PEA Soup is pleased to introduce this month’s Ethics discussion, featuring Elselijn Kingma and Fiona Woollard’s paper Can You Do Harm to Your Fetus? Pregnancy, Barriers, and the Doing/Allowing Distinction, with a précis from Elizabeth Harman.
On Kingma and Woollard’s paper “Can You Do Harm to Your Fetus? Pregnancy, Barriers, and the Doing / Allowing Distinction”
by Elizabeth Harman
Hello Pea Soupers! I’m happy to be kicking off the discussion today. I have read Kingma and Woollard’s paper with great interest. It is a deeply feminist paper, and it makes a convincing case for its central claims, in my view.
In 1971, Judith Jarvis Thomson published her famous paper “A Defense of Abortion.” The paper offers a reframing of what pregnancy is and what the choice whether to abort is. Rather than casting pregnant women as would-be killers of fetuses, Thomson compellingly argues that pregnant persons stand to fetuses as would-be rescuers from certain death. Pregnant persons are life savers, if they continue their pregnancies.
One way of understanding Kingma and Woollard’s paper is that they are taking this reframing of pregnancy and running with it. Their paper is not about abortion. It is about the many things that pregnant women can do and fail to do, during pregnancy, that affect the fetus’s well-being. Their target is the following:
The common view Kingma and Woollard argue against:
Pregnant women, when they behave in ways that are worse for the fetus, are harming the fetus. In particular, they are doing harm to the fetus, as opposed to allowing harm to the fetus. It is generally morally wrong to do harm, and we are generally morally obligated to refrain from doing harm. So, pregnant women are morally obligated not to behave in ways that are worse for the fetus. Furthermore, these obligations are serious enough that third parties and society are allowed to act in ways to ensure that pregnant persons fulfill these obligations.
There is a further part of this common view:
We can know all of this without going into the question of whether pregnant women have any kind of special obligations (such as parental obligations) to their fetuses.
(All indented claims are paraphrases in my own words.)
Kingma and Woollard argue against this common view. They use the term “the justificatory bypass” to refer to the idea that, because pregnant women who act against their fetus’s best interests are doing harm to the fetus, we can directly conclude that pregnant women have moral obligations not to act in ways that are bad for their fetuses, without addressing the question of whether women have special obligations to their fetuses. They argue that the justificatory bypass is unwarranted.
As I understand it, the “justificatory bypass” that is part of the common view bypasses two issues. First, because we take women to be doing rather than allowing harm, we bypass the issue of how burdensome it is for pregnant women to act in the way that is optimal for the fetus: it’s hard to justify doing harm, and we are generally required to take on some burdens to avoid doing harm to others. Second, because we are obligated not to do harm to people even if they are unconnected to us, we need not appeal to any special obligations that pregnant women have to fetuses. (By contrast, if pregnant women’s behavior merely amounted to allowing harm to fetuses, we might well need to appeal to special obligations to reach the conclusion that they are morally required to behave in the ways that are best for their fetuses.) The justificatory bypass, if it works, is powerful. But Kingma and Woollard argue that it does not work.
The crucial move in Kingma and Woollard’s paper (which I say follows the Thomson reframing) is this:
The pregnant person’s body is a barrier to harm for the fetus. It sustains, supports, and protects the fetus. Without it, the fetus would suffer great harm.
Furthermore, they point out that when pregnant persons do things that affect fetal wellbeing, they do it by affecting their own bodies (the pregnant persons’ bodies). Thus, when pregnant persons affect a fetus’s wellbeing, they affect it by affecting a barrier to harm. So, they say, all cases in which pregnant persons are affecting fetal wellbeing are “barrier cases.”
Kingma and Woollard point out that removing or altering a barrier to harm for someone is quite different, morally, from directly doing harm to someone. One example they give is this. A stranger is in danger of being wounded by a falling boulder, but my car is parked in such a way that it would save them from being harmed. I have urgent reason to move my car. If I do move my car, I act in a way that leads to their being wounded. But I haven’t done harm to them; I have merely allowed harm to them.
How does this apply to pregnancy? If a pregnant person fails to eat enough protein in a way that would be optimal for the fetus, she is failing to make the barrier to the fetus’s ill health as good as possible, but she is not doing harm to the fetus. If a pregnant person fails to take prenatal vitamins that are good for infant brain development, she is failing to provide a certain kind of nurturing support to the fetus, but she is not doing harm to the fetus. That is the picture that Kingma and Woollard’s arguments suggest.
Kingma and Woollard do not go so far as to argue that nothing a pregnant person does can count as doing harm to the fetus. Nevertheless, they are skeptical that we can know that anything does count as doing harm to the fetus. For example, they acknowledge a particular route one might go to argue that a pregnant woman is doing harm to her fetus – but they also express skepticism about that route. Let me explain. Once we start looking at the question of whether a pregnant person has a special duty to her fetus, this creates an opening to draw the conclusion that the pregnant person does do harm to her fetus. The opening exists as following. Consider for example a case on which someone fails to feed her own children, and the children die. We would not merely say that she allowed the children to die; we would say that she killed them. And this is because she had a duty to feed them. In a less extreme case, if someone does not feed her own children, and they become malnourished, this is a case of having done harm to them, rather than having merely allowed them to suffer harm. Similarly, if pregnant persons have special obligations to their fetuses, then it may turn out that a failure to provide the optimum nurturing environment to the fetus does amount to harming the fetus. Kingma and Woollard emphasize that if this is so, we can only come to this conclusion after doing substantive thinking about whether a pregnant person has special duties to the fetus. (Thus, we do not come to it via the justificatory bypass.)
Kingma and Woollard are skeptical that we can be justified in concluding that pregnant persons do have special obligations to their fetuses of the kind that would ground serious duties to behave in the ways that are optimal for their fetuses. They point out that we should be skeptical of any intuitions that pregnant women should greatly sacrifice and go out of their ways to make things perfect for their fetuses. After all, we live in patriarchal and sexist societies that expect women to be far too self-sacrificing for their loved ones.
And Kingma and Woollard caution against a certain kind of circularity. We must not hold that pregnant women have special obligations to their fetuses, and therefore when pregnant women fail to act optimally for the fetuses this does harm to the fetuses (not merely allows harm), and therefore there are special obligations to their fetuses. That is, we must not conclude that there are special obligations on the basis of the claim that pregnant women do harm to their fetuses, which we hold only because we believe they have special obligations, which we hold only because pregnant women do harm to their fetuses, etc. This kind of circularity is unacceptable.
I want to raise two questions for Kingma and Woollard.
First: As I see it, the hardest case for their view is the following. Suppose a pregnant woman takes a recreational drug that has a potent negative effect on the fetus – taking the drug once does some harm to the fetus, even apart from any pattern of drug-taking. Suppose we grant Kingma and Woollard’s picture that here, the pregnant woman affects the fetus by affecting the pregnant woman’s body, which is a barrier to ill health for the fetus. But in this case, what the pregnant woman is doing is injecting a kind of poison into this barrier which then reaches the fetus and harms it. This does seem like a case of doing harm to the fetus. I think we can draw this conclusion without making any claims about the pregnant woman having a special duty of care toward the fetus.
Kingma and Woollard discuss this very issue by talking about “barrier contamination” cases. They claim that if the agent who introduces a hostile element into the barrier also owns the barrier, the case is not a typically case of doing harm. Here, I am not sure whether my disagreement with them is terminological or substantive. I agree with them that it matters if the agent who poisons the barrier also owns the barrier, and I agree that this can make it permissible to contaminate the barrier. But I think it’s much harder to justify ingesting something that would actively damage the fetus (like a non-fatal poison), as opposed to failing to ingest foods and vitamins that will grow and sustain the fetus in an optimal manner. And this makes sense to me to think that the doing / allowing distinction explains this difference. So, at least sometimes, pregnant woman can do harm to their fetuses.
My first question is: Do Kingma and Woollard deny that in this potent recreational drug case, the pregnant woman is doing harm to the fetus? What about the fact that taking the drug seems much harder to justify than merely failing to ingest things that would be beneficial to the fetus?
Second: I want to push back on Kingma and Woollard’s claim that it’s hard to know that pregnant persons ever have special obligations to their fetuses. To take a fanciful case (though there are no doubt plenty of actual cases in which this happens) suppose that a pregnant woman who is excited to continue her pregnancy and raise her baby speaks to the fetus and says “I promise you that I will nurture you and take care of you.” Does her promise not ground a special obligation? (One might argue that there’s no promissory obligation without uptake. But I’m not sure that’s right.) And doesn’t this special obligation include obligations to do lots of things like eat enough protein, take prenatal vitamins, and refrain from drinking excessive amounts of alcohol during pregnancy?
Setting aside that fanciful case, can’t we know that many ordinary pregnant persons have special obligations to take care of their fetuses? Consider a woman who conceived on purpose, who wants to continue her pregnancy, and plans to raise the baby. Suppose she has birth control easily available – so her choice to conceive was a real choice – and she also has abortion readily available – so her continuation of the pregnancy was also genuinely voluntary. We know that at least soon, in the future, she will be a mother to a child, with special obligations to him. Shouldn’t we think that those special obligations already hold, since she knows he is the beginning stage of her child?
First, I want to say what a terrific, thought-provoking paper this is. The claim ‘smoking does harm to the foetus’ would strike most (including myself) as perfectly accurate, but this paper puts serious pressure on that thought. Thanks to Liz, too, for kicking off the discussion with such a clear summary and challenging questions.
One of the main contributions of this paper is to introduce ‘contaminating a barrier to harm’ as a new mode of harming (alongside doing, allowing, enabling, removing a barrier, etc), and to characterise some of what goes on in pregnancy as instances of that. Contaminating the barrier involves making ‘a barrier to harm less good by adding independently hostile elements to it, without preventing it from performing its overall protective and beneficial function, so that it is still, on balance, helping the patient.’
For their conclusion that the justificatory bypass is unwarranted, all Kingma and Woollard need to be the case is that contaminating the barrier is not ALWAYS a matter of doing harm, or should not always be treated as morally identical to doing harm. I think I agree that it’s not, but raising such cases invites us to consider when it is doing harm, or like doing harm, and when it is allowing harm, or like allowing harm (and, perhaps, when it sits somewhere in between). What factors are relevant? And which are present in/relevant to the pregnancy case?
The paper introduces one such factor: ‘It matters [and makes it less like standard doings of harm] that the plate in Plate is MINE (my emphasis). The case would be different if…[it were] your plate, or a company plate.’ And since in the pregnancy case, they claim, ‘the default position is surely that the barrier is the pregnant person’s’, this is grist to their mill.
I want to introduce some additional considerations that seem intuitively relevant to how we should think about contamination-of-barrier cases.
1. Is the barrier designed as/bought as/standardly used a barrier? For example, it seems to matter in Drive Away that the car just happens to be there. It isn’t usually a barrier, even though it is temporarily being used as one. It seems potentially harder to justify removing a bullet proof vest, or weakening its effectiveness, or using it for non-barrier purposes, than removing or contaminating something that isn’t supposed to be barrier (eg, driving the car away). Applied to the pregnancy case, I think this speaks in favour of treating barrier cases less like doings of harm – bodies are not solely barriers, or primarily barriers.
Consider this case. Electric Barrier: With my consent, you are hiding from a shooter behind my metal barrier, which I constructed for exactly this purpose. You must shuffle right up to it in order to avoid being shot, so that you are touching it. I flip a switch to send an electrical current through the barrier, which delivers painful electrical shocks to you. I think this is doing harm – and it is potentially relevant that the barrier is a barrier.
2. Is the contamination part of the standard use/operation of the barrier? It seems especially hard to justify introducing contamination that is not part of the standard operation or use of the barrier. Consider this case:
Drip: Patient is in coma, and is hooked up to a IV antibiotic drip which is a barrier to harm. Doctor introduces a poison into the drip that will permanently harm Patient. Patient is better off than they would be with no drip (they would have died).
(More generally, I would have thought Thomson-like life support cases would be fertile testing ground for the views developed in this paper. But I think this is a problem for the paper: contamination of life support is going to seem like doing harm).
Now consider this case: Bodyguard: Sameer offers to be Adam’s bodyguard, and will offer himself as a physical barrier to harm if need be. If Sameer eats junk food, he will gain weight and present a larger barrier. If Sameer eats healthily, he will lose weight and present a smaller, less effective barrier. Sameer eats healthily. Adam is shot, and would not have been had Sameer been larger.
There are various differences between these cases, but Drip seems like doing harm, and Bodyguard seems like allowing harm. The fact that poison has no place in the IV, but Sameer generally can eat what he likes seems relevant here. Again, this seems relevant to the pregnancy case – generally we are morally permitted to smoke, to eat what we like etc, so the introduction of these elements doesn’t seem to be a case of introducing unusual/outside elements. Though perhaps it matters whether the person usually eats healthily, or usually smokes. Imagine someone *taking up* smoking during pregnancy. This may be more troubling because the person has to bear less cost to avoid smoking (they are not already addicted), but it may be more troubling because it introduces ‘outside’ contamination.
3. Is the Barrier-owner/person introducing the contamination preventing the patient from accessing a different barrier?
Consider this case:
Electric Alternative: As Electric, except there is an alternative barrier owned by someone else that you can easily get to. This barrier is not electrified I prevent you from leaving. I insist you use MY barrier.
If you insist on providing the barrier, but introducing contamination, this makes contamination of the barrier seem more like doing harm.
This is potentially relevant to the pregnancy case. Imagine a foetus that is close to full term, and is therefore ‘viable’. The foetus can survive equally well (let’s stipulate) in a NICU. But the pregnant person wants to carry the foetus to full term. Here the pregnant person insists on providing the barrier, even though an equally good barrier is available. This is potentially relevant to understanding the moral status of contaminating the barrier.
Now, of course, in Electric Alternative the barrier is one that is ‘easy to get to’. Here the analogy falls down (though as the paper recognises, all analogies with pregnancy are bound to be imperfect). One of the ways this analogy fails is that the pregnant person will need to bear substantial costs in order for the foetus to be transferred to the NICU. But it’s worth considering which costs they can appeal to. Some of the costs (the physical costs of giving birth) are costs they are going to bear soon anyway. Other costs (emotional costs, frustration of deeply held plans) are associated with wanting to carry to term — wanting to be the barrier. But it is questionable whether we can appeal to wanting to be the barrier in justifying contaminating the barrier.
My sense is that ‘wanting to be the barrier’ is not the right way to characterise the costs, but then I suppose we’re back to thinking about the particular relationship. Which is what the paper wants us to do in the first place!
The above are just some initial thoughts about contaminating barrier cases — I have tried to look at those types of cases directly, and potentially relevant factors, and then apply them to pregnancy rather than to think about pregnancy directly. Thanks again for a very thought-provoking paper.
As we explore the implications of this paper, I think it’s crucial to keep in mind the main effect of the justificatory bypass that Kingma and Woollard identify: it allows us to comfortably conclude that direct legal or social intervention for the sake of enforcement is permissible or even obligatory in order to prevent the harm at issue.
To the point from the initial post about whether pregnant people have special moral obligations to their fetuses: I take it to be uncontroversial that the authors would agree. There are special moral obligations in play when the pregnant person decides or intends to continue gestating and ultimately give birth. These special obligations could ground moral obligations to do or refrain from doing certain actions. The core question, however, is whether these obligations could justify the kinds of pressure and coercion discussed at the beginning of the article. I think the authors argue convincingly that we have no such argument, and that we should be very critical of any such argument. Here is a good application of this framework to the issue of compelled caesarean sections: https://jme.bmj.com/content/47/4/280.abstract
Thank you so much to Liz for this fantastic summary of our paper!
In response to your questions, I would say the following: (I should note that I have not consulted my co-author on these responses. Hopefully if she disagrees she will chime in!)
“My first question is: Do Kingma and Woollard deny that in this potent recreational drug case, the pregnant woman is doing harm to the fetus? What about the fact that taking the drug seems much harder to justify than merely failing to ingest things that would be beneficial to the fetus?”
I would not immediately agree that the pregnant person is doing harm to the fetus in this case. I think there is powerful intuitive pressure to say that they are doing harm. But I think that can be explained by the superficial similarity to cases which would count as doing harm (if a third party gave poison to a pregnant person or if a caregiver gave poison to a baby). Careful examination is needed to work out when a pregnancy case counts as doing harm, and we should not be overly concerned if our ultimate verdicts are counter-intuitive.
That said, I definitely agree that taking the drug is much harder to justify than merely failing to ingest things that would be beneficial to the fetus. There’s a comment (to which I am really looking forward to replying properly) that suggests some factors that might make contamination of a barrier count as doing harm. These factors might also make contamination of a barrier harder to justify *without having the full force of a standard constraint against doing harm and without licensing the justificatory bypass*. Moreover, I tend to think that there are two different distinctions in this area, the doing/allowing distinction and the action/inaction distinction, and that both are morally relevant. This would explain why failing to ingest good things is easier to justify than ingesting poison, just as when a boulder is rolling towards someone, removing your car from the path of the boulder is harder to justify than simply not driving your car into the boulder’s path.
“Second: I want to push back on Kingma and Woollard’s claim that it’s hard to know that pregnant persons ever have special obligations to their fetuses.”
I am having a moment of doubt here about exactly what we said in the paper! The main thing that we think is hard to know is *exactly what special obligations a pregnant person, qua pregnant person (or possible qua pregnant person who meets certain other conditions) has to their fetus.* or *that a given pregnant person has a specific special obligation to their fetus*. These are the things that we think one needs to know to classify a pregnant person as doing harm or to directly justify requiring, or even coercing, the pregnant person to perform some action. And those are the things that are really very difficult to work out.
I *think* we just wanted to be neutral about whether all pregnant people have some special obligations to their fetuses or whether all pregnant people who meet certain conditions have special obligations to their fetuses.
The promise case, I would not count, because that would apply to the pregnant person because they had made a promise rather than because they were pregnant.
I can’t see how to reply to specific comments, but:
Jessica Tizzard: This is a really spot on! I think it is so important to bear in mind that justifying a special obligation and justifying the coercion of pregnant persons are different things – and the fact that coercion is shockingly common.
Patrick: Thank you for this comment with so many great insights and questions. I’ll reply properly later this afternoon.
Brilliant article – as Patrick suggests, it does a wonderful job of unsettling lazy assumptions about pregnancy. And thanks so much Liz for an excellent discussion of it. I had a question about whether there is anything morally special about barriers in particular, and another about whether it makes a difference whether a barrier is contaminated, or whether a barrier is uncontaminated but some independent harm is introduced.
Compare:
Barrier: A trolley is about to hit X. Y has a choice of one of two barriers that will prevent the trolley hitting X. Both barriers will eliminate the threat, but the first barrier is contaminated, and X will be worse off to degree n1 if this barrier is used compared with the second barrier. However, Y is allergic to material on the second barrier and if they use it, Y will be worse off to degree n2 compared with using the first barrier.
Turn: A trolley is about to hit X and will kill them if nothing is done. Y has a choice of one of two methods to turn the trolley away from X. If Y pulls lever 1, the trolley will run over X’s foot, making X worse off to degree n1 if this method is used compared with the second lever, which will completely save Y. However, Y is allergic to material on the second lever, and if they use it Y will be worse off to degree n2 compared with using the first lever.
I am at least tempted by the view that these cases are morally identical, and that the reason why they are not straightforward harm cases is that Y is providing X with a benefit. If that’s right, there’s nothing special about barriers; what is special is that benefits with negative features are to be treated differently from those negative features alone. And that would be enough to explain why the justificatory bypass is wrong.
The second question is whether contamination makes a difference, or whether independent harms and benefits have the same moral properties as contaminated benefits.
Compare Barrier with
Barrier 2: As Barrier, except the first barrier is not contaminated. But using the first barrier will result in a toxin being released that will make X worse off to the same degree as the contamination in Barrier, n1, compared with the second barrier.
In this case, the toxin is independent of the barrier, and therefore more clearly thought of as an independent harm rather than a contaminated benefit. But morally, doesn’t this seem just the same? X is no more reason against using the first barrier in Barrier 2 than Barrier.
If that’s all right, we might be tempted by a simpler argument against the justificatory bypass based on the permissibility of offsetting harms.
Kingma and Woollard make an incredibly compelling case here for rejecting the justificatory bypass that lets us go from ‘X does harm to the foetus’ to ‘Pregnant people must be kept from doing X’ via an assumption of the harm principle or similar. I agree entirely that we might be able to come – by entirely distinct, and more laborious and nuanced deliberations – to the conclusion that some/many pregnant people may have special obligations (what Campbell and McKay carefully term obligations regarding the foetus and to the future child). That part isn’t the place of this article, which focuses on the justificatory bypass rampant in existing literature and even more so in public health campaigning, prosecution of ‘fetal endangerment’, and so on.
That said, I have a few niggling worries about the idea that the pregnant body can be construed as a barrier from harm, the harm in question being stunted development or some other less-desirable foetal outcome, and the barrier in question being then withdrawn or contaminated by certain kinds of agential choices, e.g. continuing to smoke/drink alcohol, going bouldering, not attending prenatal checkups, eating a poor diet.
Firstly, I think that in some ways that characterisation slides towards the idea (which Kingma and Woollard rightly critique themselves) that gestation is by default a process that pregnant people can only detract from, rather than contributing towards positively: the barrier is there ordinarily, but we can withdraw or contaminate it through ‘bad’ choices.
Secondly and relatedly, I’m a bit concerned that the ‘barrier’ idea doesn’t leave space for the complexity of gestational intertwinement (though I think this is more an issue for Patrick’s albeit-interesting Electric Fence example above, than for Kingma and Woollard’s argument): the pregnant body is the source of contributions towards foetal development, and these contributions might be more positive or more detrimental, but there are very few instances where we can isolate the positive from the detrimental. Smoking and alcohol are the most frequent examples precisely because we can zone in on them relatively easily (and even here as Kingma and Woollard note, the fact that these are patterns of behaviour also fogs the lens!) but in other cases, factors will be mixed and blurred together. If I don’t get as much sleep as I could have done because I stayed up a bit later to eat a proper dinner, and if I drink coffee to ease my nerves and so lower my cortisol, and if I breathe in polluted air on my cycle to work but thus improve my cardiac fitness… what am I ‘doing to’ the foetus? What activities are barriers to what effects?
Thanks to everyone for a great discussion! I have a question which I think starts from similar assumptions to Kingma and Woollard, but which takes things in a slightly different direction.
Assume that it’s supererogatory for pregnant person to carry their fetus to term; rescuing the fetus by giving birth to it is morally good (because it results in a new person), but not morally obligatory. Still, if a pregnant person brings their fetus to term, but acts in ways which are predictably detrimental to the fetus, it doesn’t follow that they acted permissibly. I’m alluding here to Joe Horton’s ‘all-or-nothing problem’. Suppose a building is burning down with two children trapped inside. It is supererogatory for you to rescue them – it’s good, but not obligatory given the risk to you own safety. Still, if you run inside and rescue only one of the children, then you seem morally criticisable (assume that it would be easy for you to rescue both at once – they’re really small). The lesson we learn is that if you’re willing to shoulder costs of undertaking a supererogatory act, then you become obligated to do it optimally; since you accept the personal risk of entering the burning building, you become obligated to rescue both children, not just one.
If this is right, then why not say something similar in the case of pregnancy? It’s supererogatory to bear a fetus to term. But if the pregnant person willingly accepts the personal costs which this commitment imposes on them, then it becomes morally obligatory for them to so in ways which are predictably detrimental to the fetus. Note that it doesn’t follow from this that third-parties (government actors, concerned partners, etc.) are permitted to coerce the pregnant person to comply with these obligations, since they may be non-enforceable. I’m totally in agreement that the justification of obligations and the justification of coercion too often gets blurred.
Does the doing/allowing distinction do any work here? I’m not sure it does. If I run into the burning building and rescue only one of the children, then I haven’t *done harm* to the child I leave behind – I’ve merely *allowed* harm to come to them. Still, it seems like I act impermissibly if I could easily have rescued both.
Sorry – critical typo in my last comment: “But if the pregnant person willingly accepts the personal costs which this commitment imposes on them, then it becomes morally obligatory for them to *AVOID DOING* so in ways which are predictably detrimental to the fetus.
I don’t know how much time I have to devote to expressing all the half-formed thoughts now swirling through my head triggered by the excellent comments here. So before I get into those: thank you @Elizabeth, @Patrick, @Jessica, @Victor, @Teresa, @Rowan for the amazing comments and compliments – and taking the time to read our paper and comment here. Am most flattered!!!!!
I want to start with @Elizabeth’s second question. Harman writes “I want to push back on Kingma and Woollard’s claim that it’s hard to know that pregnant persons ever have special obligations to their fetuses. ”
I don’t think that Woollard and I think or wrote that pregnant people (PP) don’t have special obligations to their fetuses, Or that it is always hard to know that they do. I certainly took myself to have special obligations to my fetuses during pregnancy – as I am sure did Fiona. (but of course I can only speak for myself here…)
So i think in some cases it’s quite straightforward that PP have special obligations – and both your ordinary pregnant person as well as your promising pregnant person seems to be cases in point.
What I think we do believe (and I hope we say in the paper – though now I worry maybe we weren’t precise enough!!!!!) is that it is hard to know whether ALL pregnant people have special obligations to their fetuses in virtue of being pregnant alone. And, second, that it is not easy to establish what exactly those special obligations amount to.
I therefore don’t think the second step you make follows: “And doesn’t this special obligation include obligations to do lots of things like eat enough protein, take prenatal vitamins, and refrain from drinking excessive amounts of alcohol during pregnancy?”
In the promising case we have an obligation to care and nurture, in virtue of having made a promise (rather than in virtue of being pregnant per se). But what exactly is meant by care and nurture? Compare: people make wedding vows where they promise to love and to cherish (let’s NOT get into obeying!!!) – and that promise is broken when people are abusive or, perhaps, commit adultery. But is it broken if they have a row? If they have an evening when the feeling of petty annoyance temporarily rather blocks the loving and cherishing? If they are grumpy and make a catty comment? Etc? In other words, what is the detail of meeting this obligations, well enough?
The same holds from nurture and care. I just picked up a child up from school, meeting (i think) my parental obligations. But I wasn’t perfect (I was a bit late; not as attentive as i could have been – and I only dumped them in after school as quick as i could so i could return to my laptop).
So, the tricky question of what special obligations amount to remains even if we have a clear case where special obligations exist.
The risk we run here, is just to fall back into uncritically assuming that everything that falls short of perfect nurture and care is failing to meet the obligation to care and nurture. And that just IS to fall prey to the very issues we caution against in the paper.
Because the PP who is not taking prenatal Vitamin intake, is not quite hitting her protein target, or who drinks excess, is still nurturing and caring for the fetus. She is keeping it warm and safe; feeding it oxygen and nutrients 24/7, 9 months long.
So the promise (or the ordinary pregnant person’s choices) may well create special obligations, but the second step – what those obligations amount to – is not settled without detailed drilling deep into the exact nature of the promise and obligation thereby created. Which means: no justificatory bypass.
Now to clarify: I am not saying that it can’t be true that the PP drinking to excess is failing to meet her obligations – just that it is not obvious that it follows directly from the fact that she has an obligation to nurture and care (in the cases you present). More work is necessary to figure out what is required of the PP to meet her obligations.
@Teresa Baron, thank you too for your comments!!! You note some concerns about barriers, first, “that in some ways that characterisation slides towards the idea (which Kingma and Woollard rightly critique themselves) that gestation is by default a process that pregnant people can only detract from, rather than contributing towards positively: the barrier is there ordinarily, but we can withdraw or contaminate it through ‘bad’ choices.”
I agree that this characterisation is present in the paper – and I share your worry in the sense that that people could lift quotes to cement that understanding. However, this relates to the concern we note about the harm-benefit distinction: are (more) negative outcomes harms, or are they benefit reductions, or…. ? In the paper we grant their framing as harms as an argumentative move: we maximally grant assumptions to a hypothetical opponent to make our case as strong as possible. One of those assumptions is that all comparatively negative outcomes are harms. But yes, that does make the pregnant person (rather oddly) a ‘barrier to harm’ as opposed to a benefit provider (or something in between, or both, or….).
The fact that this does seem odd/incorrect as you correctly note, I think, makes me think that the framing which treats (comparatively) negative outcomes always as harms, rather than as, say, benefit reductions, is incorrect. But correcting that framing is, I think, a job for a different paper.
As an aside: I do like to think of supposed medieval times where many drinks had low alcohol levels – effectively as a desinfectant. What would be considered a normal fetal outcome then? What a harm? What a benefit? And would – say- only drinking boiled water then count as benefitting the fetus, or would we consider that a case of ‘harm-reduction’. [of course drinking normal water would have been more inadvisable than drinking beer. that’s why people drank beer! ]
Second you note concerns about simplifying the complexity of intertinement. I think this is well-taken ; and indeed I think discussing barrier cases to generate intuitions about pregnancy should take special care not to simplify things in such a way that potential important moral difference-makers unwittingly disappear from the example…. That said, i think more discussion of the barrier cases is quite interesting in their own right!
Dear @Rowan Mellor,
Very interesting direction, thanks!!!! Much to think about.
[having not read what sounds like an excellent piece of work] I am not sure I fully buy the original all-or-nothing case. We talk in our paper about moral profiles by which we can recognise the difference between standard doings and others cases. One thing we note there is that where cases may seem equal if one variable is set at a particular value, varying that variable (such as cost) can still show a difference to the overall moral profile of a case.
I think something like is definitely happening in the all-or-nothing case. The all-or-nothing case goes through ONLY if the cost is VERY very low. Think about this version: you run in to rescue the two kids. There is smoke. heat, fire. You can’t breathe well; you can’t see very well; you panick – you grab one and run for it. Are we really considering you morally criticisable in that case? Or do we say – of course you panicked – you’re an expletive hero for going in in the first place. You saved one. Don’t beat yourself up for not saving the second.
So, yes, where the cost is neglible maybe you have an obligation to rescue the second and it may be impermissible not to. But we only need to introduce very minor variations (not even clearly variations to the costs) to make not-rescuing number two permissible. That lack of robustness of the impermissibility is very far removed from the moral profile of a standard harming. For in such cases we would not be so tolerant of imperfect decision-making under panic.
What I really want to press on, however, is whether if you have an obligation to rescue (or care) that you then have an obligation to do it OPTIMALLY. That just seems implausible and too demanding, even in the rescue case (am I failing in my duties if I grab them and run, and they end up with some bruises and scrapes, rather than gently reassuring them, holding them without causing any bruise; optimally managing their feelings etc as well?).
It is certainly implausible in the pregnancy cases as we discuss in the paper; see also my comments on this in my response to Harman. Yes, the pregnant person may well take on certain duties (to nurture and care perhaps) in committing to pregnancy continuation. Taking on the commitment may have been supererogatory, but now that the choice is made further duties may arise from it. But it doesn’t follow that these are duties to OPTIMALLY or perfectly care and nurture…
But again I haven’t read the all or nothing paper and will do so; it is indeed an interesting direction.
@Jessica Tizzard: thank you for your careful reading – I wholeheartedly agree!!!!
@ Patrick, Victor and @Fiona: I have thoughts about your barrier discussion but run out of time (parental duties call); to be continued I hope.
Thanks again, Patrick, for your comments.
On the Electric Barrier case, it seems like what is doing a lot of the work here is that the person is hiding behind the barrier with your consent and that the sending of the electric shocks seems motiveless. What we should ask is whether by giving consent, you have in some way undertaken to refrain from shocking the barrier. Whether we take you to have made such an undertaking will surely depend upon cost to you. (Why do you need to send the electric current?) In non-pregnancy cases, it will also matter whether you warned the person about the electric shocks, or we think that they should have known that you’d be sending them. (This relates to your point 2.)
On 2. McMahan has a very nice discussion of acting in a role in Killing, Letting Die and Withdrawing Aid. If the doctor put the patient on the drip as a representative of the hospital, but then adds poison as a private citizen, then this would not count as contaminating a barrier to harm that you yourself have provided. This means that it won’t be appropriately contrasted with the Sameer case which is certainly a case where the agent provides the barrier. I’m hesitant to describe Sameer as contaminating a barrier, because it is unclear how to analyse ‘eating healthily/ eating badly’. This might be a case of failing to maintain a barrier.
As with 1, I am concerned about the fact that ‘adding poison’ seems likely to be motiveless/motivated by malice/ or motived by benefiting from the person’s death. To work out whether a case is a standard doing , we need to consider versions of the case with different costs and harms and look at how much cost is required to justify countenancing each level of harm. It’s the pattern that tells us whether one case is ‘easier to justify than another’. (See the discussion of normative profiles in the paper.). We also need to be careful that we’re not introducing cost in a way that brings in Double Effect concerns.
I’m not convinced that life-support cases which are carefully designed to avoid the role-based agency, normative profile and Double Effect concerns would seem like doings.
I do think that this idea of standard use is interesting and may well be true. But I think this might boil down to ideas that it is reasonable to expect someone not to take up new contaminating habits but not reasonable to expect them to break them, which brings us to questions about what we can reasonably expect of someone providing that barrier in the situation in question, and so in pregnancy, to substantial questions about what can reasonably be expected during pregnancy.
“Is the Barrier-owner/person introducing the contamination preventing the patient from accessing a different barrier?” Yes. I think that more generally preventing people from accessing a different barrier plus not providing a sufficiently good barrier can count as doing harm – and that some cases of child neglect count as doing harm for this reason. But I think that we need to be careful about in what way the person is preventing access to another barrier and how much they are contaminating the current barrier/ what counts as sufficiently good. (In other words, lots of substantial engagement needed with the kind of questions that the Justificatory Bypass tries to avoid.) In real life cases, it is going to be incredibly rare for it to be equally good for the fetus to become a premature baby in a NICU. And in those very rare cases, we need to remember that fetuses do not magically transfer from wombs to NICUs – making this happen on demand required inducing labour (usually leading to a much more painful vaginal birth and more risks of injuries) or a c-section (which is deeply invasive surgery). So the pregnancy version of this case is very importantly disanalogus to the fence case. (On the other hand, if the fetus is really late enough term that it could be delivered, then it might be that requiring the pregnant person to wait until after birth is reasonable – but (sorry to sound like a broken record!) establishing this would require substantial engagement with questions about what it is reasonable to expect of the pregnant person.)
I completely agree with Elselijn’s responses to Liz, Teresa and Rowan which appeared as I was typing my response to Patrick.
More generally, I really want to endorse/ amplify Elselijn’s points:
1. How crucial it is to vary costs in order to be able to tell whether one type of case is really easier to justify than another. The way we use it, ‘easier to justify’ does not mean that you are going to have a smoother ride trying to persuade people that what you did was okay. It means that smaller costs are necessary to make imposing a given harm permissible.
2. That moving from claims that a person has some special obligations to claims that they have a specific obligation require lots of argument.
Thanks so much for the reply Fiona. I don’t disagree with anything you say here.
One further question is methodological.
I am aware that in order to be justified, infecting the barrier would have to be done in order to avoid some cost to the agent. But we can separate out whether something is doing harm from whether it’s a justified doing of harm. Similarly, malevolent allowings of harm are possible, so it seems we should be able to separate out issues of intentions/motives from the doing/allowing question. So should we only imagine the cases with costs to the agent?
For what it’s worth, my reported intuitions about these cases were supposed be both descriptive (this seems like doing harm) and moral (it would need to be justified as doing harm).
My intuition on the doctor case survives even if the doctor owns the drip, or is ordered to put the poison into the drip by the hospital.
On the final point about preventing access to another barrier, I agree with everything you say here – and of course there will be complex questions about costs and, as I noted, which costs are relevant/can be appealed to, but I still think it’s a potentially important consideration.
Thanks, Patrick.
I think this is really crucial to understanding our approach to doing and allowing harm in the paper.
I don’t trust the intuition that a case is doing harm (or that it needs to be ‘justified as a doing’) based on a single case with no cost to the agent described.
We’re not really interested in whether it is correct to use the term ‘doing’ to describe a case.
We are interested in whether this a standard doing – a case that has the distinctive normative profile of classic cases of doing (like the Push case) and where the justificatory bypass is legitimate.
The normative profile for a case can be represented the graph that you get when you plot a possible harm against the minimum cost to the agent that would justify countenancing that harm in the case. (Actually the full normative profile also includes graphs for other things such as permissibility of third parties coercing the agent, but ignore that for simplicity.)
We have some graphs of the normative profiles for Push and Stayback in the paper. They look very different.
I don’t think you can say a case is a standard doing until you’ve looked at a range of versions of that case with different costs to the agent and different harms to the victim. (And without confounding factors like malice or something that would trigger the DDE.)
You definitely can’t get anything useful comparing a case with a very high cost the agent to one with no cost to the agent and where death seems to be the goal.
The cases with no cost to the agent/ where harm is aimed at are the least informative case to look at, because that is where it is hardest to detect a difference between doings and allowings because allowings are most likely to be impermissible.
You can have justified doings of harm and unjustified allowings, but you only know whether you have a doing or allowing when you’ve looked at lots of different versions of the case.
Sorry, if that is long. I think it’s much easier to explain with the diagrams.
Victor, thanks so much for your comment. I missed it previously.
The type of case we were really keen to distinguish our barrier-contamination case was:
Drowning: Bob pulls Victor from the water, saving him from drowning, and takes the opportunity to break Victor’s leg.
But, as I’ve just passionately argued, cases where there is no cost to the agent are pretty useless in trying to figure out if we have a doing or not.
I am pretty convinced by our Plate cases in the paper. In both of these, not having caffeine with my lunch will cost me and having caffeine will harm my co worker. And in both, my co worker needs to borrow my plate. I think it matters whether the caffeine is added to the food and contaminates the plate (so it only harms my co worker because he is borrowing my plate) or whether I’m planning to create caffeine fumes, and trying to justify this by the fact that I previously benefited him by lending him my plate.
Your Turn case is a case where you have choices about which method you use to save someone and the least costly one has a bad side effect. It is therefore certainly different from a standard case of doing harm. It has in common with barrier cases that you only have to choose between the cost to you and the harm to the person because you are aiding them. If you think of the fact that the agent will turn the trolley as the barrier, then it might be possible to frame it as a barrier-contamination case. But I am not too worried if it is a different type of case which shares the underlying features that explain why barriers-contamination cases are not standard doings of harm.
I still think it is interesting to identify barrier-contamination cases as an interesting set of cases that differ from standard cases of doing harm to someone you have benefitted.
I’m going to post this now and respond to the second set of cases in another comment.
Thanks for the excellent paper, Elselijn and Fiona. I learned a ton from it, and from this discussion, too.
I just wanted to quickly follow up on Patrick’s invocation (echoing Liz) of the Thomson-style life support case, in a way that, I hope, support’s Fiona’s reply to Liz’s first question.
If I remember correctly, the essential details of Thomson’s case are this: A (playing the fetus-role) has kidney failure, and is sharing a blood supply with B (playing the mother-role), so that B’s kidneys are performing dialysis for both of them. If B were to stop performing life support (i.e., dialysis) for A, A would die. Thomson adds that B just ‘woke up’ in this situation, through no doing of theirs.
(An aside here: this kind of case seems to capture something important about the moral relationship between fetus and gestational parent (the ongoing biological work that the latter is doing on the former’s behalf), something that may not be captured as naturally by the concept of a barrier, protecting against external threats).
Given Thomson’s setup, we can ask: suppose B were to take a certain medication for perfectly good medical reasons, a medication to which, as it happens, A is allergic. The medication passes into A’s body, triggering a reaction, and the reaction causes (constitutes?) harm to A. Does B do harm to A by taking the medication? In the ordinary sense of “doing harm”, I am strongly inclined to say yes (and it doesn’t seem misleading to say so). More importantly, perhaps, I also think it is harder to justify (in the comparative-cost-theoretic sense) than, say, failing to take supplements which would make B’s kidneys more effective dialysis machines for A’s blood.
I am uncertain, however, whether taking the medication is subject to the ‘full force’ of the standard constraint against doing harm. To test this, it might be helpful to compare the Thomson-style case with a different case, where A and B just happen to share an IV bag/tube/apparatus. Because they share an IV, B can only take the medication by effectively giving it to both of them. In that case, it seems somewhat harder to justify putting the medication in their common IV (compared with how hard it is for B to justify taking the medication in the previous case). A plausible if inchoate hypothesis is that, in the first case, something about the way the harm is tied up with the benefit that B is providing A makes it easier to justify. I don’t know whether it matters that the harm comes in the form of a contamination of the benefit, as opposed to causally tied up with the benefit in a different way; Victor’s cases are interesting in this regard.
Okay, I am back to respond to Victor’s Barrier 2 case.
I should say, please forgive me if there were typos in my previous response or something did not make sense. I was typing on my phone.
I think in Barrier 2 we don’t have an independent harm in the relevant sense. The harm is caused by the agent saving the victim. So it is still the case that the agent would not have had to choose between the harm to the victim and the cost to himself if he hadn’t saved the victim.
Another way to put all this is that: I don’t think it is quite right that what this comes down to is that that benefits with negative features are to be treated differently from those negative features alone. Perhaps more closely: negative features which are appropriately related to benefits are to be treated differently from negative features which occur at the same time but are not appropriately related to benefits. But then we have the question of what makes a negative feature appropriately related to a benefit. If the negative feature is caused by bringing about the benefit, then most people will agree it is appropriately related. But its a bit more surprising and interesting to show that this is also true if the negative feature is the result of contaminating the benefit-provider/ barrier to harm. All cases where a pregnant person negatively affects their fetus by an action are cases of removal of barriers or contamination of barriers. For our purposes, it makes sense to focus on barrier-removal/ barrier contamination, rather than defending a universal account of what makes a negative effect appropriately related to a benefit.
Thanks Jake! I really like those cases. They bring out really nicely the contrast we had in mind.
A thought that just struck me. Although I do agree that there is a contrast between these two cases. I’m not actually sure that we need there to be such a contrast. If someone is happy to say that both the Thomson style case and the shared IV case are not subject to the full constraint against doing harm because the person is giving a benefit, then so much the better for us. All this work is really as a response to someone who would say you can’t take the medicine in the IV case because it would be doing harm and there is no difference between the IV case and the Thomson case.
So:
Friendly to our ultimate claim = People who think the IV case and the Thomson case are different; the IV case is (basically) a standard doing; the Thomson cases are not, and that pregnancy is a Thomson case. Also people who think that the IV case and the Thomson case are the same and neither are standard doings.
Unfriendly to our ultimate claim = People who think that the IV case and the Thomson case are the same and both are standard doings. (Plus another logical possibility I leave out because it seems too odd.)
So many interesting things are being said on this thread! I actually have not had a chance to read all of the comments.
Regarding the question of whether *all* pregnant persons have special duties to their fetuses *just because they are pregnant*, I would say a resounding “surely not!”
First of all, some pregnant persons are early in their pregnancies and are planning to abort. I think they can do all sorts of things that are worse for their fetuses before they abort, and there aren’t any duties or obligations they’d be violating.
Second of all, some pregnant persons did not have abortion available to them, so are forced by circumstances to continue their pregnancies. At least for some of these, I think they lack special duties to their fetuses, even when their pregnancies get considerably further along. (They didn’t choose to take on a special duty to their fetuses!)
(I haven’t had a chance to read all the comments.)
About Patrick’s bodyguard case:
There’s an important difference between *degrading* a barrier (making it less effective as a barrier) and *contaminating* a barrier (introducing a new harmful element to the barrier). The case of the bodyguard who eats healthily and thus has a less big and imposing, less protective body, seems to be a case of degrading a barrier rather than a case of contaminating a barrier.
And it may be that degrading a barrier always amounts to allowing harm rather than doing harm. (I think that Kingma and Woollard talk about what I’m calling “degrading a barrier” cases as species of “removing a barrier” cases.)
Thanks for joining us (from a different time zone, I take it) Elizabeth! Once again thanks so much for your fantastic summary.
I didn’t take you to be suggesting that all pregnant people have obligations qua being pregnant! Apologies if I did; I completely agree with the cases you write about and they are very important to remember as they are common.
So on obligations, it seems that we agree there are cases where there are no or v limited obligatons (i.e. intending to abort; perhaps pregnant against will without termination options); cases where there probably are obligations (committed pregnant person with options and resources, at least later on in pregnancy – my own pregnancies were certainly like this) and cases where things are quite tricky (perhaps gestational surrogacy; perhaps pregnant against will with profound religious personal objections to abortion planning to adopt). I think getting into the detail of why pregnant people might have obligations and what those obligations would be in all of the different possible scenarios in which people might be pregnant and give birth (which includes just about every possible human condition: warzones; earthquakes; famines; poverty; incest; as well as affluence, holidays, and excellent care) – is an interesting and super-complicated project. Which is why we just tried to sidestep it in the paper….
The point we emphasise is that even where there are obligations, they don’t just licence the bypass or the judgment that suboptimal behaviour are standard doings of harm. As Fiona wrote “moving from claims that a person has some special obligations to claims that they have a specific obligation require lots of argument.”. But I refer to my earlier commments here…..
@Elizabeth Harman on @Patrick’s Bodyguard case: yes that is completely correct, thank you for your careful reading. I think we call it ‘partial barrier removal’…. There may be a distinction here between considering the complete removal of a partial barrier, or the partial removal of a barrier – but I don’t we think we managed to figure out whether that matters…
Finally, @Elizabeth, I never responded to your first question – “Do Kingma and Woollard deny that in this potent recreational drug case, the pregnant woman is doing harm to the fetus? What about the fact that taking the drug seems much harder to justify than merely failing to ingest things that would be beneficial to the fetus?”
I think I completely agree with what Fiona said about this, but in case helpful I’ll post the notes I wrote in response before reading Fiona’s comment – here:
There are two issues here; one is whether the PW is simply doing harm to the fetus, despite this being a barrier case. It think here Fiona and I (but this is Kingma writing) disagree; because it remains a barrier case, and the barrier is the PW’s, it is not a standard case of doing harm (as we argue at length in the paper).
The second issue deserves more discussion. You picks up on an interesting intuition that, at first sight, I share. Where the harm is equal (say the fetus will be blind) it seems the costs that the PP should absorb to avoid this are much higher for the PP who took a drug contaminating the barrier resulting in blindness (‘poison case’) compared to the PP who refused to take a drug to cure the Rubella that threatens to make Fetus blind, unless she treats it (‘treatment refusal case’).
Now barrier cases are complicated, as we discuss in the paper, and they deserve much more research (as we mention in the paper) – and it fantastic to see all the excellent discussion on that in this threat. Not all barrier-cases are equal.
Harman’s case here makes me be inclined to think that how we affect the barrier – aka whether we affect it through an action – also matters. That we deliver a normative difference between ‘poison’ and ‘treatment refusal’ – even if neither is a standard case of doing harm.
Hi Fiona
thanks very much for the reply. So, one way to develop a view along the lines you are thinking in response to my earlier questions might be this:
Suppose X can provide Y with some method of protection from a threat. The fact that they provide an inferior rather than a superior method of protection does not in itself involve harming Y. So, doing this will be easier to justify than harming Y. It can be justified by some more modest cost to X of providing the superior protection, n.
Now suppose X can provide protection, but they can degrade, contaminate, or otherwise affect that method of protection. If they don’t do that, they will suffer cost n. This will also be justified.
However, suppose X can provide Y with some method of protection from a similar threat. After providing that protection, they can independently harm Y, and doing that will prevent them from suffering cost n. Y will be just as badly off as a result as they are in the first two kinds of case. Doing this may well not be justified. Perhaps doing this is easier to justify than it would have been had X not provided Y with protection. But it is not as easy to justify as the first two cases.
Barriers and contamination are an instance of this more general moral picture.
Am I reading you right? If that’s the view, I can certainly see the intuitive appeal. And your argument for it is that this is to do with a difference in the way the comparative disadvantage occurs in the third case compared with the first two – that it is wholly independent of the provision of the benefit. Again, I can certainly see the appeal of that. And it has intuitively appealing implications for the pregnancy case – it’s easier for the pregnant person altering their body for some benefit in a way that makes their child worse off than they would be without the alteration, such as eating something delicious but less good for their child – than it is for them to act in a way that directly affects the foetus, making their child worse off (if they were offered a cash reward for directly injecting the foetus with something bad for the child, that would be much harder to justify, even though their child is prevented from a much worse fate by the pregnant person’s overall conduct during pregnancy.
Liz: you’re completely right about the bodyguard case — it’s a ‘making the barrier less effective’ case, not a ‘contaminating the barrier’ case.
***
I wanted to potentially complicate, a little, Victor’s taxonomy of cases above. I wondered if there was an important difference between contamination-causally-linked-to-providing the barrier, and contamination-independent-of-the-barrier.
I’m picking up here, in part, on Fiona’s comment: ‘negative features which are appropriately related to benefits are to be treated differently from negative features which occur at the same time but are not appropriately related to benefits. But then we have the question of what makes a negative feature appropriately related to a benefit. If the negative feature is caused by bringing about the benefit, then most people will agree it is appropriately related. But it’s a bit more surprising and interesting to show that this is also true if the negative feature is the result of contaminating the benefit-provider/ barrier to harm.’ My basic thought is ‘appropriately related’ may come in degrees. It’s not clear to me that all cases of contaminating the barrier are equal in this regard.
Victor differentiates between (1) providing-an-inferior-barrier, (2) providing-a-barrier-and-contaminating-it, and (3) providing-a-barrier-and-independently-harming. He thinks (1) and (2) belong together, and (3) is importantly different.
I wonder if some cases sit somewhere in between (2) and (3), and I think some of my previous points were attempts to get at this. That is because we can differentiate between:
(2.i) contaminating a barrier as part of providing/keeping up the barrier
(2.ii) contaminating the barrier with something that is nothing to do with providing the barrier.
(2.i) cases are more like (1) cases – you’re providing a less good barrier than you might. Think of eating unhealthy food (with toxins in). You must eat in order to sustain the barrier, but you do so in a way that introduces a toxin.
(2.ii) cases are more like (3) cases – while the toxin is not independent of the barrier like in a (3) case, it is independent of the barrier’s operation as a barrier. So the toxin is less ‘appropriately related’ to the provision of the barrier. Think of eating a healthy meal, and then eating toxin powder. Or introducing poison into the drip.
(2.ii) cases look more like doing harm (in the relevant cost-bearing sense) to me. They are closer to (3) cases. Regarding pregnancy, this would make eating junk food easier to justify than smoking, I think.
I’d be interested to know what others think here.
In closing, I’d just like to say that this whole thread basically justifies the central conclusion of the article: none of this is straightforward, and so the justificatory bypass isn’t warranted. In fact, I think we can go further, because even if the authors are wrong about some key things, the justificatory bypass is STILL not warranted in a sense….to explain: the article seeks to show that not all contamination of barrier cases are doing harm. But even if it turns out the authors are wrong about that, it’s definitely the case (as we can see from the thread) that they are not STRAIGHTFORWARDLY all cases of doing harm. And so either the authors are right that the issue requires further investigation via the special relationship route (and so the justificatory bypass is not warranted); OR further investigation into barrier cases (the justificatory bypass would have to be earned, and so isn’t really a bypass).
Thank you both Victor and Patrick!
Victor, I think that overall picture is right and a good way of getting at why what we are saying relates to claims about the Turn type cases, but doesn’t reduce to them.
Patrick. I think I agree that there might be important differences between 2i and 2ii. HOWEVER I wouldn’t want to describe it as ‘a lot more like doing’. That would risk letting people forget that there are some really, really important differences between such cases and standard cases of doing harm.
At most I would accept ‘a little more like a doing’. 😉
And I agree that all this does prove our main point!
On Liz and Elselijn’s comment.
On my own view (and I think we actually endorse this in the paper), it absolutely matters whether you affect the barrier by an action or not. Indeed, absent complicating factors, if there’s no relevant action then we don’t really have a barrier case at all. We just have a bog standard allowing by forbearing to prevent.
If those complicating factors are present, so it still counts as a barrier case, then I agree it might still matter that is is inaction.
@Fiona. – oh yes that’s right…….. I’m sorry. foggy brain. This blogging is too fast paced for my thinking capacity I think… 😉
Thanks, Fiona and Elselijn, for this really terrific paper, which advances considerably our thinking about the nature of the doing and allowing distinction and the moral status of withdrawing aid (among many other things). I was struck, Fiona, in your response above to one of Patrick’s comments and again to Liz’s, that you say that you consider the action/inaction distinction to be independently morally relevant, in addition to the doing/allowing distinction. I do find that intuitive. I find it correspondingly intuitive that, even in your car removal case, you can be required to incur at least a bit more cost to avoid removing your car when it is protecting someone than you would be required to incur to assist that person if you merely came upon them in need. Correspondingly, I think we could impose a bit more cost on you to prevent you from removing your car, than to compel you to assist. I am wondering to what extent you think that an analogue to the justificatory bypass type argument can be made by invoking the action/inaction distinction rather than the doing/allowing distinction. To be sure, if you are right that the stringency of duties based on doing harm are greater than those on acting in a way that gives rise to harm, then interventions that would be grounded in the importance of preventing the doing of harm are more easily justified than those grounded in the importance of preventing acting in ways that give rise to harm. But then preventing others from acting in ways that give rise to harm are easier to justify than those that merely prevent others from allowing harm. So it would provide a kind justificatory bypass, just a (perhaps much) less potent one of appealing to special duties, which would be required in the case where the agent would otherwise allow harm. The question is where that would leave us with the cases of interest to you. Would it allow us to say, to take the ingesting recreational drugs case that Liz helpfully introduces above, that some sorts of coercive intervention/additional ‘nudges’ could be warranted (though perhaps of a different sort than were this a clear cut case of doing harm) without taking special duties into account? I take it the much of the fascinating discussion in the thread above so far is about whether the fact that your action consists in removing a barrier to harm that you own makes your conduct more morally akin to an allowing than to a doing of harm. I think the cases introduced in your paper and by others above suggest that even when your conduct is an instance of action (but not doing harm), its possessing other features can ‘ramp up’ the stringency of your duties to refrain from it (and correspondingly can make a difference to what others can or cannot do to compel you to do so. So we could say that we have three categories–doing harm, allowing harm, and acting in ways to give rise to harm without doing harm, each of which are morally distinct, but where instances of each type of conduct can possess other features that can further effect their moral significance. That is a slightly different picture than one in which there is a doing an allowing distinction, where actions that give rise to harm are sometimes assimilated fully to doings, and other times fully assimilated to allowings, and we just need to figure out which features make them slide into one category rather than the other. [I had been thinking (though forgive me if I am wrong–it’s been awhile since I read the paper) that your strategy was to think that doing/allowing was the fundamental distinction, and that the action/inaction distinction was only relevant in the sense that some actions were doings, whereas all inactions were allowings, and that the purported cases of harms to the foetus were actions that were not doings.]
Thanks Christian for these extremely helpful comments!
I don’t really think that there is an analogue of the justificatory bypass for action. That’s because although allowing through action is harder to justify than allowing through inaction (merely forbearing to prevent), it is very, very different from doing harm. And a lot of argument is needed to justify interfering with another to prevent them from allowing harm through action – let alone imposing costs on them to prevent them from allowing harm through inaction. Here are some examples of allowing harm through action:
– McMahan’s Thwarted Theft in which victim steals agent’s wallet to pay for life-saving treatment and agent chases victim and grabs the wallet back.
-Kagan’s case in which the agent writes a check to charity, changes his mind and tears it up.
-Kagan’s case in which the agent finds out that his accountant has mistakenly set up a direct debit to charity and writes to the accountant to cancel it.
With these kinds of cases, it does seem that the most important distinction is the doing/allowing distinction. These cases may differ from the corresponding versions where the agent forbears to prevent/ allows through inaction. But they are much more similar to those cases than to any doing.
So I really don’t think we should accept even a soft version of the justificatory bypass for action alone.
When it comes to your more general point, I used to endorse the bi-partite doing/allowing distinction very strongly. So my view very much used to be one “… in which there is a doing an allowing distinction, where actions that give rise to harm are sometimes assimilated fully to doings, and other times fully assimilated to allowings, and we just need to figure out which features make them slide into one category rather than the other.” Thinking about pregnancy, and also about other cases like lockdowns, has made me less sure. I do now think there are cases which are neither *standard* doings nor *standard* allowings.
But I still think a lot of cases of removing barriers are standard doings or standard allowings. And maybe that some cases of contaminating barriers are standard doings or standard allowings. So, I’d reject a picture on which the allowing harm category was supposed to line up with allowing through inaction.
Basically, (and this is very much me speaking for myself and not ‘Kingma and Woollard’) I still endorse a picture on which the doing/allowing distinction boils down to authority over what belongs to us. Constraints against doing harm protect us against the behaviour of others reaching into the sphere of what belongs to us, affecting us or what belongs to us through chains of substantial facts. Permissions to allow harm protect us against the needs of others reaching to the sphere of what belongs to us, requiring us to put ourselves or what belongs to us at the use of another. But I have now come to see that in some cases there are very complex interactions between these two protections, and that is when we have cases that are neither standard doings nor standard allowings.
Thanks Fiona, for that super helpful reply. For what it’s worth I think the Kagan and McMahan cases you mention may be special in some respects, which makes their moral valence somewhat different than other cases involving actions that give rise to harm without being doings, but we can leave further discussion of that to another time!