by Sherry F. Colb
In my Verdict column for this week, I discuss a decision by the U.S. Court of Appeals for the Fifth Circuit holding a Mississippi abortion law unconstitutional, as applied. The law at issue, like an increasing number of state laws, requires that doctors who provide abortions must have admitting privileges at a local hospital. The doctors at the one existing abortion clinic in Mississippi attempted to acquire admitting privileges at seven local hospitals, but all requests were denied, expressly because of the doctors' participation in abortion services.
The Fifth Circuit held that the law in question, given the circumstances, effectively eliminated abortion services from the state of Mississippi and thereby imposed an undue burden on the right to terminate a pregnancy. My column analyzes the unusually fact-specific nature of the ruling and why it needed to be that way.
In this post, I want to turn from the subject of abortion to the subject of animal rights. What is the connection, you ask? One connection is that Mike Dorf and I are currently working on a book -- tentatively titled Beating Hearts -- about the animal rights and anti-abortion movements. The book addresses substantive arguments that find expression in both pro-animal-rights and pro-fetal-rights camps as well as some of the philosophical and strategic challenges that similarly confront the two movements. One strategic challenge is whether to embrace legislative reforms that regulate the targeted behavior (whether animal exploitation or abortion) and thereby potentially imply that the activity is not itself inherently objectionable, if proposed guidelines are merely followed.
In the context of animal rights, an example of such legislative reform would be a law that provided that laying hens must be kept in a barn rather than in a cage. A proponent of animal rights -- one who believes that breeding birds who produce more than fifteen times the normal number of eggs annually (250-300 versus 10-15 in a closely related non-domesticated bird) in order to take their eggs away and ultimately to kill them when they stop laying those eggs (while killing all of the male "layers" because they produce no eggs) amounts to unjustified violence and cruelty to animals.
When someone who believes in animal rights advocates for a different sort of "housing" for such birds, the advocate could be misunderstood by the public as condoning the farming of birds, so long as they are kept in a barn while they are being exploited and prior to being slaughtered, rather than in cages. The advocate might respond that less torture is better than more torture and that the difference is what motivates the advocacy. Opponents, in turn, could reply that the public responds to such "reforms" by believing (without foundation) that buying eggs is now justified and that "even the animal rights people" at [name your organization] think so." Furthermore, as investigations of "cage free" facilities and other "high welfare" operations reveal, the realities of "humane" farming are routinely no better than the "factory" alternative.
In the abortion context, a regulation might say that "abortion is legal if the doctor performing the procedure has admitting privileges at a local hospital." Such a regulation does not prohibit abortion and might therefore lead an observer to conclude that abortion is fine so long as the providers have some level of access to local hospitals. A supporter of this regulation might respond that such regulations are quite effective at reducing the number of abortions women have, because many hospitals refuse to grant admitting privileges to doctors who perform the procedure, and fetal lives are therefore spared. As a matter of messaging, moreover, pro-life organizations can and do dispel any doubts about their bottom-line position on abortion by saying such things as "we oppose all abortion and believe that abortion is murder from the moment of conception."
The realities on the ground are quite different for people who oppose animal exploitation from what they are for people who oppose abortion, as Mike and I explore in our book, so one might believe that strategies should properly differ for the two movements.
Another sort of issue that arises in both the animal rights and pro-life movements is what sorts of arguments are appropriate and convincing. In the case of abortion, some of the arguments made about late-term abortions might undermine the case for prohibiting early abortion. Emphasizing the horror that accompanies the dismemberment of a 26-week-old fetus that already appears to be sentient may, by negative implication, reduce moral discomfort around earlier abortions of plainly insensate embryos and fetuses. For this reason, some people in the pro-life movement find partial-birth abortion legislation pointless and counterproductive to their mission.
In the animal rights movement, one of the points we make in favor of veganism is that by consuming the products of animal exploitation and slaughter, we solicit additional acts of violence against animals, thereby bringing about physical and emotional agony to innocent sentient beings. Animal rights advocates typically object both to the infliction of suffering on animals (for the purpose of using those animals) and to the killing of animals (for the same purpose -- or because keeping them alive for further exploitation is no longer economically sound).
Some people outside the animal rights movement agree that inflicting suffering on animals is wrong but challenge the notion that killing animals in order to exploit them is necessarily morally objectionable. Their premise is that if one could kill an animal for consumption without inflicting any distress or pain upon that animal, then the killing would not violate the interests of the animal. This is actually a position held by Peter Singer, the Princeton philosopher who authored Animal Liberation. Singer rejects the view that killing farmed animals is wrong, provided that the killing is truly painless.
In an opinion piece in the New York Times, one writer suggests, in line with this thinking, that consuming animals is morally distinct from atrocities against humans, because animals could -- at least in theory -- be raised and slaughtered without suffering any pain or distress. The writer, Rhys Southan, acknowledges that in the real world of animal farming -- even the "high welfare" sector -- animals actually suffer a great deal, in part because babies are taken from their mothers (as is inherent in the dairy industry) and in part because animals are mutilated (branded, castrated, etc.) without anasthesia as part of "raising" them for slaughter. There is far more suffering implicated in creating (and therefore in consuming) animal products than Southan articulates, but even he effectively concedes that "pain free" animal exploitation (and therefore consumption) is, for the moment, a fantasy.
In his column, Southan cites Epicurus for the proposition that death is not a harm to the one who dies, because once someone is dead, that individual no longer exists to experience the putative harm. As Southan undoubtedly knows, though, Epicurus makes this point about humans. Mike and I address the argument that death is not a harm and that painless killing is therefore morally permissible in our book, and I discuss it as well in one of the chapters of Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans, a chapter entitled "What About Plants?". For purposes of the Times opinion piece, however, suffice it to say that if Southan embraces Epicurus's view and infers permission to "painlessly" slaughter animals, then he should -- by his own logic -- infer permission to "painlessly" slaughter humans as well.
For now, however, let me leave this point behind. I will, for purposes of argument, assume a premise that I in fact reject -- that painlessly killing (an animal or a human) is morally unobjectionable. If this is true, what follows from it? It follows from this premise (one that I, just to be clear, find offensive and utterly reject) that if one were to consume the corpse of a slaughtered animal (for example, a puppy or a calf) who had been killed without experiencing any anxiety or pain, one would be doing nothing wrong. Likewise, as Southan implies at the end of his piece, one could also consume (or create gloves out of) the remains of a slaughtered human without committing any moral wrong, so long as the human never saw it coming and suffered no pain or anxiety.
Southan asserts that in theory, one could raise and slaughter animals for food without causing the animals pain or distress. This is true, just as it is equally true that one, in theory, could raise and slaughter humans for food without causing the humans pain or distress. This would especially be true in the case of a human who is either too young to understand complex human communication (through which she might learn of her fate) or a human who suffers from intellectual disabilities that prevent such understanding in adulthood. Under Southan's argument, then, there would be nothing wrong with murdering a happy, intellectually disabled human being, so long as one made sure to sneak up on the person in the middle of the night and cause no suffering in the process.
After accepting this (dubious) premise, what follows? Though Southan does not say so explicitly, he strongly implies (in part by identifying himself as a "former vegan" in his byline) that what follows is that it is morally unobjectionable to consume animal products. Why does that follow? Because even though animals who are raised and slaughtered for consumption in fact suffer tremendous pain, anxiety, and loss during their short lives, as Southan concedes, one could imagine an animal being slaughtered for consumption without the corresponding suffering. In other words, the fact that one can imagine painless exploitation and slaughter is -- on Southan's theory -- enough to make it acceptable to consume the products of painful exploitation and slaughter. Got that?
I would not spend so much time on this rather bizarre argument if this were the first time I encountered it. I would then conclude that Southan is simply confused and move on to other, better thought out, writings. The problem is that I have heard this line of argument before.
In one context, a woman who calls herself an "ethical vegetarian" and is otherwise extremely intelligent insisted to me that consuming eggs is morally acceptable (and totally different from consuming flesh) because the production of eggs need not involve any killing. (By contrast to Rhys Southan, this woman does not appear to regard killing as harmless). I expressed disagreement with her claim, because in the actual world we inhabit, the production of eggs always involves killing. The male layer-breed chicks are, in fact, killed shortly after hatching, because they do not serve the purpose of an egg-laying operation, since they cannot lay eggs.
The woman responded that one could, in theory, take care of all of the male "layers" and permit them to live out their lives rather than killing them. I pointed out that such a practice would be economically ruinous for anyone hoping to earn rather than to lose money selling eggs and that, given the number of male layer chicks killed every year (260 million in the U.S. alone), there would not be enough space on planet earth to allow them to live out their lives other than in horrendously crowded conditions. This might be why, I suggested, there are exactly zero egg-laying operations in which the males are permitted to live out their lives.
When people purchase "back yard" hens, the curiously absent males will have all been thrown into a meat grinder or other such device to make fertilizer the day on which they hatched. Buying eggs (or egg-laying hens for one's backyard) is inextricably tied to that practice.
What I said did not seem to phase the "ethical vegetarian," however, because in theory, one could imagine consuming eggs without killing any male layers. That is apparently enough, from her perspective, to justify consuming eggs in the real world, where male layers are always killed as part of the process.
Ordinarily, as I said, I would not feel the need to respond to such an argument, any more than I would feel the need to respond to the argument "but I had a dream in which an angel said that I should eat eggs." However, because I have now heard the argument twice, I will make an attempt to say something in response, in the hope that people who believe it has some plausibility to it might think twice the next time they encounter it.
Let us take a context outside of the animal rights (and abortion) areas, where controversy is less likely. Say I learn that all chairs coming from the Sandusky Chair Company were made by child slaves who were beaten and forced to work for twenty hour stretches. I happen to like Sandusky chairs, though, because they are very comfortable.
It is undoubtedly true that chairs could, in theory, be made without violently abusing enslaved children. In fact, not only could they be made that way but some chairs actually are made without such violence. Does this fact mean that I can go ahead and buy Sandusky chairs with a clear conscience? In other words, does the fact that one could in theory create a chair without beating child slaves translate into moral permission for me to go ahead and pay the Sandusky Chair Company for chairs that they do create by beating child slaves?
Some purchasers of Sandusky chairs might be ignorant about what is involved in creating those chairs and might therefore be innocent of the violence and cruelty that they are paying for. This is true, but once the reality is brought to their attention, they are no longer ignorant. And in the case of animal agriculture, it is becoming increasingly difficult to remain completely ignorant about the profound violence involved in creating every type of animal product, including (especially) products like chickens' eggs and cows' milk, which visit a special level of hell on the females of those species. And the "ethical vegetarian" of whom I spoke earlier is herself quite knowledgeable about the real world of eggs and dairy, even those that supply supposedly "humane and sustainable" farmers' markets.
Ultimately, then, I must conclude that the "it could be done ethically in theory" argument is not really an argument at all but simply a (rather transparent) rationalization. And I say this as someone who takes seriously the many common objections to veganism in Mind If Order the Cheeseburger? And Other Questions People Ask Vegans. I would say that if something could be ethical in theory but is in fact unethical in practice, then that means that one is under an obligation, absent some truly compelling need, to avoid supporting that something unless and until the fantasy/theory becomes a reality. Though imagination can yield many wonderful things, it cannot justify behavior that is, in reality, unjustifiable.