The Point of a Ban

In its report Ethical Issues in Human Stem Cell Research, the National Bioethics Advisory Commission says the following of the congressional ban on federally funded embryo research: "In our view, the ban conflicts with several of the ethical goals of medicine, especially healing, prevention, and research." [1] So inured have we become to such language that we fail to notice its oddity. Is it surprising that a ban should conflict with desirable goals? Or isn't that, in fact, why we sometimes need a ban precisely to prohibit an unacceptable means to otherwise desirable ends? Taking note of this point the oddity of NBAC's statement should help us think about the issue of stem cell research.

To explore the logic and make sense of a ban on stem cell research is my aim here. To be sure, such a ban may be persuasive chiefly for those who are concerned to affirm the dignity of the embryo, but the public debate need not be restricted to a seemingly endless argument about the embryo's status. Since many parties to the debate claim, at least, to agree that the embryo should be treated with "respect," it may be fruitful to explore other issues in particular, the nature of moral reasoning and the background beliefs that underlie such reasoning.

I propose to take a very long way round. Our understanding of what is at stake can be sharpened if we begin not with stem cell research but with a quite different moral question.

REASONING BY ANALOGY

In the memoir of his service as a Marine in the Pacific theater of World War II, historian William Manchester writes at one point:

Biak was a key battle, because Kuzumi had made the most murderous discovery of the war. Until then the Japs had defended each island at the beach. When the beach was lost, the island was lost; surviving Nips formed for a banzai charge, dying for the emperor at the muzzles of our guns while few, if any, Americans were lost. After Biak the enemy withdrew to deep caverns. Rooting them out became a bloody business which reached its ultimate horrors in the last months of the war. You think of the lives which would have been lost in an invasion of Japan's home islands a staggering number of American lives but millions more of Japanese and you thank God for the atomic bomb. [2]

Yet, one might argue many have that it would always be wrong to drop atomic bombs on cities, that doing so violates the rights of non-combatants. One might argue for a ban on that approach to waging war, even though in the instance cited by Manchester one can reasonably claim that such a ban would have conflicted with some of the ethical goals of statecraft: to minimize loss of life, and to seek peace and pursue it.

UTILITARIANISM OF EXTREMITY

How do we reason about such a ban in the ethics of warfare? There are, of course, different views about what is permitted in war, as there are different views on all important moral questions. But if we contemplate briefly the logic of one very widely read treatment Michael Walzer's Just and Unjust Wars [3] we will discover that it provides a helpful window into our consideration of banning federal support for stem cell research.

Following a well-trodden path, Walzer notes that there is a kind of dualism in just war theory. It requires two different sorts of moral judgments: about when it is permissible to go to war (what Walzer calls "the theory of aggression") and about what it is permissible to do in war (which he terms "the war convention"). These are two different sorts of judgments. If we are fortunate, they will cohere for us: that is, those who have just cause for going to war will be able to win without fighting in ways that are prohibited. Because these really are two different moral judgments, however, there are moments when we face "dilemmas of war," when it may seem, for example, that those whose cause is just cannot win unless they violate the war convention.

Confronted by such a dilemma, we might reason in several different ways. We might adopt a simple utilitarian approach; indeed, as Walzer notes, " [i]t is not hard to understand why anyone convinced of the moral urgency of victory would be impatient" with the notion of a ban on certain means to that victory. The more desirable the goals we pursue, the more tempting it will be to allow seemingly obvious utilitarian calculations to carry the day. If we take this route, the war convention provides us with rules of thumb at best. It offers some general guidelines about how to fight, which may be set aside whenever they conflict with the means required for those with just cause to win. To reason thus is in effect to conclude that the morality of war really involves only one kind of moral judgment: about when it is permissible to go to war. There is no genuine "dualism" in just war theory.

SLIDING SCALES AND MORAL ABSOLUTISM

In an effort to preserve at least some sense that two different sorts of moral judgments are present, we might turn to what Walzer calls a "sliding scale." Roughly speaking, it means: Although there may be some rules that should never be violated, "the greater the injustice likely to result from my defeat, the more rules I can violate in order to avoid defeat." Some acts of war, even in a good cause, might still be wrong if, for example, the destruction they bring is disproportionate to the good they seek to serve. But that "limit" is an essentially utilitarian one, and hence the sliding scale is simply a gradualist way of eroding the distinction between just war theory's two kinds of moral judgments. "The only kind of justice that matters is jus ad bellum." In short, the sliding scale is simply the timid person's avenue to utilitarian calculation.

The true alternative to such calculation seems to be a kind of moral absolutism: do justice even if the heavens fall. "To resist the slide, one must hold that the rules of war are a series of categorical and unqualified prohibitions, and that they can never rightly be violated even in order to defeat aggression." This is deontology with teeth. But it does, at least, acknowledge the force of each sort of moral judgment we make about war what goals it would be desirable to realize, and what rights it is necessary to respect and it permits the tension between these judgments to stand. It does not deny that winning in a just cause is often very important indeed; it simply refuses to reduce reasoning about how to fight to calculations of how best to win, and it does not gradually chip away at the rights recognized by the war convention by means of any sliding scale. In short, it acknowledges that a ban on fighting in certain ways will certainly make it more difficult to achieve the good ends sought in war, but it does not offer that fact as, in itself, an argument against such a ban. The morality of warfare involves both judgments about values to be realized and rights to be upheld. When important values cannot be realized without violating rights, it would be peculiar simply to note this fact as an argument in favor of violating rights as if a ban on such violation were out of the question. It might be that we should do justice even if the heavens will fall, even if those values cannot then be realized or must be pursued in some slower, less certain, manner.

SUPREME EMERGENCY

For such a position Walzer has considerable respect. Nevertheless, he himself adopts "an alternative doctrine that stops just short of absolutism. . . . It might be summed up in the maxim: do justice unless the heavens are (really) about to fall." This "utilitarianism of extremity" does not commit us to reasoning in terms of a sliding scale. Whether one's cause is relatively more or less just, the rules of the war convention apply with equal force, and we are not to chip away gradually at its limits. Ordinarily, a nation with just cause ought to accept defeat rather than try to win by fighting unjustly. Sometimes, however, in very special circumstances, a nation at war may face an enemy who simply "must" be defeated, whose possible victory constitutes "an ultimate threat to everything decent in our lives." The paradigmatic example of such an enemy, for Walzer, is the Nazi regime.

Confronting such an enemy, facing a defeat that threatens everything decent in human life, there might come a moment when we simply had to override the war convention and fight unjustly. This is no gradual erosion of moral limits such as the sliding scale permits. It is, rather, "a sudden breach of the convention, but only after holding out for a long time against the process of erosion." The deontological limits remain in place until the moment when we must reason in accord with a utilitarianism of extremity and override them.

How shall we recognize such a moment of supreme emergency and, just as important, how not suppose that we face such a moment every time we are tempted to fight unjustly in a good cause? Walzer offers two criteria to help us delimit the moment, though of course criteria alone can never replace the discernment of wise men and women. It must be both strategically and morally necessary to override the war convention: no other strategy must be available to oppose the enemy, and the enemy must really constitute an ultimate threat to moral values. The moment is upon us only when we face an enemy who can be beaten in no other way but who must be beaten. For Walzer, Britain's decision to bomb German cities a decision made late in 1940 responded to such a moment of supreme emergency. [4] Civilians were targeted and the war convention overridden. Yet even in this moment of supreme emergency, Walzer argues, the war convention is "overridden," not "set aside." Despite the logical difficulties, the political leaders who undertake such deeds bear a burden of criminality, even though they do what they must according to a utilitarianism of extremity.

The passage from William Manchester might be thought to make such an argument from supreme emergency. "You think of the lives which would have been lost in an invasion of Japan's home islands, . . . and you thank God for the atomic bomb." But Walzer believes the decision to drop the atomic bomb on Hiroshima was unjustified because the American government did not face a moment of supreme emergency that necessitated a breach of the war convention. American policy sought from Japan an unconditional surrender, and Japanese policy was to make an invasion so costly that the Americans would prefer to negotiate a settlement. " [T]he continuation of the struggle was not something forced upon us. It had to do with our war aims. The military estimate of casualties was based not only on the belief that the Japanese would fight almost to the last man, but also on the assumption that the Americans would accept nothing less than unconditional surrender."

Since the Japanese government was not 'the moral equivalent of the Nazi regime, in Walzer's view, there was no imperative reason to demand unconditional surrender. It "should never have been asked." Of course, it would have been morally desirable very desirable to end the war quickly. And yes, it would have been morally desirable to end the war with a clear-cut victory. And of course it was morally desirable to minimize the loss of life. One can imagine those whose lives would have been lost had we refused to drop the bomb arguing that we might have saved them had we been less scrupulous. But for Walzer all that provided 'no persuasive reason to override the war convention. Hence the ban on bombing cities should never have been set aside here good though the cause undeniably was. To say, "the ban on bombing civilians conflicts with several of the ethical goals of warfare and must therefore be set aside" would have been morally mistaken.