Lying to Prevent Disability-Genocide

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Oklahoma has rendered doctors immune to lawsuits if they lie to parents about the test result of a prenatal tests for disabilities, provided that their reasons for doing so are to prevent an abortion. I want to leave aside the question of birth defects in general and just focus on the Down Syndrome case. The law seems to cover cases when a parent might be preventing very serious pain in a case where the quality of life is very low, and I'm not going to tackle those issues right now. So what I have to say here doesn't cover everything this law does, and even if everything I say here is right it's compatible with that to say that the law still is bad for covering cases that don't have the features that this post focuses on. What I have to say here doesn't get into those cases at all, so don't take me to be commenting on them or the law in general. That would take a lot more work and premises that are more controversial, I think.

So restrict the law, for the sake of this post, to cover just Down Syndrome cases. 90% of children at the fetal stage who are predicted to have Down Syndrome by prenatal tests are aborted. These tests have 5% false positives, so 5% of those cases are probably not genuinely Down Syndrome to begin with. Even if I didn't think abortion was generally a bad thing, I would be opposed to such a practice. I know people who have told me they would have made such a decision with their own child, and I just can't imagine being the sort of person who could think that, never mind do it.

Nevertheless, my initial inclination was to think this is entirely the wrong way to go about trying to do something to resist the deaths of almost all children with Down Syndrome before they ever even get to experience the world. This seemed like a bad law. But on reflection, it occurs to me that it's very difficult to explain why this law (and remember I'm restricting myself just to the Down Syndrome cases here) is all that bad, at least given four premises that I think are widely-enough held (or would be if people had all the facts, anyway).

1. Abortion is generally bad and worth preventing, even if at some cost and even if there are cases when abortion is permissible.
2. It's morally permissible to lie to someone who is going to do great harm, as long as you don't cause more harm in the process.
3. Killing a fetus who tested positive for Down Syndrome is participation in the genocide of those with disabilities.
4. The harm done by lying to a parent who wants to abort a fetus who tested positive for Down Syndrome is not greater than the harm caused by that parent's participation in the genocide of those with disabilities.

Many pro-choice people would agree with 1 but would still want abortion to be generally available (that's what makes them pro-choice rather than pro-abortion), and all pro-life people would agree with it. So I think a majority would support that.

Hardly anyone accepts 2 except a few absolutists, e.g. those who think any biblical commands that apply today and who wrongly think the Bible commands never to lie or, I suppose, contemporary Kantians who accept Kant's absolutism about lying. I know some people who hold such views, but I don't think they're in the majority. Most pro-life and pro-choice people alike think it would be permissible or even a moral obligation to lie to a Nazi hunting down Jews, for example.

I would argue that 3 is a perfectly accurate description for such an act, given that more than 90% of positive test results end in abortion. As a society, we're killing off those with Down Syndrome in huge numbers, and I would guess that many people who might be inclined to think aborting someone after such a test is all right end up being horrified when they discover that statistic. This requires no commitment to any pro-life position, just a recognition that it's a very bad thing to wipe out people just because they have a disability and that people with this particular disability generally have very happy lives and can contribute quite a lot to the world.

So the only way to resist this argument that I think would appeal to a great many people would be to argue that lying in this very particular circumstance causes more harm than the participation in the genocide of those with disabilities. But I don't think that will be as easy an argument as it might at first sound. There is the value of being able to trust a physician, and this does undermine that, but it's a law that only has one allowance for why that can happen, so it doesn't undermine confidence in physicians in general, just in physicians when it comes to this test. Is that such a bad result, given how bad the consequence is of parents being able to get this information? In fact, you might think the doctor's responsibility to the fetus requires not providing information to parents who the doctor knows would then kill the fetus, so the argument that this violates a doctor's professional responsibilities seems counted by the argument that giving the information also does.

I'm having a hard time, then, explaining why I have such resistance to this method of preventing abortions that result from the desire not to have a child with a disability. There seem to be cases where there's a strong argument in favor of withholding that information.

6 Comments

Have you read the actual bill? It appears to me the purpose was to ban "wrongful life" lawsuits, where parents sue on behalf of a child claiming that the child was harmed by being born due to the doctor not giving information that would have led to an abortion. A "wrongful life" lawsuit seems to me to be a very strange and perverse thing, and I think Oklahoma was right to ban it.

The part about doctors lying appears to be a possible effect of the bill, not the main thrust of it. Even if your argument is wrong, lying doctors could be dealt with with a separate statute, not by reinstating "wrongful life" suits.

Yes, I do think wrongful life suits are strange and perverse, but I'm trying to appeal to principles that I think most people accept. But maybe I was thinking too much of the much more seriously-harmful conditions that I was trying to bracket off. I do think most people would consider those harmful enough that a doctor who didn't do enough to warn parents has harmed the child by not giving them enough reason to consider an abortion. That's why I was resisting the urge to target that. I think such a position involves problems as well, but they're not ones that I can make as strong an argument for involving as widely-accepted premises.

But those issues shouldn't affect this case. I do think you can make the argument that a wrongful life suit in a case of Down Syndrome is strange and perverse, on the very premises I rely on here. So disallowing wrongful life suits (as opposed to some other kind of malpractice suit for not giving information enough for informed consent) does seem to be a serious harm worth preventing.

If you’re resistant to this legislation even after you counterfactually restrict it to Down syndrome cases only, there may still be hope! I sense so many problems here I don’t know where to start: First, medical negligence/incompetence might be covered-up behind an a posteriori invented ‘pro-life’ stance. Secondly, doctors who are pro-choice (or plain decent) would not opt for withholding information from their patients, so the legislation would not necessarily have the desired effect; it might boost the business of some doctors at the expense of others. Thirdly, it would certainly be kinder to doctors to legally ban testing for Down syndrome altogether.

Your four premises sound pretty dubious to me, though I certainly don’t know ‘all the facts’; do you? I know that most Down syndrome embryos are naturally aborted anyway, and that you’ve been prepared to defend genocide on the part of some for whom you’ve got a soft spot! But it’s the first time you compare a pregnant woman who may seek an abortion for foetal malformation to a ‘Nazi hunting down Jews’!

It’s ironic that you’ve insisted that women seeking an abortion should have medically unnecessary ultrasounds so they could make an ‘informed decision’. Is a woman’s ‘informed decision’ the decision you would make if you were in her shoes, even if you need to misinform her to get her to make it? And should those who choose to do the misinforming on behalf of an authoritarian state be granted immunity? Perhaps you went to a Jesuit school or perhaps you think it’s a good thing to live under a theocracy or have 90% more Down syndrome kids around; at least you’re putting a health care system in place! But if the Medical Association do not protest, and if the courts do not throw out this piece of legislation I will be very surprised.

Banning testing for Down Syndrome is problematic also, thought, for the same reasons, if it's actually a good to be able to know in advance what difficulties might occur and to have medically-accurate information. We don't really need such information, so this is at most a very good rule of thumb, but I think my hesitation is that information isn't the issue. I think what's causing my hesitation hesitation is that I'm so convinced that abortions based on only this reason should simply be illegal, and this sort of thing is putting a tiny band-aid on a gaping wound in the law, either by allowing doctors to withhold information or outright lie or by making pre-natal tests illegal.

you’ve been prepared to defend genocide on the part of some for whom you’ve got a soft spot!

I've been prepared to defend genocide on behalf of God, if that's what you're referring to. I don't think genocide is intrinsically worse than killing, and killing isn't always wrong. What makes genocide worse than killing is that you're wiping out an entire culture, removing biodiversity, and such things. But this is counterbalanced by the theistic claim that God has absolute rights over his creation and can make the decision that a culture has run its course, and so on (which handles the additional parts, provided the killings themselves are handled).

Given the doctrine of the fall and the premise that what we all deserve for rejecting God's perfect purposes is death anyway, it follows that genocide committed by God is not evil, even though we're in no position to make such decisions ourselves (but might be in a position to carry out commands by God if the epistemological difficulties are surmountable, as I think they are). I know you won't accept most of that, but there's no inconsistency between my position on that and my position here.

But it’s the first time you compare a pregnant woman who may seek an abortion for foetal malformation to a ‘Nazi hunting down Jews’!

There's comparing two things in the sense of finding one thing in common to both of them and comparing two things in the sense of intending the implication that all features of one are true of the other. I use that case simply because it's the standard one in the philosophical literature and demonstrates that most people don't think lying is a moral absolute. If you can duplicate enough features of those paradigm cases, you can find other cases where the same is true. There's absolutely nothing with engaging in that manner of reasoning. It's how philosophy generally works.

It’s ironic that you’ve insisted that women seeking an abortion should have medically unnecessary ultrasounds so they could make an ‘informed decision’.

Giving an argument that someone might think they have moral grounds to withhold information for the greater good is compatible with seeing access to that information as a good. In a world with competing goods, you should expect such things.

perhaps you think it’s a good thing to live under a theocracy

Short of the return of Christ, I don't think instituting theocracy is all that good an idea, because I don't believe God is interested in setting one up right now but is working in very different ways during this time in history. But I don't consider this remotely close to theocracy. I don't believe most pro-life arguments are really based directly on religion (they are actually philosophical), and I don't think having religious motives to favor a policy counts as theocracy anyway. Theocracy would involve religious leaders being the important governmental leaders, as it is in Iran, and just because some people favor certain policies that their religion happens to agree with is a far cry from that.

have 90% more Down syndrome kids around

If the alternative is killing them? Well, duh. Of course I'd rather have them around, and it's unfathomable to me how anyone with a conscience can think otherwise. As I said in the post, I understand how someone might think it's compassionate to spare a child of constant pain or a completely non-functional life. I don't happen to think killing is justified in such cases, but I can see how someone might have a conscience and yet think compassion in those cases requires or at least allows abortion. I can't figure out how someone with any sense of moral decency can think someone with Down Syndrome is worse off for having a life.

I think the rationale for and effect of ante-natal testing policies are worth pondering over. I’m aware that in rare instances such testing may lead to operations in utero, in state-of-the-art establishments; but in the vast majority of cases the effect is to place a pregnant woman before a dilemma. It’s the woman’s choice, but it seems to me that a state invests in screening because it has an interest in minimizing births of congenitally disabled children.

It certainly sounds perverse for a state to seek to maximise births of congenitally disabled children, not least by encouraging doctors so inclined to trick pregnant women who do not want them into having them; as a ‘state-sponsored-surprise’. In ‘a world with competing goods’ I expect competing hierarchies: You acknowledge that over 90% of women who find out that they carry a Down syndrome foetus opt for an abortion. So, clearly, those women’s hierarchy diverges from your own.

Of course you’re entitled to your hierarchy but you can’t show that pregnant women are not entitled to theirs, not unless you arbitrarily import premises which those women may equally arbitrarily reject. But the question is whether a state legislature which endorses your hierarchy has the right to effectively impose it on female citizens by denying women information, precisely because it is virtually certain that the women reject the state-preferred hierarchy! Do you have some way of objectively evaluating incommensurable rankings and preferences?

There’s a whiff of self-defeat in an argument which presupposes that women need to have all the facts in order to get to accept the premises which entail that women should not be given access to all the facts. Is ‘informed consent’ less valuable than ‘ignorant compliance’? Compliance to what, and on which grounds? What’s the point of testing with the intent of deceiving patients about results? Who is going to bear the financial cost of such extravagance and of the anticipated increase in congenitally disabled kids? No state budget is a bottomless pit.

In view of a legal licence to doctors to deceive patients, I'd query either the consistency or sincerity (take your pick)of those who support imposing waiting periods and unwanted ultrasounds on women purportedly in order to ensure 'informed consent' to an abortion.

I can’t see how we can surmount the epistemological difficulties in discerning God’s will any better than in discerning what to do. But given that an omnipotent being can have no difficulty in committing genocide personally I find it remarkable that it would choose to do it by proxy, given all the epistemological etc complications. So perhaps God’s will is invoked by people as an a posteriori rationalisation.

If it’s God’s will that disabled foetuses which aren’t aborted naturally should not be aborted at all, then women who choose an abortion could drop dead or have a change of mind on the way. If they don’t do either, then it’s arguably God’s will that they shouldn’t and it’s God’s will that the disabled foetus should be aborted after all; why not? What I’m trying to suggest is that perhaps you underestimate the extent to which you rely on religious premises to get the conclusions you want; and at the same time you overestimate the work religious premises can do if you do import them.

Anyway, glad to hear God has decided to set up in Iran before moving west! (Those in a hurry can always move east.) In the meantime, it would be nice if people behaved with humility and tolerance commensurate with our epistemological situation.

A lot of the problems you're raising seem genuine to me.

Around here it's not usually the state paying for these tests. Private insurance companies make the decisions in more cases. But public insurance does cover enough people to be a significant part of the market, just not to the point of controlling the market the way Obama and the Congressional leaders had originally wanted.

You acknowledge that over 90% of women who find out that they carry a Down syndrome foetus opt for an abortion. So, clearly, those women’s hierarchy diverges from your own.

Yes, but it's hard for me to see how the motivation is good there rather than just purely selfish. I believe that there are plenty of cases of abortion where genuinely good motivations mislead women into thinking abortion is morally permissible when it's not. But I don't think this is one of those cases. There were obviously people with a hierarchy that differs from mine in the 19th century who owned slave plantations. Having a different hierarchy of goods says nothing one way or the other about whether someone with such a hierarchy has good motivations.

Of course you’re entitled to your hierarchy but you can’t show that pregnant women are not entitled to theirs, not unless you arbitrarily import premises which those women may equally arbitrarily reject.

I haven't said that they'd accept all my premises. I have said that most Americans would, and I think that's correct. I think even most pro-choice Americans would, upon reflection, accept them.

But the question is whether a state legislature which endorses your hierarchy has the right to effectively impose it on female citizens by denying women information, precisely because it is virtually certain that the women reject the state-preferred hierarchy! Do you have some way of objectively evaluating incommensurable rankings and preferences?

Right, it depends on how libertarian you are and how great a harm has to be to think it's all right for a state to impose its standards despite the fact that some might disagree. On questions of murder, we generally don't care that some people disagree. So those who think abortion is, morally speaking, murder should not care that some people disagree. That just leaves those who think it's bad as a consequence but not often enough so morally wrong that we should prohibit it. And what I'm saying is that, on reflection (and I mean upon reflecting on certain facts that are often ignored) most Americans probably would think a serious enough harm is being done that they would at least find the premises I give plausible. So they'd have to think a serious enough harm is being done by the law itself to resist it, and that's certainly possible but I think takes some work.

There’s a whiff of self-defeat in an argument which presupposes that women need to have all the facts in order to get to accept the premises which entail that women should not be given access to all the facts

With absolutes, it's self-undermining. With competing goods, it's just a tension that could shift either way as the consequences change. But keep in mind that we're also talking about two different levels here. One is the facts about what justifies a certain policy, and the other is facts about what to do in a given situation. Also, who say anything about only women here? I'm interested in everyone thinking through the issues and trying to figure out the best view.

I think the rationale for and effect of ante-natal testing policies are worth pondering over. I’m aware that in rare instances such testing may lead to operations in utero, in state-of-the-art establishments; but in the vast majority of cases the effect is to place a pregnant woman before a dilemma. It’s the woman’s choice, but it seems to me that a state invests in screening because it has an interest in minimizing births of congenitally disabled children.

It certainly sounds perverse for a state to seek to maximise births of congenitally disabled children, not least by encouraging doctors so inclined to trick pregnant women who do not want them into having them; as a ‘state-sponsored-surprise’. In ‘a world with competing goods’ I expect competing hierarchies: You acknowledge that over 90% of women who find out that they carry a Down syndrome foetus opt for an abortion. So, clearly, those women’s hierarchy diverges from your own.

Of course you’re entitled to your hierarchy but you can’t show that pregnant women are not entitled to theirs, not unless you arbitrarily import premises which those women may equally arbitrarily reject. But the question is whether a state legislature which endorses your hierarchy has the right to effectively impose it on female citizens by denying women information, precisely because it is virtually certain that the women reject the state-preferred hierarchy! Do you have some way of objectively evaluating incommensurable rankings and preferences?

There’s a whiff of self-defeat in an argument which presupposes that women need to have all the facts in order to get to accept the premises which entail that women should not be given access to all the facts. Is ‘informed consent’ less valuable than ‘ignorant compliance’? Compliance to what, and on which grounds? What’s the point of testing with the intent of deceiving patients about results? Who is going to bear the financial cost of such extravagance and of the anticipated increase in congenitally disabled kids? No state budget is a bottomless pit.

In view of a legal licence to doctors to deceive patients, I'd query either the consistency or sincerity (take your pick)of those who support imposing waiting periods and unwanted ultrasounds on women purportedly in order to ensure 'informed consent' to an abortion.

I can’t see how we can surmount the epistemological difficulties in discerning God’s will any better than in discerning what to do. But given that an omnipotent being can have no difficulty in committing genocide personally I find it remarkable that it would choose to do it by proxy, given all the epistemological etc complications. So perhaps God’s will is invoked by people as an a posteriori rationalisation.

If it’s God’s will that disabled foetuses which aren’t aborted naturally should not be aborted at all, then women who choose an abortion could drop dead or have a change of mind on the way. If they don’t do either, then it’s arguably God’s will that they shouldn’t and it’s God’s will that the disabled foetus should be aborted after all; why not? What I’m trying to suggest is that perhaps you underestimate the extent to which you rely on religious premises to get the conclusions you want; and at the same time you overestimate the work religious premises can do if you do import them.

Well, you can concoct whatever religion you want to find some premises that would go in a different way. The religion I'm working with here has consistently distinguished between God's allowing something for various reasons and God's endorsing something as good for us to do.

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