individual rights Archives - Prindle Institute

May 22, 2023May 22, 2023

On Academic Freedom and Striking the Right Balance

In a recent column, Eli Schantz argues that academic freedom is not absolute, and that “academic freedoms must be balanced against and limited by” academics’ other obligations, such as their duty not to engage in invidious discrimination. This is an important point. For example, while academic freedom plausibly requires some sort of commitment to permitting academics to speak freely, speech that constitutes verbal harassment should not be tolerated.

However, as Schantz recognizes, how the balance is struck is a matter of vital importance — really, the whole ball game. And many now seem to believe that the following standard strikes the right balance: academic speech can be legitimately proscribed when either (a) someone claims that the speech is demeaning or disrespectful or (b) there is some degree of likelihood that the speech will cause harm.

This standard is unworkable and, if applied consistently — as it must be, in deference to the moral equality of persons — it would undermine the academic enterprise.

Examples illustrating the broad sweep of this standard are easy to come by. Imagine a fervently Christian student, who prior to arriving on campus had never been exposed to atheist or anti-trinitarian arguments. Exposing the student to these arguments might very well be psychologically devastating for them, and might even make them feel disrespected. Or consider an academic who, based on her scholarship, makes a policy recommendation that is then implemented by a state government. Suppose the academic’s recommendation, while made in good faith, was mistaken, and the policy ends up causing serious harm. This outcome was surely foreseeable, given the ever-present possibility of error and the stakes involved; so, the standard would imply that the academic should have been restrained from making the recommendation.

The general point is that if a topic is of significance to human life, then speech about that topic likely can be harmful. Therefore, a standard that makes foreseeable harm sufficient for censorship would cripple any serious academic discussion of humanly significant topics.

This does not mean we should engage in such discussions in an insensitive manner or in inappropriate contexts. But such “time, place, and manner” restrictions are perfectly compatible with a robust commitment to academic free speech.

The Supreme Court’s First Amendment jurisprudence is instructive on the standards that should apply to potentially harmful speech. First Amendment doctrine recognizes that some categories of harmful speech do not warrant protection. This includes defamation, true threats, incitement, and speech integral to unlawful conduct, such as fraud or verbal harassment. But the Supreme Court — not the current Court, but mainly the liberal Warren Court — has held that the possibility, or even the likelihood, that speech will cause some form of harm down the line is not generally sufficient to justify government censorship. In Brandenburg v. Ohio (1969), for example, the Court held that speech advocating for the use of violence in service of political ends is protected by the First Amendment, so long as it is not intended and objectively likely to cause imminent violence. This ruling, of course, applies equally to left- and right-wing advocates of political violence. The Court’s rationale was not that such advocacy is harmless — if it were, the legitimate bounds of free speech would be an easy question — but that on balance, the costs of censorship outweigh the benefits.

Similarly, while First Amendment protection from civil liability does not extend to defamation, a plaintiff who seeks to recover from an alleged defamer nevertheless has the burden of proving that the statement was defamatory. Simply claiming that the statement injured their reputation is generally insufficient unless they can show that the statement falls under certain narrow categories of statements considered defamatory per se, such as an allegation that they were involved in criminal activity. The standard of proof is not the demanding proof beyond reasonable doubt, but rather proof by a preponderance of the evidence. Nevertheless, the burden lies with them to show that the statements were defamatory, and not with the speaker to show that the statements were not defamatory.

Some may argue that the standards which apply to government censorship are not relevant to the limits academic communities ought to impose upon the speech of their members. In my view, this is mistaken.

As I have argued previously, free speech is particularly important for academic communities because their fundamental purpose is to generate and transmit knowledge. Without a robust free speech regime on campus, academics and students cannot engage in the kind of probing, multi-perspective discussions most conducive to this goal. Such a regime requires not only that the institutional rules of the community not unduly burden speech, but that members not impose social and economic penalties on other members for their speech without a compelling justification. For this reason, there should be a high presumption in favor of free speech in academia. On most campuses today, that presumption is defeated, and properly so, only in the case of speech that harasses or discriminates. But “harassment” and “discrimination” should continue to be defined narrowly. They should not extend to good faith discussion of controversial topics, or to one-off remarks by thoughtless or immature students and professors.

Would a robust free speech regime on campus cause harm to its members or others? In some instances, yes. No speech regime, whether restrictive or libertarian, is without costs. The discussion we should be having about speech on campus is about the net benefits of different kinds of speech regime. Just as it is insufficient to invoke academic freedom to shield academics from institutional and social liability for their speech, it is also not enough to invoke the fact that academic freedom is not absolute to justify imposing such liabilities.

July 28, 2022December 14, 2022

Same-Sex Marriage and the Political Process

photograph of Capitol building, Washington Monument, and Lincoln Memorial

On July 19th in a bipartisan vote the House of Representatives voted to affirm the legal right to same-sex marriage – the bill now goes on to the Senate. Currently same-sex marriage rights rest on a 2015 Supreme Court decision, Obergefell v. Hodges. However, with looming concerns that the same constitutional logic the Supreme Court used to overrule Roe v. Wade could apply to Obergefell, the House acted pre-emptively to secure same-sex marriage against the Court overruling its prior opinion.

There is a certain irony in this course of action, as it has historically been a function of the judiciary to secure rights against legislation. Additionally, the House bill is not simply Obergefell by other means, for Obergefell establishes a constitutional right to same-sex marriage, where the House bill, if approved by the Senate, only establishes it as statutory law subject to change with the biennial shift in Congress.

Same-sex marriage is a politically popular issue, so optimistically this can be viewed as the House successfully enacting the will of the people. But there lurks a question:

What matters should be subject to the whims of political process at all? Which matters should be addressed by the legislature and which matters should be best addressed by courts?

All things being equal, the legislature is where the action should happen concerning U.S. law. It is, in theory anyway, the most democratic institution and the most accountable to the people (although see Prindle Post author Alexander Spencer’s discussion of the flaws of American democracy). In his dissent on Obergefell v. Hodges, Justice John Roberts stressed that the question of same-sex marriage should be resolved through “democratic process.” The late Justice Antonin Scalia, with characteristic understatement, claimed the decision “robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

The spirit of Scalia’s critique is that courts should stay in their lane, keep their hands off the political process, and not legislate from the bench. Whether same-sex marriage is a right should be up to the American people via their representatives, and not the Supreme Court – to do otherwise in Scalia’s framing is undemocratic.

The opposing ethical concern, however, is that it makes minority rights conditional on majority approval. The English philosopher John Stuart Mill, for example, was quite wary of the “tyranny of the majority.” As he notes,

The ‘people’ who exercise the power are not always the same people with those over whom it is exercised; and the ‘self-government’ spoken of is not the government of each by himself, but of each by all the rest…the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this, as against any other abuse of power.

Mill’s analysis directly challenges Scalia’s reflections on self-governance. If the representatives of the majority voted to strip same-sex marriage rights from same-sex couples, this would not be self-governance by same-sex couples but governance of the majority over the objections of same-sex couples.

Some of this tension is incumbent on the nature of democracy – majoritarian policy will almost definitionally be enacted over the objections of a minority.

But in cases where majority decisions are oppressive, exploitative, or otherwise fail to treat the minority as full and equal humans, safeguards may need to be placed on majority rule.

This line of thinking highlights the fact that it is not an unalloyed good to defer to democratic processes.

Mill’s concerns about the tyranny of the majority speaks to a long-standing challenge of democracy: how to ensure majority rule with adequate protection of minority rights. Famously, in Federalist Paper No. 78, Alexander Hamilton identified the courts as a key safeguard against legislative overreach.

There is no simple list of minority rights, and there is room for disagreement over what rights are implied by the Constitution and what rights are reasonable to recognize more generally. (It should be noted that the Ninth Amendment of the Constitution explicitly states that the rights listed in the Constitution “shall not be construed to deny or disparage others retained by the people,” although no Supreme Court ruling has ever upheld a right purely on Ninth Amendment grounds.) There is also room to doubt that the Supreme Court can be the neutral bulwark the Founders envisioned. Americans increasingly view the Court as an extension of partisan politics, and there is evidence that the contemporary Court is especially ideological.

The current bill, The Respect for Marriage Act, should be nothing but reassuring for supporters of same-sex marriage. It already has some bipartisan support in the Senate, although it remains unclear if it would pass a possible filibuster. Moreover, Obergefell yet stands, and so far only Justice Clarence Thomas has made explicit his desire to overrule it. Even this however speaks to a shifting calculus in how the Court views its obligations to protect minority rights from the vicissitudes of majority will.

June 2, 2022December 14, 2022

Rethinking “Rethinking the Moral Status Debate”

photograph of boy and girl watching elephant at zoo

To have moral status is to be morally important for your own sake. Dogs, for instance, matter morally in a way that rocks don’t. Dogs have moral status. To have full moral status is to matter morally for your own sake as much as people do. Most people think dogs have moral status, but not full moral status. They think dogs matter morally, but not as much as people. Some philosophers agree with this, while others think this belief is a mere prejudice (“speciesism”), and that all conscious beings have full moral status. I have written about this here before.

Much of the abortion debate centers around the question of whether and when fetuses possess moral status, and/or full moral status. Is, say, an eight-week embryo morally important for its own sake? Is an eight-week embryo as morally important for its own sake as an eight-year old child? These questions may not automatically settle the abortion debate, but they are clearly important to it.

The relevance of moral status to abortion spurred an interesting recent piece in which Ben Rossi suggests that many of us are thinking about moral status incorrectly. Most of us think moral status is an intrinsic property, but Rossi thinks it is an extrinsic property. An intrinsic property depends on how you are in yourself, while an extrinsic property depends on how other things are. That I have a lap is an intrinsic property. That my cat, Apollo, is currently sitting in my lap is an extrinsic property: if he moved, I would lose the property “having a cat sitting in my lap,” even if nothing about me in and of myself changed. Or, in science, mass is an intrinsic property, while weight is an extrinsic property. If you put me on the moon, I would weigh a lot less, even if I was the same in and of myself.

Most of us think moral status depends on intrinsic properties. We think it depends, say, on whether you are capable of consciousness, or of reasoning, or whether you are a human, etc. Rossi thinks it depends on an extrinsic property: “the moral costs and benefits — principally understood in terms of aggregate welfare, autonomy, and equality — of adopting as a general rule that such-and-such a class of beings possesses strong moral subject-hood” determine whether you have full moral status. I take it we are supposed to accord full moral status to a being if doing so would have the best consequences.

We can see that this makes moral status extrinsic by noting that it means I could gain or lose moral status without changing anything about how I am in and of myself. If hostile aliens threatened to destroy the world unless we ceased treating Prindle Post writers as having full moral status, then I suppose it would be best not to treat Prindle Post writers as having full moral status. In that way, I could lose my moral status without changing how I am in and of myself. Or, to take things back to abortion, suppose we developed cheap artifical wombs, and could safely transplant embryos from pregnant people into these wombs. I suppose that on Rossi’s view, since this means the burden of treating embryos as having full moral status would no longer impose as great a burden on pregnant people, the invention of this device would strengthen the case for embryos having full moral status, without changing anything about embryos themselves.

Rossi notes that his account makes moral status extrinsic, and notes this is odd: it does not seem that the aliens issuing this threat could cause me to become less morally important. But since he has already discussed this, I will focus on a different worry for his view. I worry that his view involves a troublesome circularity. In order to know how good or bad an outcome is, we need to know the moral status of the individuals involved. But if the moral status of the individuals involved determines how good or bad the outcome is, then how good or bad the outcome is cannot then determine the moral status of the individuals involved. That’s a circle.

Consider, for instance, Rossi’s concern for equality. If people were allowed to kill eight year-olds, our society would not be one that respects equality. On the other hand, if people are allowed to kill hydrangeas, our society might still be one that respects equality. Why is that? Eight-year olds have full moral status, but we are not giving them the protections given to others who have full moral status. In this way, we fail to respect their equal moral standing. On the other hand, hydrangeas do not have full moral status. Perhaps they have no moral status at all. Accordingly, it is not an offense against equality to deny them the protections given to individuals with full moral status.

In our current society, people (at least in most states) can kill eight-week old embryos. Is this an offense against equality? To know this, we may need to know whether eight-week old embryos possess full moral status. If they do, perhaps we are failing to respect their equal moral status by failing to give them the protections we have. If not, then not. But if we need to know their moral status in order to know whether we are satisfying the demands of equality, and if satisfying the demands of equality is one of the things that determines how good or bad it is to treat them as having full moral status, then how good or bad it is to treat them as having full moral status cannot be what determines what moral status they actually have. That would be a circle.

June 2, 2022December 14, 2022

Rethinking the Moral Status Debate

photograph of silhouetted woman on cliff

The impending death of constitutionally-protected abortion rights in the United States highlights the fact that one of the major political controversies of our era implicates a deeply philosophical puzzle. In everyday life, there are certain entities with respect to which serious questions about how we ought to treat them frequently arise. Some clear examples include human children and adults, and perhaps some other animals. Call such entities moral subjects, defined minimally as beings that, in our reasoning about how to act, are entitled to a quantum of consideration concerning how our actions affect them. An important group within this category consists of beings that are entitled to the degree of consideration we are typically obliged to give to human adults and children. I will call these beings strong moral subjects. Possessing an entitlement to such strong consideration is often referred to as having a “moral right.” Thus, if human adults generally possess a moral right to life, this means at a minimum that for other moral agents, certain actions — paradigmatically, and with narrow exceptions, deliberately killing them — are out-of-bounds. Yet there are many other entities that do not ordinarily seem to demand any degree of consideration — for example, chairs and stones. Call these entities things. At least a large part of the abortion debate — though not all of it, as Giles Howdle reminds us — seems to revolve around the question whether the unborn fall within the category of things or that of strong moral subjects. This is the so-called “moral status” question.

Yet, as I will argue, the popular and significant portions of the philosophical discourses about moral status are deeply mistaken.

To begin with the popular discourse, consider the language used in an introduction to a recent episode of Ezra Klein’s podcast featuring a discussion about the ethics of abortion with the moral philosopher Kate Greasley. “We discuss . . . why the status of fetal life is the central question at the heart of abortion ethics, [and] whether life begins at conception or emerges later in fetal development.” This focus on the question of when fetal life begins, which is characteristic of how many ordinary people tend to talk about the abortion issue, is liable to cause immense confusion. To start with, “life” is a highly ambiguous term: Merriam-Webster enumerates no less than twenty distinct meanings that we attach to it in common parlance. In many contexts, it refers to a biological characteristic — namely, the characteristic that distinguishes animals and plants from inorganic matter.

Now in one way, whether the fetus is alive in this biological sense is clearly relevant to the question whether the fetus is a strong moral subject possessing a right to life, since inorganic things cannot have a right to biological life. At the same time, however, it is intuitively not sufficient to clinch the question. After all, virtually no one thinks that merely in virtue of being alive, an entity is a strong moral subject. This view would put amoeba, algae, and bacteria on a moral level with adult human beings. So, it’s hard to see how the question of when the fetus becomes a living organism is the central question of abortion ethics. Another common meaning of “life” is biographical — something like the series of events that make up a living thing’s existence. Of course, when a being’s life begins in this biographical sense is parasitic on when the being becomes alive in the biological sense. Moreover, all living things have a life in this sense. Hence, the biographical sense of “life” does not take us beyond the biological sense in answering the moral status question.

It is also common in the popular discourse to see the question whether the fetus is a “human being” treated as central. But the terms “human” or “human being” are ambiguous in ways similar to “life.”

In one sense or cluster of senses, “human being” is a biological term denoting (a) possession of a characteristic human morphology; (b) membership in the species homo sapiens; or (c) possession of a certain genome. But quick reflection suggests that these characteristics are intuitively neither necessary nor sufficient for strong moral subject-hood. Any given episode of Star Trek suggests that non-human aliens may be strong moral subjects; and isolated human skin cells don’t seem to have a strong claim to consideration.

So much for the popular discourse. The philosopher Mary Anne Warren’s classic paper “On the Moral and Legal Status of Abortion,” still a staple of ethics courses across the country, serves as a paradigm for a common philosophical approach to the moral status question. Warren argues that the key issue is not whether the fetus is, say, alive or human, but whether it is a person. There are two crucial parts to her account of personhood. First, she says that all and only persons have full moral rights. (By “full” moral rights, she means something like the moral rights typically afforded to adult human beings as such). In other words, personhood is the decisive criterion for strong moral subject-hood, and it operates like an on/off switch: if you are a person, you are a strong moral subject, and if you are not a person, you aren’t. Second, Warren says that personhood itself can be defined as the possession of at least some of five capacities: consciousness, reasoning, self-motivated activity, the capacity to communicate an indefinite number of messages, and the presence of self-concepts.

Taken together, Warren’s account implies that the possession of some combination of these capacities is a necessary and sufficient condition for strong moral subject-hood. Warren goes on to argue that fetuses are not persons, and therefore do not have moral rights.

There are, in my view, two serious problems with this approach. The first is that it may involve a worrying circularity. In developing her account of the characteristics that constitute personhood, she asks us to consult our intuitions about which capacities we would count as relevant to determining whether newly-discovered alien life possessed a moral right to life. She plausibly claims that we would consider the five capacities listed in the last paragraph as relevant to that determination. But she does not ask us to consider whether, if we discovered that the aliens possessed those capacities and reproduced in a similar fashion as human beings, we would consider their fetuses as possessing the moral right to life and accordingly change our account of the characteristics necessary for strong moral subject-hood.

That question seems highly pertinent to the inquiry, but it introduces a dilemma for Warren. On the one hand, many people might conclude that they would consider the alien fetuses as possessing a right to life, and on this basis develop an account of personhood that counts human fetuses as persons, which would be an unwelcome result from Warren’s point of view. On the other hand, many others might conclude that they would not count the alien fetuses as rights-bearers. But if they went on to develop an account of personhood that excludes human fetuses partly on the basis of this intuition, they might be vulnerable to a circularity objection. The ultimate basis for the conclusion that human fetuses lack the right to life would be an intuition about the moral rights of alien fetuses. But since ex hypothesi the human and alien fetuses are so similar, that intuition would in all probability be itself based on the person’s views about the moral rights of human fetuses. Thus, the conclusion would be ultimately based on a premise that is identical to it.

This is sort of like holding that God exists because the Bible says so — based on the claim that what the Bible says is trustworthy because it is divinely inspired.

(Indeed, the same circularity problem would arise in the case of the person who would count the alien fetus as possessing the right to life.)

An even more serious problem with Warren’s approach is that it assumes a criterial account of moral status, according to which strong moral subject-hood is conceptually structured in terms of some set of necessary and sufficient characteristics. Again, on this approach, if you have capacities X, Y, and Z, then you are a strong moral subject; if you don’t, then you aren’t. One result of this way of thinking that students often encounter is that it turns out to be quite difficult to develop a criterial account that can accommodate all of our intuitions about strong moral subject-hood. For example, we seem to treat some non-conscious, non-reasoning, non-communicative, and non-self-aware human beings very differently from others. But why think moral status is conceptually structured like this? Instead of arguing further against the criterial approach, let me sketch out another approach that I think may be more fruitful.

The approach I favor is one that focuses on the question, what are the moral costs and benefits — principally understood in terms of aggregate welfare, autonomy, and equality — of adopting as a general rule that such-and-such a class of beings possesses strong moral subject-hood?

On this view, recognizing that fetuses do or not have a right to life is itself a moral choice, not one conceptually compelled by their possession of capacities like consciousness, rationality, and so on. Of course, whether fetuses do or do not possess these capacities may be highly relevant to our moral calculus. But this approach does not treat the possession of these capacities as a criterion of strong moral subject-hood. Rather, these capacities are probably relevant because they bear on the welfare, autonomy, and equality of all affected by the decision to treat fetuses as strong moral subjects.

A few surprising consequences may follow from my approach. First, it may follow that two classes of human beings with exactly the same intrinsic characteristics have fundamentally different moral statuses. This might sound strange, but that is because our thinking about this question is so deeply in thrall to the criterial approach. Second, it may follow that the same class of human beings might have one moral status under some circumstances and another moral status under other circumstances. Again, this seems strange, given that we’ve been taught that strong moral subject-hood wholly rests on the possession of certain intrinsic capacities. But if my view is correct, then it turns out to be not quite right to aver that, as the saying goes, you have rights simply because you are human. If by “human” we mean “possessing capacities X, Y, and Z,” on my view you don’t have rights simply because you are human; and you have rights because you are human only insofar as having X, Y, and Z is relevant to the overall moral costs and benefits of treating the class of human beings to which you belong as a rights-bearing class. Moreover, having these capacities does not guarantee that you have rights.

A full defense of my account of moral status goes well beyond the scope of this column; and without this defense, it may seem like the cure is worse than the disease.

Nevertheless, the main attractions of my account, I think, are that it avoids the potential circularity of Warren’s approach, as well as the tendency of that approach to devolve into a kind of desultory parlor game in which one tweaks one’s account of personhood ad nauseam to better accommodate intuitions about who has rights. It can also better account for some of those intuitions, although I will not argue that point here.

Even if the reader ultimately prefers the more orthodox philosophical approach to the moral status question, I think there is little doubt that popular discussions of the question are often couched in terms that serve to obscure rather than elucidate. This is one area where philosophy can perhaps be of greatest use — even if it may not be able to resolve the debate, it can help clarify its terms in ways that may facilitate moral and political progress.

June 1, 2022December 14, 2022

What If a Fetus Were a Person?

POV photograph of blood donor with another patient in blurry background

The recent Supreme Court draft opinion leak indicates that Roe v. Wade will soon be overturned. If this happens, the legality of abortion will no longer be a constitutional affair; it will become a decision for politicians and voters. And both sides of the debate have wasted no time making their cases.

The legal status and the moral status of abortion are, of course, separate issues (some think, for example, that abortion is morally wrong but ought to be legal to reduce the harm associated with illegal, unregulated abortion). But the new political fight over abortion’s legality has also brought the moral debate back into the spotlight.

Moral disagreements about abortion are typically about how we morally conceptualize the fetus.

Pro-life advocates often claim a fetus is a ‘person’ or at least a ‘human being’ or a ‘baby’. On the pro-choice side, it is common to use biological terms such as ‘zygote’, ‘embryo’, and ‘fetus’. To talk of killing a person, a human being, or a baby sounds, at first glance, terrible. Talking of terminating a pregnancy or aborting a fetus, on the other hand, sounds much less morally dubious.

These are not just empty word games; the difference in word choice reflects a deeper moral disagreement – disagreement about the moral status of a fetus: Does it have the same rights as any other person? Or does it merely have the same rights as other clumps of cells?

But I want to sidestep this familiar impasse and instead ask a different question:

What if a fetus were granted the same moral status as an ordinary adult human being? What would the ethics of abortion be then?

The answer might seem very obvious. If a fetus is morally equivalent to an adult human being, it would seem wrong to kill it in just the same way that it would be wrong to kill an adult human. But things are not this simple.

The philosopher Judith Jarvis Thomson imagined the following case:

You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist’s circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. [If he is unplugged from you now, he will die; but] in nine months he will have recovered from his ailment, and can safely be unplugged from you.

Is it morally permissible to unplug yourself, even though it will surely cause the death of the violinist?

It would certainly be morally admirable to stay plugged in. But it seems like someone who stayed plugged in for nine months would not merely be doing their moral duty; they would be going beyond their moral duty. It would be like jumping on a grenade to save your comrades: more than anyone could reasonably expect. Moral philosophers call these kinds of actions, that are so morally good that they go beyond moral duty, “supererogatory” acts. Refusing to perform these kinds of morally heroic acts is morally permissible. And refusing to stay plugged in also seems morally permissible. We couldn’t blame someone for refusing the violinist, and walking away to continue their normal lives. It’s your moral right to choose to leave.

This is interesting because we all accept that the violinist has the right to life. “Everybody must refrain from slitting his throat, everybody must refrain from shooting him” writes Thomson, “and everybody must refrain from unplugging you from him.” But the violinist’s right to life does not entitle him to the use of your body. Therefore, his right to life does not make it wrong for you to unplug yourself. “If you do allow him to use [your kidneys],” says Thomson, “it is a kindness on your part, and not something you owe him.”

Likewise, even if we assume that a fetus has the same right to life as an adult human, that alone does not necessarily make it wrong to withdraw the use of your pregnant body, even if it causes the death of the fetus.

It is a powerful argument, but it must be acknowledged that Thomson’s analogy, like all analogies, is imperfect.

Being plugged into a stranger in a hospital bed for nine months is perhaps more burdensome than the average pregnancy. If we only had to stay plugged in for a few minutes to save the violinist’s life, then you might consider it immoral to unplug. So the seriousness of the burden of pregnancy seems like a potentially important consideration. Complicating things further, the burden of pregnancy is highly variable. Perhaps Thomson’s violinist case even suggests that aborting the “easiest” pregnancies is morally impermissible while aborting more difficult ones is permissible.

Another challenge to Thomson’s analogy arises from the fact you have nothing to do with the violinist’s unfortunate situation or your kidnapping. This seems like an important detail. It helps explain why you don’t owe the use of your body to the violinist. But things are less clear than this with many cases of unwanted pregnancy. Unwanted pregnancy is generally the result of consensual sex. Pregnancy is a known risk of sex, even with contraception. Even if a pregnancy is fully unintended, and even if sensible precautions are taken, most pregnant women have made choices which at least raised the chances of a fetus requiring the use of their bodies for nine months. Perhaps this makes them partly responsible. Some think this is enough to make pregnant women more morally entangled with the fate of their fetuses than you are with the fate of the unfortunate violinist.

Others, including Thomson, disagree and think that the sheer bad luck of having an unwanted pregnancy creates no special moral duties toward the fetus. She gives the following analogy:

If the room is stuffy, and I therefore open a window to air it, and a burglar climbs in, it would be absurd to say, “Ah, now he can stay, she’s given him a right to the use of her house – for she is partially responsible for his presence there, having voluntarily done what enabled him to get in, in full knowledge that there are such things as burglars, and that burglars burgle.” It would be still more absurd to say this if I had had bars installed outside my windows, precisely to prevent burglars from getting in, and a burglar got in only because of a defect in the bars.

Perhaps, particularly if contraception has been used, the foreseeable risk of pregnancy isn’t enough to create a special moral duty for the mother — a duty to provide the fetus with the use of her body.

The wider point is this. We often assume that the fetus’ moral status, its having or lacking a right to life, is the beginning and end of the abortion issue. But this assumption is wrong. Even if we grant a fetus the same moral rights as an adult human, we still need to answer this; how much can one person’s right to life reasonably demand from another person?

May 31, 2022December 14, 2022

Roe v. Wade and the Meaning of a Right

image of United States map divided into blue and red polygonal shapes

On May 2nd a draft of a Supreme Court decision written by Samuel Alito was leaked. It challenges the core holding of Roe v. Wade – that there exists, unenumerated but implicit, a constitutional right to an abortion.

If something like the draft became law, it would represent a drastic overhaul of the legal landscape for abortion in the United States.

Thirteen states are waiting with currently unenforced “trigger” laws on the books, that will go off and ban abortion even during the first trimester. And yet, in other ways, even the elimination of a constitutional right to abortion is not a cataclysmic shift, but instead a continuation of the slow erosion of access to abortion that has characterized the past several decades.

The case currently under review at the Supreme Court is Dobbs v. Jackson Women’s Health Organization. Notably, Jackson Women’s Health Organization is the only licensed abortion clinic in Mississippi; they only provide abortion up to 16 weeks, patients are required by state law to have an ultrasound and make two separate trips at least 24 hours apart, and underage patients require parental consent. Moreover, Mississippi provides public funding only in cases of life endangerment, rape, or incest, and health insurance sold on state exchanges does not cover most abortions. Such a highly restrictive environment for abortion access is not unique to Mississippi, but characterizes many states. This is with Roe v. Wade intact.

In the initial 1973 decision, the now famous “trimester” framework of Roe v. Wade was set out based largely on balancing an unenumerated constitutional right to privacy, various health and safety considerations, and a state interest in protecting potential life. It specified a federal level framework under which state laws could be implemented. During the first trimester (around 3 months) of pregnancy, abortion must be legal everywhere and would only be subject to basic medical safety regulation. During the second trimester, abortion could not be banned but it could be subject to reasonable regulation that promoted the health and safety of the parent. During the third trimester, abortion could be banned by state law.

Under Roe v. Wade, proposed regulations on abortion would be subject to the highest standard of judicial review – the strict scrutiny standard.

To evaluate constitutionality of a proposed regulation under this standard, a court first checks to see whether a regulation pushes a compelling state interest and then whether that regulation is appropriately precise or if the state interest could be advanced in a less restrictive way.

Regulations like the current Mississippi requirement for a clinically unnecessary ultrasound prior to abortion would almost certainly fail this standard. However, this is no longer the standard of judicial review that is in use.

While Roe v. Wade is the most famous case concerning abortion, and clarified that it is a constitutional right, the details of abortion law in the United States have been superseded by a later Supreme Court case, the 1992 Planned Parenthood v. Casey. This decision changed the legal landscape in two fundamental ways. First, it ended the trimester framework replacing it with a pre-viability, post-viability of analysis. (Viability is when the fetus can live outside of the womb albeit with medical support and generally occurs around the 24-weeks mark.) Second, it changed the standard of judicial review from strict scrutiny to the weaker and less common “undue burden” standard. Under this approach, regulations of abortion could be implemented even pre-viability as long as they did not provide an undue burden to those seeking access to abortion.

However, what constitutes an undue burden is contentious and highly dependent upon parental resources. Intentionally or otherwise, this new standard opened the legal floodgates to state level regulations that often had an explicitly anti-abortion intent, e.g., that abortion clinics must be subject to the same architectural guidelines as full surgical centers at hospitals despite no clinical need for this policy. Some of the most onerous regulations were deemed to in fact be undue burdens in the 2016 Supreme Court decision Whole Woman’s Health v. Hellerstedt, but many remain.

But beneath this legal dispute is a larger question of what it means to have a right at all.

Is a right to an abortion constituted simply by a prohibition on explicitly banning abortion, or does it require that people regardless of income actually be able to travel a reasonable difference, enter a safe and clean facility, and get an abortion? Does someone in Texas still have a federally protected right to an abortion if they have to travel to New Mexico to get one? Similar considerations are at play with other rights. Is a right to free speech secure if people must get free speech permits and can only protest in designated free speech zones? More generally, what legal, political, and social setup is required such that rights exist not merely as abstract metaphysical entitlements or legal stipulations but as meaningful parts of our lives? For many women, substantive access to abortion does not hinge on a looming Supreme Court decision but was lost decades ago.

Some reproductive rights advocates, like the SisterSong Collective, have criticized the mainstream pro-choice movement for being too narrowly focused on abortion as opposed to reproductive rights more generally, and abortion law as opposed to abortion access. They seek a broader movement around reproductive justice which they define as “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.” The understanding of rights at play is not a narrow legal one, but rather demands the commitment of resources such that reproductive rights are socially and materially supported. A hospitable legal landscape for abortion is part of this, but only part.

The Alito draft overturns even a minimal understanding of the constitutional right to an abortion, and would permit individual states to ban abortion from conception onward. What this means is going to depend on where people live and their ability to travel. People in California need not worry about their state banning abortion; people who want access to safe abortion in Jackson, Mississippi should be more concerned. It could also start a national level legislative discussion about abortion – something a very risk-averse Congress has been loath to take on as long Roe v. Wade stood. (Although, of course, potential national legislation may not be in the interest of abortion rights.) More interestingly, a legislative conversation about abortion would not necessarily concerns rights at all, and could bring in aspects of the broader abortion debate such as public health and questions of fetal personhood that have been left out of often arcane judicial decisions concerning substantive due process, stare decisis (respect for precedent), and constitutional interpretation.

October 21, 2021December 14, 2022

Individual Rights, Collective Interests, and Vaccine Mandates

Despite popular support, Biden’s recent policy – requiring vaccinations for all government employees and mandatory testing for businesses with more than 100 employees – is attracting the attention of a small but vocal minority. These voices question the very notion of public health and challenge the basis for the state to supersede individuals’ fundamental claim to bodily autonomy. Given these objections, how are we to justify the policy to those who remain opposed? How are we to adjudicate between the claims of individual liberty and the demands of collective interest?

Are vaccine mandates legal? The relevant precedent concerns a 7-2 Supreme Court ruling in Jacobson v Massachusetts which determined that the local government could enforce mandatory vaccinations to fight a smallpox outbreak. In the decision, Justice Harlan argued that

in every well ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.

In fact, tyranny could just as easily come from government failing to take action and allowing individual freedom to trump collective interests. “Real liberty for all,” Harlan wrote, “could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others.” In a state of nature where everyone is free to pursue his or her own interest to the furthest extent, there can be no security, no rights, and no peace.

But even if such measures have legal history on their side, can these current vaccination mandates be morally justified? As with all things these days, it depends on who you ask. Red state governors have been quick to seize on these policies as obvious government overreach. Big brother is determined to interfere with average Americans’ daily lives and tell them what they can and can’t do with their bodies. These critics claim that the directives go far beyond what is reasonably required for ensuring public safety. These invasive measures are part of a crude, ham-fisted, one-size-fits-all approach to a fairly isolated problem. Big government is making a foot-long incision to get at the issue when a couple of tiny, strategic punctures might do.

So what makes these emergency orders “unreasonable”? Despite over 725,000 deaths from COVID-19 in the U.S. alone, we’re still squabbling over whether workers are in “grave danger.” Folks like Governor Ron DeSantis claim that the choice of whether to get vaccinated “is about your health and whether you want that protection or not. It really doesn’t impact me or anyone else.” And these sentiments resonate with a not insignificant swath of the population that bristle at being told what to do and who pride themselves on being “more worried about herd instinct than herd immunity.” The trouble, as they see it, is that all the bleeding hearts fail to recognize the basic fact that “life is always a risk.” 38,000 Americans die every year in car crashes, but no one is lining up in favor of a ban on driving. “We live with these risks,” these voices contend, “not because we’re indifferent to suffering but because we understand that the costs of zero drowning or zero electrocution would be far too great. The same is true of zero Covid.” In the end, the right balance between personal liberty and public safety is always to be found in letting the people decide for themselves.

But part of our disagreement stems from misunderstanding the science. Contrary to DeSantis’s claims, vaccination is not a private choice without practical consequences for anyone else. The vaccine does not make one invulnerable to infection and having a large unvaccinated population creates a breeding ground for variants. That’s why the unvaccinated represent the greatest threat to pandemic recovery. Leaving it up to individuals won’t do; we can’t simply agree to go our own ways.

As others have noted, the current conversation resembles the standoff over smoking bans in the not-so-distant past. We’re arguing over the answer to a large and complicated question: at what point does one’s private choices about their health encroach on the rights of others to be free from having risks imposed on them by their neighbors’ behavior?

Given the deep disagreement about the predicament we’re in, finding a trustworthy authority has become paramount. One body which might seem especially well-positioned to rule on the matter is the ACLU – the American Civil Liberties Union which is devoted to protecting people’s basics rights enshrined in the Constitution.

Instead of undermining individuals’ civil liberties, ACLU officials David Cole and Daniel Mach argue that vaccination mandates “actually further civil liberties. They protect the most vulnerable among us, including people with disabilities and fragile immune systems, children too young to be vaccinated and communities of color hit hard by the disease.” Echoing Harlan’s sentiments, the ACLU reminds us that liberties and duties are two sides of the same coin; a right’s very existence imposes corresponding obligations. Making a space for others to exercise their basic freedoms means recognizing the limits of one’s individual liberty: the freedom to swing my fist ends where your nose begins. While much attention has been paid to the coercive leverage in demanding vaccination as a condition of continued employment, we fail to appreciate the situation of those who must daily weigh the risk of exposing their immunocompromised family members against the necessity of putting a roof over their heads. While the number of folks faced with this second scenario may be smaller, surely we can appreciate that the injustice in these two situations is not equivalent.

We have a tendency to speak of rights as guaranteeing individuals’ absolute freedom of choice in pursuing whatever might make them happy — rights without obligations and without bounds. We speak in reverence of individual autonomy as the fundamental basis for human dignity. When I am impeded from doing what I want to do, or (worse) made to do something which I would otherwise not, I have been disrespected and harmed. We equate being free with being unconstrained.

But this kind of autonomy fits poorly within our philosophical traditions. Hobbes encouraged us to lay down our sword in order to enjoy the benefits of neighbors who are more than obstacles to our private interests. Kant argued that only by acting from duty can one be truly free. Showing sufficient respect for others means more than simply making space for their unimpeded desiring, willing, and choosing. No one can claim absolute license to pursue their private ambitions, come what may.

Where does this leave us? We find ourselves once again at the intersection of a number of related issues. We’re bad at conceptualizing disease; we’re addicted to the anecdotal, allergic to authority, and eternally unsure of who to trust. Matthew Silk has investigated the media’s troubles in relaying vaccination information; Martina Orlandi and Ted Bitner have explored our failure to change people’s hearts and minds; Marshall Bierson has pointed out how conflicting federal, state, and local legislation is complicating the picture; and Daniel Burkett has explained why we’re upset by others’ free-riding.

So, how should we respond? Megan Fritts recently raised the question of whether doctors are justified in refusing to admit unvaccinated patients to their overbooked and especially vulnerable waiting rooms. Much like we might penalize alcoholics on a donor list for liver transplants, there is at least one line of thought that suggests that those choosing to expose themselves to greater risk should be asked to bear the cost of that choice rather than forcing others to live with the consequences of that decision. Given the scarcity of medical resources and need for emergency assistance, some form of triage is inevitable. And the mantra of personal responsibility has always proven an efficient tool for separating the “undeserving” from the rest of us.

But this solution is too neat; it neglects to investigate who exactly the unvaccinated are. Over the weekend, The New York Times attempted to put a face to this broad label. The obstinate “Don’t Tread on Me!” die-hard doesn’t always track reality. From young mothers to the various outcasts of the healthcare system, there are at least some not-so-unreasonable anxieties expressed by the “vaccine-willing.” And there are, no doubt, a number of the unvaccinated who deserve our compassion and should inspire us to show a modicum of humility. Unfortunately, those folks with a legitimate medical complication or sincerely-held religious conviction constitute a collective that is not anything as large as it purports to be. You know who you are.

July 13, 2021December 14, 2022

Do Politicians Have a Right to Privacy?

photograph of Matt Hancock delivering press briefing

On Friday, June 25th, 2021, British tabloid The Sun dropped a bombshell: leaked CCTV images of (then) UK Health Secretary, MP Matt Hancock, kissing a political aide in his office. Video footage of the pair intimately embracing rapidly circulated on social media. Notably, the ensuing outrage centered not on the fact that Hancock was cheating on his wife (lest we forget, Prime Minister Boris Johnson is himself a serial offender), but on the hypocrisy of Hancock breaching his own social distancing guidelines. By the next day, with his position looking increasingly untenable, Hancock resigned. Thus, the man who had headed up the UK’s response to the COVID-19 pandemic over the past 18 months was toppled by a single smooch.

In the wake of this political scandal, it is useful to take a step back and consider the ethical issues which this episode brings to light. Following the release of the video, Hancock pleaded for “privacy for my family on this personal matter.” What is privacy, and why is it valuable? Does a distinct right to privacy exist? Do politicians plausibly waive certain rights to privacy in running for public office? When (if ever) can an individual’s right to privacy be justifiably infringed, and was this the case in the Hancock affair?

It is widely accepted that human beings have a very strong interest in maintaining a hidden interior which they can choose not to share with others. The general contents of this interior will differ widely between cultures; after all, what facts count as ‘private’ is a contingent matter which will vary depending on the social context. Nevertheless, according to the philosophy professor Tom Sorell, this hidden interior can roughly be divided into three constituents (at least, in most Western contexts): the home, the body, and the mind.

There are a plethora of reasons as to why privacy is important to us. For instance, let us briefly consider why we might value a hidden psychological interior. Without the ability to shield one’s inner thoughts from others, individuals would not be able to engage in autonomous self-reflection, and consequently would be a different self altogether. Moreover, according to the philosopher James Rachels, the ability to keep certain aspects of ourselves hidden is essential to our capacity to form a diverse range of interpersonal social relationships. If we were always compelled to reveal our most intimate secrets, then this would not only devalue our most meaningful relationships, but would also make it impossible to form less-intimate relationships such as mere acquaintances (which I take to be valuable in their own right).

There is considerable debate over whether a distinct right to privacy exists. As the philosopher Judith Jarvis Thomson famously noted, “perhaps the most striking thing about the right to privacy is that nobody seems to have any very clear idea what it is.” According to Thomson, this can be explained by the fact that our seeming ‘right’ to privacy is in fact wholly derivative of a cluster of other rights which we hold, such as rights over our property or our body; put another way, our interest in privacy can be wholly attributed to our interest in other goods which are best served by recognizing a discrete, private realm, such that we have no separate interest in something called ‘privacy’.

Suppose that a right to privacy does in fact exist. Can this right to privacy be (i) waived, (ii) forfeited, or (iii) trumped? Let us go through each in turn. A right is waived if the rights-holder voluntarily forgoes that right. Many people believe that certain rights (for instance, the right not to be enslaved) cannot be voluntarily waived. However, intuitively it would seem that privacy is not such an inalienable right: there are plenty of goods which we may legitimately want to trade privacy off against, such as our ability to communicate with others online. It could be argued that, in choosing to run for public office, politicians waive certain rights to privacy which other members of the public retain, since they do so in the knowledge that a certain degree of media scrutiny is a necessary part of being a public servant. Perhaps, then, Hancock had waived his right to keeping his sexual life private, in virtue of having run for public office.

A right is arguably forfeited if the rights-holder commits certain acts of wrongdoing. For instance, according to the so-called rights forfeiture theory of punishment, “punishment is justified when and because the criminal has forfeited her right not to be subjected to this hard treatment.” For those who endorse this (albeit controversial) view, it could perhaps be thought that Hancock forfeited his right not to have this sexual life publicized, in virtue of having culpably committed the wrongdoing of breaching social distancing guidelines and/or hypocrisy.

Finally, can a right to privacy be trumped? Philosophers disagree about whether it is coherent to talk about rights ‘trumping’ one another. According to the philosopher Hillel Steiner, rights comprise a logically compossible set, meaning that they never conflict with one another. By contrast, philosophers such as Thomson maintain that rights can and do conflict with each other.

Suppose that we think that the latter is true. In an instance where an agent’s right to privacy conflicts with the right of another agent, we must determine whose interests are weightier and give them priority. In the case of the Hancock saga, it could be said that there was a strong public interest in knowing that the Health Secretary had breached his own social distancing guidelines. However, the mere existence of a public interest in knowing this information is not sufficient to generate a right on behalf of the public to find out this information; moreover, even if it did, this would not necessarily trump the right of the individual politician to privacy.

So, did the leaking of the CCTV footage breach Hancock’s right to privacy? And if so, were the newspaper reports nevertheless justified on balance? My own view is that Hancock had neither waived nor forfeited his right to privacy, and that his right to privacy was not trumped by other considerations – that is to say, I think that the leaking of the footage wronged Hancock in some way. Nevertheless, I have complete sympathy with the subsequent public reaction to the newspaper reports. Throughout the pandemic, many facts which had previously been regarded as paradigmatically ‘private’ (such as whether one was sexually active, and with whom) were suddenly subject to a very high degree of public intrusion. Set against this backdrop, the Hancock affair served as yet another instance of “one rule for the establishment, another for everyone else.”

July 2, 2021December 14, 2022

An End to Pandemic Precautions?

photograph of masked man amongst blurred crowd

I feel like I have bad luck when it comes to getting sick. Every time there’s a cold going around, I seem to catch it, and before I started regularly getting the flu shot, I would invariably end up spending a couple of weeks a year in abject misery. During the pandemic, however, I have not had a single cold or flu. And I’m far from alone: not only is there plentiful anecdotal evidence, but there is solid scientific evidence that there really was no flu season to speak of this year in many parts of the world. It’s easy to see why: the measures that have been recommended for preventing the spread of the coronavirus – social distancing, wearing masks, sanitizing and washing your hands – turn out to be excellent ways of preventing the spread of cold and flu viruses, as well.

Now, parts of the world are gradually opening up again: in some countries social distancing measures and mask mandates are being relaxed, and people are beginning to congregate again in larger numbers. It is not difficult to imagine a near-future in which pumps of hand sanitizer are abandoned, squirt bottles disappear from stores, and the sight of someone wearing a mask becomes a rarity. A return to normal means resuming our routines of socializing and working (although these may end up looking very different going forward), but it also means a return to getting colds and flus.

Does it have to? While aggressive measures like lockdowns have been necessary to help stop the spread of the coronavirus, few, I think, would think that such practices should be continued indefinitely in order to avoid getting sick a couple times a year. On the other hand, it also doesn’t seem to be overly demanding to ask that people take some new precautions, such as wearing a mask during flu season, or sanitizing and washing their hands on a more regular basis. There are good reasons to continue these practices, at least to some extent: while no one likes being sick with a cold or flu, for some the flu can be more than a minor inconvenience.

So, consider this claim: during the course of the COVID-19 pandemic, we have had a moral obligation to do our part in preventing its spread. This is not an uncontroversial claim: some have argued that personal liberties outweigh any duty one might have towards others when it comes to them getting sick (especially when it comes to wearing masks), and some have argued that the recommended mandates mentioned above are ineffective (despite the scientific evidence to the contrary). I don’t think either of these arguments are very good; that’s not, however, what I want to argue here. Instead, let’s consider a different question: if it is, in fact, the case that we have had (and continue to have) moral obligations to take measures to help prevent the spread of coronavirus, do such obligations extend to the diseases – like colds and flus – that will return after the end of the pandemic? I think the answer is: yes. Kind of.

Here’s what this claim is not: it is not the claim that social distancing must last forever, that you have to wear a mask everywhere forever, or that you can never eat indoors, or have a beer on a patio, or go into a shop with more than a few people at a time, etc. Implementing these restrictions in perpetuity in order to prevent people from getting colds and flus seems far too demanding.

Here’s what the claim is: there are much less-demanding actions that one ought to take in order to help stop the spread of common viruses, in times when the chance of contracting such a virus is high (e.g., cold and flu season). For instance, you have no doubt acquired a good number of masks and a good quantity of hand sanitizer over the past year-and-change, and have likely become accustomed to using them. They are, I think, merely a mild inconvenience: I doubt that anyone actively enjoys wearing a mask when they take the subway, for example, or squirting their hands with sanitizer every time they go in and out of a store, but it’s a small price to pay in order to help the prevention of the spread of viruses.

In addition, while in the pre-corona times there was perhaps a social stigma against wearing medical masks in public in particular, it seems likely that we’ve all gotten used to seeing people wearing masks by now. Indeed, in many parts of the world it is already commonplace for people to wear masks during cold and flu season, or when they are sick or are worried that people they spend time with are sick. That such practices have been ubiquitous in some countries is reason to think that they are not a terrible burden.

There is, of course, debate about which practices are most effective at preventing the spread of other kinds of viruses. Some recent data suggest that while masks can be effective at helping reduce the spread of the flu, perhaps the most effective measures have been ones pertaining to basic hygiene, especially washing your hands. Given that we have become much more cognizant of such measures during the pandemic, it is reasonable to think that it would not be too demanding to expect that people continue to be as conscientious going forward.

Again, note that this is a moral claim, and not, say, a claim about what laws or policy should be. Instead, it is a claim that some of the low-cost, easily accomplishable actions that have helped prevent the spread of a very deadly disease should continue when it comes to preventing the spread of less-deadly ones. Ultimately, returning to normal does not mean having to give up on some of the good habits we’ve developed during the course of the pandemic.

July 14, 2020December 14, 2022

Individualism in the Time of COVID: The Rights and Wrongs of Face Masks

photograph of large crowd walking through strip mall

There are many ways of understanding individualism. On one understanding, it is equivalent to selfishness or egoism. Those who refuse to wear masks have been labelled, perhaps rightly, as individualists in this sense. Yet some anti-maskers claim to be exercising their rights in refusing to wear a mask. In doing so, they appeal to a more profound understanding of individualism in which we are each owed protection against intrusions by the government or other persons. In the words of philosopher Philippa Foot, rights protect a “kind of moral space, a space which others are not allowed to invade.” That moral space includes a literal area around our person as a zone of privacy. Philosopher Judith Jarvis Thomson argues “if we have fairly stringent rights over our property, we have very much more stringent rights over our own person.” Here ‘stringent’ means that it would take more to override those rights: what provides sufficient reason to do something that violates your property rights might not provide sufficient reason to override your rights over your person.

If our rights over our person are more stringent than our rights over our property, then it would seem to follow that we should have stringent rights over what we wear. Of course, there are laws regarding what we wear, such as public decency laws, but these are, to most of us, unobtrusive. Most of us aren’t inclined to stroll naked through the local shopping mall, and so laws forbidding that activity don’t strike us as an imposition on our rights. Norms regarding such matters are moreover reasonably stable. So, it should be understandable even to those who disagree with anti-maskers that it could feel like an intrusion for the government to dictate our wearing something like a mask over our faces: as some anti-maskers label it, they feel “muzzled.” But is there a moral right not to wear a mask?

First, we have to ask, in virtue of what do we have any rights at all? This is a difficult philosophical question that has exercised philosophers and legal theorists, resulting in some of the most challenging works in those disciplines. But there are some simple ideas at play that have an intuitive appeal and are easily grasped. The first basic idea is that there is an intrinsic value to each individual. We are not valuable only because of our usefulness to others, but just in virtue of something like our humanity, rationality, or having been created by God. Here accounts diverge, and challenging issues arise. Suffice to say that whatever account is given, at least anyone considering the question of whether to wear a mask certainly has this sort of value.

The second basic idea is that this intrinsic value demands consideration or respect in our thinking and action that takes the form of rights. The individual has a value such that their life cannot be disposed of because it inconveniences me: individuals aren’t fungible and have a certain inviolability. Philosopher Ronald Dworkin put it this way: “rights trump utility.” This means that rights prevent us from doing things to an individual (such as killing them) on the grounds that doing those things would promote overall happiness. There is vagueness to this idea that philosophers and legal theorists work hard to dispel: how much utility does a right trump? Can we kill one to save five? If not, then ten, or one hundred? Again, we need not settle this question to answer the question regarding masks.

Third basic idea: when I violate someone’s rights deliberately, I do wrong. Often this idea will receive a great deal of nuance, delimiting the nature of the wrongdoing and exceptions that may arise in various circumstances. The important point is that rights define a moral space within which I can make choices, even choices that lower my expected utility or that of others, provided that I am not violating their rights in doing so. So the moral space defines a domain of autonomy for individual decision-making and choice but not an unlimited one. To see that it cannot be unlimited requires only a moment’s reflection. If we both claim to have rights in this sense, we must recognize each other’s inviolability at the risk of these claims being meaningless. Instead, we must realize that the assertion of rights imposes obligations on us: we must limit the exercise of our autonomy, taking other bearers of rights into account. Our claim to an unimpeded pursuit of happiness must recognize the claim of others to the same, and so my pursuit of happiness must be framed in a way that takes them into account. The kind of individualism that supports rights claims is grounded in the recognition of the value of the individual and imposes obligations that others take that value into account as they act. This is why anti-maskers are acting inconsistently with the ideas they claim to act on. The notion of rights that they invoke seems to have come uprooted from the moral ideas that ground it and become a merely legal notion. It is possibly a nod to constitutional rights, but one that fails to account for why those constitutional rights were a good idea from a moral point of view.

Those who refuse to wear masks on the grounds of exercising rights seem to have decided that their minor discomfort outweighs the lives of others in wearing a mask. Imagine that I have an exceedingly comfortable shirt, but for whatever reason, it kills one out of every thousand people who look at it. Presumably, I have a moral obligation not to wear that shirt anywhere but away from the view of all onlookers. Others would be within their rights to force me not to wear that shirt or to take on the discomfort of wearing it covered, assuming it won’t have its fatal effect when concealed. I cannot object to these requirements by saying, “but my shirt is so comfortable!” or “covering my shirt makes it less comfortable!” because these questions are put out of consideration by the rights of others. If each of our minor discomforts provides grounds for subjecting others to risk of serious illness and death, then, effectively, none of us have any moral rights. The French theologian and mathematician Blaise Pascal put it concisely: “Respect means: inconvenience yourself.”

April 30, 2020December 14, 2022

Anti-Lockdown Protests: Private Liberty v. Common Good

photograph of family at Open Ohio protest

Thousands of Americans across various states have decided to take a stand against the lockdown measures imposed on them as the COVID-19 pandemic sweeps across the nation. In a particularly large protest in Washington state’s capital of Olympia, over 2,000 people gathered to fight for relaxed rules for the economy. Others have been much smaller—such as the 200 people who gathered outside of Indiana Governor Eric Holcomb’s residents to show their disapproval of the strict stay-at-home orders. Protesters carry signs with slogans ranging from “Land of the Free” to “The cure is worse than the virus” to “Let me work.” They often are advocating for an ease in lockdown measures, a reopening of the economy, and the opportunity to return to their jobs. They feel as if the government has restricted their freedoms too much, and are fighting for their rights. Protesters are using their right to freedom of expression to fight for their right to assemble, as well as the ability to work to earn money for their families. However, many protesters do not follow social distancing restrictions or wear masks, per Dr. Fauci and the National Institute for Health’s recommendations. Some experts worry that their protesting could lead to an increase in COVID-19 cases, more deaths, and possibly a prolonged quarantine period. This issue has sparked debate and controversy across the country. Technically, protesters are exercising their constitutional and basic human rights. Yet, is it ethically correct for them to do so, if it could make others sick—possibly killing some?

There is no easy or straightforward way to answer that question. To grasp the moral conflict at play, one must understand the idea of collective action. Managing the risks of the current crisis will require a concerted group effort. Unfortunately, what individuals perceive as their best interest is sometimes at odds with what is in the best interest of the group. Achieving the best public health outcomes for everyone involved may require individuals to forgo some of their rights, their jobs, and social lives. For example, it may be in the individual’s best interest to buy as many masks as possible to protect himself from the virus, but hoarding masks will cause a shortage for others, especially those that need them (such as healthcare workers). This situation gives each person the opportunity to benefit themselves, while spreading the negative consequences of their actions across the larger population.

This tension between the need for collective action and the exercise of individual rights is at the heart of the recent protests in America. Protesters are looking for what is in their best interest—exercising their constitutional freedoms, returning to their places of business, and seeing their friends and family—while the entire community will share any negative outcomes of their protesting. We can examine this problem by looking at both sides of the argument.

Let’s start with the protester’s point of view. There have been signs that America is reaching “the top of the curve,” and infection rates have decreased in some states. Yet, there is no sign that the strict lockdown measures that Americans have lived under for weeks will be loosened anytime soon. The protesters are people fighting for their freedom—and they have valid reasons to do so. All citizens of the United States have had some of their basic freedoms restricted in the hope of slowing the spread of the virus. There are curfews, business closures, and church gathering bans. They have no right to freedom of assembly, and have been heavily encouraged to wear masks. Many have lost their jobs because of lockdown measures—over 6.65 million Americans filed for unemployment at the start of April. Protesters want their normal lives and freedoms back. They want to be able to work to earn money for their families.

Many protesters don’t believe that their rights should be taken just because the government says so. And they have taken a stand to show their disapproval. For example, a protester in California stated that “We need our freedom back, we need to be able to work, we need to be able to socialize, as soon as we can.”

Many protesters share the opinion that the government has been too controlling over their lives and decisions—some have stated that the prolonged lockdown is “basically slavery.” They feel as if the government is being too intrusive without giving them a say in the matter. One protester went as far to say that the California governor Gavin Newsom is a “dictator” for promoting strict lockdown measures. California residents have experienced one of the strictest stay-at-home orders in the country—receiving countless alerts on their phones from the government promoting social distancing, staying at home, and closing businesses. They are only allowed to leave their house for “essential needs/work,” and their governor shows no sign of easing restrictions anytime soon. This can be seen as an invasion of privacy and a violation of their rights.

Some other protesters feel that it is the obligation of the government to try to “fix” the problems that the lockdown has caused. The quarantine that the government issued has negatively impacted private and small businesses, as well as citizens’ livelihoods. This means that the government may have to be the one to fix or mitigate the damages that their lockdown caused. However, many citizens have had economic troubles because the relief bill assistance has been slow to arrive. And it is not only citizens marshaling these arguments, Missouri Senator Josh Hawley has stated that the government is responsible for offsetting what lockdown measures have cost the country.

Others simply feel that lots of the government requirements and action taken are unnecessary. The 2019 novel coronavirus is usually only fatal to those with compromised immune systems or those with old age. Protesters don’t feel as if they, as healthy individuals with strong immune systems, should be stuck at home, unable to work and live relatively normal lives. The signs they carry (“Quarantine the sick, not the healthy”) show this sentiment. Protesters in rural areas also feel as if the lockdown measures aren’t as necessary where they live, as their population is less condensed as it is in big cities, making it harder for the virus to spread.

And while many protesters gathered in large crowds without masks, ignoring safety recommendations, many others have not. There are protesters who wear masks, or who have been protesting in their cars instead of gathering with other people.

However, many people disagree with the protests. They believe that protesters are not taking proper precautions to protect against the disease, and they could cause an increase in cases, deaths, and possibly increase the quarantine period.

“Give me liberty or give me death” is a frequent slogan in protest. But as many have suggested, protesters could be “campaigning for both.” It is a fact that many protesters, especially in news footage, were not following social distancing precautions. They were gathered in crowds as large as 2,500 and most were not wearing masks to prevent spreading the virus. Experts worry that these anti-quarantine protests can cause a surge in COVID-19 cases. Rachel Revine, the Pennsylvania State Health Secretary, stated that “This is how COVID-19 spreads,” when talking about the protests. Eric Feigl-Ding, an epidemiologist and public health scientist at the Harvard TH Chan School of Public Health, tweeted that he predicts a “new epidemic surge” with an incubation period of about 5-7 days before the onset of any symptoms and transmission, concluding that there will likely be “[an] increase in 2-4 weeks from now” of cases in America.

Some nurses who do not support the protests have also made their opinions known. A few (in Harrisburg, Pennsylvania and in Denver, Colorado, to name a few) have stood in a counter-protest at crosswalks, blocking the cars of angry protesters. In Michigan, many healthcare workers have complained that the protests caused them to arrive late to work. Some ambulances have had a slight delay in reaching the hospital because of the gridlock protests.

Others simply don’t agree with the message of the protests. They feel as if strict lockdown measures should still be in place. America has been the center of the pandemic, with over 735,000 known cases and 40,000 known deaths nationwide. Many don’t feel that their country is ready to re-open. For example, Rachel Revine said that there needs to be a decrease in cases and an increase in the amount of tests produced, stating that “the idea that we can ease up is exactly the wrong answer.”

Yet one of the main reasons that people are not pleased with the recent protests is because they feel as if the protesters are not thinking about the common good. Protestors carry signs saying “My body, my choice.” But, is it really their choice? Their actions could lead to an increase of coronavirus cases, and possibly fatalities, in their community.

It all comes back to the idea of collective action. The individual protester sees it in their best interest to protest for their own rights, and for their own ability to work—they fully have this right to freedom of expression. But many protesters aren’t asking themselves what the possible costs of their actions could be. By gathering in large crowds without masks to protest for what is in their own short-term benefit, they could cause an increase in COVID-19 cases. This can risk the lives of everyone in the community, and undoes a lot of the “progress” made under the quarantine.

Could we outwit human nature’s phenomenon of collective action? It would involve us as individuals sacrificing some of our own wants for the good of the community. Protesters may have to use social media or other digital platforms to have their voices heard and make a stand without endangering the vulnerable people in their community.

This coronavirus pandemic is a difficult time for all of us. We’ve stayed inside for weeks, many without jobs or people to interact with, to help “flatten the curve.” And now, as people call for change through protests, we may run the risk of increasing COVID cases. In the midst of the uncertainty and the controversy, one thing is for certain: We need to ask ourselves what possible costs our actions have for others. We must consider the phenomenon of collective action—are we acting in the interest of our own individual short-term pleasure, only for the entire community to share the negative effects of our actions? In this case, only time will tell.

October 30, 2015December 14, 2022

The Right to Gluttony: Sustainability vs. Individual Rights

What if one day in the near future, on your family’s weekend trip to Texas Roadhouse to TGI Friday’s, steak was no longer offered on the menu? No mouth-watering 8 ounce sirloin specials or baby back ribs to satisfy your protein craving? While for the average American this may seem like a dystopian scene out of a George Orwell novel, these dietary restrictions may very well be necessary for a sustainable future. For the United States, the main dilemma will surround individual rights—whether rights guarantee each person to eat as much as they choose, even if it will be detrimental to the sustainability of humanity.

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