Thursday, June 11, 2009

Tiller, Part Three


Third, and finally, I am interested in the use of violence in the pursuit of moral ends. I do not agree with the extreme anti-choice view, by any means, but I can recognize that some who are of that view genuinely believe that abortion is the killing of a ‘person.’ In other words, I recognize that some of the anti-choice advocates believe they are trying to end the killing of innocent humans, and that is certainly a ‘moral end.’
I have argued, elsewhere, that the use of violence to bring about a sufficiently important moral aim may be justifiable when all other efforts have failed. This principle is an extension of the familiar principles of self-defense and defense of others. The same requirements of proportionality – that the violence done be proportionate to the violence thwarted – apply in all cases. So, I do not suggest that killing is a justified means of preventing mere injury or suffering, anymore than brutality is justified as a means to prevent dishonesty. The end, here, really must be of such weight that the otherwise forbidden means can be justified. Generally speaking, this entails that violence be used only to prevent worse violence.
John Brown’s seizure of the armory at Harper’s Ferry and his planned ‘uprising’ of slaves in the area is an example in point. Brown hoped to bring about the end of slavery in the United States by inspiring slaves to use their superior numbers to free themselves and, ultimately, to frighten slave owners into giving up the ‘institution.’ It was a desperate plan, and if Brown is to be faulted, in my opinion, it is for the doubtfulness of success. Without meaningful likelihood of achieving the good ends, the use of violence as a means is less justifiable. Still, because Brown sought the freeing of 4 million human beings from lives of enslavement, forced labor, degradation, and – yes – violence, and because he reasonably saw no end to slavery as matters stood at the time, I do think the decision to use violent means was justified.
Predictably, when I have argued for this defense of Brown, I have been met with this rejoinder: “But, then, don’t you have to accept violent means on the part of anti-choicers and others with whose moral judgment you disagree?” My answer is, “No,” because the situations are morally distinguishable.

Let’s start with the easiest points of distinction.

I criticized Brown’s full choice of means for the improbability of its success. He not only chose to employ violence, but also to do so with a woefully inadequate number of forces and at a location that would be difficult to hold once he had seized it. (Federal armories are places of considerable concern to the government and its military. ) Justified means must be rational means – rational in the sense that they can be reasonably expected to serve as effective means to their intended end. The seizure of the armory and the plan to rally local slaves to its defense was not completely irrational, but it was extremely risky, and all chances of success depended on events outside of Brown’s control.
How might we assess the rationality of the killing of individual abortion providers as a means to end abortion? Of course, one less provider might mean some fewer abortions, in the short run. And, the acknowledged aim of many anti-choice groups to make the lives of abortion providers so miserable that they will quit and others will not replace them could certainly be advanced by making the role dangerous. Someone tough enough to stand up to constant harassment might quail at the possibility of being murdered. But, I think the rational connection between the killings of abortion providers and ending abortion in our country is tenuous. So, I have serious doubts about the causal efficacy of the violence, and that efficacy is important for justifiability.

The question of efficacy is related to another point of distinction between Brown’s actions and the killing of an abortion provider: proportionality. Whether or not the means are proportional to the ends turns, in part, on whether the ends can be achieved by the means. Given the limited violence of Brown’s own conduct in seizing the armory and the great good to be achieved by freeing even the local slaves, Brown’s choice seems to meet the requirements of proportionality, if we give him the benefit of the doubt as to efficacy. Justification of killing an abortion provider, by contrast, is weakened by both a less plausible claim to efficacy and a deep question of proportionality. That deep question is of the moral equivalence of a thinking, feeling human of reproductive age and something between a zygote and an unborn fetus at some stage of development (after the 9th week of pregnancy, which begins in the 10th to 14th week).
And this, of course, is the point at which we find ourselves returned to the moral convictions of anti-choice activists. The central question is whether, and at what point, a pregnant female and, perhaps, others in her life, is of no more considerability than a yet-to-be person? Choosing terminology is difficult in this context. Of course, a human zygote is something human and a human fetus is closer to being a living human person. But, language aside, I simply cannot comprehend the idea that a living, thinking, feeling human of age to become pregnant is of no greater considerability than a zygote, a morula, a blastula, or a gastrula (early embryo). At 9/10 weeks, what we call the ‘fetus’ is still without a developed brain or lungs; arm and leg bones, ribs, and the skull begin to form at 13 weeks. And so on for skin and ears and bone marrow and so on. A pregnancy is not considered ‘full-term’ until the 37th week.
But, I do not want to argue the question of the timing of what I would call ‘personhood,’ here. I would not persuade anyone seriously committed to the moral equivalence of a fetus and a pregnant girl or woman. I want to focus on the justification of violence to ‘end’ or inhibit abortions.
There could have been no rational doubt in the minds of slave-owners that the slaves were living human beings. Of course, many referred to their slaves as ‘animals,’ but their conduct gave the lie to that metaphor. We do not entrust our own infants to other animals for nursing or care; nor do we have them serve as midwives when we give birth. We do not have sexual relations with other animals, normally, and we certainly do not dress them up and install them in our homes as mistresses. We do not have them prepare our meals or help us run our affairs. We would never be afraid that they might learn to read and revolt against us, so we have no need to keep them in ignorance.
Slave-owners treated slaves in these ways and others that clearly indicate they knew the slaves were not simply ‘animals.’ They might have convinced themselves that the slaves were inferior humans, even very inferior, but they knew they were humans: men, women, and children who could feel pain, feel emotions, think, speak, and act on their own.
Even a completely healthy newborn must continue to develop to attain the level of personhood of the people were held as slaves in John Brown’s United States. However connivingly the slave owners and pro-slavery advocates might have tried to think of the slaves as ‘not persons,’ they knew the truth. But perfectly rational and honest-minded people can and do disagree as to the personhood of a fetus, especially before the 37 week mark. This is a matter of real controversy and genuine doubt.
This brings us back to proportionality and what might be called the ‘moral numbers-game.’ Suppose one is not convinced – as killers of abortion providers must not be – that to kill any person is wrong, no matter what the good ends to be achieved by killing. In other words, suppose one is not an absolutist about ‘human life.’ There are two conceptual options: 1) one disavows any intentional killing of another human for any purpose, however good; 2) one disavows only the killing of ‘innocent’ persons. Clearly, those who believe it is correct to kill abortion providers embrace the second option. Nonetheless, to take it upon oneself to judge the innocence or guilt of others and then simply to kill anyone on the basis of that judgment would demonstrate a remarkable moral hubris. So, we turn to the numbers-game: how many innocent lives will be saved if this purportedly non-innocent life is ended? Well, that depends in the context of abortion, on what one regards as a person [innocent or not].
The conviction of some anti-choicers that a fetus (or, worse, a zygote) is a person fully comparable to a living, thinking, feeling, speaking, person with a life underway and friends and family, is problematic when we come to the numbers-game. Of course, if I imagine myself able to save the lives of thousands of beings who are unquestionably full persons,[i] then – as I am not an absolutist – I will say the killing of the person who threatens their lives is justifiable [at least, in principle]. But, how are we to assess the intentional killing of a full-grown adult for the purpose of saving the ‘lives’ of entities whose personhood is a matter of such dispute and uncertainty? This is but one point, yet the crucial point, on which the justification of the killing of abortion providers founders.

Let me recap. To justify the killing of someone like Dr. Tiller, one must show, minimally, the following:
1) The use of violence is something close to a last resort (it is ‘necessary’ rather than discretionary);
2) The ends to be achieved outweigh the evil of intentional killing;
a) Thus, they must be proportionally significant.
b) Where human life is at issue,
i) the numbers of lives to be spared ought to exceed the lives lost,
ii) and/or [ii] the lives to be ended must be of clear evil-doers

(not based merely on a judgment of ‘guilt’ open to reasonable dispute).
3) The violence must be plausibly efficacious towards attaining the good end[s], i.e., rational as a means.

If we give the benefit of the moral doubt to those who kill abortion providers, we might say that their choices satisfy requirements 1 and 3 (necessity and rationality). I can see that the ‘necessity’ argument for the ending of abortion – if one accepts the moral equivalence of fetuses and adult humans – is comparable to Brown’s argument for the necessity of ending slavery: the hated conditions persist and there seem to be no prospects for political relief in sight. I do have some doubts about the efficacy claim, but let’s grant it for present purposes.
It is the complex questions of requirement 2 that distinguish the case of Brown from the case of Dr. Tiller’s killer. I assert that Brown had incontrovertible evidence that the slaves were persons fully equivalent to the slave owners. His conviction was not the consequences of any particular religious or metaphysical view; it was an accurate representation of evident facts. Thus, the good to be gained – the number of lives to be saved and improved [made human] – far exceeded the loss of lives of all slave-holders and their families, if it came to it. (Brown did have another end-in-view: cleansing his country of a great moral blight in the eyes of the god he worshiped, but that is not a necessary element in the justification of his actions.) Four million enslaved human beings certainly outnumbered the few hundreds who enslaved them.
Further, we must note that the deaths of any of those hundreds were not central to Brown’s aims. If he could have merely frightened the ‘Slave Power’ into abandoning its evil institution, he would have been satisfied. Even at Harper’s Ferry, he hoped slavery could be undone without significant violence. The killer of an abortion provider is precisely that: the intended and deliberate killer of a person. One or more persons are to die; if others are frightened into acquiescence that is a happy side-effect of the killing. The deaths of one or more are not unfortunate side-effects of an effort to save others; rather, they are the precise means selected for that end. (For Catholics and many deontologists, this is a crucial distinction summed up in the Doctrine of Double Effect.)
Last, there is the question of ‘innocence,’ ‘guilt’, and judgment. Much of the demonization of Dr. Tiller that I noted in the first and second installments of this discussion was directed toward painting him as a man who knew that he was ‘murdering innocent humans.’ That Dr. Tiller not only had a different view as to the personhood of fetuses but also perceived a moral and professional obligation to help women, men, and girls, in the most dire straits, is nowhere admitted in the attacks on him. He was not depicted as a professional with a view of personhood or moral obligation different from the views of those who demonized him. He was, simply, either a [godless] mercenary or a witting evil-doer. That Dr. Tiller might have honestly had beliefs about personhood and/or his obligations as a doctor that were not those of the anti-choicers was seldom, if ever, suggested. Rather, he was a ‘Nazi,’ a murderer, a monster who would do anything to make money.
It is a serious moral undertaking to judge as to the views and intentions of others. I do not think we ought never to ‘judge,’ as many relativists seem to recommend. But moral humility is a great virtue. When the requirement for humility is conjoined with reasonable doubts about one’s own moral-factual beliefs – such as whether a fetus is morally equivalent to a here and now person – then, I truly believe, one ought to tread very carefully. Might one conclude that an abortion provider is committing ‘murder’? Of course; although I think even that judgment of another moral agent should be circumscribed with care and charity, such private judgments are largely to our moral discretion. But to kill another human being on the basis of such disputable judgments is a dreadful exhibition of moral and epistemic pridefulness.
If, as in the case of Dr. Tiller’s murder, there are reasonable doubts about the good ends to be attained [saving ‘lives’] and the determination of proportionality, then no one should be quick to kill an in-the-flesh human being. If we add, at this point, both concerns about the lack of clarity as to the good ends to be achieved [what, exactly are the ends?] and doubts as to the efficacy of the means selected to the ends, the case for justification fails.

There are initial reports suggesting the man arrested on suspicion of murdering Dr. Tiller is mentally ill. If so, his actions might be morally and legally excusable. But excuse of the actor is not justification of the act. The act in this case was murder.

[i] I am not sure that newborns are ‘full persons,’ but I do think I could justify killing someone who, purely maliciously, would try to kill one or more newborns.
[ii] Whether it is ever justifiable to kill an ‘innocent’ person to save a greater number of innocent lives is a distinct problem.

Tuesday, June 9, 2009



Second, there are serious questions about free speech and incitement that should be touched upon, at the least. The law, of course, treads with great respect around individuals’ rights to freely express themselves on all matters. Whether this is the best interpretation of our constitutionally guaranteed right to free expression, or not, is a deep and distinct question. The law stands as it stands. My concern is a moral concern: to what extent should we, ought we, to hold responsible those whose exercise of their legal rights to free expression implicates them in inflaming the passions of those who are unable to control their passions, inciting to violence those who are unable to conform their conduct to law and basic moral constraints, or providing the informational means for violent action to those ready to engage in violence? If you want to see the several web sites that were devoted to demonizing Dr. Tiller, just go to Google. If you want to hear a well-known public pundit demonize Dr. Tiller and intimate that he deserved to die, go to UTube and search for Bill O’Reilly.
Unsurprisingly, most of the identifiable persons and groups who pronounced Dr. Tiller ‘Tiller, the Baby Killer,’ or compared his medical services to ‘Nazi stuff’ and the Holocaust, now condemn his murder. They are shocked, shocked. Shocked and appalled, no doubt. The anonymous haters trolling about on numerous websites do not need to be so condemnatory; they prefer to ask how much money Dr. Tiller earned through his medical practice, or to claim that the death of one man is not comparable to the deaths of thousands of fetuses, or to dismiss the anguished stories of women [and men] and girls who find themselves in desperate need of a late abortion.
These apologists for murder, however repugnant one may find their words, do not belong to the same moral class as those who fueled hatred and encouraged or facilitated violence. Perhaps the rhetoric of “Tiller the Killer’ can be attributed to the irrationality of rage on the part of a blogger here or there, but why would a public personality such as O’Reilly persist in that rhetoric? Surely, either he or his producers must have had some more rational, sober moments in designing their attacks on Dr. Tiller? Perhaps O’Reilly simply is the irresponsible blowhard so many believe him to be. But what purpose could there be in web sites showing maps of Dr. Tiller’s home and clinic? What could possibly explain, or excuse, the offering of private information about Dr. Tiller and his family on the Web? Perhaps those who provided that information simply intended to have the Doctor and his family harassed. Perhaps they really believed it would go no further. Yet, the man who is accused of murdering Dr. Tiller was known to Operation Rescue personnel (as was the woman who shot him some years earlier); indeed, Operation Rescue kept him informed of Dr. Tiller’s whereabouts.
There is a mental state [mens rea] in the law known as connivance. ‘Connivance’[i] describes the mental state of one who claims to not recognize that a trailer truck full of flat screen TVs with all numbers defaced - and no purchase receipts - pulled up to the back of one’s pawn shop is, in fact, a trailer truck full of stolen goods. But, connivance has a forward-looking mode , as well. When my son was about 6 months old and sitting in his highchair, my daughter – about four years old - stood before him, slowly and deliberately eating his beloved Cheerios. Staring him in the eyes, she put one Cheerio after another into her mouth and made loud sounds of relish . Imagine her ‘shock’ when he began to cry.
I think that ‘connivance’ is the apt term for the cognitive states that allowed people like Bill O’Reilly, Operation Rescue operatives, and numerous bloggers and ‘journalists’ to express – in print or vocally – views that painted George Tiller as a monster who deserved to die. Indeed, I believe that the rhetoric of many of these people, groups, and media outlets can only be explained as evidence of connivance, both personal and collective. (I reserve as a possibility, of course, the judgment that some persons and some groups were quite purposive in their design to incite the murder of George Tiller and any other medical professionals who would not acquiesce to their threats of physical violence or legal/social/financial blackmail.) But let me be clear: ‘connivance’ means ‘guilty ignorance.’ Connivers are not innocently ignorant. Rather, they connive to hide the obvious truth from themselves and, thus, to obscure their own moral fault.
I imagine there is a continuum of self-awareness among connivers, particularly among the kind of moral connivers who publically denounced and demonized Dr. Tiller. Some may be simply so limited in imagination or foresight as to recognize the effects their words and exhortations could have on others. Some, such as O’Reilly, might be so taken up with the need to be exciting – so as to support a lucrative career as a ‘public personality’ – that they obstinately refuse to contemplate the likely effects of their demagoguery. And, of course, it may be difficult to distinguish between genuinely innocent expression and expression connivingly expected – if not intended – to provoke criminal conduct by others. The questions that need be asked to make the discernment, however, are simple enough: ‘Why?” ‘ For what purpose?’ ‘To what end?’
For what purpose would a public ‘pundit’ repeatedly describe Dr. Tiller as a ‘baby killer’ or liken him to the Nazis? What end was served by publishing maps of Dr. Tiller’s home? More broadly, to what end would any person or group persist in targeting a single individual for harassment if that individual or group did not recognize that ‘harassment’ takes many forms – that it might range from ugly abuse to stalking and to violence? What kind of moral agent wants to single out any person for harassment? What fool is unaware that encouraging the harassment of an individual inevitably leads to much worse than ‘harassment’?
None of those who pilloried Dr. Tiller on the Web or on television or radio shows is responsible for the acts of the man who killed the doctor. They are responsible, however, for their own conduct. Putting aside questions as to the legal limits on freedom of speech, those who exercise their right to free speech are responsible for the content of their own expression. The internet makes it easy for ay one of us to express her/himself with little consequence. The significant benefits of becoming a popular figure through the media make it tempting to maintain one’s popularity through unethical behavior. But neither the ease of abandoning self-restraint nor the temptations of success can release us from the obligation to speak and write as responsible moral agents.

[i] 1. ‘Connivance’ may also mean something like ‘conspiracy,’ when there is more than one person involved, The conceptual relation is fairly clear: either (a) a person connives to ignorance on his/her own part or (b) a person connives to ‘innocent’ participation in the criminal activity of others.

The Murder of George Tiller in Three Parts
Let’s think about the murder of Dr. George Tiller, “Diplomat of the American Board of Family Practice and Medical Director of Women's Health Care Services.”
Dr. Tiller ran a women’s reproductive health clinic which, among other services, provided abortions. Over time, because Dr. Tiller was willing to provide ‘late-term’ abortions to women under legally defined circumstances and because his clinic gained a national reputation for gentle care and counseling, Dr. Tiller’s practice became more and more associated with providing abortions. In particular, Dr. Tiller was one of only 3 or 4 physicians skilled in and willing to perform difficult abortions in the late second trimester or third trimester – abortions which count for something along the lines of a maximum of 1% of all abortions performed in this country. The technique primarily used by Dr. Tiller in these late abortions was to inject a fetal heart stopping medication; after the inducing of contractions, the pregnant woman would then have to wait hours or a few days to deliver a stillborn .
Dr. Tiller’s late abortion patients fell , roughly, into four groups: 1) women or girls whose lives were endangered, or whose health was seriously endangered by the pregnancy, or who required medical treatment that the pregnancy made impossible; 2) often overlapping the first group, cases in which testing revealed serious – often dreadful – abnormalities or deformities in the fetus, other kinds of problems for the fetus or fetuses, or a dead fetus; 3) women or girls who were the victims of rape or abuse; 4) more rare cases in which the pregnant person was a mentally defective minor, herself.
The truly heartbreaking and tragic stories of women and girls who found care at Dr. Tiller’s clinic can, now, be found in many places. Sometimes, after all, people who have suffered a tragedy do not want to share their stories with others, in particular with a polarized public, but the murder of Dr. Tiller seems to have inspired many of them to explain what they endured and how they came to choose late-term abortions. Andrew Sullivan’s blog on The Atlantic has received any number of these terrible stories of women and men who looked forward to their babies only to have their hopes dashed by some of the crueler turns of Nature. The stories of girls – as young as 9 – who were victimized by relatives and became pregnant unawares, and whose pregnancies proceeded past the first trimester before others realized what had happened, are certainly no less painful to read.
For his service, Dr. Tiller was singled out by Operation Rescue (which now decries the killing of “abortionist Tiller”), by a site entirely devoted to disclosing Dr. Tiller’s personal information, and by the lawless Bill O’Reilly (who, also, now claims to separate himself from incitement to violence). Dr. Tiller had been shot, previously, and he and his clinic staff were the targets of email, mail, and in-person invective and bullying. He and his family lived in a gated community for protection. He was also targeted by a ‘pro-life’ Kansas Attorney General, who never won any of his actions against Dr. Tiller. On Sunday, May 31, 2009, Dr. Tiller was shot in the face at his church while serving as an usher.

Most of this is readily accessible online and through news outlets. So is the renewed firestorm of the ‘abortion debate’ in the United States. Here, I would like to address some other issues.

First, it must be noted that the murder of Dr. Tiller leaves this nation with, perhaps, two or three practicing physicians sufficiently skilled in the very difficult medical technique of late-term abortions. Many women and girls had to travel hundreds of miles to find help at Dr. Tiller’s clinic in Kansas where he frequently provided all services and counseling for free. Now, there is one fewer such doctor to help women whose desired pregnancies ended in agonizing choices to sacrifice the possibility of a safe birth for the mother’s life or health or in the wrenching decision to spare a newborn pain and suffering before an inevitable death. Now, there is one less doctor to help young girls who are victimized by rape and whose bodies, in some cases, are simply too undeveloped to carry a pregnancy to term – I note this last point recognizing that there are those so callous as to condemn a child to the torment of a pregnancy that results from [often, incestuous] rape.

The next topics I will adress in relation to Dr. Tiller's murder are Responsible Speech and the Use of Violence for 'Good' Ends.