Making good ethical choices in the real world is hard, in large part because it requires us to find the best balance in responding to interested parties whose legitimate interests pull in different directions. The situation is further complicated by the fact that as we are trying to make the best ethical decision we can, or evaluating the ethical decision-making of others, we can’t help but notice that there is not universal agreement about who counts as a party with legitimate interests that ought to be taken into account, let alone about how to weight the competing interests in the ethical calculus.
We’ve talked about these difficulties before, especially in the context of the ethics of research with animals. In these discussions, we’ve noticed that some folks oppose such research across the board (at least if the research includes anything beyond purely observational studies in the field) on the basis that non-human animals’ capacity to feel pain creates a situation where it is unethical for humans to use them in any manner that might cause them pain (or discomfort, or distress, or boredom), no matter what benefit such use might bring to humans. Here, at least one set of people doing the ethical calculus assert that non-human animals need to be counted as an interested party, and that their interests ought not to be sacrificed in favor of those of any other interested party.
Of course, arguments about the ethical status of animal research are not the only place such ethical claims arise. I refer you to the new law signed this week by the Governor of Nebraska. As The New York Times reports:
Gov. Dave Heineman of Nebraska signed a law on Tuesday banning most abortions 20 weeks after conception or later on the theory that a fetus, by that stage in pregnancy, has the capacity to feel pain. The law, which appears nearly certain to set off legal and scientific debates, is the first in the nation to restrict abortions on the basis of fetal pain.
What’s interesting to me about this legal strategy is that it seems to draw exactly the same ethical line favored by many supporters of animal rights or animal liberation — that we have ethical obligations to anything with the capacity to feel pain* — this despite the fact that at least some supporters of animal rights or animal liberation also support a woman’s right to choose whether to continue or terminate a pregnancy.
Indeed, those who argue that women have such a right to choose include a good number of people who will recognize a fetus as an interested party, just one whose interests count for less in the ethical calculus than those of the woman in whose body it resides. Unlike those who assert that women have no right to terminate a pregnancy, they do not see the interests of the fetus as trumping all others.
And, for what it’s worth, as restrictive as the new Nebraska law is, not even this law holds the interests of the fetus as trumping all others. Again, from The New York Times:
The new law grants exceptions only in cases of medical emergency, the pregnant woman’s imminent death, or a serious risk of “substantial and irreversible physical impairment of a major bodily function,” a provision experts interpreted as an effort to exclude an exception based on a woman’s mental health.
Here, there is some recognition of a limited set of circumstances where it is acceptable to sacrifice the interests of the fetus in favor of the interests of the woman carrying that fetus. There is not an assertion that the purported rights of the fetus may not be violated under any circumstances.
Which is to say, as troubling as this new law is for those who weight a woman’s interest in her mental and emotional health and bodily autonomy more heavily than they weight a fetus’s interests (in being born, or in not feeling pain), the new law at least implicitly recognizes that ethics require us to balance the competing interests of various parties.
The larger question then becomes how, as a society, we should deal with our disagreements about who has a legitimate interest in a given arena of ethical decision-making (or public policy) and about how we assign relative weight to those interests.
In real life, there are plenty of situations where we cannot deliver everything a given interested party wants or needs from us without also falling short in fulfilling our obligations to another interested party. Good ethical decision making requires more from us than just identifying hard lines that must never be crossed. Often, we are required to judge which obligations and which needs win the tug-of-war, and then to do the very best we can for the interests that lose the tug of war.
*Let’s acknowledge up front that the claim that a fetus at 20 weeks or later past conception can feel pain is scientifically controversial. You can imagine how, if even some of the scientific evidence supports this claim, those inclined to identify capacity to feel pain as ethically crucial might want to err on the side of caution.