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When "Rights" Collide

Ellen Wilson Fielding

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On the morning of September 11, 2001, a group of Islamic terrorists seized control of four planes carrying the usual assortment of men, women, and children and sacrificed them for the "higher end" of a jihad against the West. Almost unanimously, Americans recoiled in horror from the brutal calculus that could assign life or death on the basis of which best prospered the terrorist cause.

While smoke was rising from New York and Washington, D.C., a group of scientists in Worcester, Massachusetts were going about the job of attempting to clone the world's first human embryos. In late November, while American ground troops were fighting in Afghanistan and the FBI continued tracking down leads to the September 11th terrorists, newspapers gave front-page space to the Worcester firm's self-proclaimed initial success in cloning briefly viable human embryos.

Advanced Cell Technology, the Worcester company that seized the headlines (and the stem-cell-research momentum), defended its activities by assuring the public that the company had no intention of ever bringing a cloned human child to birth. The aim of their scientists' prolonged trial-and-error experimentation was to harvest stem cells from cloned human embryos at very early stages of development, after which the embryos could be disposed of. In other words, the embryos would be confected purely for the benefit they could bring others, with the knowledge that there could be no possible benefit to them, either directly or indirectly. They would not be loved into existence so that they could experience the fullness of life, but manipulated into existence for a brief period of usefulness. Advanced Cell Technology plans to use its cloned embryos as means to an end, just as food is used for nourishment, and wood for burning and building, and machinery for manufacturing.

When businessmen determine to use unborn human beings as means to what seems to them a noble end--the mitigation of disabilities, the cure of illness--they are choosing not merely a bad means but an inhumane one. It is inhumane to deliberately and directly sacrifice one set of innocent human beings to help save another set, because this entails a refusal to recognize the implications of being human and the nature of the claims of human beings upon us.

Such exploitation has sobering implications for the very classes of people, themselves targeted as beneficiaries of this procedure, who lobby most desperately for the use of fetal tissue and embryonic-stem-cell research. The disabled and those who love them need to think long and hard, both about the claims of these young fellow human beings upon them, and about the fragile nature of the protection society is willing to accord its weakest members.

The disabled and those with degenerative diseases like Parkinson's or Alzheimer's often feel pushed aside, undervalued and ignored, because their condition places them in some or many respects outside the normal flow of life for most people. Many years of legal and political campaigning and lobbying, and heretofore unimaginable technological inventions, have brought them greater protections and accommodations in the workplace and in society than they have ever enjoyed. They and their families and friends have become so great a force to be reckoned with that they have thus far blocked the protection of the unborn and almost born from scientific manipulation and experimentation.

But this apparently impregnable political strength--which has swelled with the aging of the Baby Boomers, their experience with caring for infirm parents and their concerns about possible future disabling illnesses they themselves may suffer--is in some ways illusory. It is based not so much on the hard rock of principle as on the uncertain sand of sympathy and fellow-feeling. It is natural for people who have loved disabled ones to feel they would do anything to prevent their suffering, and in this era of long life-spans it is also natural for them to dread the possibility of living with a similar condition. And all of us fear the isolating onslaught of Alzheimer's, which repels and horrifies us today somewhat as leprosy has always done. Seeming to offer an escape hatch from these fears, modern science points to its already impressive record in medically and mechanically improving the prospects and potential of the ill and disabled. With so many previously unimaginable feats accomplished, science's ability to effectively cure or compensate for most disabilities seems feasible to a degree never even hoped for in earlier eras.

But observe carefully the nature of the language and the arguments made for the handicapped to detect the dark cloud lying within this silver lining. Yes, some of the disabled and their advocates handle sanctity-of-life sorts of arguments, and most use the familiar Jeffersonian language of human rights. But are these rights really anchored, as they were for our Founders, in the laws of Nature and of Nature's God? Or do they resemble the more modern self-subsisting rights that are there because we human beings want them or think we need them? Much of the disabled-rights talk stresses self-actualizing concepts like self-fulfillment and expanding choice. By fastening on these concepts, it seems the disabled are main-streaming themselves right onto the self-help shelves of the bookstore chains. It is not that we don't all seek fulfillment, independence, and feelings of usefulness and accomplishment. But these cannot be the basis for our human rights and human worth, since what we can accomplish and how much independence we can achieve vary greatly from person to person and at different stages of life, regardless of disabilities. Most of us seek to be productive and useful members of society, and society will be the better for it if we manage to achieve productivity and usefulness. But our worth and our claims to equality cannot be based on even prospective productivity, or we are handing society an instrument for outlawing us, disfranchising us, if we prove too costly or too great an irritant to the social machine.

Look, for instance, at some of the arguments made on behalf of the disabled in articles and op-ed pieces directed towards the numbers crunchers in big business. In these, advocates for the disabled stress the numbers of good workers unavailable to businesses that don't better accommodate the disabled in the workplace, or else show a reluctance to hire them. Altering workplaces and workdays for all sorts of disabilities comes with a hefty price tag--we are not just talking about adding a ramp here or wider doorways there, but planning and purchasing a variety of specially designed computer systems, phone systems and the like. These costs have made businesses leery of backing expanded forms or liberal interpretations of disabled-rights legislation. Their money-based reluctance causes disabled-rights activists to counter with economic analyses of the benefits of tapping into the disabled as a pool of employees. The prospect of loyal and productive handicapped employees becomes the carrot meant to reconcile business to the stick of the Americans with Disabilities Act and its accumulating case law.

But the numbers crunchers also brood over the strain that significant numbers of disabled and chronically ill employees would place on health-insurance costs. And these concerns are shared by some of the more fortunate, "abled" employees, who, not requiring special accommodations and not drawing upon insurance extras like physical or mental therapy, emergency equipment, experimental treatments and the like, can resent the extra workplace demands and higher insurance premiums precipitated by greater numbers of disabled personnel. If help for the disabled is obstinately argued only in terms of rights or cost-benefit analyses, you can expect to see eroding support for this help whenever the rights of the handicapped appear to collide with those of the un-handicapped, or whenever costs seem to outweigh benefits.

For we all know that in common everyday behavior, people constantly barge into one another in the course of exercising their rights. People clog highways, utter profanities in public, crank up the volume on stereos, paint homes peculiar colors, indulge in public displays of affection off-putting to some spectators, erect ugly billboards, display vulgar or inane bumper stickers, dress in sloppy, immodest, or unbecoming clothes, throw loud parties, conduct street-clogging political demonstrations, vote knaves or fools into office, talk in concerts or movie theaters. In more private venues, they insult family members, neglect thank-you letters, freeload, and fail to call or visit aged parents. The list can be extended indefinitely. Many of these actions, though they are bound to affront some people, do not seem to be either good or bad in themselves. Others belong to the category we used to call "a sin and a shame." All are legal, at least some of the time, in some places, or within some limits. All have been defended as rights--often in that obstinately irritating American way we learned as children ("It's a free country, isn't it?").

Hundreds of times a day, we all bump into each other, creating major or minor annoyances by exercising our "rights" and living out our choices. But rights do not just collide with other people--they collide with other people's rights. The rap music lover's right to consult his Muse collides with the night watchman's right to get some sleep during the day. The high-school student's right to express himself profanely collides with the mother of a preschooler's right to insulate her child from bad language; the demonstrators' right to attempt to influence public opinion collides with the commuters' right to use the public streets to travel to and from work.

Whether all of these--and so many others--truly qualify as rights in a classical-liberal sense is not quite the point, this far down along the road to modernity. All of them are argued using "rights talk," just as both discriminatory and anti-discriminatory behavior and legislation are couched in "rights talk." Thus, civil-rights activists successfully argued that members of minorities have a right to be free from discrimination in jobs and housing. Those on the other side of the issue argued their right to choose their employees, neighbors, and tenants. Religious people defend their right to publicly address God, even at official school functions; unbelievers and some non-Christians protest this assault on their right not to be exposed to religious activities or events.

What is revealing about this habit of referring to rights is that we are as accustomed to seeing rights trumped or denied as we are to seeing them triumphant. This is unavoidable, because the kinds of behaviors and expectations we have been considering routinely come into conflict. They cannot peacefully coexist, although the people in conflict can sometimes peacefully coexist if one or both choose to sacrifice a claimed right, or if both choose to rotate the exercise of their rights. The seeker after sleep and the loud-stereo player can come to an accommodation by adjusting the hours in which they exercise their rights, or by resorting to ear phones or earplugs, but the "rights" themselves conflict when two such people are put into close proximity to one another.

One danger of using "rights talk" to defend the disabled, then, is that we are accustomed to thinking of the exercise of things we call rights as conditional. Other things being equal (but how often are they?), whatever accommodations are necessary for handicapped people to succeed in the workplace should be made, and whatever augmentation of health coverage such employees need should be provided, and whatever commuting assistance required should be offered by employers or municipalities, and . . . .

But as we noted, "other things" are rarely equal, at least to all parties involved. We live with daily compromises of our "rights," and most people--particularly if they themselves are not directly harmed--are willing to tolerate such compromises, even when more consequential rights than the examples given above are in question. A corporation that, in times of expansive prosperity, proudly trumpets its expensive provision for the needs of disabled employees, and its elaborate mechanisms for protecting them from discrimination in hiring or promotions, may suffer no pangs of conscience in curtailing whatever expenses it is not legally bound to offer if it is fighting for its survival. Under these straitened economic circumstances, it is likely to lobby against the legal expansion of expensive "rights," or push to limit the interpretation of some already in place, without compunction, because other "rights"--those of the other employees and the stockholders--are being jeopardized. Employees fearing job layoffs, salary cutbacks, or curtailed benefits may feel the same way. When these kinds of "rights" are rooted only in notions of a common humanity that suggests the logic or appropriateness of equal treatment, they are not inviolable even in principle, let alone in practice. So what unanswerable response can be made to the disabled population's argument from necessity?

In the case of the aborted cloned embryos, there is a tell-tale sign that these "mere" bundles of aggregated human cells are regarded even by the scientists working on them as human beings who--all other things being equal (but they're not)--would normally deserve protection or at least respectful treatment. That sign is the double argument. The Worcester lab makes two arguments for going forward with cloning embryos: 1) They aren't human beings, just human cells; and 2) We're doing it to help people. (In an extra-credit show of defensiveness, the Worcester lab also tacks on the palliative, "Anyway, we aren't going to bring a cloned embryo to term.")

Why stress the gain to "other" human beings if the cloned embryo has no human-rights claims of its own? We do not defensively pile on justifications for blood tests or skin grafts or ear piercing or liposuction or the scraping off of human cells for Pap smears and throat cultures. We have reasons for all these, but we don't feel the need to make any of them rise in rhetoric or significance to the level of defenses. In cases such as these we do not consider ourselves duty bound to justify the sacrifice of an acknowledged or suspected good by elaborating on the higher importance of the benefits.

This double (and duplicitous) method of arguing is the same as that used to justify abortion. Abortion proponents first argue that the unborn is not yet a human being (or perhaps not yet a human person). This is easier to slide past people when talking about early abortions, but some proponents are willing to push the argument up to the fetus's emergence from the birth canal--see the frustrating failure to pass a veto-proof partial-birth-abortion ban in the past few years, or to pass a state ban that the courts will accept.

After the argument from ontology, pro-abortionists stress the hard cases (rape, incest, life and health of the mother, imperfect babies, poverty or the possibility of abuse directed at an unwanted baby), and finally the woman's right to choose. But why bother with the horror stories and the odes to freedom if the entity aborted is nothing as ontologically substantial as a human being? The answer is that it is a human being, or is suspected of being so (which in Ronald Reagan's famously common-sense argument obliges us to give it the benefit of the doubt), or the pro-abortionists wouldn't push the cost-benefit angle. Implicitly, pro-abortionists are making an argument from necessity, a tip-off that some people's rights are being sacrificed to other people's.

Back to our disabled constituents and their families and friends, and those who fear being stricken with degenerative or disabling conditions. Those pushing fetal experimentation and harvesting of cloned human embryonic tissue may voice their disbelief that human life at this early stage is worthy of any more consideration than fingernail or hair clippings. But they tack on the tell-tale second argument--that sacrificing those living cells may be necessary to treat or cure afflicted adults. And a few--like some pro-abortionists--venture even further, conceding that the embryo (like the fetus) is identifiably human life, but just isn't as important as the quality of their own lives.

This is a dangerous argument for the disabled or degenerating to make. How sure are they that they lie far enough up the slope of human worthiness and usefulness to be safe from flunking the same utilitarian test they've imposed on the unborn? What if the projected medical means can ameliorate but not cure their condition? What if the medical means remain costly--very costly--and the proposed subject of the treatment is old, or not particularly brilliant or productive? Where is the argument from necessity, or the cost-benefit analysis, likely to fall then? We know the answer--don't we?--from the Dutch experience with euthanasia, and from some of the National Health Service horror stories in England, where relatively routine medical interventions were denied to spina bifida babies or other imperfect subjects. We know the answer even from mercy-killing cases closer to home here in the United States. We know how many dubious deaths occurred before Dr. Kevorkian was tried and convicted. Yes, those deaths were supposedly voluntary suicides, but at least some of his "patients" were suffering from depression, experiencing family pressures, or otherwise operating in an abnormal psychological state.

At least we see some people willing to publicly oppose such goings-on. The controversy surrounding Australian ethicist and animal-rights activist Peter Singer's appointment to a chair at Princeton was better than no controversy at all, although even better would have been Princeton's refusal to offer the chair to him, or willingness to take back their offer when confronted with good reasons for doing so. Worldwide, the disabled are Singer's bitterest opponents, since he espouses quality-of-life tests and even argues that some intelligent animal life should receive higher standing than, say, that accorded profoundly handicapped human life, or human life at an undeveloped stage. ("Undeveloped" can include older fetuses and young infants as well as earlier embryonic life.) Yet, the frustration experienced by some of his opponents carries a special desperation arising from how difficult it proves to disentangle their own standard modes of thinking from his more consistent but appalling conclusions. There are lifelong liberals who grope for a way of switching the tracks of their own ethical arguments in favor of abortion or fetal tissue research somewhere before the train reaches Peter Singer's disturbing terminus.

Like the poor cloned embryo, Singer is a signpost alerting potentially threatened classes of people to the unsteady ground on which they stand when they rest human-rights arguments on egalitarianism, species solidarity, and mere secular understandings of human nature. Why help out this weaker specimen of homo sapiens? Most people do not bother to step back that far in their questioning, relying instead on vague recollections of schoolyard ethics about fair play and treating people alike. So initially they are easily moved by appeals to compassion and fairness and leveling the playing field. But when compassion comes with too large a price tag, or when leveling the playing field threatens someone else's prosperity or success, this comfortable magnanimity no longer appears affordable. People passed over for jobs or promotions because of affirmative action, or watching their teenagers compete for limited college slots and financial aid, feel the natural desire to shove someone else back down so that they may rise or at least not sink. And, unless we discern that a way of sorting out required versus voluntary sacrifices has been set out for us by a higher Being, we end up with merely the familiar battle of one man's right pitted against another's.

The disabled--like other often ill-treated classes of people, such as racial and ethnic minorities--dislike the appeal to compassion or other soft and shifting emotional motives, because compassion seems like an extra, a luxury affordable in prosperity but easily jettisoned when times turn bad. "Rights" sound firmer, more defined, more reliable--and more democratic, without the distasteful overtones of pity and Victorian philanthropy. And "rights" have had a promising track record in America--from the time of the Declaration of Independence, one civic right has apparently built upon another (though not without some enormous upheavals, like the Civil War), in an ever-rising edifice of legislated liberty.

However, our focus should lie not on the 200-plus-year continuity of this process, but on the discontinuity of the reasoning used to defend our more modern liberties. The key is Roe v. Wade, hailed by its proponents (especially feminists) as a natural American expansion of women's freedoms in line with the vote, liberalized property and divorce laws, and equal pay for equal work. Is not this the American way, to establish a beachhead for freedom in the Declaration and the Constitution, and then push past these initial openings to liberate greater and greater tracts of the human condition from constraint?

But the pro-choicers do not sufficiently reckon the enormous and disproportionate cost of extending women's rights to include abortion. Yes, the emancipation of the slaves that resulted from the Civil War was accompanied by the defeat and temporary disfranchisement and impoverishment of the white South. (Except for the war, however, this might not have been the case. Before Fort Sumter, many schemes circulated among anti-slavery groups for ransoming or paying off part or all of the value of the human "property" Southern slave-holders would lose through emancipation.) But aside from some of the Indian wars, never before in our history had Americans systematically undertaken to legitimize so serious a step as the taking of innocent human life for motives that could be as trivial as preventing embarrassment or assisting in career growth.

Many abortions are motivated by more serious considerations--many women are powered by sheer desperation through those doors to the local Planned Parenthood clinic--but abortion proponents adamantly refuse any notion of even restricting this mortal act to serious cases. Court-legalized abortion in America is abortion-on-demand, and by locating the right in a generalized privacy right--a kind of 1960s, do-your-own-thing right--the Court clearly avoided the whole issue of which abortions were "right" abortions. All of them, from the Roe Court's perspective, were right, because all were permissible choices made by women (and young girls!). We cannot use hard cases to justify America's abortion decisions, because those decisions do not base the abortion right on hard cases. They posit legalized abortion as an expansion of American women's sphere of action--an enlargement, consistent with other enlargements of freedom in American history, of our understanding of basic human rights. That this enlargement thrust out the boundaries of women's rights so far that they broke through the "right" of unborn human beings for protection from dismemberment and death did not concern the Roe majority. They interpreted the 19th-century legislatures' desire to safeguard unborn life as a desire to protect women's health (you know, Our Bodies, Ourselves) and expressed agnosticism about the ontological status of the human unborn.

Dred Scott, for all that it was morally obtuse and lousy law to boot, at least did not mark an attempt to change the status quo, but instead cast about for legal rationales for maintaining the system of slavery already in place. Roe was a revolution in the legalization of human self-centeredness, camouflaged in the red, white, and blue rhetoric of the land of the free. As such, the decision highlights the fatal flaw of unanchored rights talk: It appears to help women (and irresponsible fathers), but in fact endangers everyone. For human rights can safely inhabit only a moral realm. The Fathers of our country recognized that democracy and capitalism both require a predominantly moral populace, schooled in such habits as self-discipline, industry, honesty, self-sacrifice, and civic responsibility. Similarly, the safe articulation and enfleshing of human rights requires a populace (and a government) that traces those rights to a Creator who presides over our destiny. Otherwise, rights talk degenerates into competitive claims to supremacy.

Aren't racial, ethnic, and religious minorities, as well as the disabled, right to distrust something soft and squishy like compassion as a replacement for the stress on rights? Yes and no. Certainly we have certain rights as human beings, and are meant to defend them from tyranny, but that is because our Creator has given them to us. They are a means to the fulfillment of our purpose in life, which is something distinct from the notion of self-fulfillment propagated by the self-help books.

And on the flip side of these rights are duties or responsibilities. The right to vote bears on its reverse face the responsibility to vote, after first informing oneself on the issues, and thinking carefully about the choices. The right to free speech comes attached to a moral duty to use speech wisely, to avoid lying or demagoguery or fomenting needless dissensions or stirring up hatreds--but also to avoid keeping quiet when good people or ideas are under attack. The right to life entails a duty to live life well, and to protect the lives of others insofar as we are able. Of course, for the most part it is the rights that are enshrined in law, and not the responsibilities. But both are aspects of the same thing. If the purpose of the right is ignored or violated or betrayed, that right will, over time, tend to atrophy or be overrun. Without the reason for the right, other people's reasons for denying its exercise are more likely to seem compelling--especially to those other people!

And the reasons can be formulated in two parts. The lower rationale explains, so to speak, the utility and reasonableness of the right for us. The right to free speech, for example, permits citizens to fully discuss different viewpoints and alternatives before committing their country to a certain course of action. Freedom from discrimination in employment assists us in using our energy, training, and talents for the good of ourselves, our families, and society. The second, higher-order rationale, however, brings us deep into the realm of the sanctity of human life. It focuses our attention not so much on the reason for the right, its practical implications for the individual and for society, but on the source of the right, who is God. We are reasoning, thinking beings, but we do not create ourselves, and therefore we need to be very careful not to judge this or that person's usefulness, or decide that he or she has none. Like soldiers on patrol, we can see only a small part of the whole campaign, and sometimes that leads us to imagine we know enough to push past the bounds of our orders. We can forget that we lack the height that commands a view of the action on all fronts.

Should we ourselves decide the conditions under which unwanted fetuses or quadriplegics or elderly Alzheimer's patients retain rights deriving from their innate human dignity? All polities sometimes, and some most of the time, have violated the sanctity of human life when motivated by fear, hatred, self-protection, greed, and ambition. Some people today cite the example of the death penalty as a routine, institutionalized violation of the sanctity of human life. They point especially to the arguments that focus on the deterrent effect of capital punishment. Reliance on deterrence appears to legitimize the killing of a human person as a means to a worthy but utilitarian end--the forestalling of future murders. But from a religious and natural law point of view, the chief justification for the death penalty has always been neither deterrence nor even revenge, but justice. If the deterrent effect were the only time-tested justification for inflicting death as a punishment, or perhaps even the primary one, opponents of the death penalty would win this argument on these grounds alone, just as opponents of using torture to extract from the guilty useful and possibly life-saving information can denounce this desecration of human dignity--and the inevitable entanglement of the torturer in this debasement.

For if human life is indeed sacred because it has been bestowed on us by our Creator, then treating individual human lives as first exploitable and then disposable desecrates the human abuser of life as well as the abused. People have long recognized the moral temptation of the executioner to hold life--or certain lives--cheap, since the condemned fall within the executioner's delegated power to kill. Legalized abortion does not confine its infliction of the death penalty to relatively few people in restricted settings, but casts out its net to many millions of victims and implicates millions more as accomplices in their deaths, thus disseminating the moral dangers of the executioner through wide sectors of society. Recall that in his denunciation of slavery, Lincoln stressed the corrupting effects on the slave-holder of claiming ownership of another human being ("As I would not be a slave, so I would not be a slave owner"). To treat someone inhumanely--to command or take to oneself the power of doing so--can be even more debasing than to be treated inhumanely. It is possible, although difficult, for the slave to carry within himself a proper estimation of his own worth as an individually created child of God. It is hard to see how the slaveholder who genuinely believes in and accepts his right to wield such powers over another human being can similarly believe in each person's divinely endowed worth.

So too with euthanasia. The reluctance of even some of those inclined to permit euthanasia to involve doctors in the actual doing of the deed derives from sound instinct. Doctors should not routinely experience this power over life and death. Their business is to prolong life, and to ease suffering, and whatever grandiosity they are tempted to feel because of their life-saving abilities should be offset by their many inevitable failures, and by the ultimately inexorable fact of death. Death should not be embraced by the medical profession as another medical accomplishment, another measure of success. It is at worst a failure and at best a profound mystery.

The temptation of disabled and afflicted human beings, and those tormented by the sight of their suffering, to sacrifice other fragile forms of human life in hopes of alleviating or curing their condition threatens the disabled as much as it does unborn human life. It debases the value of each of us, and accustoms us to cannibalizing one another's flesh and blood. In life or in death, we all deserve to be treated with greater dignity than that. The disabled and those who wish to help them must not seek to advance their welfare and acknowledge their human dignity by denying these goods to others.

This article is available at the Human Life Review website.



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Copyright 2001-2014 OrthodoxyToday.org. All rights reserved. Any reproduction of this article is subject to the policy of the individual copyright holder. See OrthodoxyToday.org for details.


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