Uncertain Bioethics “Stephen Napier argues with verve and subtlety for a cautious and restrained approach to acts of killing in bioethics; central to his argu- ment is the difficulty of being sure that active interventions are per- missible. This book intriguingly combines insights from a wide variety of different recent philosophical literatures to offer an important and interesting contribution to numerous current debates.” Sophie-Grace Chappell, Professor of Philosophy at Open University, UK Bioethics is a field of inquiry and as such is fundamentally an epistemic discipline. Knowing how we make moral judgments can bring into relief why certain arguments on various bioethical issues appear plausible to one side and obviously false to the other. Uncertain Bioethics makes a significant and distinctive contribution to the bioethics literature by culling the insights from contemporary moral psychology to highlight the epistemic pitfalls and distorting influences on our apprehension of value. Stephen Napier also incorporates research from epistemology addressing pragmatic encroachment and the significance of peer disa- greement to justify what he refers to as epistemic diffidence when one is considering harming or killing human beings. Napier extends these developments to the traditional bioethical notion of dignity and argues that beliefs subject to epistemic diffidence should not be acted upon. He proceeds to apply this framework to traditional and developing issues in bioethics including abortion, stem cell research, euthanasia, decision- making for patients in a minimally conscious state, and risky research on competent human subjects. Stephen Napier is an associate professor of philosophy at Villanova University. His previous publications include Virtue Epistemology: Motivation and Knowledge , and he edited Persons, Moral Worth, and Embryos . His interests include epistemology, bioethics, and the metaphysics of persons. Routledge Annals of Bioethics Series Editors: Mark J. Cherry St. Edward’s University, USA Ana Smith Iltis Saint Louis University, USA 11 The Ethics of Gender-Specific Disease Mary Ann Cutter 12 Death, Posthumous Harm, and Bioethics James Stacey Taylor 13 Human Dignity in Bioethics From Worldviews to the Public Square Edited by Stephen Dilley and Nathan J. Palpant 14 Parental Obligations and Bioethics The Duties of a Creator Bernard G. Prusak 15 The Bioethics of Pain Management Beyond Opioids Daniel S. Goldberg 16 The Ethics of Pregnancy, Abortion, and Childbirth Exploring Moral Choices in Childbearing Helen Watt 17 Medical Ethics, Prediction, and Prognosis Interdisciplinary Perspectives Edited by Mariacarla Gadebusch Bondio, Francesco Spöring, and John-Stewart Gordon 18 Care Ethics and Social Structures in Medicine Ruth E. Groenhout 19 Uncertain Bioethics Moral Risk and Human Dignity Stephen Napier Uncertain Bioethics Moral Risk and Human Dignity Stephen Napier First published 2020 by Routledge 52 Vanderbilt Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business 2020 Taylor & Francis The right of Stephen Napier to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. The Open Access version of this book, available at www.taylorfrancis. com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license. Trademark notice : Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data Names: Napier, Stephen E., author. Title: Uncertain bioethics : human dignity and moral risk / by Stephen Napier. Description: New York : Taylor & Francis, 2020. | Series: Routledge annals of bioethics ; 19 | Includes bibliographical references and index. Identifiers: LCCN 2019012772| ISBN 9780815372981 (hbk : alk. paper) | ISBN 9781351244510 (ebk) Subjects: LCSH: Bioethics. | Dignity. Classification: LCC QH332 .N35 2020 | DDC 174.2—dc23 LC record available at https://lccn.loc.gov/2019012772 ISBN: 978-0-8153-7298-1 (hbk) ISBN: 978-1-351-24451-0 (ebk) Typeset in Sabon by Swales & Willis Ltd, Exeter, Devon, UK To Katherine, lux quia lucet Contents Acknowledgments x 1 Introduction 1 PART I Foundational Matters: The Perception of Value, Persons, and Human Worth 7 2 Moral Inquiry and the Apprehension of Value 9 Motivated Cognition, Attention, and Moral Perception 9 The Problem of Epistemic Circularity 12 “Questioned-Source Contexts” 14 Conclusion 26 3 Epistemic Justification, Peer Disagreement, and Moral Risk 31 The Epistemic Effects of Disagreement: Dogmatism and Flaccidity 32 Moral Risk, Presumption, and Burden of Proof 43 Conclusion 50 4 Persons and Human Beings 55 Human Beings and Substances 56 When Do You and I Come into Existence? 63 Persons are not Human Beings 65 Critique of the Functional Brain View 70 5 Human Dignity 83 Two Tasks and a Note on Method 85 Dignity: Three Aspects 86 viii Contents Discharging Misunderstandings 94 Alternatives: Interests and Autonomy 100 Conclusion: The Ecumenical Nature of Dignity 103 PART II Dignity at the Beginning and End of Life 107 6 Abortion 109 What is the Act of Abortion? 109 The Moral Analysis 112 The Argument from Epistemic Diffidence 121 Conclusion 131 7 Human Embryonic Destructive Stem Cell Research 135 The Twinning Argument 137 The Totipotency Argument 141 Rescue Cases 144 Natural Loss Arguments 149 The Argument from Epistemic Diffidence 151 8 Euthanasia 159 Definitions and Clarifications 160 What Can Be Presumed 164 The Arguments 166 Appraisal of the Arguments 173 Conclusion 181 PART III Balancing Dignity and Autonomy 187 9 Decision-Making for Patients with Suppressed Consciousness 189 The Minimally Conscious State 190 Undercutting the Argument from Advance Directives 192 Objections 201 Epistemic Diffidence and the Argument for Not Removing PEG Feeding 204 Conclusion 206 Contents ix 10 Decision-Making for Patients with Apparent Competency 209 The Basing Condition 211 Competency Assessments 214 The Argument for Stricter Conditions 215 Clarifications and Application to Cases 218 Conclusion 221 11 Risky Research on Competent Adults: Justice and Autonomy 225 Children Actually Enjoy Greater Protection 227 Children Should Not Enjoy Greater Protection: Direct Benefit and Theodicy 229 Objections 231 Conclusion 243 12 Conclusion 246 Bibliography 248 Index 271 Acknowledgments The following individuals contributed to the present project in various ways. David Benrimoh, Joe Butera, John Carvalho, Dan Cheely, Rev. Alfred Cioffi, Michael Degnan, Mark Doorley, Jason Eberl, Karl Hahn, Stephen Heaney, Rev. James McCartney, Matthew O’Brien, David Prentice, Benjamin Richards, Mike Rota, John Travaline, Helen Watt, Peter Wicks, and Brett Wilmot commented on some of the material pre- sent here. Edmund Howe and Matthew Braddock wrote separate essays in reply to some of the material herein (Howe’s is published). Sarah- Vaughan Brakman and Peter Koch formed a writing group that involved sharing comments on our respective work. This proved immensely help- ful. David Hershenov reviewed, in exquisite detail, two penultimate chapters. I sent him 8,000 + word count documents, and received 5,000 + ones in return. I have no excuse for any errors except that philosophy is difficult. I’d like to thank two anonymous reviewers and the editors at Routledge, namely, Mark Cherry, Andrew Weckenmann, Allie Simmons, and freelance editor Judith Harvey for their very helpful guidance and feedback on this project. In writing this book I have made use of previously published material. Chapter 3 includes some material from my article, “The Justification of Killing and Psychological Accounts of the Person,” American Catholic Philosophical Quarterly 89(4) (2015): 651–680. Chapter 6 includes par- agraphs from “Vulnerable Embryos: A Critical Analysis of Twinning, Rescue, and Natural-Loss Arguments,” American Catholic Philosophical Quarterly 84(4) (2010): 783–812. Chapter 8 includes paragraphs from “Perception of Value and the Minimally Conscious State,” HEC Forum 27(3) (2015): 265–286; and “The Minimally Conscious State, the Disability Bias and the Moral Authority of Advance Directives,” International Journal of Law and Psychiatry (2018), doi: 10.1016/j. ijlp.2018.03.001. Chapter 9 derives mostly from “When Should We Not Respect a Patient’s Wish?” Journal of Clinical Ethics 25(3) (2014): 196–206. And Chapter 10 derives mostly from “Challenging Research on Human Subjects: Justice and Uncompensated Harms,” Theoretical Medicine and Bioethics 34(1) (2013): 29–51. I wish to thank the editors Acknowledgments xi and the anonymous reviewers of these journals for their significant contri- butions to my thinking. Finally, I wish to thank the Office of the Provost at Villanova University for funding the Veritas Award which helped me write significant portions of the manuscript. 1 Introduction An informative introduction should frame the content that follows such that the reader is better able to understand the author’s intent and fundamental concerns. It should suggest how the work may be looked along as well as looked at . The change in preposition is important. This book should be understood as an essay on what the intellectual virtues of humility and justice look like in discrete areas of bioethical inquiry Looking at it, one will find arguments for and against various claims. Looking along it, one should glean why one should take a more epistemi- cally humble stance when arguing for permissible killing or harming. By looking along this essay, one catches a glimpse of how one should weigh the evidence and measure one’s credulity on certain bioethical positions. For any inquiry, there is the object of inquiry, and the inquirer; both receive attention in this book. Bioethics is a field of inquiry and as such is fundamentally an epis- temic discipline. It aims to know what the right/wrong action or policy is. The locus of attention for this project is on the epistemic significance of various developments in moral psychology and contemporary epistemol- ogy applied to bioethical inquiry. Specifically, this book aims to answer the following question: under what conditions is an agent S justified in believing that P [an act of killing a human being] is permissible when S is the agent of that action? Or more simply, under what conditions is an agent justified in believing a proposition ‘it is permissible to kill x’ when one is acting on that belief? The idea of moral risk referenced in my title can be understood in rela- tion to our typical way of using risk in healthcare delivery. Typically, risk is understood as roughly parasitic on cause–effect relations as when we say, “there is a risk of nausea and vomiting if you take this drug.” Here, risk is understood as a probability that a disvaluable state of affairs might occur. The notion of moral risk with which I am concerned pertains rather to the very judgment of disvalue (or value). Moral risk is a function of act- ing on what might very well be an erroneous moral judgment. Hence, the first step in this project is to articulate how our moral judgments might err. Knowing how we make moral judgments can bring into relief why certain arguments on various bioethical issues appear plausible to one 2 Introduction side and obviously false to the other. This is the first feature of my project that aims to make a significant contribution: namely, to cull the insights from contemporary moral psychology to highlight the epistemic pitfalls and distorting influences on our apprehension of value. A second contribution of my project is to collate the lessons learned from the epistemological literature addressing moral risk (cf. Fantl & McGrath, 2009), the nature of presumptions in argument (Freeman, 2005), and the epistemic significance of peer disagreement (Christensen, 2011; Elga, 2007) to justify what I refer to as epistemic diffidence on numerous bioethical issues. The notion of moral risk and the signifi- cance of peer disagreement are simple to understand and that they exert epistemic effects is clear in many cases (consider the stronger standard of evidence for criminal cases versus civil cases). The difficult project is explaining why risk and disagreement exert epistemic effects at all. The first two contributions together justify epistemic diffidence when one is considering harming or killing human beings. The cost of being wrong that ‘killing a human being is permissible’ is high; it is subject to peer disagreement, and it is doubtful that, given the evidence from the cognitive sciences, we should be so trustful of our moral intuitions (or the post-hoc reasoning justifying those intuitions (Haidt, 2001)). Beliefs subject to epistemic diffidence should not be acted upon. The argument I wish to defend in this book may be understood in outline as follows: 1 The belief B that ‘x is permissible,’ where x is an act of intentional killing or harming of a human being, is subject to epistemic diffidence (Hereafter, ‘x’ is a variable only for the issues I discuss in this work.) A belief B is subject to epistemic diffidence if and only if: 1 i B suffers from an undercutting defeater or is unstable (both notions explained below), ii The justification for B does not offset the cost of being wrong, and iii The justification for B does not discharge the effects of peer disa- greement. 2 2 If B is subject to epistemic diffidence, it would be impermissible to act on that belief. 3 Therefore, it is impermissible to act on ‘x is permissible’ where x includes the specific actions that I address in this book. A few points are worth noting about this argument. First, the belief B is restricted to those acts of intentional killing or harming that I address in this book. I remain neutral as to whether this argument is sound for any case of intentional killing or harming either of a human being, or non- human animal. Second, the dialectical work of the chapters is to justify that the epistemic standards or degree of justification needed to permit Introduction 3 acting on the belief that ‘x is permissible’ are not met. Third, the dialectical work of this book is not to argue that all things considered the beliefs that ‘x is permissible’ are false. My argument requires a lower horizon of acceptability while also arguing that one should be epistemically diffi- dent towards acting on such beliefs. This is probably the most distinctive aspect of my project. Lowering the dialectical horizon is not done best by defending one’s favored theory, and then applying it to specific cases. The horizon is lowered partly by focusing on how we form our theoretical commitments in the first place. Fourth, the notion of epistemic diffidence is, in this work, an epistemological notion. The moral implications of it are made explicit in premise 2. As such, Chapters 2 and 3 (summa- rized below) aim to justify premise 2. The remainder of the chapters aim to justify premise 1, substituting in for ‘x’ each issue – whether it is abortion, euthanasia, etc. The project aims to frame both traditional and novel bioethical problems in light of the epistemological lessons I highlight. In doing so, I argue that a dialectical shift occurs to the advantage of those who take a prohibitive stance on the issues discussed. Chapter 2 aims to answer the question, “How do we typically think on moral issues?” The chapter explicates what is called Moral Foundations Theory (Graham et al., 2013), which includes four theses: nativism, cul- tural influences, intuitionism, and pluralism. There are two pericopes of the theory I wish to highlight in this chapter. The first is that intuitions come first, and moral reasoning comes second. The second aspect of the theory that I draw attention to is the explanation for why we have the intuitions we do. On this point Graham et al. (2013) highlight the impor- tance of cultural influences and more subjective motivational influences (Kunda, 1990). Knowing that our intuitions are subject to such influences may under- cut our confidence in them. An undercutting defeater is a reason for thinking that things might not be as they appear (Pollock & Cruz, 1999). I see widgets on an assembly line that look red. The foreman informs me that they look red because they are illuminated by red incandescent bulbs such that they look red whether or not they really are. What the foreman tells me is an undercutting defeater to my belief that the widgets are red. That something looks red is still a reason for thinking that it is red, but an undercutting defeater renders that appearance inert to justify believ- ing that x is red. Discovering how we morally think and process moral information functions in a similar way. Whether or not an action really is permissible, my moral intuitions might apprehend it as permissible any- way given certain facts about how we think morally. The non-alethic influences on our moral perception function like the red incandescent light bulbs; they give me reason for thinking that the moral world might not be as it appears to be. Another conclusion that follows from Chapter 2 is slightly weaker but still sufficient for my purposes. One could say that upon taking seriously 4 Introduction the empirical evidence outlined in Chapter 2 one’s noetic system suffers no defeater at all, undercutting or otherwise. The evidence does, however, render one’s noetic system more easily destabilized by defeaters highlighted in later chapters. Consider an analogy with an unruptured brain aneurysm (BA). An unruptured BA does not cause any deleterious health effects, but the health situation of the person who has one is more easily desta- bilized. Something as simple as elevated blood pressure can rupture the BA. Likewise, the evidence canvassed in Chapter 2 might not cause any deleterious epistemic effects, but the justification one has for her beliefs is more easily destabilized – even by somewhat weak defeaters such as peer disagreement. So Chapter 2 does not argue for moral skepticism. Chapter 3, how- ever, acuminates our reasons for epistemic diffidence based on concrete dialectical engagements. I argue for a local skepticism based on two fea- tures of these engagements: the cost of being wrong in one’s judgment that a particular action is permissible to perform, and the epistemic pres- sure that peer disagreement exerts on my moral beliefs. Why there is such ‘pressure’ is explained with reference to intellectual virtues. The previous two chapters present an argument for epistemic diffi- dence in high-stakes cases based on how we typically think on moral issues, and the justifiable doubt we should have for our own views in the setting of peer disagreement. In contemporary bioethics, however, it is far from innocuous and picayune to suppose that the cost of being wrong that, for example, ‘abortion is permissible’ is a high-stakes belief that justifies epistemic diffidence. To that end, the next two chapters argue that the costs in being wrong about the permissibility of killing any human being are asymmetrical – the costs are on the side of thinking that such actions are permissible. Specifically, the costs of being wrong that abortion, or any other act of killing a human being, is permissible are sufficient to justify epistemic diffidence. Chapter 4 argues that you and I are individual human substances that come into existence at conception. But do we have intrinsic dignity? Are we valuable at every point in our existence? More to the point, is it per- missible to kill us intentionally? – pollarding away complications such as capital punishment and just war. In Chapter 5 I argue that human beings do have intrinsic dignity. If you and I have intrinsic dignity at every point in which we exist, then a lot is at stake when one considers intentionally killing or harming you or me. The first part of the book argues for epistemic diffidence in relation to actions intended to kill or harm human beings. Epistemic diffidence, if justified, means that there are insufficient reasons for acting on a belief that x is permissible, where x is an act of killing/harming a human being. The reason: the cost of being wrong is irrecusable. The dialectical goal of Chapter 6 is to defend premise 1 substituting in for ‘x’ the act of direct abortion. To this end I outline two principal arguments in support of direct abortion. I consider in detail the argument Introduction 5 from bodily rights (Thomson, 1971; Boonin, 2002). Arguments based on personhood (Warren, 1973; McMahan, 2002) are addressed in Chapter 4. I argue that none of the arguments exceed a threshold of justification that would override the epistemic diffidence we should have towards killing human life. The goals of Chapter 7 are to address the four principal arguments used in support of human destructive stem cell research. The four argu- ments are the argument from twinning (Persson, 2009; and DeGrazia, 2006), totipotency (Smith and Brogaard, 2003), rescue cases (Sandel, 2005), and natural loss (Ord, 2008; McMahan, 2007). The conclusion in this chapter is the same as in the previous one. I argue that none of the arguments exceed a threshold of justification that would override the epistemic diffidence we should have towards killing human life. Pro-euthanasia arguments fall into two broad camps: those that argue for the normativity of personal or subjective features of a patient – i.e., arguments from autonomy (Brock, 1992; Jackson & Keown, 2012); and those that argue for the normativity of objective features – such as the avoidance of unnecessary suffering (Rachels, 1986; Jackson & Keown, 2012). As in the previous chapter, I argue that premises 1 and 2 are true when substituting in for x, “euthanasia is permissible.” In the third part of the book, I turn to address more specific clini- cal scenarios wherein the values of dignity and autonomy can encounter axiological friction. I focus on clinical and research ethics cases where the same themes of moral risk arise. The first clinical scenario concerns end-of-life decision-making for those patients who suffer suppressed consciousness, for example, patients in a minimally conscious state. My thesis in this chapter is that there exists a disability bias against those who may be severely disabled. This is a bias because those who become severely disabled rate their own quality of life (QoL) at or just slightly below the QoL assessments of normal controls. This is a source of skepticism regarding third-person QoL judgments of the disabled. I argue that this skepticism applies as well to those who are in the mini- mally conscious state (MCS). For rather simple means of sustaining an MCS patient’s life (for example, tube feeding), the cost of being wrong that the patient would not want further support is high. Pair this cost with the reason to be skeptical of third-person judgments, and my argument suggests not withholding food and water from MCS patients. The prevailing orthodoxy in terms of competency assessment is to test for the presence of certain abilities. Chapter 10 argues that the presence of certain abilities is not enough in cases where the patient refuses a life- sustaining/saving measure that promises to work and does not present obviously onerous burdens. In such cases, the push and pull between dignity and autonomy is most palpable. I argue, however, that we need to know whether the patient has rendered a competent refusal of such measures. Whereas the former refers us to test for certain abilities, the latter refers us to assess the quality of one’s judgment. I argue that, 6 Introduction for competent adults (i.e., intact abilities), who refuse means of saving or sustaining their lives with manageable burdens, a higher degree of justification is needed to honor such refusals. Unless such justification is present, we should have epistemic diffidence for the belief that their refusals represent the patient’s stable self. There are few challenges to research when the subjects are competent and the research presents more than minimal risk with no promise of direct benefit. The principal reason for allowing such research is that we should respect the autonomy of competent subjects. In the final chapter I argue that we have additional moral intuitions stemming from com- mutative justice. I argue that concerns generated by commutative justice serve as an additional criterion for assessing permissible research. My argument aims to justify having epistemic diffidence for the claim that “risky research is permissible because the subjects consented to it.” To this end, I highlight our intuitions informing this notion of commutative justice and conclude that all human subjects who are exposed to more than minimal-risk research should enjoy the same protections as those given subjects who cannot consent (e.g., children). A concluding chapter summarizes the dialectical territory covered. The advance this project makes is to mine findings in recent moral psychology and epistemology to the effect that even if one achieves widely coherent views on an issue that involves moral risk, that is still tenuous epistemic comfort. That strikes me as a bold conclusion, but I offer what I see as plausible reasons for it. The feature that makes it bold, however, is also the feature that makes it ecumenical. I resist placing too many theoretical demands on my interlocutors. To take one example, my readers need not subscribe to a substance view of the person vis-à-vis the abortion issue to appreciate the force of my argument. It is enough for my purposes to argue that such a view is plausible enough to set the presumptions of that dialectical exchange, and that those who hold such a view can function as epistemic peers with whom one may disagree. This is enough, I argue, to motivate diffidence in the setting of moral risk. Notes 1 In making these jointly sufficient and necessary conditions, I am raising the bar for my argument. It is plausible that there are weaker conditions such that (2) remains plausible as well. The Radiology case (Chapter 3) might illustrate how satisfying condition (iii) and (ii) is sufficient to make (1) and (2) true. Conditions (i) and (ii) might be sufficient for diffidence if one thinks that her beliefs might suffer from one of the biases explained in Chapter 2. 2 If peer disagreement is evidence for one having made a performance error, which provides an undercutting defeater, condition (i) is redundant given (iii). In some circumstances I would agree. But my virtue interpretation of disagree- ment’s effects does not entail that disagreement is an undercutting defeater. No doubt, (i)–(iii) are related, but my task does not require disaggregating them. It is enough to argue that such epistemic features are present for my substitution instances of B. Part I Foundational Matters The Perception of Value, Persons, and Human Worth