Regrettably, the topic of infanticide remains stubbornly in the news. Last week, for instance, we had the release of the LiveAction undercover tapes which seemed to indicate that newborns are at least sometimes refused medical treatment and care after a botched abortion in New York and Washington clinics.
Last week also saw the release of the May issue of the Journal of Medical Ethics, a special double issue on infanticide. (All articles are free and open access for the first two months here.) You may recall that last year JME published an an article titled ‘After-Birth Abortion: Why Should the Baby Live?’ which caused international outrage–and even saw death threats leveled at the authors and Julian Savulescu, the journal’s editor. JME has responded with an entire issue specifically devoted to the topic, and has heavy-hitters making contributions: Peter Singer, Michael Tooley, Jeff McMahan, John Finnis, Robert George, Francis Beckwith, and many more. In the issue, George and I continue our exchange about whether we should describe arguments for infanticide as “madness.” Those who are interested can read our (short) arguments by following the link above, but I’ve had an additional thought about this since writing those pieces.
We rightly condemn aiming at the death of newborns by action. This is what Gosnell did in his clinic in Philadelphia and this is for what many argue in the current issue of JME. But what the clinics seem to describe in the LiveAction video is a refusal to treat or offer care. And, quite frankly, the refusal to offer medical treatment and care to newborns in the NICU happens all the time. I speak here not of refusal of extraordinary treatment (which happens even more often and can be morally justified in some circumstances), but rather refusals to feed or resuscitate babies which aim at their deaths. Though sometimes an ethics consult is called, this “aiming at death by omission” goes on routinely without the sound and fury made over infanticide.
So, in this post I’m really trying to frame two questions–and would be particularly interested in feedback. First, is there a case to be made for the moral difference between aiming at death by omission and aiming at death by action? Second, if there is no moral difference, can we say that infanticide is madness without also saying that aiming at death by omission is madness?
And I guess I have a third question. What, if anything, do your answers to these first two questions mean for how we should talk about these issues in public?
Hi Charlie– OK, here’s the brief view of the “non-bioethics-specialist”: there is a difference between action and omission. The whole theodicy of the tradition hangs on this, but it is also crucial in legal cases. However, the validity of that distinction itself hangs on a further specification of what is obligatory and what is not (in medical terms, ordinary and extraordinary). For example, a landlord has certain specified obligations, and to omit these makes the landlord responsible for what happens because of its omissions. Obviously landlords cannot come in and take property or evict against lease terms. On the other hand, there are limits to their responsibility – say, what they may or may not provide to limit theft. Omitting locks is a problem; omitting an alaerm system is (by law) not a problem. This requires a form of ordinary/extraordinary distinction. So my view would be that you can’t support the moral difference between action and omission (except as an absolute difference, which is absurd) unless there is also specificity on the responsibilities and limits that might subject omissions to moral evaluation.
And, quite frankly, the refusal to offer medical treatment and care to newborns in the NICU happens all the time. I speak here not of refusal of extraordinary treatment (which happens even more often and can be morally justified in some circumstances), but rather refusals to feed or resuscitate babies which aim at their deaths.
Could you be more specific than “all the time”? It seems to me extraordinarily unlikely that born-alive babies from abortions wind up in neonatal intensive care units “all the time.” Only about 5% of abortions are performed in hospitals. Only 1.1% of abortions are performed at 21 weeks or later, and no 21-week-old baby has ever been successfully kept alive. We don’t have a statistical breakdown for the 1.1% of abortions performed at 21 weeks or later, so we really don’t know how many abortions could even theoretically result in a born-alive infant developed enough to be saved. But I think it is safe to say that of the relatively small number of babies that are aborted at a gestational age when they would be old enough to survive, the vast majority of abortionists make sure the babies are not born alive.
So it seems to me that when discussing born-alive infants in the neonatal intensive care unit, the overwhelming number relevant to this discussion would be premature births. It of course happens that babies are born so prematurely that a certain number of them are on the dividing line where aggressive life-saving measures might either be futile or might succeed. Tough decisions must be made here, but I would not say under the circumstance that to withhold treatment is to aim at death, any more than withholding treatment of a patient when that treatment is overly burdensome, painful, or futile would be aiming at death.
Treatment in a neonatal intensive care is, by its very nature, extraordinary, or so it seems to me. I have found various figures for the average cost per day in a neonatal intensive care unit, and $3000 seems to be a reasonable estimate.
David N, my point was about aiming at the death of newborns by omission in the NICU for any reason, not just after failed abortions. This does, in fact, happen on a regular basis…even for viable children 22 weeks and over. I wrote a book on NICU care and distributive justice, and it certainly isn’t clear that all treatment (“care” is almost always ordinary) is extraordinary on the basis of expense. But even if it is, the decision not to treat on the basis of distributive justice should not be aiming at death. It should be aiming at just distribution of resources with death being unintended. (I.e., not the means by which the end of justice is achieved.)
David C, you didn’t mention intention at all, right? Do you think that “aiming at the death of an innocent person by omission” is subject to the same moral analysis as “aiming at the death of an innocent person actively”?
Charlie, I don’t think there’s much of a moral difference—in both scenarios, there’s an intentional deviation from the proper end of medicine (health) and from the precepts that are ordered to that end (positive and negative precepts regarding proper care). Of course, in the case of “death by action,” the intentionality of the agent is more obvious that in the case of “death by omission.” Regarding the latter, your description of the agent’s act as an “aiming at death by omission” may be freighted with more agency than the agent would be willing to claim. Indeed, one can imagine this person insisting that he/she did not do anything at all, i.e., that there was no willing and, hence, certainly not any fault. Here, though, I think it makes sense to insist that the person willed not to care. Thus, the omission was preceded by an internal choice.
How to talk about these matters in public? I wonder if it makes sense to appeal to our expectation that physicians are committed, fundamentally, to providing care in the interest of human health. The refusal to provide care strikes at the very heart of this expectation, rendering the profession itself unstable and undermining the public’s confidence in the profession.
Charlie– Oh, I simply presumed that in no case, action or omission, would one aim at death by intention. In fact, I think we never do this – in self-defense, in just war. Even in cases of terminal suffering, I think we need to avoid intending death, even as we might recognize it as imminent and (in a way) a release. We desire it only out of a hope for resurrection, not because death is a good. Death isn’t a good; it simply has lost its sting. We shouldn’t intend it, but we shouldn’t fear it, either. Not an easy combo.
I wasn’t thinking in terms of distributive justice. It is my understanding that in Catholic bioethics, among the factors that are evaluated when deciding to forego “extraordinary measures” is expense. I do not think it would be “aiming toward death” to forego expensive treatment for a born-alive infant that had a scant chance of survival and a high probability of serious health issues if it did survive. The reason I spent time speculating that neonatal intensive care units almost certainly had very few abortion survivors was because I assume most babies in intensive care units are wanted, whereas babies who survive abortions are presumably unwanted. So it is my assumption was that, in general, when treatment is withheld from a baby in an intensive care unit, the decision is not because the baby isn’t wanted.
David, you are right that expense can be one of the factors that makes a treatment extraordinary, but it is difficult for me to think of a reason that expense could do this except in the basis of distributive justice. (Even if its just within a family.) Do you have some other reason in mind?
Sadly, many situations in the NICU involve aiming at death by omission because parents (sometimes influenced by how a baby’s possible future is described by a physician) decide that they don’t want a child with a certain kind of problem. Rather than have a child with “serious health issues” they aim at the child’s death by refusing to feed, ventilate, or resuscitate her.
My question about this is, when it happens, is it different from the kinds of infanticide that are currently in the news? And, if not, why are we getting all excited about this kind of infanticide, but not the other kind?
Charlie– I’d answer your last question by noting what a weird relationship with issues of disability our culture has. On the one hand, everyone celebrates the Pope’s embrace of a special needs child; on the other hand, we essentially cover over abortions and NICU decisions that demonstrate our rejection of those with disabilities. We are deeply anti-eugenic on the one hand, and essentially eugenic on the other.
Charlie, I do think it is the case that it is the intention that matters (aiming at death) and not so much whether that is by action or omission. As you know better than I, it is often very very hard to parse out the truth of one’s own intentions, let alone someone else’s. The choice to forego extraordinary means can often involve so many factors–financial and other burdens of the treatment itself balanced with chance of a minimally positive outcome (i.e. life saved) balanced with quality of that positive outcome. There is nothing wrong with offering a child (or anyone) the best care we can (construed broadly, not just medically) and letting them go. Death comes to us all. But I think sometimes we can be seduced into “taking advantage” of certain ordinary needs (thinking of hydration/nutrition delivery) as a way to withhold basic care and allow deaths to occur, through intentional inaction, that we know we would be wrong to cause through a positive intervention. We may be able to parse out some legal and even moral distinctions (level of culpability, perhaps), but any time death is intended and that intention shapes action (or inaction), it is wrong.
I agree with David N that the primary framework in neonatal units is that children are wanted and that everything there is directed toward genuine care. I understand your point about children who become unwanted because of quality of life issues. Though I defend my above statement that aiming at death is wrong in these situations, and pray and hope for a world where every child is wanted love, I admit that I am not so excited by this kind of infanticide. I think that is because I have a different sense of the tragic here: the doctors and parents valuing the child and then trying to make loving if misguided decisions about suffering and quality of life. I think that is wrong, and I think there need to be laws and standards and guidance and formation. But it’s hard for me to be outraged. I get the similarities, but it seems quite different than Gosnell or other abortionists and their assistants either “snipping” or ignoring the struggles of an infant whose death is the aim of their entire operation. In those cases, outrage is so much easier.