In the fall 2012, I briefly left the University of Minnesota Morris to do a series of directed studies in Houston, TX. One of these included attending Dr. David Eagleman’s “Neuroscience and Law” course at Rice University, which required that we write for the Initiative on Neuroscience and Law’s blog. This was originally published October 30, 2012.
In an article titled “Can Neuroscience Challenge Roe v. Wade?” William Egginton, professor in the Humanities at John Hopkins University, cautions us to be careful in how we use the natural sciences to shape public policy. In this case, abortion rights. Egginton writes about attorney Rick Hearn’s suits against Idaho’s Pain-Capable Unborn Child Protection Act “and others like it that cite neuroscientific findings of pain sentience on the part of fetuses as a basis for prohibiting abortions even prior to viability.” The reason for this is because Hearn believes that the government is using results from the natural sciences “as a basis for expanding or contracting the rights of its citizens.” The logic goes like this: if it can be proven that fetuses are capable of pain then they are conscious and thus a person deserving of their full rights under the constitution. This clearly has political overtones.
The turn to legislation based on alleged neuroscientific findings in search of an end-run around the protections provided by Roe v. Wade is popular among Republicans. Mitt Romney voiced his strong support for such legislation in 2011, when he wrote in a piece in National Review, “I will advocate for and support a Pain-Capable Unborn Child Protection Act to protect unborn children who are capable of feeling pain from abortion.” Since viability is, according to Roe v. Wade, the point at which the state’s interest in protecting “the potentiality of human life” becomes compelling enough to override its interest in protecting the right of a woman to make decisions regarding her body and its reproductive organs, Idaho’s statute and others like it would either be found unconstitutional or, if upheld, entail overturning a fundamental aspect of Roe v. Wade.
This is reasonable enough since the Republicans are simply trying to reinforce their philosophical arguments with evidence. If it is true that the fetus experiences pain (as we would conceive of it), that is a pretty strong argument in their corner. Unfortunately, when the Republicans refer to pain sentience there is the implication that these feelings arise from a primitive form of consciousness, which is debatable.
Current neuroscience distinguishes a spectrum of degrees of “consciousness” among organisms, ranging from basic perception of external stimuli to fully developed self-consciousness. … The neuroscientist Antonio Damasio, for instance, distinguishes degrees of consciousness in terms of the kind of “self” wielding it: while nonhuman animals may exhibit the levels he calls proto-self and core-self, both necessary for conscious experience, he considers the autobiographical self, which provides the foundations of personal identity, to be an attribute largely limited to humans.
… For a fetus to be conscious in a sense that would establish it as a fully actualized human life, according both to current neuroscientific standards and to the philosophical tradition from which the concept stems, it would have to be capable of self-perception as well as simple perception of stimuli. … By turning to consciousness in an attempt to push Roe’s line-in-the-sand back toward conception, in other words, abortion opponents would in effect be pushing it forward, toward the sort of self-differentiation that only occurs well after birth and the emergence of what the phenomenological tradition has called “world” [Emphasis mine].
Fortunately for infants everywhere, though, philosophy is always evolving and we can change our views in light of the evidence. Acknowledging neuroscience’s views on consciousness does not suddenly mean that we need to allow abortions in the fourth trimester. Social policy is not strictly beholden to science. Instead, what we often do is use our experiences, intuitions, and philosophies to guide our research in a way that either reinforces or invalidates said experiences, intuitions, and philosophies, the latter of which we then amend accordingly. If our ideas on consciousness could, in theory, allow for the killing of babies, then let us change our philosophies to fit our intuition that killing babies is wrong. It is as simple as that. What our understanding of consciousness simply means (in this case) is that if the anti-abortion movement hopes to gain any traction it must discard the “pain sentience”/”consciousness” argument otherwise maybe we couldjustify abortion after-birth.
I am sure there are other arguments that can be made against abortion but citing pain sentience is not one of them.
Lastly, in this article I think Egginton places too much emphasis on what he calls the “hubris” of science to overreach into those fields he believes to be in the realm of philosophy. At face value I do not disagree but it is misleading for him to blame science’s role in the pain sentience debate rather than the idealogues who are cherry-picking and misusing it to support their ends. It is true that the non-scientific community will often regard SCIENCE! as a beacon of infallibility (except when it challenges their intuitions) but that is not the problem of science it’s the problem of society. This is just another example of how scientific illiteracy pollutes the discourse rather than science being “dictatorial.”