Law: May 2010 Archives

I finished up my classes today by looking at Thomas Aquinas on natural law, and it occurred to me that a famous proponent of natural law today served as a good example to illustrate one of Aquinas' points. Aquinas doesn't think every moral conclusion that we can derive from natural law should be enforced by human law. He says the moral principles most worth enforcing are those that involve serious, especially potentially-widespread, harm. Almost any natural law theorist is going to see harm to yourself as immoral, but Aquinas wouldn't see that as a good reason to prohibit it by human law. He also says it's not genuinely a law without promulgation, which includes enforcement to motivate compliance.

As I was talking about this in class, I remembered Clarence Thomas' hilarious dissenting opinion in Lawrence v. Texas from 2003 and mentioned it as an example. Texas had laws against same-sex sodomy that no one ever enforced. Cops investigating a serious crime followed a lead and legally invaded a home that they suspected their target was living in. They were wrong. He'd moved, and a gay couple now lived in that home. The police stumbled in on the two men in the process of an illegal sex act. They promptly arrested them, and the two men sued in a case that got to the Supreme Court. Did this law violate these men's constitutional rights by this law?

Thomas' opinion is priceless, and my summary of it got some audible laughs from students who don't normally show much interest in any class content. He says it's not unconstitutional for the reasons given in Justice Scalia's dissenting opinion. The reason he wrote separately was not to change anything from what Scalia had said. He wrote a separate dissent to make it clear that he thought the Texas law was stupid, and that's exactly the word he used. He wanted it on record that he wasn't voting to uphold the constitutionality of the law because he thought the law was a good law. He didn't. He just didn't think it was the place of the U.S. Supreme Court to tell state legislators what to do on such matters. The law itself, however, was a stupid law. It's largely unenforceable, and any enforcement will be so sporadic that it will have hardly any deterrent value anyway. This is exactly what you'd expect of a natural law theorist in the tradition of Thomas Aquinas. Aquinas insists that there shouldn't be human laws of this sort.

I decided to take a look at the Wikipedia entry for Justice Thomas to see what it might say about natural law, and it says the following:

Whereas Thomas' earlier writings had frequently referenced the legal theory of natural law, Thomas distanced himself from that controversial stance during his confirmation hearings, giving the impression that he had no views. Thomas himself later asserted in his autobiography that in the course of his professional career, he had not developed a judicial philosophy.

What he actually did at his hearings (and yes, I just reviewed the transcripts to be sure I was getting it right) was to point out the difference between (a) thinking natural law is the basis of why it's good policy to have certain constitutional rights and (b) thinking we should look to natural law rather than to the Constitution's positive rights when deciding matters of constitutional law. Thomas had long endorsed (a) and never endorsed (b), and what the entry describes as his distancing himself from his previous natural laws views was really his denial of (b), something natural law theory doesn't imply anyway. When he says he had no judicial philosophy in his book, that doesn't mean he hadn't ever developed a view on the foundations of ethics, which is what natural law theories are. Not having a comprehensive judicial philosophy does not mean having no meta-ethical views.

Of course, if I changed the entry and gave as an explanation the fact that this is what natural law theory states, especially if I indicated my credentials as a philosopher, it would be rejected as original research. Wikipedia is the only place in the world where actual expertise on an issue counts against you in terms of recognition as the sort of person who can say something authoritative. It only would allow this if I had written it in a book or something and if someone who had no expertise on the issue had read it in that book and cited it. The best I could do is mention it in the discussion page for the article and hope someone who isn't a philosopher might be convinced and thus change it.

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.

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