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Anti-Natalism, Harm, and Objectionable Paternalism

My colleagues here at The Prindle Post have, over the last several weeks, been engaged in a thoughtful discussion surrounding anti-natalism, the view on which it is (at least in part) unethical to have children. Laura Siscoe raised an interesting objection to the anti-natalist view: insofar as the vast majority of people prefer existence to non-existence, and we have no reason to think that future people will be any different, Siscoe argues that anti-natalism is likely to be objectionably paternalistic. Benjamin Rossi, in his response to that article, argued against Siscoe’s position by raising a counterexample: he argues that if anti-natalism is objectionably paternalistic, then so are all forms of birth control, and insofar as Rossi takes this conclusion to be unintuitive, he thereby rejects Siscoe’s argument. In explaining why he believes Siscoe’s argument gives rise to these unintuitive conclusions, Rossi points the blame at Siscoe’s idea of what makes paternalism objectionable — a key idea in the broader debate.

Here, I don’t intend to resolve the debate, or come down authoritatively on one side of it — rather, I (cheekily) intend to complicate it further. I’d like to focus on the concepts which underlie the debate, namely those of paternalism and objectionable paternalism, and ask if we’ve truly captured the heart of the question at hand.

First, let’s be clear as to what has already been said. Siscoe defines paternalism as “interference in the freedom of another for the sake of promoting their perceived good,” and identifies paternalism as objectionable, in the case of people who will exist in the future, when it “contradicts the strongly held desires of future people.” Rossi assents to Siscoe’s definition of paternalism, but disagrees with what constitutes objectionable paternalism: he argues that paternalism is objectionable “if it interferes with a person’s exercise of their ability to act as they want, where that person is entitled to such exercise under the particular circumstances of their choice.” It is the notion of entitlement which is key in Rossi’s argument. He concludes his essay with: “If this account is correct, then to make good on the claim that choices to refrain from reproduction … are objectionable, Siscoe must establish that future people have a right to exist, and not just that they very likely would want to exist.

I think that all three of these definitions have a grain of truth, but are flawed in important ways.

First, let’s take the definition of paternalism which Siscoe and Rossi employ: “interference in the freedom of another for the sake of promoting their perceived good.” This is a good approximation of paternalism, but misses a vital aspect of how paternalism is implemented in practice: paternalism is rarely about promoting someone’s good, and is much more frequently about preventing someone from coming to harm. Now, this may seem like an obtuse distinction to make, but consider the examples of paternalism which Siscoe and Rossi discuss: Siscoe references seatbelt and anti-drug laws, and Rossi discusses the example of a parent stopping a child from playing hopscotch along the edge of a roof. These are not examples of paternalism for the sake of increasing the subject’s well-being, but are instead fundamentally about preventing the subject’s well-being from becoming worse. Or, in more common terms: paternalism is about making sure you don’t hurt yourself, rather than making sure you maximize your potential.

Why is this distinction important? First, it shows where our concern really is when it comes to paternalism. Imagine a child who, with exceptionally hard work and dedication, would go on to become a graduate of the best law school in the country and an exceptional civil rights lawyer. Very few people believe in paternalistic policies which would force this child to do that hard work or have that dedication; however, we generally do believe in paternalistic policies which will make sure this child at least goes to school until they turn 18. This is because we, fundamentally, care about avoiding bad outcomes rather than continually forcing their well-being upward; and this, importantly, re-orients our discussion from benefiting the subject of paternalistic intervention to avoiding harm for the subject of paternalistic intervention. This re-framing reveals the second important point of this distinction: that in order for paternalism to make sense, we need to understand what harm is, and this is notoriously difficult. This is especially complicated in the setting of future peoples, as whether or not we can understand harm to future persons is an entirely open question, and casts doubt on the metaphysical backing which anti-natalists build upon.

But the waters only get muddier when we turn to the idea of objectionable paternalism. I agree with Rossi’s assessment of Siscoe’s definition: that objectionable paternalism cannot merely be that which “contradicts the strongly held desires” of the subject, as seemingly justifiable examples of paternalism (i.e., a parent pulling a child out of oncoming traffic) can involve strongly held desires on the part of the subject. However, Rossi’s suggested reformulation — that paternalism is only objectionable “if it interferes with a person’s exercise of their ability to act as they want, where that person is entitled to such exercise under the particular circumstances of their choice” — is also deeply incomplete. The problem here, in my appraisal, is the emphasis on entitlement. If you care about the moral value of autonomy, then this should trouble you: on Rossi’s view, you are only entitled to act without interference from paternalistic intervention in cases where you have previously demonstrated your entitlement to act in the first place. This is very different from our usual understanding of autonomy-based ethics, where the burden falls on the paternalist to demonstrate the ethical grounding of their intervention.

The difference between these views can be seen clearly in a simple example. Imagine a case where a patient refuses life-saving dialysis, but their healthcare team seeks an injunction to paternalistically force her to receive dialysis. In assessing whether or not this paternalism is objectionable, Rossi would have us ask: is the patient entitled to refuse dialysis? I would hold, however, that a different question is more important: do the physicians have a right to dialyze her against her will? These are two very different questions, and Rossi’s definition of paternalism seems to put the onus on the subject to demonstrate their freedom from paternalistic intervention, rather than on the paternalist to demonstrate the ethical grounds of their intervention.

These considerations, unfortunately, obfuscate the debate between Siscoe and Rossi, but they demonstrate an important pattern in ethical debates: the words we use matter, and, more often than not, the definitions which we attach to the ideas in our debates are the true heart of the disagreement, and the true question at hand.

Smoking and Limitations on Liberty

close-up photograph of defiant smoker in sunglasses

At the end of last month, the recently elected coalition government in New Zealand decided to scrap a world-leading policy implementing an effective ban on smoking nationwide. The legislation – passed in 2022 and set to come into force in July 2024 – would have raised the smoking age annually, so that someone who was 14 years old at the time of the policy’s implementation would never be able to legally purchase a cigarette. The pioneering approach subsequently inspired the proposal of similar legislation in the U.K. amongst other jurisdictions.

The chief reason for the axing of this policy was financial. Tobacco sales generate revenue, and the incoming government of New Zealand needs this revenue in order to fund its many promised tax cuts. However other concerns played a role, including the familiar specter of the nation becoming a “nanny state” that dictates how people should live their lives. But are these concerns sufficient to justify the overturning of a policy that would have reduced mortality rates by 22% for women, and 9% for men – saving approximately 5,000 New Zealand lives per year?

At its core, this policy – like others that limit our ability to imbibe potentially harmful substances – becomes a debate about whether we should take a paternalistic or libertarian view of the role of government. Paternalists see the government in a parental light, and – as such – believe that the government is justified in restricting the liberty of its citizens where doing so is in the citizens’ best interests. Libertarians, on the other hand, see freedom as being of paramount importance, and endorse the government restricting personal freedoms in only very limited scenarios. What kind of cases might qualify? One approach the Libertarian might take is to apply something like John Stuart Mill’s Harm Principle, which holds that our freedoms should only be limited where our actions will cause harm to others. Could, then, a Libertarian justify an effective ban on smoking? Perhaps. The harms of secondhand smoke (i.e., the inhaling of cigarette smoke by those who do not choose to smoke) are well-known. In the U.S. alone, secondhand smoke causes nearly 34,000 premature deaths every year. This is precisely the kind of harm that might justify a limitation of our personal freedom under a libertarian approach.

But suppose that an individual manages to smoke in a manner that creates no harm whatsoever for anyone else. This isolated smoker consumes tobacco exclusively in a private, sealed environment so that the only harm caused is harm to themself. Might the state nevertheless be justified in restricting the liberty of this individual? Here, the libertarian will most likely say “no.” The paternalist, on the other hand, might endorse a liberty-restricting policy. But on what basis?

There are myriad ways in which the paternalist might justify the infringement of an individual’s liberty, even where no harm is done to others. One method comes via an application of utilitarianism (also popularized by John Stuart Mill). At its core, utilitarianism claims that the right thing to do is that which maximizes welfare – i.e., how well people’s lives go. How are we to measure this? One way (and the way which Mill himself adopts) is hedonistically. This approach involves tallying up the total pleasures and pains brought about by different options, and choosing that which maximizes pleasure (or, at the very least, minimizes pain).

What would this hedonistic utilitarian make of the isolated smoker case above? Well, chief among their considerations would be the pleasures (presumably) gained from the smoker’s enjoyment of their cigarettes. But these pleasures would then need to be weighed against the pains caused by this same activity: specifically, the detrimental effects that smoking has on one’s health. Now, some of those pains might not be immediate – and some might never occur. In this case, the calculation of pains might need to take into account the risk of those harms eventuating – discounting them according to how unlikely they are to occur. Ultimately, the question posed by the hedonistic utilitarian will be do the pleasures of smoking outweigh the actual (and potential) harms? Where they do not, the state might find moral justification in preventing that individual smoking, since it will not be the action that maximizes their welfare.

But utilitarianism isn’t the only moral theory we might apply. Immanuel Kant’s approach is decidedly different, and focuses on a respect for human dignity. His Humanity Formulation of the Categorical Imperative states that an action is right if and only if it treats persons as ends in themselves and not as a mere means to an end. Might the Kantian object to restricting the liberty of the isolated smoker? It would certainly seem that the state is using the individual as a means to an end – that being the end of promoting health. But are they using the individual as a mere means? Arguably not. If I befriend a classmate for the sole purpose of having them help me write an assignment, I am using them as a mere means. If, however, I pay a mechanic to work on my car, I am not using them as a “mere” means, since my treatment of the mechanic happens to facilitate their end of gainful employment.

The same might be true in the case of liberty-limiting legislation and smoking. While the state is using the individual as a means, they might be doing so in a way that promotes the ends of the individuals. What are those ends? We can take our pick from the many things that the smoker values in life: waking up each morning to enjoy the sunrise, engaging in physical exercise, watching their grandchildren graduate. All of these ends are threatened by their smoking, so that preventing this individual from smoking might in fact respect those ends.

Whether or not the state is right to limit their citizens’ ability to engage in harmful behavior is a conversation both complex and nuanced. It’s unfortunate, then, that in the case of New Zealand this decision seems to have been made largely on the basis of financial considerations and political pragmatism. Instead, careful attention should be paid to how we see the state: whether its role is paternalistic, and – if so – what kinds of moral principles might justify its intervention in our lives.

If Anti-Natalism Is Objectionably Paternalistic, Then So Is Family Planning

photograph of child and parent shadow on asphalt

In her recent column, Laura Siscoe argues that reproductive choices motivated by anti-natalism are objectionably paternalistic because they “seek to decide what’s best for future people (i.e., their non-existence)” and “contradict the strongly held desires of future people.” Although I think her argument is mistaken, it raises some important issues regarding our duties to future generations that are well worth exploring.

To illustrate how her argument goes awry, consider a devoutly Catholic couple who successfully use the rhythm method because they want to delay having children until they feel confident that they can provide a sufficiently stable environment for their offspring. It seems to follow from Siscoe’s account that this practice is objectionably paternalistic because it entails that some future person or people who might have come into existence had the couple not intentionally employed a form of “natural family planning” will not in fact exist. We can safely assume that this would contradict their strongly held desires, so their practice is not just paternalistic, but objectionably paternalistic.

The point of this example is that if the anti-natalist choice to refrain from having children full stop is objectionably paternalistic, then so is any choice to refrain from having children under some particular set of circumstances, when that choice is motivated by the desire to do what is best for one’s future children. Perhaps it does not follow from a choice’s being objectionably paternalistic that it is, all-things-considered, morally wrong. But Siscoe seems committed to the view that the Catholic couple should at least consider the interests of the potential future people whose existence is precluded by their use of the rhythm method in their moral calculus. Moreover, in this calculus, such interests weigh heavily against practicing this or any other form of birth control. This is surely an odd result, given that even an organization as avowedly “pro-life” as the Catholic Church sanctions, and even encourages, some forms of family planning.

If we try to trace the counterintuitive implications of Siscoe’s argument back to one of its premises, however, a problem confronts us. On the one hand, these implications seem to flow from the claim that possible future people have interests that are entitled to moral consideration. Once we grant this premise, and we also acknowledge the seemingly undeniable fact that our actions affect those interests, we seem to be committed to extending moral consideration to the interests of possible future persons who are affected by any choice to refrain from reproduction. On the other hand, the claim that we have some responsibility to act with an eye toward future generations is commonplace both within and outside of moral philosophy, despite some well-known puzzles associated with it. Must we, along with Siscoe, simply bite the bullet and concede that any choice to refrain from reproduction for the sake of the unborn is objectionably paternalistic?

Perhaps we can avoid this result if we examine the notion of paternalism in greater depth. Siscoe’s gloss on “paternalism” is “interference in the freedom of another for the sake of promoting their perceived good.” Rightly, I think, she does not build into the notion of “paternalism” that it is morally objectionable. After all, there are strong arguments in favor of some degree of interference in the freedom of others for their own sake under certain circumstances — paradigmatically, parents’ interference with their children’s freedom.

So, in addition to a definition of “paternalism,” we need an account of what makes paternalism objectionable. Siscoe seems to imply that paternalism is objectionable when it “contradicts the strongly held desires” of others. But this can’t be the whole story: a small child may strongly desire to play hopscotch along the edge of a tall building’s roof, but its parent’s decision to prevent it from doing so, while undeniably paternalistic, is not morally objectionable.

I suggest, then, that paternalism is objectionable if it interferes with a person’s exercise of their ability to act as they want, where that person is entitled to such exercise under the particular circumstances of their choice. This account would explain why the kind of paternalism that gave the notion its name — the paternalism of parents with respect to their children — may not be objectionable. There are many contexts where there are strong arguments that children should not be able to act as they want — arguments that in effect show that they have no right to act as they want in those contexts.

If this account is correct, then to make good on the claim that choices to refrain from reproduction — whether motivated by a commitment to anti-natalism or concerns that are less absolute in their implications — are objectionable, Siscoe must establish that future people have a right to exist, and not just that they very likely would want to exist. Without a legitimate claim on us of this kind, we are not bound to respect their interest in existing, and the argument against anti-natalism from paternalism falls apart.

Is Anti-Natalism Objectionably Paternalistic?

black and white photograph of parent and child holding walking through tunnel

There is something about envisioning a future without children that is intuitively objectionable to many. This sentiment is portrayed in the film Children of Men, which depicts a child-less world as bleak and devoid of hope. Despite this intuitive pull, the position known as anti-natalism enjoys a certain degree of popularity in both philosophical and public discourse. The basic premise behind the anti-natalist movement is that life is sufficiently bad in some way, such that we have a general moral duty not to bring new human life into the world. There are various reasons anti-natalists appeal to as grounds for this conclusion, including the impacts of climate change on future generations, the inevitably of life bringing about suffering, as well as just a general pessimism about the moral trajectory of humanity.

I propose here a possible objection to anti-natalism, namely, that it is objectionably paternalistic. The moral concept of paternalism consists in the notion of interference in the freedom of another for the sake of promoting their perceived good. Commonplace examples of public paternalism include seatbelt laws and anti-drug legislation. There are, of course, also familial examples such as imposing bedtimes on children or forcing them to eat a healthy diet.

It is generally accepted that we should exercise at least a certain amount of moral and political caution when endorsing strongly paternalistic policies. There is some degree of good in human autonomy and honoring peoples’ preferences, even when we believe those preferences to be ill-advised. Caution seems particularly advisable when the freedom being infringed upon by the paternalist policy carries great weight. For instance, China’s infamous one-child-policy tends to strike people as more ethically objectionable than a policy limiting certain kinds of hard drug use. The reason for this is (at least partially) because the right to have children seems much more central to human expression and vital to the preservation of one’s autonomy than does the right to use severely dangerous drugs.

The way that the topic of paternalism interfaces with debates over anti-natalism is two-fold. For one, anti-natalism deals with the procreative choices of individuals. Some strong versions of anti-natalism seek to impose a vision of what’s best on prospective parents, whose opinions might sharply diverge from that of the anti-natalist. Secondly, anti-natalist stances are paternalistic in that they seek to decide what’s best for future people (i.e. their non-existence). Of course, some degree of paternalism is involved in both the choice to have as well as not to have children, as it is parents who must determine on behalf of their children if the life they aim to create is worth living. So in contrast with pro-natalist positions, what makes anti-natalism potentially objectionably paternalistic?

When surveying the preferences of most people — including many of those who face tremendous suffering — the verdict seems most do not wish for non-existence. Given that most (though certainly not all) people would choose their existence over non-existence if confronted with the choice, what degree of weight should this fact carry for anti-natalists? Given that peoples’ expressed preferences seem to tilt clearly in one direction, paired with the significance of the issue at hand (i.e., existence over non-existence), it seems we might have reason to be morally cautious of anti-natalist sentiments.

One way of objecting to this conclusion is to point out that moral concerns about paternalism typically apply to people that are already living. It is less common to think about paternalism as it relates to future or potentially future people. After all, we don’t actually have access to the preferences of future people. Thus, we are merely extrapolating their preferences from those who are already living. A limitation of this approach is that we could be discounting certain factors that might make this prediction inaccurate. For instance, perhaps the condition of the world gets so bad as to cause the majority of future people to opt for non-existence.

This is certainly not a possibility that we can rule out. However, we have reason to be dubious of this outcome. If anything, there are many signs that human suffering is (on a whole) measurably less than what it once was. People are being lifted out of severe poverty at increasing rates, many preventable diseases have been nearly eradicated, and the rights of certain marginalized populations are now legally enshrined. Absent an argument that we can predict with a very high level of confidence that future peoples’ lives will be dramatically worse than peoples’ lives now, it is reasonable to assume future people will continue to prefer existence over non-existence.

If we grant this empirical point, the paternalist concern starts to emerge. Anti-natalism runs the risk of being objectionably paternalistic insofar as it contradicts the strongly held desires of future people. Making the judgment of which lives are worth living places one in the morally precarious position of having to potentially undermine the preferences of those whose lives actually hang in the balance. Thus, while there is unavoidable moral risk involved in procreative decisions, it is particularly incumbent on anti-natalists to consider the weight that the expressed preferences of living people should carry when it comes to procreative choice.

Kids and Social Media: Why the First Amendment Argument Fails

photograph of children playing on smartphone

Utah’s recent push for legal restrictions on the social media consumption of minors represents the most aggressive legislation of its kind to date. Of course, many other countries have placed stringent restrictions on the social media usage of their citizens, but the United States has been reluctant to follow suit. The reasons why a liberal society might be hesitant to restrict citizens’ access to these platforms are obvious enough. The United States enjoys a Bill of Rights that legally ensures the freedom of speech, and because social media platforms serve as an important mechanism for exercising one’s freedom of speech in the modern world, restricting citizens’ access to these platforms might be deemed unconstitutional. Additionally, insofar as political liberalism calls for governments to make minimal value judgments, heavy-handed restrictions in the name of state paternalism are often undesirable. Thus, we’ve landed as a society in a position where the negative  impacts of social media usage are well-known, but there is no consensus on an appropriate remedy.

Due to the concerns mentioned above, I think there are strong reasons to refrain from legal intervention with the social media usage of adults. However, the picture gets more complicated when considering minors. There is strong legal precedent for limiting children’s access to certain products before they reach a particular stage of cognitive maturity. For example, the United States limits alcohol and tobacco consumption to those twenty-one or older, as well as places age restrictions on purchasing weapons and driving cars. Virtually no Americans advocate for completely abolishing these restrictions, making us functionally committed to the notion that certain rights enjoyed by adults should not be granted to children.

There might very well be compelling arguments against the legal regulation of social media usage for children. However, one of the most commonly utilized arguments against such regulations — the argument from the First Amendment — stands on shaky ground. The First Amendment is composed of five distinct rights: the rights to the free exercise of religion, freedom of speech, freedom of the press, peaceful assembly, and government petition. Those who believe the First Amendment precludes placing restrictions on the social media accounts of children claim minors have their freedom of expression protected by the First Amendment, and thus such restrictions are unconstitutional. The New Yorker recently published a piece arguing for this position, and similar arguments can also be found here and here. While such a stance is understandable, the argument ultimately rests on an implausible interpretation of the scope of the First Amendment.

Obviously, there are many nuances involved in theories of constitutional interpretation, but on any viable interpretive framework, special constraints apply to minors that do not apply to adults. With children, the exercise of a number of constitutionally protected rights is constrained in various ways, and the extent to which children are able to exercise any particular right is determined by a number of factors, including the risks associated with the expression of that right, as evidenced by the categorical exclusion of children from the right to bear arms. Of course, the right to bear arms is not the only right that children cannot fully exercise. We can also consider the nature of other First Amendment rights, such as the freedom to assemble and the freedom of religious practice. It is clear enough there is at least some sense in which the right to peaceful assembly applies to children. Minors can meet up in groups and can even attend political protests. However, a child’s right to peaceful assembly is clearly also constrained by parental consent. For example, law enforcement is permitted to limit an eight-year-old’s right to protest if the child’s parents have not consented to her being present.

Furthermore, while it is true that children bear a right against a government imposed religion, children oftentimes have a religion imposed on them by others. A child’s ability to seek out the religion of her choice is functionally highly limited by her upbringing and family of origin. For instance, if a child grows up in a conservative Jewish family, the child is likely compelled to engage in the practices associated with the Jewish tradition. Families are legally permitted to exercise a certain degree of coercive power over their children which shapes the degree and extent to which they practice a particular religion. Probably only a small minority of people would contend that this constitutes a rights violation on behalf of the child, while most people tend to agree that an adult being coerced (even if non-governmentally) to practice a particular religion does constitute a rights infringement of some kind.

The right to free speech seems to function quite like the rights of assembly and religion in that there is certainly some sense in which children have a right to free expression. The Supreme Court has ruled on a number of cases pertaining directly to the issue of free speech and minors. One of the most influential of such cases is Tinker v. Des Moines Independent Community School District, where the Court ruled that minors have a right to self-expression in schools insofar as it is not highly disruptive of the academic environment. While, in this particular case, the Court ruled in favor of the free speech rights of K-12 students, the Court has historically decided that college undergraduates (i.e., legal adults) enjoy greater free speech protections than do younger students. More specifically, there are various cases where the Court appeals to age-based considerations to defend substantive limitations on the speech of minors. One such case is Bethel School District 403 v. Fraser, where the Court ruled public schools can prohibit students from engaging in particularly crude or offensive speech.

If we look at the implications of the Bill of Rights, there are certain rights that simply do not apply in any meaningful sense to children due to the severity of the associated risks (e.g., the right to bear arms), as well as certain rights (e.g., the freedom of assembly and the freedom of religious practice) which apply in a limited way to children. My argument is that the right to free speech falls into this latter category. While there is clear legal precedent that children are allowed to freely express themselves to a certain degree, there is also strong precedent for reducing the scope of that right. For this reason, simple appeal to the First Amendment is insufficient as an argument against the type of legislation proposed by Utah.

This is, of course, not to imply that such legislation is entirely legally and morally straightforward. Perhaps a legitimate concern is that allowing legal restrictions of social media in the case of minors will have a slippery slope effect, eventually endangering the free speech rights of adults. Another potential route to striking down the Utah bill is to argue for the expansion of the free speech rights articulated in cases like Tinker v. Des Moines. Whether the types of restrictions proposed by Utah constitute a viable solution to the negative impacts of social media on young people’s lives is a debate which will need to be settled both in the courts of law as well as in the courts of public opinion over the coming months and years.

“Suicide Kits” for Sale

photograph of Amazon search bar

This article discusses suicide. Following common journalistic ethics practice, precise details about means or resources for committing suicide may have been deliberately left out or altered.

Method matters. Depending on the study, between 80% and 90% of people who attempt suicide and fail do not go on to attempt suicide again. The public health implication is that by regulating the availability of popular and effective means of suicide – mainly firearms and select chemicals and pharmaceuticals – deaths from suicide can be prevented.

Given this, what should we make of the fact that highly purified sodium nitrite, an increasingly popular option for suicide, has been readily available for purchase on Amazon in the United States? A lawsuit filed on September, 29th accuses Amazon and Loudwolf – a sodium nitrite manufacturer featured on Amazon – of “promoting and aiding” the suicide of two teenagers. A Twitter thread by Carrie Goldberg, a lawyer working on the case, characterized Amazon as a “serial killer.”

The case will likely turn on a number of details alleged by the plaintiffs: that Amazon recommendations packaged together sodium nitrite with other supplies and informational materials in so-called “suicide kits”; that Amazon failed to enforce its own policies; that Loudwolf failed to include FDA-required warning labels on sodium nitrite; that Amazon was previously warned and did nothing about sodium nitrite sold on its platform being used in suicides; that no information was included about methylene blue (the recommended treatment for sodium nitrite poisoning); that there is no compelling reason to allow household purchases of pure sodium nitrite; and, of course, that both deaths were minors.

Abstracting away from the details, however, the case is part of a decades-long pattern of the internet facilitating suicide – from providing community, to disseminating information, to assisting the purchase of supplies.

It began in 1990 with alt.suicide.holiday, a Usenet news group (similar to an internet discussion forum). Users would frankly discuss suicide and share tips and resources. While that group is now defunct, there have been multiple variants. The popularity of sodium nitrite as a means of suicide is attributed to a recent iteration. In many U.S. jurisdictions, advising or encouraging suicide is illegal, so these sites’ relationship with the law is complex – so too is their relationship with the media. Such forums begin as niche communities of the suicidal for the suicidal, and end up as New York Times exposés (most recently in December of 2021). Once aware, grieving families and the broader public often push (successfully) for these sites to be shut down or hidden from internet search results.

In contrast to the prevailing public health or prevention narrative of suicide, the leitmotif of these communities is, in their words, “pro-choice.” The idea is that the right to suicide is simply an extension of our personal autonomy and right to self-determination.

Especially in liberal individual rights-oriented contexts, autonomy is an enormously important ethical principle and people are given broad latitude to make their own decisions as long as they do not negatively impact the rights of others.

In American medicine, for example, patients have an almost unlimited license to refuse treatment. However, humans are not always autonomous actors. Children for instance are not allowed to make their own medical decisions. Being intoxicated is another common exception. In rare cases, people have been known to commit sexual assault or other crimes under the influence of the sleep aid zolpidem (Ambien). The defense is that these were not autonomous actions; that they did not flow from the authentic reasons and desires of the offender.

Can suicide be an autonomous act? Under the prevailing medical account of suicide, in which suicide results from serious mental illness, it almost definitionally cannot. In American law, risk of harm to self or others is grounds for violating patient autonomy and forcibly administering treatment.

That a person is suicidal is treated as evidence that they are not in sound mind and not an autonomous decision maker. Suicidality discounts autonomy.

Those in the online suicide “pro-choice” community challenge this logic and hold that suicide can be a reasonable reaction to a person’s life and circumstances, and people should have access to the knowledge and means to kill themselves relatively painlessly. In this they have at least some philosophical company. Thomas Szasz, a controversial Hungarian-American philosopher and psychotherapist, long asserted that suicide was simply a choice as opposed to an expression of sin or illness.

Szasz is an extreme case and was broadly skeptical of the very designation of mental illness. However, in contrast to a previous Christian sanctity-of-life framing, there is growing acceptance in the Western world that suicide may not always be unreasonable. Instead, it can be an understandable response to circumstances in which someone’s quality of life is below some personal threshold. A good case in point is the right-to-die movement, which advocates for medical-aid-in-dying and physician-assisted suicide. Ten states currently have medical-aid-in-dying in which a terminally ill person with six months or less to live is able to request a lethal medicine they can ingest. Supporters of medical-aid-in-dying stress that the practice is distinct from suicide, partly to escape the stigma associated with suicide, but the conceptual distinctions are slippery.

America is comparatively conservative, but several nations have far more permissive laws when it comes to assisted suicide. Belgium, the Netherlands, and Canada, among other countries, allow for voluntary euthanasia on the basis of extensive and untreatable mental suffering even absent terminal illness or, indeed, any physical illness whatsoever. (The ethics of this have been previously discussed here at the Prindle Post.) The 2018 case of Aurelia Brouwers, who was voluntarily euthanized in the Netherlands after years of failed mental health treatment, brought broader attention to the practice. She was the subject of a short film documentary.

Once it is accepted that unbearable suffering alone is an adequate basis for suicide, then distinctions about how long someone has left to live, or whether that suffering is mental or physical become secondary.

The process of seeking assisted suicide on the basis of mental suffering is supposed to have extensive safeguards, yet critics worry that slip-ups happen. Note, though, that the locus of discussion shifts from the act of suicide to the process of doing it responsibly and ethically.

Surprising to some, among the staunchest critics of the right-to-die movement are segments of the disability rights movement. The concern is that people may be pressured into choosing assisted suicide due to discrimination against people with disabilities or inadequate medical care, i.e. that these decisions are not fully autonomous. Of course, there will always be reasons for suicide, and these reasons may often be due to larger social and economic failings. Poverty is a known contributing factor to suicide. How reasonable this is may depend on where one is standing. In individual cases it is partly the environmental factors – poverty, debt, personal tragedy, discrimination – that can make suicide seem an appropriate response to circumstance. And yet, it may appear ghoulish to have a state-sanctioned process that facilitates suicides partly driven by these factors that the state itself perpetuates (or at least is often in the best position to address.)

Negotiating the appropriate policy prescription remains an impossible task. Mental health professionals, suicide prevention advocates, the American right-to-die movement, disability rights activists, and the online suicide pro-choice community can all share a broader commitment to self-determination and yet disagree vehemently about specific issues: when suicide is an autonomous act, what kind of safeguards need to be in place, what counts as unbearable suffering (or a lack of possibility of improvement), and what action is justified to prevent suicides.

Still, vanishingly few people would consider 16-year-olds killing themselves with online instructions and chemicals purchased on the internet as anything other than a tragedy.

It is statistically likely that had the teens in the lawsuit against Amazon attempted suicide with a less lethal method, they could have been successfully treated and their suicide attempt would have been a thing of the past.

Without speculating on the details of the specific case, it is nonetheless worth acknowledging that Amazon, whatever its failing as a corporation, cannot be the sole cause of this or any suicide. People are seeking information and supplies. And at least some suicides will default to known, highly lethal methods like firearms. It is also true that while the majority of those who attempt suicide and fail do not attempt again, previous suicide attempts are the single biggest risk factor for a later successful suicide. Put cynically, there is a demand. Regulating supply, while important given the relevance of the method, can only do so much. Suicide often exists at the intersection of means, mental health, and personal and environmental circumstance.

One relatively radical way to think about suicide would be as a regulated right – something permitted but tightly controlled. The provision of medical care and mental health care would presumably be part of seeking state-sanctioned suicide. People would need to have good reasons (whatever society decides those reasons are) for seeking materials-for or aid-in suicide, and undergo an appropriate approval process.

As countries like the Netherlands and Canada illustrate, negotiating what this approval process should be like is fraught. The balancing point of different communities with an interest in suicide including the suicidal, their families, mental health professionals, disability rights activists, religious communities, and the state will undoubtedly be a precarious one. Nonetheless, taking seriously the demand for suicide could plausibly help to bring suicidality out of the dark as something that people can talk seriously about and potentially get treated for. Surely a society ought to inquire as to why its citizens wish to take their own lives.

If you or someone you know is struggling with thoughts of suicide, (prevention-focused) resources can be found at SpeakingOfSuicide.com/resources.

The Ethics of Manipulinks

image of computer screen covered in pup-up ads

Let’s say you go onto a website to find the perfect new item for your Dolly Parton-themed home office. A pop-up appears asking you to sign up for the website’s newsletter to get informed about all your decorating needs. You go to click out of the pop-up, only to find that the decline text reads “No, I hate good décor.”

What you’ve just encountered is called a manipulink, and it’s designed to drive engagement by making the user feel bad for doing certain actions. Manipulinks can undermine user trust and are often part of other dark patterns that try to trick users into doing something that they wouldn’t otherwise want to do.

While these practices can undermine user trust and hurt brand loyalty over time, the ethical problems of manipulinks go beyond making the user feel bad and hurting the company’s bottom line.

The core problem is that the user is being manipulated in a way that is morally suspect. But is all user manipulation bad? And what are the core ethical problems that manipulinks raise?

To answer these questions, I will draw on Marcia Baron’s view of manipulation, which lays out different kinds of manipulation and identifies when manipulation is morally problematic. Not all manipulation is bad, but when manipulation goes wrong, it can reflect “either a failure to view others as rational beings, or an impatience over the nuisance of having to treat them as rational – and as equals.”

On Baron’s view, there are roughly three types of manipulation.

Type 1 involves lying to or otherwise deceiving the person being manipulated. The manipulator will often try to hide the fact that they are lying. For example, a website might try to conceal the fact that, by purchasing an item and failing to remove a discount, the user is also signing up for a subscription service that will cost them more over time.

Type 2 manipulation tries to pressure the person being manipulated into doing what the manipulator wants, often transparently. This kind of manipulation could be achieved by providing an incentive that is hard to resist, threatening to do something like ending a friendship, inducing guilt trips or other emotional reactions, or wearing others down through complaining or other means.

Our initial example seems to be an instance of this kind, as the decline text is meant to make the user feel guilty or uncomfortable with clicking the link, even though that emotion isn’t warranted. If the same website or app were to have continual pop-ups that required the user to click out of them until they subscribed or paid money to the website, that could also count as a kind of pressuring or an attempt to wear the user down (I’m looking at you, Candy Crush).

Type 3 manipulation involves trying to get the person to reconceptualize something by emphasizing certain things and de-emphasizing others to serve the manipulator’s ends. This kind of manipulation wants the person being manipulated to see something in a different light.

For example, the manipulink text that reads “No, I hate good décor” tries to get the user to see their action of declining the newsletter as an action that declines good taste as well. Or, a website might mess with text size, so that the sale price is emphasized and the shipping cost is deemphasized to get the user to think about what a deal they are getting. As both examples show, the different types of manipulation can intersect with each other—the first a mix of Types 2 and 3, the second a mix of Types 1 and 3.

These different kinds of manipulation do not have to be intentional. Sometimes user manipulation may just be a product of bad design, perhaps because there were unintentional consequences of a design that was supposed to accomplish another function or perhaps because someone configured a page incorrectly.

But often these strategies of manipulation occur across different aspects of a platform in a concerted effort to get users to do what the manipulator wants. In the worst cases, the users are being used.

In these worst-case scenarios, the problem seems to be exactly as Baron describes, as the users are not treated as rational beings with the ability to make informed choices but instead as fodder for increased metrics, whether that be increased sales, clicks, loyalty program signups, or otherwise. We can contrast this with a more ethical model that places the user’s needs and autonomy first and then constructs a platform that will best serve those needs. Instead of tricking or pressuring the user to increase brand metrics, designers will try to meet user needs first, which if done well, will naturally drive engagement.

What is interesting about this user-first approach is that it does not necessarily reduce to considerations of autonomy.

A user’s interests and needs can’t be collapsed into the ability to make any choices on the platform that they want without interference. Sometimes it might be good to manipulate the user for their own good.

For example, a website might prompt a user to think twice before posting something mean to prevent widespread bullying. Even though this pop-up inhibits the user’s initial choice and nudges them to do something different, it is intended to act in the best interest of both the user posting and the other users who might encounter that post. This tactic seems to fall into the third type of manipulation, or getting the person to reconceptualize, and it is a good example of manipulation that helps the user and appears to be morally good.

Of course, paternalism in the interest of the user can go too far in removing user choice, but limited manipulation that helps the user to make the decisions that they will ultimately be happy with seems to be a good thing. One way that companies can avoid problematic paternalism is by involving users at different stages of the design process to ensure that user needs are being met. What is important here is to treat users as co-deliberators in the process of developing platforms to best meet user needs, taking all users into account.

If the user finds that they are being carefully thought about and considered in a way that takes their interests into account, they will return that goodwill in kind. This is not just good business practice; it is good ethical practice.

Faramir’s Insight

photograph of Lord of the Rings book atop Middle-Earth map

When I last reread J.R.R. Tolkien’s Lord of the Rings trilogy, one line in particular stood out to me. It was something that Faramir says when talking with Frodo about whether to abandon Gollum. I’ll quote the line in context:

‘Frodo, I think you do very unwisely in this,’ said Faramir. ‘I do not think you should go with this creature. It is wicked.’

‘No, not altogether wicked,’ said Frodo.

‘Not wholly, perhaps,’ said Faramir; ‘but malice eats it like a canker, and the evil is growing. He will lead you to no good. If you will part with him, I will give him safe-conduct and guidance to any point on the borders of Gondor that he may name.’

‘He would not take it,’ said Frodo. ‘He would follow after me as he long has done. And I have promised many times to take him under my protection and to go where he led. You would not ask me to break faith with him?’

‘No,’ said Faramir. ‘But my heart would. For it seems less evil to counsel another man to break troth than to do so oneself, especially if one sees a friend bound unwitting to his own harm.

The last line rings true to my experience. It is one thing for me to take on a sacrifice to do what is right. It is another thing entirely to advise someone else to make that sacrifice.

It is easy to be frugal about stuff I buy for myself. Harder to be frugal about stuff I buy for my wife. Why? Because it is harder to ask someone else to sacrifice to do the right thing. I would never spend much money on jewelry for myself. And yet I felt tempted to spend too much money on an engagement ring for my wife. (Fortunately, my wife is as frugal as I am, and so independently insisted on a cheap $50 engagement/wedding ring.)

I want to talk about this phenomenon of expecting less of others than we expect of ourselves. I want to talk about it, because it first appears as almost noble. But the more I’ve thought about it, the more convinced I’ve become that it is actually a vice. It involves a neglected failure of character, a failure to take seriously the moral personality of others.

To see this, let’s consider possible explanations of the phenomenon. Two I’m sure are wrong, and three that might be right.

Wrong Hypothesis 1: Different Obligations

One possible explanation is that I really think my moral obligations are stricter than the obligations of others. Faramir thinks it would really be wrong for him to break his promise to Gollum, but that it would not be wrong for Frodo to do the same.

While I’m sure this sometimes happens, it does not explain the phenomenon I’m trying to understand.   The difference I’m responding to is not one of ‘weaker’ vs. ‘stronger’ but rather me vs. other. I will hold my close friends to higher standards than strangers, even if I think the strangers are better people. Likewise I am willing to hold myself to a higher standard than my close friends, even though I know many of my close friends are more virtuous than me.

Wrong Hypothesis 2: Selflessness

So could it be selflessness? Could it be that I just care more about the sacrifices of others than I do about my own sacrifices?

Perhaps this occurs for some people, but it is not the explanation in my case. For one thing, I’m not nearly that selfless. I spend far more time working on my own job applications than helping friends with their applications. Why? Because I selfishly care about my own future more than the future of my friends.

For another thing, the closer I am to someone the more, not the less, willing I am to ask them to sacrifice. If a stranger asks me for advice, I’m very unlikely to tell them to make the radical sacrifice. But the closer a friend, the more comfortable I am to ask of them sacrifice. As I will argue below, this is because the closer a friend, the more deeply I appreciate their moral personhood.

Possible Hypothesis 1: Moral Uncertainty

One possible explanation is that the hesitancy follows our moral uncertainty combined with a fear of responsibility.

Suppose someone held a gun to my head and told me to renounce Christianity. I’d like to think I’d have the courage to die rather than commit apostasy – that is, the abandonment of my personal beliefs. (After all, I believe that to commit apostasy is one of the worst things a human can do.) But the thing is, I’m not sure it’s really that bad. After all, I was being coerced. Everyone would be able to tell I don’t really mean it. So is it really committing apostasy? Or is it instead just playacting to pacify the criminal?

Those replies ring hollow when I imagine facing the situation myself. But they ring less hollow when I imagine a friend facing a similar situation. If a friend asked me what to do, I’d be much more tempted to tell them to “just say what the person wants to hear, you don’t have to mean it.” If a friend felt guilty about committing apostasy in such a situation, I’d be tempted to tell them not to feel bad, they didn’t do anything wrong.

The uncertainties loom larger when I consider a friend making the sacrifice. But not only then. They also loom larger when I consider making the choice myself but sacrificing another. These same worries would ring less hollow if someone held a gun to another person’s head and told me to commit apostasy. The significance of my uncertainty is magnified when others are at risk, because if someone else dies as a result of my choice, it’s not just sad but a moral tragedy. It’s not similarly a moral tragedy if I die as a consequence of my own choice. It’s sad if I die while trying to free climb a mountain, but it’s not a moral tragedy. It’s a moral tragedy if I kill someone else after taking a risk. Ultimately, I don’t want to give advice to others, because if I’m wrong I’ll feel responsible for that choice.

If this explanation is right, then the phenomenon is vicious. It denies the moral personality of others. I’m failing to recognize that the choice is still up to the other person, even when I advise them what I think is right.

This is easiest to see if we think of ourselves as the one getting advice. If I ask for the advice of someone else, I recognize it is still up to me whether to listen. It is myself, not them, who is ultimately responsible for the choice. As such, I don’t want the other person managing me with their advice in order to assuage their own conscience. Rather, I want them to be honest so that I can fully take responsibility for my own choice.

But if I’d want others to be honest with me so that I can make my own choice. Then, if I fully appreciated the moral personality of others, I’d not be tempted to be dishonest with them in order to shield myself from responsibility.

Possible Hypothesis 2: Shared Values

My wife’s theory is that the phenomenon is explained by the role of shared values in moral advice. The more someone shares your values, the more appropriate it is for them to act on your advice. You share perfectly your own values, you share extensively your close friend’s values, But you only partially share the values of a stranger. So, if moral testimony involves giving advice in light of shared values, then the more uncertain you are that values are shared, the less certain you are whether to recommend sacrifice.

Of all the plausible explanations of the phenomenon, this one looks closest to being noble. But even here I think there is something vicious about the phenomenon. If you believe the person is under the same moral obligation, but that they don’t share your values, to that extent you must think their values are mistaken. But if they are mistaken, and if you take seriously their moral personality, that gives you reason to explain as best you can the value you see in the sacrifice. It does not, if you take the moral personality of another seriously, give you reason to shrug your shoulders and consign them to vice. That would be to treat them as a moral lost cause.

Possible Hypothesis 3: Inside/Outside Tension

A final explanation of the phenomenon is that it is explained by a tension between the deliberative and external perspectives on action.

When you deliberate about your acts, you look at them from the inside. Because human death is a terrible thing, you recognize it would be terrible to kill one human to save three. You can tell, from the inside, that it would be wrong to kill someone even to save more lives.

But we can also take the external perspective. We can see, not a choice to kill, but rather a choice between two outcomes. It is not a choice to kill, but rather a choice between one killing and three deaths. And from that external perspective, we recognize that one killing is not worse than three deaths.

The force of moral constraints only emerges inside the deliberative perspective. They don’t appear when you look merely at the outside comparison of results. And this may explain our phenomenon: From the deliberative perspective, Faramir can see that it is an evil thing to break a promise. But from the outside perspective, a broken promise is far less evil than Frodo’s death and betrayal.

Once again the phenomenon would reveal an inability to appreciate the moral personality of others. It stems from a failure to see the other as a deliberating person, it instead looks at them merely from the outside as a sort of object. The phenomenon emerges when you look at a person, rather than when you look vicariously with a person at the choice they face.

I’m not sure which explanation is right. But I’m inclined to think all three plausible explanations reveal just how far I have to go before I really appreciate the full personhood of others.

Parents’ Rights and Public Education

There’s been no shortage of post-mortems detailing Terry McAuliffe’s defeat at the hands of Glenn Youngkin in Tuesday night’s gubernatorial contest. Most accounts target one issue in particular: education. They point to school lockdowns and curriculum complaints as having sealed McAuliffe’s political fate. More specifically, it was McAuliffe’s declaration that “I don’t think parents should be telling schools what they should teach” that was responsible for driving away white, suburban moms and flipping the state from blue to red. In the end, the governor’s race in Virginia was decided by a single concern: parents’ rights.

However true this tale may or may not be, it seems vital to investigate our convictions regarding paternalism, autonomy, and the conflict between state interests and parents’ rights. How far should these rights extend? What function does the state serve in providing public education? And who should get the final say over school curricula? While the story’s already been written, we should take a moment to consider whether McAuliffe’s remark really was the obvious gaffe it’s been made out to be.

Certainly there’s always been a presumption in favor of familial discretion; it’s commonly held that households should be free to handle their own affairs. Consider, for example, Wisconsin v. Yoder. State law mandated that all children attend public school until age 16. But three different Amish families challenged the state’s right to compel attendance. They argued that compulsory education precluded their children from meaningful participation in their religious faith. High school instruction only interfered with these young adults’ religious development and integration into communal culture. Ultimately, exposure to the alternative values and worldviews preached in secondary school constituted a threat to the Amish way of life. Whatever worldly knowledge they might be taught at school paled in comparison to the vocational training they would receive at home.

In a unanimous decision (7-0), the Supreme Court found that these families’ right to freedom of religion outweighed the state’s interest in seeing their children educated. While “some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system,” that imperative cannot justify trampling on other constitutional rights and liberties. This is true especially when a different, but commensurate, education remains on offer. As Chief Justice Burger explained,

The State’s claim that it is empowered, as parens patriae (parent of the people), to extend the benefit of secondary education to children regardless of the wishes of their parents cannot be sustained […], for the Amish have introduced convincing evidence that […] forgoing one or two additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society.

On its face, the court’s decision in Yoder might seem to provide absolute license for parents to dictate all aspects of their child’s education. Contrary to McAullife’s insistence that parents butt out, Yoder seems to suggest that the buck stops with them.

In reality, however, the ruling is much more limited than it might first appear. First, it only applies to cases where public education runs up against very specific First Amendment religious protections. Second, much of the ruling hinges on the Amish’s unique way of life. As Burger notes,

It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when its goal is the preparation of the child for life in modern society as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith.

Given the unique (and especially isolated) way of life the Amish practice, it’s easier to explain how these students’ withdrawal from public school wouldn’t “materially detract from the welfare of society.”

Still, we shouldn’t make assumptions about the inevitable shape a developing child’s life will take. Justice White was quick to point out that while it’s more than likely that an Amish child “will wish to continue living the rural life of their parents,” others “may wish to become nuclear physicists, ballet dancers, computer programmers, or historians, and for these occupations, formal training will be necessary.” As such, the state has a crucial role to play in helping “prepare them for the lifestyle that they may later choose, or at least to provide them with an option other than the life they have led in the past.”

But if this is so central to the purpose of public schooling, why let these students opt-out? The court decided that the difference between an eighth grade education and a tenth grade education was so slight that the state couldn’t justify interfering with the families’ (but, more importantly, the children’s) religiously-informed convictions.

This finding, then, is much more limited than what parents’ rights advocates would have us believe. There is no broad license granted. There exists no basis for parents’ expansive and inviolable rights. There is no precedent in favor of parents picking and choosing which educational line items to approve and which to discard. Growth and development are stunted in insular settings; learning is about confronting the unfamiliar. Our commitment to consumer choice and rugged individualism blinds us to the role the village plays in raising our child, but that doesn’t make the proverb any less true.

Apart from the obvious practical problems with imbuing every parent with a veto right over school curricula, the belief that parents are best-positioned to judge the educational merits of scholastic programs disrespects the expertise of educators. There’s reason to doubt that parents possess innate knowledge of the intellectual and psychological needs of students better than teachers.

Ultimately, the battle cry of “parents’ rights!” fails to appreciate the person whose interests are actually at stake in these confrontations: children. Parents merely act as stewards of a child’s future until that youth herself becomes capable of exercising an autonomous will. While we often defer to parents because we think that mother or father might know best, this should not be confused with universal permission; there are very real limits to freedom parents can exercise in determining what’s best for their child. Despite often acting as guardians of their child’s individual interests, there are all sorts of issues where we do not grant parents final say. We limit parental authority to refuse medical treatment for their child, school children are required to have MMR vaccinations, and most states set homeschooling requirements regarding assessment, parents’ qualifications, and curriculum approval. Why? Because the state is obligated to protect vulnerable populations who cannot defend (or even express) their interests. It must oppose parental choices which threaten to constrain children’s future options or inhibit their growth and development. State intervention isn’t about reducing parents’ freedom but ensuring its future conditions for the child. (Consider the battle being waged over sex education in schools.)

In the end, we must recognize that public schools don’t operate to serve parents’ whims; they exist to ensure that children have the necessary tools to develop into fully autonomous adults. Certainly, parents enjoy the ability to impact their child’s education through electing school board representatives, voicing their opinions, and supplementing their child’s education, but they don’t have the right to demand that school curricula accommodate their personal worldviews and private desires. While there are legitimate causes and complaints, a ban on Toni Morrison’s Beloved cannot qualify.

COVID Vaccines and Primary Care

photograph of elderly man masked in waiting room

Dr. Jason Valentine, a general practitioner in Alabama, has decided to no longer treat unvaccinated patients. Starting October 1st, that is. At the beginning of August, Valentine’s clinic made the announcement, clarifying that his personal rule applied to both current patients and new patients. So long as you are unvaccinated, Dr. Valentine will not be seeing you. When asked why he was choosing not to treat unvaccinated patients, Valentine said “COVID is a miserable way to die and I can’t watch them die like that.” In Alabama, the state with the highest number of new COVID cases per day, such a sentiment is understandable. But is it ethical?

As most people know, doctors are bound by a creed called the Hippocratic Oath. The name of this oath comes from the historical figure of Hippocrates, a fifth century Greek physician, to whom the oath is traditionally attributed (although he was likely not the original author). The Hippocratic oath is the earliest-known source of many central idea of medical ethics that we still hold to today: e.g., the patient’s right to privacy, the obligation of the physician to not discriminate between the poor and the rich, and, most famously, the pledge to do no harm.

Doctors today continue to take a version of the Hippocratic Oath, though the oath has undergone major alterations in the past 2500 years. Still, the pledge to “do no [intentional] harm” remains. Major debates have been carried out historically over what exactly falls under the pledge to “do no harm” — that is, under what conditions are doctors guilty of breaking their oaths? More specifically, is Dr. Valentine breaking the Hippocratic Oath by refusing to see unvaccinated patients?

One argument for thinking that Valentine is breaking his oath is that refusing to see unvaccinated patients constitutes an illegitimate act of medical discrimination. Medical doctors have, historically, been stoically determined to ignore unpalatable particulars about the individuals they were treating. For example, during the Civil War, doctors in both the Union and the Confederate armies treated soldiers injured on the battlefield, regardless of their allegiance (excluding, sadly, Black soldiers on either side). During the second World War, British surgeons operated on Nazi prisoners of war, in many cases saving their lives. Under the Geneva convention, doctors are bound to treat soldiers from their army and enemy soldiers impartially — enemy soldiers are not to receive worse treatment or a lower medical priority because of their military allegiance. Surely, then, if the Geneva convention would forbid a doctor to refuse to see patients who were Nazis, it would prevent doctors from refusing to treat patients who had not received a vaccination for a dangerous and highly-contagious disease?

But there is legal precedent that complicates this verdict, as well. Specifically, doctors are allowed to, and do frequently, refuse to see children who have not received their recommended childhood vaccines and do not have a medical reason barring them from receiving vaccines. Reasons for these policies often include considerations of the extreme vulnerability of other patients that the voluntarily-unvaccinated may encounter in the office, including young children who are immunocompromised and babies who have not yet received all of their vaccines. Another consideration is that many childhood vaccines prevent infection from nearly eradicated diseases like the measles. When children are not vaccinated against these illnesses, breakthrough cases stand a higher chance of spreading, thereby resurrecting an almost defeated enemy.

For these reasons, one may be inclined to praise the doctor’s choice. Surely, if people are barred from seeing their general practitioner, this might motivate the unvaccinated to receive the vaccination, and undo some of the damage done by rampant misinformation regarding vaccine safety and efficacy. However, consider a (hypothetical) doctor who refused to treat patients who drank too much alcohol, or refused to exercise. In these cases, doctors would surely be seen as refusing to do their primary job: assuring the health of their patients to the best of their (possibly limited) abilities. Some philosophers, like Cass Sunstein, refer to actions and laws like these as “paternalism”: acts of mild coercion for the sake of protecting the coerced, are sometimes seen as acceptable — seatbelt laws and cigarette taxes are commonly-accepted paternalistic laws aimed at mildly coercing safer behavior. But when the coercion becomes harmful, or potentially harmful, these measures are generally seen as morally impermissible. For example, holding someone at gunpoint until they throw away all of their cigarettes may be incredibly effective, and maybe even good for the smoker in the long-run, but is surely morally wrong if anything is. The difference between paternalistic measures and harmful coercion is usually understood as a difference in potential harm and a difference in the degree of autonomy the coerced maintains. When laws increase the tax in cigarettes, smokers may be mildly financially harmed, but this generally will not amount to anything financially destructive. Generally, they retain the choice between either taking on a small additional financial burden or giving up smoking. In the gun-to-the-head case, the smoker no longer (meaningfully) retains a free choice. She must give up smoking or face her own death. Anything less than compliance, in this case, results in the most extreme kind of harm.

Clearly there will be many instances of coercive measures that fall somewhere between these two extremes. This raises a tough question for Dr. Valentine: does refusing to treat voluntarily unvaccinated patients constitute a case of permissible paternalism, or impermissible harmful coercion? One reason for thinking that such a decision may not result in real harm is the abundance of options of doctors that most people have access to. Surely needing to switch primary care doctors is merely an inconvenience, and not a significant harm. However, there are factors complicating this. Many people have insurance plans that severely limit what doctors they can see. Additionally, if Valentine is allowed to refuse unvaccinated patients, there is nothing stopping all of the doctors in his area from taking on the same rule. Someone may be effectively denied all medical care, then, if all local doctors decide to take up a similar rule. An inability to access a primary care doctor seems like a more severe harm than the instances of mild coercion in the cases of paternalistic cigarette tax laws.

There is no easy ethical analysis to give to Dr. Valentine’s decision. While we can surely sympathize with the protocol, and hope it leads to increased vaccination rates, we do not want large swaths of the general public living without a primary care doctor. Like many other aspects of COVID-19, ethicists here have their work cut out for them mapping brand new territory.

The DOJ vs. NACAC: Autonomy and Paternalism in Higher Ed

black and white photograph of graduation

Last month, the National Association for College Admission Counseling (NACAC) voted to remove three provisions from their Code of Ethics and Professional Practices. These changes will now allow schools to offer early-decisions applicants special considerations like priority housing and advanced course registration. Schools are also now allowed to “poach” students already committed to other institutions. And, finally, the May 1st National Candidates’ Reply deadline will no longer mark the end of the admissions process, as schools can continue to recruit into the summer. Together, these changes threaten to drastically alter the college recruitment landscape, and it’s unclear whether those changes will be positive or even who the beneficiaries might be.

NACAC’s move to strike these provisions was motivated by a two-year inquiry by the Department of Justice into antitrust claims. The prohibition on universities offering incentives to early-decision students and wooing already-committed recruits was deemed anti-competitive and a restraint of trade. NACAC was given a straightforward ultimatum: strike the provisions or engage in a legal battle whose only likely outcome would be being dissolved by court order.

As Jim Jump suggests, the DOJ appears to see NACAC as a “cartel” — coordinating behavior, fixing prices, and cooperating so as to insulate themselves from risk. From the DOJ’s point of view, NACAC is merely acting in the best interests of institutions, and prevents students from getting the best economic deal possible on their education. By prohibiting certain kinds of recruiting and incentives, NACAC limits competition between institutions for the industry’s gain and students’ loss.

The DOJ’s perspective is purely economic: The price of attending college has been increasing eight times faster than wages. Demand for education is at an all-time high, the need for student services is ever-increasing, and state-funding hasn’t been responsive to growing student numbers and institutions’ swelling size. Rather than increase government subsidy of higher education, the hope is that increasing competition between providers may drive costs down for consumers. The DOJ’s position is simple: “when colleges have to compete more openly, students will benefit.”

In response to these allegations, NACAC supporters claim that the rules are designed to safeguard students’ autonomy. By prohibiting institutions from poaching or offering better early-decision incentives, NACAC’s provisions shield impressionable high-schoolers from manipulation and coercion. Should colleges be permitted to offer priority housing or advanced course registration to early applicants, over-stressed teenagers will only be more likely to make their college choices prematurely. Should universities be allowed to court newly-matriculated students only just adjusting to college life, susceptible youths will always be swayed by the promise of greener pastures. In the end, these paternalistic measures are intended merely to preserve the possibility of effective student agency.

But, to many, treating prospective college students as vulnerable on the one hand, and competent and self-sufficient on the other, seems disingenuous. The average student debt is $38,000; if applicants are old enough to incur such large financial burdens, then surely they are old enough to navigate the difficult choices between competing financial and educational offers. As consumers of such high-priced and valuable goods, it should not be within others’ purview to doubt the truth, rationality, or sincerity of prospective students’ expressed preferences.

What the DOJ ruling may be missing, however, is the particular value for sale that makes the marketplace for colleges unique. As DePauw’s Vice President for Enrollment Management, Robert Andrews, argues, “There are real drawbacks to making your educational decisions like you would make your purchasing decisions around less-intricate commodities.” By reducing a college education to a simple dollar amount, we ignore the larger value a college education and the formative role it can play in students’ lives. It’s difficult to accurately assess in retrospect, (and certainly predict beforehand,) the meaning “an undergraduate education and the developmental experiences that occur when 18-22 year-olds live and learn on a college campus” will have, as well as all the factors that made that experience possible. As such, relative cost should perhaps not be billed as the crucial factor. Unfortunately, Andrews argues, striking these NACAC guidelines, prioritizes the wrong thing:

“Students may be enticed by larger scholarship and financial aid packages and choose a school they had previously ruled out for very valid reasons, (i.e. size, academic offerings, availability of student services, etc.) thus putting their successful educational experience in serious jeopardy. Will saving $5,000 more per year mean anything if it takes a student 5-6 years to graduate when they could have made it out in 4 at the “previous” institution?”

At bottom, the disagreement between the DOJ and NACAC centers on whether consumers know best their own interests. In particular, the question is whether NACAC is better-positioned to anticipate students’ needs than the students themselves. Folk wisdom claims that “You cannot harm someone by giving them an option,” and we must decide whether prospective college students represent a vulnerable population that needs to be protected from choice. Is the very possibility of new financial and educational incentives enough to undermine and override students’ true preferences? Does a policy of general prohibition on financial incentives support or frustrate those core preferences?

As of yet, whether the removal of NACAC’s guidelines will deliver positive or negative consequences for students, institutions, and higher education in general can’t be seen. Prophecies are in no short supply, and college administrators are desperately trying to anticipate how the new “Wild West” will play out.

When Your Will Is Not Enough: Ethical Restrictions on Entering into Agreements

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A 43-year-old with a deadly skin cancer is asking doctors to use the recent developments in CRISPR to experiment with treatments that may help him as well as advance medical understanding. Malakkar Vohryzek is offering to be a test subject, contacting a number of researchers and doctors asking if they would be interested in modifying his genetic code. Such treatment falls well outside approved parameters for human exposure to risk with the gene-editing technology, but the potential patient seems to be providing straightforward consent. In medicine and law, however, consent is often not enough. Currently the international scientific community remains critical of researchers in China that edited the genes of twin children last year, saying that such interference was premature and that the understanding of CRISPR and the impact on human subjects was not advanced enough for such research (for discussion see A.G. Holdier’s “Lulu and Nana: The Surprise of Genetically-Modified Humans”). Vohrysek’s case is interesting, though, because with a terminal illness and clearly expressed desire, why stick to standards that aim to promote and protect a subject’s welfare? If Vohrysek is willing to risk his health (what is left of it given his illness), why should doctors and researchers hesitate to proceed?

The ethics surrounding agreements or contracts incorporate a number of dimensions of our agency and the way we relate to one another. These standards attempt to take seriously the import of being able to direct one’s own life and the significance of the harm of manipulating the lives of others.

Paternalism is the term used to describe efforts to promote others’ best interests when those actions run counter to their expressed wishes. In such cases, someone believes that if a person’s will were effective, it wouldn’t promote what is in their best interests, and therefore interference is justified. The standard case of paternalism is that of a parent who overrules the will of a child. Say, for example, a 5-year-old wants ice cream for dinner but a parent disregards this preference and instead makes the child eat a nutritious meal believing that this will be better for the child. Typically, we think parents are morally justified in disregarding the child’s expressed preferences in circumstances like these. But when, and under what circumstances, paternalism can be justified outside of these clear-cut parent-child cases is much less clear. In Vorysek’s case, there is something paternalistic about not prioritizing the autonomous choice he is communicating. In general, regulatory standards are meant to promote subjects’ welfare and interests, but Vorysek isn’t a child, so what countervailing reasons apply here?

One class of cases where paternalistic interference is typically considered justified is where there isn’t a clear of expression of an agent’s will to interfere with in the first place. We may interpret the parent-child case in this way: a child hasn’t developed their full autonomous capabilities, therefore superseding their expressions of will when it runs counter to their best interests doesn’t seem as problematic as thwarting the will of a fully autonomous, mature adult. Vorysek, and other patients facing terminal prognoses who knowingly choose to expose themselves to risk, seem to be in a different class than those whose illness or condition of life diminishes their autonomy.

One barrier to truly just agreements is an unethical power dynamic founded on asymmetric information. For instance, if one party uses legal understanding and jargon to obscure the stakes and conditions of an agreement so that the other party can’t fully weigh the possible outcomes that they are agreeing to, this is intuitively not a fair case of agreement. These concerns are relevant in many legal contracts, for instance in end-user license agreements that consumers accept in order to use apps and software.

Another arena where there is often an asymmetry of technical understanding is in physician-patient exchanges (for discussion see Tucker Sechrest’s “The Inherent Conflict in Informed Consent”). In order to get informed consent from patients, physicians must communicate effectively about diagnoses, potential treatment options, as well as their outcomes and likely effects to patients who frequently do not have the breadth of understanding that the physician possesses. If a doctor does not ensure that the patient comprehends the stakes of the treatment choices, the patient may enter into agreements that do not reflect their priorities, preferences, and values. This asymmetric understanding is also the ethically problematic dimension of predatory lending, “the practice of a lender deceptively convincing borrowers to agree to unfair and abusive loan terms, or systematically violating those terms in ways that make it difficult for the borrower to defend against.”

But there remain further ethical considerations even when mutual understanding can be assured. It’s true that only when both parties to an agreement have a full grasp of the stakes and possible outcomes of the agreement is there the potential for each to weigh this information against their preferences, priorities, and values in order to determine whether the agreement is right for them. However, this doesn’t exhaust all ethical dimensions of making agreements. We could imagine that the 43-year-old patient seeking un-approved CRISPR treatments to be in such a position he might understand the risks and not be mistaken about how the facts of the matter relate to his particular values, preferences, and priorities. What ethical reservations are left?

Exploitation refers to a type of advantage-taking that is ethically problematic. Consider a case where an individual with little money is offered $500 in exchange for taking part in medical research. It could be the case that this is the “right” choice for them the $500 is sorely needed, say to maintain access to shelter and food, and the risk involved in the medical research is processed and understood clearly and the person determines that shelter and food outweigh the risk. In such cases, the ethical issue isn’t that a person may be entering agreements without understanding or against their best interests. Indeed, this individual is making the best choice in their circumstances. However, the structure of the choice itself may be problematic. The financial incentive for taking on unknown risk of bodily harm is a thorny ethical question in bioethics because of the potential exploitative relationship it sets up. When financial incentives are in place, the disadvantaged portion of a population will bear the brunt of the risk of medical research.

In order to avoid exploitation, there are regulatory standards for the kinds of exchanges that are permissible for exposing one’s body to risk of unknown harm, as in medical research. There are high standards for such research in terms of likelihood of scientific validity – the hypothesized outcome can’t just be an informed “guess,” for instance. Vorysek likely won’t find a researcher to agree to run experiments on him for fear that terminal patients, in general, will become vulnerable to experimentation. As a practice, this may be ethically problematic because patients are a vulnerable population and this vulnerability may be exploited the ethical constraint on agreements can be a concern even when making the agreement may be both in the individual’s best interest and satisfying their will.

This, of course, leads to tensions and controversy. Should Vorysek and others in similar positions be able to use their tenuous prognosis for scientific gain? “If I die of melanoma, it won’t help anyone,” he said. “If I die because of an experimental treatment, it will at least help science.”

The Inherent Conflict in Informed Consent

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A recent study has drawn attention to the relatively poor medical reasoning capabilities of terminally-ill patients. When confronted with complicating factors, a group of terminal cancer patients demonstrated decreased appreciation and understanding of their prognosis in comparison to their healthy adult counterparts. More concerning, perhaps, is the study’s finding that attending physicians were not consistent in recognizing these deficiencies in competence. Ultimately, the study supports mounting evidence that the bright line we draw to separate individual autonomy from institutional paternalism is too simplistic. Patient competence is overestimated and physicians’ impact is underappreciated. These findings have important implications for our conceptualization of informed consent.

Informed consent is a process, made up of the many communications between a doctor and a patient (or clinical investigator and research participant). Details regarding the purpose, benefits, and risks of, as well as alternatives to, a given treatment are relayed so as to enable potential clients to deliberate and decide whether the medical intervention offered aligns with their interests. As a patient has all the freedom to decide what should or should not happen to her body prior to undergoing a clinical trial or medical procedure, the decision is to be made free from coercion; the doctor acts so as to facilitate patient decision-making. Achieving this requires adequate, accurate information be provided in terms the patient can easily understand.

Legally, informed consent represents a basic threshold of competency that a patient must be assisted in meeting in order to legally acquiesce to a medical procedure. It exists to safeguard bodily integrity — the right of self-determination over our bodies. It grants legal permission and protects healthcare providers from liability.

Morally, informed consent is a compromise between epistemic merits and welfare interests. Informed consent balances doctors’ medical expertise against patients’ unique knowledge of their preferences. While physicians might know best how to treat injury and combat afflictions, they are less equipped to make determinations about the kind of risks a patient is willing to take or the value she might place on different health outcomes. As patients must live with the consequences of whatever decision is made, we tend to privilege patient autonomy. Once properly informed, we believe that the patient is best-positioned to determine the most suitable course of treatment.

The trouble, as studies like this show, is that patients are not the autonomous healthcare consumers we assume them to be. They are often dependent on the doctor’s expertise and medical advice as many suffer from some combination of informational overload and emotional overwhelm. Patients’ weak grasp of their medical prognosis is offset only by the trust they have in their physician and a general deference to authority.

This means that informed consent is, in many cases, simply not possible. Patients who are very young, very ill, mentally impaired, or even merely confused are not capable of demonstrating sufficient competence or granting meaningful permission. Unfortunately, patient literacy is overestimated, communication barriers go undetected, and patient misunderstanding and noncompliance continues. Findings suggest that thorough assessment of patient competence is rare, and patients’ comprehension is questioned only in those cases where a patient’s decision deviates from the physician’s recommendations.

An increased focus on patient education may not be enough to combat these problems. Efforts to present information in a more accessible manner may bring some improvement, but there are many medical situations where the sheer complexity or volume of the information involved outstrips the decision-making capacity of everyday patients. Some types of medical information, like risk assessments, use probability estimates that would require formal training to fully appreciate and thus overburden patients’ capacity to adequately comprehend and reasonably deliberate. In such cases, no amount of dialogue would allow a patient to attain the understanding necessary for informed decision-making.

In the end, the possibility of an equitable doctor/patient consultation is rarely a reality. As Oonagh Corrigan explains,

“There needs to be a realisation that the type of illness a patient is suffering from, her anxiety about the likely trajectory of her illness, her expectations about treatment and, in general, her implicit trust in the doctor and medical science mean that ‘informed choices’ based on an adequate understanding of the information and on careful consideration of the potential benefits and risks, are difficult to achieve in practice.”

We cannot maintain our idealistic divide between autonomous decision‐making on the one hand, and autocratic paternalism on the other. From framing effects to geographic bias, a physician is bound to have a greater hand in decision-making than our common conception of the dynamic allows.

Some may say that this liberty is sufficiently curtailed by the Hippocratic Oath. A doctor’s duty to the health of a patient is thought to limit the possibility of abuse. But the physician’s obligation to do no harm offers little guidance on the ground. The duties of nonmaleficence and beneficence share no necessary tie to the particular social and cultural values of patients. They would, for example, recommend the administering of blood transfusions to patients whose deeply-held religious beliefs disallow it.

Finding a suitable middle ground between individual autonomy and institutional paternalism is particularly tricky. The territory of informed consent is already a political battleground. One need look no further than the dispute concerning mandatory pre-abortion counseling or talk therapy for transgender patients. While we may wish physicians to take a larger role in the care of those who genuinely lack capacity, this would inevitably lead to the silencing of legitimate interests. Any acceptable resolution of this tension is bound to be hard-won.