A World of Ideas; 234; Ruth Macklin Part 1 of 2

BILL MOYERS' WORLD OF IDEAS Air Date: October 28, 1990 Show #234

Ruth Macklin Pt2

BILL MOYERS: [voice-over] Pregnancy, once the most private of concerns, has become the center of public controversy. Contraceptives, abortion, fetal alcohol syndrome, these and related issues have put the debate in the headlines, in the courts and on the streets. Feeling runs so high on all sides that we do not debate so much as shout.

Vice Pres. J. DANFORTH QUAYLE: Not in this country, not now and not ever!

WOMAN DEMONSTRATOR: We will never go back again!

BILL MOYERS: [voice-over} Dr. Ruth Macklin is a bioethicist, a teacher at the Albert Einstein College of Medicine in New York and the author of Mortal Choices. She teaches and writes about how to think intelligently about ethical dilemmas. I spoke to her at length, and part of that conversation focused on these emotional and morally difficult issues.

[interviewing] What you make clear in mortal choices is that thinking ethically is truly thinking clearly and precisely, and analytically.

RUTH MACKLIN: Mm-hmm.

BILL MOYERS: There's a lot of talk nowadays about the behavior of women while they're pregnant. Some women are being arrested in the hospital after their newborn babies are diagnosed with drugs, and women are being warned that they face criminal prosecution if they drink during pregnancy. Sort that out ethically. Does a woman's autonomy over her body extend to smoking and drinking, even though she knows that harm may be done to her unborn child?

RUTH MACKLIN: Well, this is another one of tough issues that-in our society today, that we've been facing.

Now, I'm going to give you my answer, I'm going to give you the short answer to the question, which is, yes, I do think that a woman's autonomy does extend to her behavior while she's pregnant, that is, her autonomy over her own body.

But, having said that, I want quickly to add that I believe women have a moral obligation -a moral obligation, since I'm talking about ethics -to do what's best to promote the birth of a sound, healthy child. So the woman, having had said that she has autonomy, what is thehow does one analyze that in light of the obligation that she has to try to ensure that she gives birth to a child that is sound and healthy?

Well, succinctly, my argument is that not all moral obligations should become legal obligations. And although I think a woman does have that moral obligation and should be educated, urged, exhorted, persuaded, even, by physicians, by the person who will be the father of the child, that moral obligation should not be transformed into a legal obligation that brings the full force of the state and law into her life, allowing the state to incarcerate her during pregnancy, assign criminal penalties after pregnancy and essentially view her as a fetal container.

BILL MOYERS: But this means, then, that the individual who fails her and we all fail moral obligations -fails her moral obligation in this sense, is essentially without consequence when-for herself, when that child is born poisoned by her addiction, whether it's alcohol or nicotine.

RUTH MACKLIN: Well, no woman wants to have a child that's impaired. No woman wants to have a child who's poisoned. So there are indeed consequences. There may be consequences of-that would be the same consequences resulting from any woman who did not engage in ways that risked the health or life of their fetus during pregnancy, namely the bad consequences of having a baby who is impaired.

Furthermore, for some of these women, well, the problem with some of these women is they didn't choose to get pregnant in the first place, and they're acting in wanton disregard for their own life and health as well as those of their children, if we're talking about people who are smoking crack and living in crack dens. This is an extreme.

BILL MOYERS: Yeah, but-

RUTH MACKLIN: It's an extreme behavior.

BILL MOYERS: Exactly.

RUTH MACKLIN: Bringing it back more to the middle, or the middle ground-

BILL MOYERS: The smoker, the chronic smoker, or the woman who consumes even a normal bit of alcohol is now said to be potentially dangerous to the-

RUTH MACKLIN: Potentially dangerous. Now, here again I think the conclusions and society's concern for the fetus, if I may say it, and the conclusions are outstripping the medical evidence. What we need to ask is, what is the probability that a woman who is smoking tobacco, drinking alcohol in moderation, much less in extreme, what is the probability that she'll have a child who has one of these bad consequences, a birth defect? And what is the frequency of problems, of impairment, in the birth of those children, and what is the magnitude of the impairment?

It would be folly to think that we can prevent all birth defects by controlling women during pregnancy. Women have the following kinds of reproductive rights. For example, if a woman refuses to have amniocentesis, that is, prenatal diagnosis, because she may be at risk for a genetic disease, she may actually give birth to a child with a serious genetic disorder. Furthermore, suppose she has amniocentesis, the child is found to have a birth defect or it's discovered to have an anomaly that can be detected in utero, in our society, no one is going to insist that she abort that fetus. So on the one hand we have a range of reproductive freedoms for women who are not engaging in these specific behaviors that are thought to risk the health or life of the child, and moreover, in the context of genetic diseases, the frequency of the disorders are much higher than, at least so far, have come to light on the evidence of women who smoke and drink and use drugs.

One has to look, whenever we bring in consequences -and this is one of the difficulties, I think, in an ethical analysis that appeals to good and bad consequences, we're making certain predictions about what's likely to occur. And if one's going to base an ethical judgment -make an ethical analysis and base a conclusion -on what is the right course of action, or what is an acceptable or desirable practice in society, to base that on the probable consequences, there'd have to be some accuracy in those predictions. There has to be a scientific grounding that

those will indeed be the consequences.

BILL MOYERS: But we do have some evidence that the children of crack users, the babies of crack users, are marked, are impaired.

RUTH MACKLIN: Yes, we do have evidence. And we have evidence that

women who use-drink alcohol to excess do. But we don't have evidence in the particular case at the time that the woman has her-the woman's liberty is taken away. So I'm saying that there's not a very good balance in the concern on the one hand, in the general arena of genetics, where women are not being forced to have abortions or sterilizations, and on the other hand-or even amniocentesis or other means of detecting these anomalies, and the very different situation with the use of alcohol and drugs in which it's being urged that women should be detained in hospitals and put in jail based on a statistical probability of an impairment that's lower.

BILL MOYERS: But if one purpose of the law is to give societal collective moral force to an ethical imperative -"Thou shall not kill, thou shalt not steal," and so forth -would you be in favor of a law that said that a woman whose child was born with impairment as a consequence of drinking or drugs should perform some kind of community service in teaching other women what she has learned from that experience?

RUTH MACKLIN: Well, community service is an attractive idea. It is, however, a punishment. Let me just separate the idea of calling these women criminals-

BILL MOYERS: All right.

RUTH MACKLIN: -from the nature of the punishment. You've suggested a somewhat more benign punishment than incarceration, and one that actually may have some good consequences if it succeeds in teaching other women. But we can't deny that what this community service is, is a legally enforced punishment for what the woman did to her infant.

I must go back to the question of the voluntariness of the behavior. If there's anything that we know medically and psychiatrically about the use of crack is that it's a highly addictive substance, and the question of whether or not the behavior of crack-addicted women is voluntary and that therefore they ought to be blamed punitively and legal sanctions imposed on them after the birth of a child, comes back to the question of whether people should be held morally and legally responsible for their behavior when, in fact, their behavior was beyond their control.

BILL MOYERS: So there are some ethical dilemmas that do not have a legal resolution or a legal enforcement behind them. They really are autonomous in the sense that the individual chooses and the individual can actually be punished by society without violating some other value.

RUTH MACKLIN: Well, the relationship here between law and ethics is one of a sliding line, and we live in a society where people disagree on how much of immoral behavior should be made illegal.

Now, I acknowledged when we began talking about this that I think it's unethical for women to behave in ways that risk the health or life or soundness of their fetus or their infant-to-be, which is really what we're talking about in the impairment. However, whether their moral obligation to their future child should be transformed into a legal obligation, thereby permitting the sanctions or the pre-birth seizures, as they're called -at first I thought that was a form of epilepsy -I now realize that pre-birth seizures mean-

BILL MOYERS: It's an arrest.

RUTH MACKLIN: -that's right, it's arrest. I argue that it should not-that moral obligation should not be transformed into a legal obligation and not only because of autonomy of women over their own body.

There may -and we don't know, because there's not enough evidence -but there may be some bad consequences that could flow from that kind of behavior. For example, what if incarcerating-turning doctors into agents of the state during the period of pregnancy, what if that drives some of these poor women away from prenatal care?

We already know that women who do not receive prenatal care have worse outcomes in pregnancy than those who do. I mean, that's a known fact and they're not under medical care and early problems can't be detected if they're not under medical care. If women -and we are here talking about a vulnerable minority, they are women of color, they are women who are poor and they are women who are engaging in illegal behavior -when women who are being urged on the one hand to come from prenatal care begin to fear-this group of women begin to fear that the very individuals who are supposed to be giving them care and helping them and their babies to have good outcomes∑ may be on a hotline to the police, why would women want to go to doctors if they stand a chance of arrests following the urine toxicology screen or the observation that they are taking some drugs?

So I think there are some wider consequences that must be taken into account when looking at whether or not this is a good idea.

BILL MOYERS: You lead me to the question of abortion. Many people in the abortion controversy say that if we could only reckon when life begins, when the fetus becomes a person, we would finally be able to solve the abortion dilemma morally. What's your response to that? What's the ethical response, from your position?

RUTH MACKLIN: Well, I think I have more a philosophical response than an ethical response, and it's, I think, a piece of bad news, but let me state it. And that is, I'm afraid that the effort to discover or to determine when human life or personhood begins as a way of later then concluding when or whether abortion is permissible, is bound to fail.

I had those hopes myself once, and undertook a study of the literature on personhood and humanhood. This was philosophical literature, religious literature and legal literature, and I really studied it quite thoroughly to see what people thought about-said about personhood and whether that could illuminate the abortion problem.

BILL MOYERS: The premise is that once you know when life begins, life becomes a person, then that person assumes certain rights, the right to life in this case.

RUTH MACKLIN: Yes. Just as we have, for undeniable and clear cases of persons, you and I and infants and children and anyone who is an individual born alive, this is what we mean by person, now we want to know whether the term-and because we believe, and I think our society and most others believe that there is a right to life that persons have, the

question is, when does a fertilized ovum which is human genetically, when does that become a person and therefore acquire rights, just like persons who are born?

BILL MOYERS: That's the question.

RUTH MACKLIN: Well, that's the question. And the answers include at least the following, the answers in very thoughtful and lengthy treatises include the following answers. Life begins at conception, by which is usually meant fertilization of an ovum, the woman's ovum. Life begins at implantation of that fertilized ovum into the uterus of a woman.

Personhood begins at the onset of electroencephalographic activity, that is, when brain waves begin. And that's an interesting one, because that's our definition of death. Death occurs when brain waves cease. So some have thought, symmetrically, a symmetrical definition, that it begins when brain waves-the onset of brain waves, which is fairly early, something like the 16th week-earlier than the 16th week, 12th week.

A traditional and older criterion was "quickening," when a woman feels the movement within her. Viability is one of today's leading candidates for personhood, and that's because the Supreme Court made viability very important in 1973, in the Roe v. Wade decision.

BILL MOYERS: And viability is when the-

RUTH MACKLIN: Fetus can survive outside the womb, even with the aid of life supports. We don't mean could survive without ventilation or artificial respiration.

BILL MOYERS: So you've just given five different answers

RUTH MACKLIN: That's five.

BILL MOYERS: -to the question.

RUTH MACKLIN: There's a sixth one, and that's birth.

BILL MOYERS: Yeah.

RUTH MACKLIN: That's birth. Now, since at least these six and possibly even some other nuances have entered in, we'd have to decide among these candidates. There has to be a way of deciding among these proposals for a criterion for personhood or human life in order, then, for it to be of any use in trying to answer the abortion question.

Well, some of these writers in the literature, theologians, philosophers, lawyers, spoke to each other on this issue and began criticizing each other's criteria for personhood. When I reviewed the literature and saw these arguments, it became apparent to me that the view that the writer or thinker had already on the permissibility, the ethical permissibility or abortion, that view about abortion then determined what that individual thinker or writer said about when personhood began.

So very thoughtful and articulate Roman Catholic spokesmen-and in fact, not even theologians but a renowned Roman Catholic lawyer who is now a judge, he said that personhood begins at conception. Some very-I would~ I suppose I'd call them radical feminist thinkers, who not only believe that women should be able to control their own bodies, they should even have control over their infants after birth, made the line where personhood begins even a little bit after birth, a few months after birth. And there were others in the middle.

Feminists tended generally -or people who are pro-choice -tended to make personhood-the criterion for personhood-a very late one, developmentally, typically at birth, and people from religious and other value perspectives called a person-made the criterion for personhood

the kind that a blastocyst, that is, a few cells of life, could meet.

Well, if there could be no agreement on what seemed not so much to be a value question but a philosophical, biological and conceptual question, namely, what is a person, then it became quite clear that that was not going to be a successful way of trying to resolve the abortion debate.

BILL MOYERS: What you found out is that the position they already held about abortion was imported into their answer to the question, when does life begin?

RUTH MACKLIN: Exactly. Those who thought that-think that abortion is wrong under any circumstances are those who hold that life begins at the moment of conception.

BILL MOYERS: What does this say, then, Dr. Macklin, about arriving at an ethical resolution of this controversy that is really raging, tearing this country into pieces?

RUTH MACKLIN: I think what it says -and it may already be evident to people -is that there will never be an ethical resolution, if what that means agreement. I believe that agreement will never be forthcoming on the ethics of abortion. However, we must have public policy, and we do have public policy, and it's changing all the time. We had public police before Roe v. Wade, we had public policy for quite a while after that, and now public policy is shifting.

Perhaps it shows that although public policy may, in some ways, follow ethical analysis, when ethical agreement or consensus is impossible, we must go forward anyway with public policy, and then we're talking about politics and not ethics.

BILL MOYERS: And that's where the battle is now.

RUTH MACKLIN: That's where the battle is, and I think it's where it will remain. And where the difference between ethics and politics is, if there's a right answer, an ethical right answer, or if people believe there's a right answer, that right answer doesn't change from 1973 to 1990. It doesn't-if abortion was not legal before 1973 and legally available after 1973, it surely does not mean that abortion was ethically wrong before 1973 and became ethically right after 1973.

Similarly, if Roe v. Wade is overturned or eroded, as in the recent Webster decision, it does not mean that the ethics of abortion is any different. I think this is virtually an irresolvable -from the standpoint of trying to gain agreement -irresolvable ethical conflict about which some people are quite certain about the rightness or wrongness and others are highly ambivalent and very troubled. But as a matter of public policy, given the likelihood that people who hold a firm view about what is a person and therefore when life may be taken or when it may not be, I think public policy will continue. to shift as politics, which always involves power and influence, as politics moves in different directions, and it will never settle the ethical question.

BILL MOYERS: Democracy never resolves the-never rests its ethical case very permanently, does it?

RUTH MACKLIN: No, but I think there are some issues that we've seen in our society and in our lifetime and in recent times when ethical viewpoints have changed and we have gained a consensus. I mean, I think particularly of the civil rights movement, where people had sharply different views, not only politically but ethically, and actually came to change those views. And I think the-despite racism that still exists, the remarkable changes in a very short period of time, at least in public policy and the fact that people even pay lip service to ethically appropriate conduct and rejecting racism, shows that there was moral progress. Moral progress in the area of, if not day-to-day race relations all the time, certainly in the area of moving public policy into a more just resolution of what was a terrible problem of racism.

I don't see that happening-or the likelihood of that happening, in the abortion controversy.

BILL MOYERS: What do you see happening?

RUTH MACKLIN: More of the same. More of the same. What we have seen is fluctuations and vicissitudes. When one position is the law of the land, opponents of that position mobilize their forces and oppose it. And I think we may see a rise again, if not only of feminists, I think men and women who are pro-choice, seeking to rise against the tide that has begun to turn. And if there's not going to be ethical agreement, there will be vicissitudes and changes and flip-flops in the law.

I could not imagine that we would turn back the clock, as far as racial justice is concerned. I mean, could not conceive and could not imagine, but that's not quite the same with abortion rights and women's ability to control their bodies. So I think there are some ethical issues that get into the public policy arena which we actually can be successful in moving things forward and others, like the abortion debate -and I can't really think of another, at the moment -that are locked into intractable and possibly inevitable conflict.

BILL MOYERS: Because each philosopher's contribution to the controversy depends upon the person's-upon the philosopher's philosophy.

RUTH MACKLIN: And upon premises that one's unwilling to change or alter. It's true that almost everything we do depends on our philosophy, but sometimes we alter or change our premises when new evidence comes to light. Sometimes we change our value position if we see that something that we thought had some consequences actually has different consequences. And reasonable people do come to change some of their values and some of their beliefs. It doesn't seem to be that evidence that's presented in the abortion debate is likely to change the fundamental value premises that any individual, much less groups, hold and cherish.

BILL MOYERS: That leaves it to the politics.

RUTH MACKLIN: It does, and I think there are unfortunate consequences of leaving it to politics, because there we're talking-I mean, I applaud the political arena for the many things it does in a pluralistic, free democratic society, but when ethical issues have to be settled purely by politics, the danger is that we may not come to the right answers.

BILL MOYERS: From New York, this has been a conversation with Ruth Macklin. I'm Bill Moyers.