Posted by Eugene Volokh:
Scientific Fundamentalism:
http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1118781169
At the end of an otherwise quite interesting [1]Slate piece, which
discusses the potential development of a "consciometer" -- a medical
device for measuring consciousness -- the author shifts from science
to law and morality (paragraph break added):
As leading neuroscientist Michael Gazzaniga . . . describes . . .,
current neurology suggests that a fetus doesn't possess enough
neural structure to harbor consciousness until about 26 weeks, when
it first seems to react to pain. Before that, the fetal neural
structure is about as sophisticated as that of a sea slug and its
EEG as flat and unorganized as that of someone brain-dead.
The consciometer may not put the abortion issue to rest -- given
the deeply held religious and moral views on all sides, it's hard
to imagine that anything could. But by adding a definitive
neurophysiological marker to the historical and secular precedents
allowing abortion in the first two-thirds of pregnancy, it may
greatly buttress the status quo or even slightly push back the
23-week boundary.
There is another possibility. The implications of the consciometer
could create a backlash that displaces science as the legal arbiter
of when life ends and begins. Such a shift -- a rejection of
science not because it is vague but because it is exact -- would be
a strange development, running counter to the American legal
tradition. Should a fundamentalist view of life trump rationalist
legal philosophy? Roe v. Wade considered this question explicitly
and answered no. For nonfundamentalists, that probably still seems
right.
This is a deep error; and it can be called "scientific fundamentalism"
because of its tendency (similar to that in the most unpersuasive
versions of religious fundamentalism) to assume that If It Isn't In
[Science / The Bible / The Koran], It Doesn't Matter.
What rule we should use for deciding when someone should have the
legal right not to be killed is not a scientific question. Applying
the rule may be a scientific question; if we decide that only entities
that have consciousness have the right not to be killed, then science
can tell us whether John Smith has consciousness. But deciding on the
rule is simply not a scientific issue: It's a matter of moral
judgment, which science isn't equipped to provide. Science can't tell
us whether the legal right not to be killed vests at conception, at
viability, at consciousness, or at birth; nor can it tell us when the
right dissipates.
Let's take a simple hypothetical, which I hope can persuade even
people who feel a deep intuition that the right to be killed is
closely connected to consciousness. Say it turns out that there's a
disease that temporarily caused someone to lose consciousness -- not
just in the sense of sleeping or getting knocked out, but in the sense
of mental functioning largely ceasing -- but there was every reason to
think that in several months the person would regain consciousness.
Would it be OK to kill him then? (I realize that this is likely a
counterfactual hypothetical, but I think it's still useful; and one
can certainly imagine some future medical procedure that would turn
off someone's mental functioning but keep the potential for
functioning present, by stopping the brain from atrophying.)
I take it that the answer is "no," because the test wouldn't simply be
whether the person is conscious; potential for consciousness, perhaps
coupled with some other factors, would suffice. But why not then for a
week-old fetus, which also has the potential for consciousness?
Naturally, there are answers to this; the hypothetical isn't meant to
support the life-begins-at-conception position. One could, for
instance, argue that the test should be whether the entity either has
consciousness, or has had consciousness and seems likely to recover
it. Or one could say that the test should be whether the entity has
the bulk of the physical equipment needed to support consciousness,
even if consciousness is temporarily absent. These may or may not be
perfectly sensible arguments. But science can't prove the validity or
invalidity of these arguments. Nothing in biology, chemistry, physics,
or any other science speaks to whether these tests ought to be the
tests for a right not to be killed.
So it makes little sense to say to someone who believes that the right
not to be killed begins at conception: "You are a fundamentalist who
wants to displace science as the legal arbiter of when life ends and
begins, rather than the rationalist legal philosopher you ought to be
-- see this conscionometer that clearly proves that this fetus doesn't
have consciousness, has never had consciousness, and currently lacks
the physical equipment needed for consciousness, even though in
several months it is nearly certain to have consciousness." The
conscionometer answers a particular question, but it tells us nothing
about why this should be the right question. And if you've concluded
that "does it have consciousness?" (or some variant of that) is the
right question, that's a moral conclusion, not a scientific one.
I can certainly see why some people, especially those who love
science, might want to believe that science should be "the legal
arbiter of when life ends and begins," and why they want to think that
their moral intuitions are simply "rationalist legal philosophy" and
any contrary moral intuitions are "a rejection of science." But they
are mistaken; and they are in their own way victims of a
fundamentalist (and fundamentally erroneous) perception of the role of
science.
References
1. http://slate.com/id/2120872/
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