preference, concern that sex selection abortion constitutes unjust discrimination against female fetuses, concern about women being coerced into this type of abortion, and that it teaches that the lives of girls are not as important as boys. He is concerned that if these reasons are accepted they would apply more broadly than to just this one type of abortion, and he is right. Many abortions are done for reasons that seem trivial compared to the value of the life of the fetus. Any abortion that is done because of the characteristics of the fetus, including having a genetic disorder such as Down syndrome, are both unjust discrimination against those who have such a disorder and express a message that people who have such a disorder do not have the same value as those who do not. Many women are pressured into having abortions, and do not actually freely choose them.

The problem with what Williams has written is that sex-selection abortion is just clearly wrong. It is wrong to kill a fetus because that fetus is female and end the life of the girl and woman who that fetus would have become just because she is female. That is a clear violation of women’s rights. The fact that this helps us see that abortions in other situations are also clear violations of more universal human rights should make people question whether those abortions are also wrong. It does not mean that sex selection abortion is permissible.

Reducing Abortion Regardless of Roe v. Wade

By Mark McQuain

The selection of the next Supreme Court Justice has perhaps naturally unleashed a flurry of op-eds describing the post-apocalyptic world that will result from any partial or complete reversal of Roe v. Wade. In the July 18th, 2018 Perspective in the NEJM, Dr. Julie Ingelfinger offers the tragic case of a foreign nursing student she befriended while both were training in New York in the late 1960s. The student was finishing her final nursing year and was engaged to be married when she became pregnant despite the use of contraceptives. Per Dr. Ingelfinger, neither the student nor fiancé had “the means to provide for a baby, so they reluctantly decided that terminating the pregnancy was the only choice.” The only abortion option available at that time, pre-Roe v. Wade, was a “back-alley abortion.” After the abortion, the student developed sepsis, resulting in a hysterectomy and kidney failure. Dr. Ingelfinger oversaw the dialysis and despite appropriate medical care, the student died suddenly from complications of the dialysis. Dr. Ingelfinger’s reason for sharing this story now is to remind us that back-alley abortions resulted in similar complications in many other young women pre-Roe v. Wade and warn that if Roe v. Wade is overturned in the future, young women seeking abortion will again suffer the same fate as her nursing student friend.

In a similar vein to Dr. Ingelfinger’s editorial, there is a second op-ed on CNN website on May 5, 2018 by Danielle Campoamor entitled “Why Supporting Abortion is a Pro-Life Position”. She fears any future restrictions in Roe v. Wade will result in the suffering or death of young women seeking an abortion and wants everyone to have the “safe, affordable and relatively easy abortion” that she experienced:

“I wasn’t subjected to mandatory waiting periods, forced counseling or an abortion provider required to regurgitate state-mandated, inaccurate information. I didn’t have to travel long distances, worry I was getting there too late in the pregnancy, find money to pay for child care or walk past angry or intrusive protesters. Instead, I went in pregnant and, a few hours later, came out with my future back in my control.”

In both articles, the focus is unilaterally on the health and life of the mother. Ms. Campoamor’s position is easily challenged, if not decimated, by including the health and life of the baby in her calculus. Dr. Ingelfinger’s premise requires more unpacking.

Her position appears to be that all future unwanted pregnancies in an overturned-Roe v. Wade world would require a pre-Roe v. Wade “back-alley” surgical abortion. Many Latin American countries have never legalized abortion yet their illegal abortion fatalities have dropped as medical abortifacients (morning after pills) have replaced surgical abortion methods. Interestingly, both the author of the previously linked article on the Latin American experience and Dr. Ingelfinger cited economics (and not legality) as a main reason for choosing abortion. Analysis of the statistics on why women in the US choose to abort challenges this assertion. A clear understanding of these statistics might help identify strategies that lead to a voluntary reduction in the number of abortions, absent changes in the legal status of abortion.

There is a nearly 15-fold increased risk to carry a baby to full-term than it is to have an elective abortion. We have “successfully” divorced sexual activity from the risk and responsibility of bearing and rearing a child, as long as we are willing to use abortion as the definitive stop gap in maintaining our birth control. From my standpoint, this success and this control has come at a terrible price, namely the deaths of over 60 million babies in the US alone. Sadly, I pessimistically do not believe that there will be a meaningful change in the Federal law regarding abortion, regardless of who becomes our next Supreme Court Justice (link requires subscription). There are simply too many women and men who have come to rely upon the type of control of their future activities that abortion provides. Therefore, I ask Dr. Ingelfinger, Ms. Campoamor and all of those on the other side of the abortion divide: must all unwanted pregnancies end in abortion (medical or surgical), regardless of the status of Roe v. Wade?

Labs are growing human embryos for longer than ever before

BY JON HOLMLUND

That’s only a slight paraphrase of a news feature article this week in Nature.  The clearly-written article is devoid of scientific jargon, with helpful illustrations, open-access online, and readily accessible to the non-specialist.  Check it out.

Key points include:

  • Scientists who do not find it ethically unacceptable to create and destroy human embryos solely for research purposes continue to follow the so-called “14-day rule,” by which such experimentation is limited to the first 14 days after fertilization. At that point, the human nervous system starts to form and the time for twinning is past.
  • The 14-day rule is law in some nations, but until now has not been a practical issue because scientists have been unable to grow human embryos that long in the laboratory.
  • That technical limit has been sufficiently overcome that embryos are now surviving for almost 14 days. Scientists have not directly challenged the 14-day rule yet, but might, and would like to revisit it.
  • Experiments on human embryos in that time have included editing of critical genes to see what happens (sometimes they stop growing), and making hybrids of animal embryos with human cells whose purpose is to “organize” embryonic development rather than remain part of the developing individual.
  • Embryo-like structures, referred to as “embryoids” in the article, and sounding similar to “SHEEFs” (“synthetic human entities with embryo-like features”) are also being created. These entities don’t necessarily develop nervous systems in the same way as a natural embryo, prompting questions of just how much they are like natural embryos, whether the 14-day rule applies, and whether they raise other ethical concerns.

The last paragraph of the article, reproduced here with emphases added, is striking and more than a little ironic in light of arguments that embryos are “just a clump of cells”:

As the results of this research accumulate, the technical advances are inspiring a mixture of fascination and unease among scientists. Both are valuable reactions, says [Josephine] Johnston [bioethicist from the Hastings Center]. “That feeling of wonder and awe reminds us that this is the earliest version of human beings and that’s why so many people have moral misgivings,” she says. “It reminds us that this is not just a couple of cells in a dish.”

A Supreme Court of One

BY MARK MCQUAIN

Like Neil Skjoldal in yesterday’s blog entry, I, too, am a Supreme Court watcher and enjoy reading their decisions as some might enjoy watching a good sports match or listening to a beautiful symphony. Nerd that I am, I find a well-articulated argument a beautiful thing to behold, even when it runs counter to my bioethics, as it can be a learning experience to help me sharpen my counter argument. My counter argument becomes moot if five or more Justices concur with that original argument, as it is rare, though not impossible, for the Court to completely reverse itself.

Last week, the legal landscape suffered the equivalent of a San Andreas-like major tremor along its political fault-line with the announced retirement of Associate Supreme Court Justice Anthony Kennedy. Justice Kennedy has generally been considered the political center of the Court, the all-important tiebreaker, if you will, on controversial bioethical issues related to abortion, gay marriage and the death penalty. Presently, we give 9 Justices the authority to be the final interpreters of our laws, including those that determine our collective bioethics. Amazingly, we will accept a majority rule 5-4 split decision as being just as acceptable as a 9-0 unanimous decision when validating or invalidating our laws. Being the tiebreaker on previous controversial issues effectively made Justice Kennedy what I call “a Supreme Court of One”. And that is exactly how both political parties are treating the selection of Justice Kennedy’s replacement.

And they should.

In a past blog entry, I tried to make the case that it vitally matters who is interpreting our Constitution, as those individuals are grounding our secular bioethics. Allowing one tie-breaker to decide these important issues is too much power and responsibility in one individual but that has been the reality in our presently divided Court.

My favorite legal philosopher is the late Yale Law School professor Arthur Leff. He gave a lecture at the Duke University Law School in the late 1970s called “Unspeakable Ethics, Unnatural Law”. He made the case that if our source of right and wrong is anything other than a transcendental (unnatural) source, then the resulting ethics/law is always open to challenge. The U.S. Constitution is an example of a natural source of law, perhaps the best that mankind can create for itself, but, since it was created by us, it is therefore always open to challenge by us. Given its internal checks and balances, as long as “We the People” continue to agree to be governed by the Constitution (and this is by no means a permanent agreement), rulings by the Supreme Court essentially function as our collective approval of laws that determine our national bioethics.

I have shared the following quote from Leff’s lecture before but it again seems appropriate:

As long as the Constitution is accepted, or at least not overthrown, it successfully functions as a God would in a valid ethical system: its restrictions and accommodations govern. They could be other than they are, but they are what they are, and that is that. There will be, as with all divine pronouncements, a continuous controversy over what God says, but whatever the practical importance of the power to determine those questions, they are theoretically unthreatening. It is only when the Constitution ceases to be seen as fulfilling God’s normative role, ceases, that is, to be outside the normative system it totally constitutes, or when, as is impossible with a real God, it is seen to have “gaps,” that a crisis comes to exist. What “wins” when the Constitution will not say, or says two things at the same time?

Presently, the Supreme Court interprets those gaps and decides what wins and what loses in our national bioethics debates. Given our present evenly split Court, picking the next Supreme Court of One can literally make all the bioethical difference in the world.

New Moral Anesthesia for Abortion

“Is it possible, once again, to hold in tension seemingly opposite ideas about abortion?” This is the main question asked by Dr. Lisa Harris in the lead editorial in the April 12, 2018 NEJM. Her concern is that in her view, since the creation in January of the new Conscience and Religious Freedom division at HHS, subsequent comments by HHS leaders “suggest that they are uninterested in discrimination against health care providers whose consciences compel them to provide care, and uninterested in injuries to patients caused by care refusals.” (emphasis hers) She wants us to return to the time of the 1973 Church Amendment when she argues that lawmakers reached common ground protecting conscious rights of healthcare workers, then holding what she describes as a tension “between abortion as a new fundamental right for U.S. women and the reality that some healthcare providers could not in good conscience participate in it.” Our inability to maintain that tension, she believes, will continue to result in our present extreme divisiveness on the abortion issue. So, specifically, per Dr. Harris: “Can we understand abortion as both something that ‘stops a beating heart’ and a fundamental right, rather than insisting it’s only one or the other?”

Trying to understand abortion as both is the problem. Cognitive dissonance is the word Dr. Harris was looking for, and she is correct that something was needed immediately after Roe v. Wade to ease that dissonance.

With Roe v. Wade in early 1973, the Supreme Court determined that the Constitution prohibits the government from stopping one individual from ending the life of a second individual who was not actively ending the life of the first individual. No one was honestly claiming that we needed Roe v. Wade to allow physicians to perform an abortion to save the life of the mother if the baby/pregnancy was immediately threatening the life of that mother. The Church Amendment, which passed shortly after Roe v. Wade became law, essentially said that no one will be forced to perform an abortion or be discriminated against if they did so – effectively permitting an individual to follow one’s own religious beliefs or moral convictions on the matter. Abortion became just a personal religious or private moral thing.

I believe that the Church Amendment was the necessary moral anesthesia that allowed the Supreme Court to surgically join the opposite ideas that an abortion is both a fundamental right and an act that “stops a beating heart”, the amendment effectively numbing our ethical faculties to what Roe v. Wade would now permit.

Had pro-choice supporters simply adhered to the Church Amendment, there would not have been growing broad demand by pro-life groups for the proposed Conscience Protection Act of 2017 (H.R. 644). I suspect most pro-life supporters hope the creation of the new HHS division will correct the concerns addressed in the failed bill.

I worry the new HHS division will be the new moral anesthesia to lull us into contentment with securing arguably necessary conscience protections at the cost of leaving Roe v. Wade intact.

In his recent blog post, The Child I Want, Neil Skjoldal nicely articulated the dehumanization that results when we create a fundamental right to “stop a beating heart.” But we have known that this would happen since that right was first established. Almost identical concepts were discussed during oral arguments of Roe v. Wade, such as the following exchange between Justice Potter Stewart and attorney Sarah Weddington, who represented Roe. (see LINK for transcript or audio of the second reargument Oct 11, 1972, approximately one-third of the way through):

Potter Stewart: Well, if it were established that an unborn fetus is a person within the protection of the Fourteenth Amendment, you would have almost an impossible case here, would you not?

Sarah R. Weddington: I would have a very difficult case. [Laughter]

Potter Stewart: You certainly would because you’d have the same kind of thing you’d have to say that this would be the equivalent to after the child was born.

Sarah R. Weddington That’s right.

Potter Stewart: If the mother thought that it bothered her health having the child around, she could have it killed. Isn’t that correct?

Sarah R. Weddington: That’s correct.

So, to answer Dr. Harris: “Can we understand abortion as both something that ‘stops a beating heart’ and a fundamental right, rather than insisting it’s only one or the other?” — I certainly hope not.

The Child I Want

I appreciate the honesty of Washington Post columnist Ruth Marcus. Watching various states attempt to enact more and more restrictions on abortion, she wrote of her strong personal feelings regarding the importance of keeping abortion legal.

The headline certainly grabs our attention: “I would’ve aborted a fetus with Down syndrome. Women need that right.” Noting how cute the new “Gerber Baby” is, Marcus reminds her readers that abortion is a choice, and that her choice would be to abort a 2nd trimester pregnancy, if it were determined that the child had Down syndrome. After acknowledging that parents have the right not to abort, she states, “That was not the child I wanted.”

At the end of the article, Marcus seems to back away from the implications of her beliefs. What if, instead of Down syndrome, the child was to have nearsightedness or was destined to be short instead of tall? “There are creepy, eugenic aspects of the new technology that call for vigorous public debate. But in the end, the Constitution mandates — and a proper understanding of the rights of the individual against those of the state underscores — that these excruciating choices be left to individual women, not to government officials who believe they know best.”

Clearly, Marcus does not really want debate. She wants the child she wants.

More thought has got to be given to these matters. Within a week’s time, another Washington Post columnist, George Will, wrote a strong response. Instead of emphasizing the importance of personal choice, he cites a chilling statistic. Only three children with Down syndrome were born in Iceland in 2009, because of the nation’s strong emphasis on pre-natal testing and equally strong push to terminate unwanted pregnancies.

In describing an improved life for a Down syndrome person, Will notes that just a few decades ago, they “. . . were institutionalized or otherwise isolated, denied education and other stimulation, and generally not treated as people.” And here lies the issue which confronts us all: when we decide who to treat as people, we dehumanize all.

 

Distorted views of the human person

After writing about how the events of the first Christmas influence how we think about personhood I read something that made me realize how distorted some of the views of personhood are in our society. I was reading an essay by James Toomey in the Hastings Center Bioethics Forum titled “Is Noninvasive Prenatal Genetic Testing Eugenic?” Toomey was responding to an earlier article by Vardit Ravitsky in which Ravitsky draws on a disability rights argument to say that the promotion of widespread prenatal testing and abortion as a means of reducing the societal burden of genetic disease is morally problematic and a form of eugenics in its negative sense. Toomey says that Ravitsky’s concern is not valid.

Setting aside the moral concerns about abortion done for any reason, the thing that struck me was one of Toomey’s arguments. He says that reducing the number of people with genetic disorders by prenatal testing and abortion “is closer to a cure than an assault on personhood.” He says that “narrative or social identity is what we care about when we think about personhood.” Therefore, if a couple plans to have a child, conceives, discovers the child will have Down syndrome, aborts the child, and then conceives again and gives birth to a child without Down syndrome, he says this can be seen as involving a single person who has been cured of Down syndrome. He claims this removes the eugenic associations from prenatal testing to reduce the number of people in society with a disorder such as Down syndrome.

Saying that the two children in this scenario, one aborted and one brought to birth, can be considered one child even though they are genetically distinct and conceived at different times is a serious problem with this view of personhood. We live in a time in which people believe at once the contradictory ideas that the only things that are real and knowable are those things that are material and empirically verifiable and that human persons are completely nonmaterial entities defined by narrative and social identity. The latter leads to this bizarre idea that these two distinct children, one dead and one living, are one person. The first leads to other problems.

It turns out that this is another place in which our understanding of Jesus can help us understand who we are as human beings. The early church had to deal with heresies that said that Jesus was either physically real but not divine or divine but not a physical being. The early creeds addressed these ideas by asserting the biblical truth that Jesus was both a physical and spiritual being who was at the same time fully human and fully divine. In a similar way human beings are composed of intimately connected material and immaterial aspects of who we are. Denying either of those aspects of our being leads to great misunderstanding of who we are. Not understanding who we are leads to poor ethical judgments.

Regarding objections to the change in the contraceptive coverage rule

The Journal of the American Medical Association carries a “Viewpoint” piece that categorically rejects the Trump administration’s reversal of its predecessor’s mandate that employer-based health insurance include payments for contraceptives.  As reported in the general press, the current administration’s new stance was hailed by religious and other political conservatives as a welcome support of conscience rights.

Read the article here.  Briefly, some key points and quick responses:

  1. “The Trump administration has rejected balance [between conscience rights and access to contraceptives] as a worthwhile goal.”  The prior rule was widely understood to be narrow, intending to apply only to religious organizations and not to private employers who held sincere and consistent objections to some or all forms of contraception.
  2. It is argued that religious freedom should not be privileged over “women’s rights” or “the interests of patients.”  However, religious freedom is arguably protected, explicitly, in the US Constitution.
  3. “Ethical obligations to prioritize the interests of patients” are wrongly compromised.  This claim seems to wrongly invoke the obligation of a physician to prioritize the patient’s interest over his own.  This is not the same as claiming that a woman’s right to seek and obtain contraception entails an obligation by anyone and everyone to provide it for free.
  4. “Government should intervene” to ensure all women have access to free contraceptives.  Even if the cost of some contraceptives is prohibitive to some women of limited means, that does not entail the government creating an obligation for private citizens or groups to violate their strong moral convictions by direct or close involvement in providing said contraceptives.  The government could pass legislation and appropriate funds to provide the contraceptives more directly, eliminating employers as middlemen.
  5. The order is claimed to prioritize conscientious objections over “evidence,” in this case evidence that contraceptives are not abortifacients.  This claim, which cites a blog post as evidence and is not further developed, seems to rely on a definition of abortion as occurring only after implantation.  I don’t believe that it has been conclusively proven that at least some contraceptives cannot work after fertilization.

 

Human gene editing marches on

Nature has recently carried two new reports of human gene editing.  In one, embryos donated from an IVF clinic had a gene critical to very early development altered, to study what happens when you do that, and try to understand early human development more than we now do.  In the other, scientists studied editing of an abnormal recessive gene, specifically the one causing a type of blood disorder called thalassemia, by using cloning to create a new embryonic version of an adult with the disease.  (This made it technically easier to start in the laboratory with an embryo that has the disease, because it is genetically recessive, meaning that both copies of the gene are abnormal.)  This follows earlier publication of similar work to edit dominant mutation-causing genes, in which the embryos arose because of new IVF, done in the lab, by the scientists, using donated eggs fertilized with sperm from a male donor who carried the abnormal gene.

In all three cases, the main biologic approach, and the main ethical issues, are the same.  The main differences were which genes were being edited, and how the embryos were obtained.

This prompted Nature to run an editorial to say that it is “time to take stock” of the ethics of this research.  Read the editorial here.  The key points:  This is important work that should be undertaken thoughtfully.  Accordingly, donors of any embryos or cells should be fully informed of the planned research.  Only as many embryos should be created as are necessary to do the research.  Work on embryos should be preceded by work on pluripotent, or “reprogrammed,” stem cells, and if questions can be fully answered by work with those cells, then it may not be necessary to repeat the studies on whole, intact human embryos, and if that is not necessary, perhaps it should not be done.  Finally, everything should be peer reviewed.

I agree that editing work in non-totipotent cells should be at all times favored over work on intact embryos, but if one holds that an embryo is a human being that should have the benefits of protections afforded human research subjects, then Nature’s ethical principles are rather thin, little more than an extension of animal use provisions for studies in which early humans are the raw materials for the development of new medical treatments.

Included was a link to the journal’s policies for considering for publication any reports of experimentation on living organisms.  Those policies include this paragraph regarding modification of the human germline:

“In deciding whether to publish papers describing modifications of the human germline, we will be guided by safety considerations, compliance with applicable regulations, as well as the status of the societal debate on the implications of such modifications for future generations. We have established an editorial monitoring group to oversee the consideration of these concerns. (The monitoring group includes the Editor-in-Chief of Nature publications, the Nature Editorial Director, the Head of Editorial Policy, Nature Journals and the Executive Editor, Life Sciences.) This group will also seek advice from regulatory experts to ensure that the study was conducted according to the relevant local and national regulations. In this evaluation, we will be strongly guided by the guidance issued by the International Society for Stem Cell Research: Guidelines for the Conduct of Human Embryonic Stem Cell Research (http://www.isscr.org/home/publications/guide-clintrans ).”

I want to be reassured by their invoking “the status of the societal debate on the implications of such modifications for future generations,” but the weaknesses are first, that debate is just not very robust, and “society” is generally in a position of accepting, more or less uncritically, the ongoing technical push; and second, that the ones considering the status of the issues will more or less naturally view them through the relatively narrow researchers’ scope I describe above.  To be sure, the goals at a minimum appear to be to ensure that the research is not reckless, that it meets technical standards, that obtaining and creation of embryos is relatively limited in scope, and that nobody, for now, is trying to bring gene-edited embryos to human pregnancy, much less birth.  At least, not until the scientists and regulators tell us they think it’s time to try that.