The Evangelization Station
Pray for Pope Francis
Scroll down for topics
The Point of a Ban: Or, How to Think About Stem Cell Research
To explore the logic and make sense of a ban on stem cell research is my aim here. 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.
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:
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  — 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.
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.  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.
ACKNOWLEDGING MORAL TAIT
Two other features of Walzer's analysis need notice here before we turn to the issue of stem cell research. The first concerns his discussion of "The Dishonoring of Arthur Harris," and the second attends to the problem of nuclear deterrence. The very concept of supreme emergency assumes that, almost always, the deontological limits marked off by inviolable rights remain in place. Those limits are transgressed only in the most extreme instance of moral and strategic necessity. And they are never simply "set aside"; they are "overridden." Having been overridden, they must then be put back into place. Those who transgressed the ban and fought unjustly bear a burden of criminality. Walzer does not suppose that nation states, especially victorious ones, could or should legally punish responsible leaders, but he does think that, after the fact, a way must be found to reinstate the overridden moral code. Thus Arthur Harris, chief of Britain's Bomber Command, who advocated bombing civilians and whose pilots carried out that terrorist policy, was the only one of Britain's top wartime commanders not rewarded after the war with a seat in the House of Lords. This "refusal to honor Harris," Walzer writes, "at least went some small distance toward re-establishing a commitment to the rules of war and the rights they protect." Supreme emergency must be a "moment." It must come to an end, and the moral law must be reacknowledged and reinstated.
To see that is to understand why one of the least successful features of Walzer's analysis of just war theory is his discussion of nuclear deterrence. The moral problem of deterrence — especially acute during the Cold War but still troubling today — is that one targets civilians, threatening almost unimaginable destruction, in order to avoid war altogether. For the many years of nuclear standoff between the United States and the Soviet Union, the posture of deterrence seemed to work (at least in the sense that nuclear weapons were used only to deter and not to fight). Walzer tries to make sense of this by suggesting that " [s]upreme emergency has become a permanent condition. Deterrence is a way of coping with that condition, and though it is a bad way, there may well be no other that is practical in a world of sovereign and suspicious states. We threaten evil in order not to do it, and the doing of it would be so terrible that the threat seems in comparison to be morally defensible." The benefits are so great that, horrifying as it is in principle, deterrence can become "easy to live with." The needed reinstatement of the moral code is deferred — indefinitely.
It is hard to find this persuasive. Having resisted any too easy transgressing of rights and limits, having confined utilitarian calculation to the moment of supreme emergency, Walzer simply settles for a permanent condition of supreme emergency. But, of course, when all moments are catastrophic, none is. In the dark of night all cats become gray, and we lose the ability to make needed and important moral distinctions.
In a recent article, Glenn McGee and Arthur Caplan argue for the moral justifiability — perhaps even obligatoriness — of stem cell research.  They suggest that NBAC and other scholars (in particular, John Robertson) have been too ready to accommodate research opponents who would ban any research that involves deliberate destruction of embryos. If advocates of research cede too much ground to these opponents, they never directly confront the objection, even though they argue for moving ahead (if with caution). By contrast, McGee and Caplan argue that even if one grants the humanity and personhood of the embryo, its destruction in stem cell research is justified because this research promises to relieve incalculable suffering. Therefore, "the moral imperative of compassion . . . compels stem cell research." The "central moral issues in stem cell research" have to do, McGee and Caplan say, "with the criteria for moral sacrifices of human life." (It is instructive to note that they tend to talk not about when life may be "taken," but about when it may be "sacrificed" or "allowed to die." Clearer language would make for a clearer argument.) In short, , most of us deny that the embryo's status as person determines whether its life may be taken. Only those who oppose all killing of any kind "can rationally oppose the destruction of an embryo solely by virtue of its status as a human person." For most of us who do not oppose all killing as unjustified, the question becomes: "what constitutes unwarranted violence against an embryo, and for what reasons might an embryo ethically be destroyed — e.g., in the interest of saving the community"?
When, if ever, is it permissible to sacrifice a human life in service of the common good? When is such killing warranted? For McGee and Caplan, "it is clear that . . . no need is more obvious or compelling than the suffering of half the world at the hand of miserable disease. Not even the most insidious dictator could dream up a chemical war campaign as horrific as the devastation wrought by Parkinson's disease." Since it would be possible, they think, to salvage by transplantation the DNA of the embryo-to-be-destroyed, little would be lost other than easily replaceable cellular components (cytoplasm, mitochondria).  And they find it "difficult to imagine those who favor just war opposing a war against such suffering given the meager loss of a few cellular components."
Their argument might be summarized thus: "You think of the lives that will be lost because of serious diseases such as Parkinson's — a staggering number of lives — and you thank God for stem cell research." In the face of a structurally similar argument from William Manchester and others, Walzer suggested that the United States might have changed its war aims, and that unconditional surrender was an optional goal. McGee and Caplan never consider analogous possibilities. Only unconditional surrender of Parkinson's disease will do. Progress at relieving human suffering does not seem to be an optional goal. Nor apparently is slower progress, achieved by research techniques not involving the destruction of embryos, acceptable.
Perhaps McGee and Caplan suppose that we are in something like a moment of supreme emergency. If so, they have at best made a case for moral necessity — they have identified an enemy that must be defeated. They have not yet ventured to make a case for strategic necessity — to show that progress cannot be made, even if more slowly, by means that do not involve destruction of embryos. Further, the case for moral necessity commits us to accepting nothing less than the eradication of all horrible diseases. Conquer one, after all, and there will be another to be conquered. Supreme emergency becomes a permanent condition, and the "sacrifice" of human lives in service of the common good and the war against suffering never comes to an end. Indeed, knowing that our actions are compelled by "the moral imperative of compassion," we act with a good conscience, bear no burden of criminality, and feel no need to find ways to reinstate the moral code we have overridden. By comparison with Walzer's analysis of just war theory, this take on stem cell research seems all too casual.
BENEFITS AND BALANCE
Consider a different argument about yet another issue. In a brief piece about euthanasia, written in 1990 when Jack Kevorkian had suddenly garnered attention, William F. May adopted a position on euthanasia that is not unlike Walzer's lengthier argument on the morality of war.  Despite judging that the motivations behind the euthanasia movement were "understandable in an age when dying has become such an inhumanly endless business," May offered a number of reasons why acceptance of euthanasia would be bad policy. He argued that "our social policy should allow terminal patients to die but it should not regularize killing for mercy." Even the good end of relieving suffering brought on by "an inhumanly endless" process of dying did not lead May to set aside the ban on euthanasia. But he did recognize something like a moment when both moral and strategic necessity could come together in such a way as to persuade one to override that ban. "I can, to be sure, imagine rare circumstances in which I hope I would have the courage to kill for mercy — when the patient is utterly beyond human care, terminal, and in excruciating pain. . . . On the battlefield I would hope that I would have the courage to kill the sufferer with mercy." Even in such a "moment" — which can scarcely become anything like a "permanent condition" — May seems to think that the ban on killing is overridden rather than set aside and that a measure of guilt may remain. He writes that "we should not always expect the law to provide us with full protection and coverage for what, in rare circumstances, we may morally need to do. Sometimes the moral life calls us out into a no-man's-land where we cannot expect total security and protection under the law." This is the sort of argument one looks for if a ban is to be overridden.
Did NBAC do better than McGee and Caplan in offering such an argument? To some extent, it did, and although I find its approach defective, I have considerable respect for the seriousness with which it seems to have proceeded. For example, NBAC declines simply to weigh on some utilitarian balance possible relief of future suffering versus destruction of embryos. This becomes clear in its discussion of R. Alto Charo's proposal to bypass entirely the issue of the embryo's moral status. Charo suggests that we seek simply to balance deeply felt offense to some (who accept the full humanity of the embryo) over against potentially great health benefits for some future sufferers. "Thus, although it is clear that embryo research would offend some people deeply, she would argue that the potential health benefits for this and future generations outweigh the pain experienced by opponents of the research." 
This "Manchesterian" argument eliminates from the outset any possibility of a ban founded on a belief that certain wrongs ought never be done. NBAC rightly notes that, at least for anyone prepared to contemplate the possibility of a ban on embryo research, Charo's recommendation must seem to be sleight of hand. "It might be argued, for example, that placing the lives of embryos in this kind of utilitarian calculus will seem appropriate only to those who presuppose that embryos do not have the status of persons." NBAC does not simply say, "You think of the suffering that will go unrelieved and the lives that will be lost without this research — and you thank God for stem cell research." It at least recognizes the force of the sort of point raised over thirty years ago by Paul Ramsey:
I may pause here to raise the question whether a scientist has not an entirely "frivolous conscience" who, faced with the awesome technical possibility that soon human life may be created in the laboratory and then be either terminated or preserved in existence as an experiment, or, who gets up at scientific meetings and gathers to himself newspaper headlines by urging his colleagues to prepare for that scientific accomplishment by giving attention to the "ethical" questions it raises — if he is not at the same time, and in advance, prepared to stop the whole procedure should the "ethical finding" concerning this fact-situation turn out to be, for any serious conscience, murder. It would perhaps be better not to raise the ethical issues, than not to raise them in earnest. 
NBAC's conscience is not that frivolous. Nonetheless, it stops short of taking a ban fully seriously. Its alternative to simple utilitarian calculation seems to be a mode of reasoning analogous to Walzer's "sliding scale." Its stated aim is "to develop policies that demonstrate respect for all reasonable alternative points of view."  To that end, NBAC looks for ways to express "respect" for the embryo even if not the kind or degree of respect afforded the rest of us. Hence, for example, it offers the following as "a reasonable statement of the kind of agreement that could be possible on this issue": "Research that involves the destruction of embryos remaining after infertility treatments is permissible when there is good reason to believe that this destruction is necessary to develop cures for life-threatening or severely debilitating diseases." That is, the more urgent the cause, the more potential good to be gained from this research, the more that respect for the embryo must give way to the research imperative.
That this is a kind of sliding scale becomes clear when we note one of the limits recommended by NBAC. Its report supports research on spare embryos to be discarded after IVF procedures but recommends against creating embryos solely as research subjects. But this is not a limit to be respected even if the heavens will fall — or even a limit to be overridden only if the heavens are about to fall. It is a limit to be chipped away at gradually, as the little words "at this time" in the following sentence indicate: "We do not, at this time, support the federal sponsorship of research involving the creation of embryos solely for research purposes. However, we recognize that in the future, scientific evidence and public support for this type of stem cell research may be sufficient in order to proceed."
This is a kind of "proceed with caution" view. One suspects that the chief "limit" to research discerned by NBAC involves not so much the status of the embryo as the status of "public support."  There is no sense here of a limit that could be overridden — if at all — only in a moment of supreme emergency, which overriding would involve a burden of criminality, and which limit would somehow have to be reinstated after the fact. Such an argument, if it could be made persuasively, would be a very strong expression of respect for embryos. NBAC does much less. From one perspective, in fact, perhaps NBAC's cautious sliding scale shows less respect for embryos than McGee and Caplan's "full speed ahead" approach, since one can read McGee and Caplan as justifying stem cell research with a kind of "supreme emergency as a permanent condition" argument. While I doubt that it really makes sense to posit such a permanent condition of supreme emergency, the attempt does at least acknowledge that nothing less than such extreme circumstances could even claim to justify embryo research. The more judicious, "at this time" approach of NBAC promises, by contrast, a kind of relentless "progress" in what is allowed. It is not really prepared to stop. It cannot contemplate or make sense of a ban.
ENDS AND MEANS
Perhaps we can understand, then, why some critics of stem cell research would not be persuaded by moral reasoning that uses simple utilitarian calculation, applies a "sliding scale," or appeals to "supreme emergency as a permanent condition." If we are among the unpersuaded, we are left to contemplate seriously a ban. To do that, however, may compel us to think also about the background beliefs — metaphysical and religious in character — that undergird all our moral reflection. In particular, we will be forced to ponder the degree to which relief of suffering has acquired the status of trump in our moral reasoning.
Why might one, even while granting the enormous benefits to be gained from stem cell research, be prepared to contemplate a ban on research that requires the destruction of embryos? How must one think for such a ban to make sense? Clearly, no ban can make sense if we say with McGee and Caplan that "no need is more obvious or compelling than the suffering of half the world at the hand of miserable disease." Nor could any ban make sense in the context of a search, such as NBAC's, for a public policy "consensus" that, while taking objections seriously, will always permit research to proceed. Indeed, despite NBAC's serious attempt to be fair-minded, its understanding of consensus ultimately excludes from consideration precisely those who might be willing to think in terms of a ban.
The very notion of a ban can make sense only if we consider that the fundamental moral question — for a community as for an individual — is how we live, not how long. If we act simply for the sake of future good, the day will come when those good effects reach an end — which is not a telos, but simply an end. We will have done evil in the present for a future good that does not come to pass.
In his meditations to himself, Marcus Aurelius writes: "Another [prays] thus: How shall I not lose my little son? Thou thus: How shall I not be afraid to lose him?"  That is, how shall I not be afraid if the alternative to losing him is doing wrong? In our tradition this emphasis on means over ends, on how rather than how long we live, has been grounded not only in such Stoic thought but also and primarily in Jewish and Christian belief. It has provided the moral background that makes sense of doing justice even if the heavens are about to fall.
One who looks on life this way need not, of course, suppose that beneficence is unimportant or that relief of suffering is of little consequence. Weighty as such values are, however, they have no automatic moral trump. Their relative status is marked out for us by two twentieth century thinkers for whom it was clear that the most important moral question was how we live. In The Screwtape Letters C.S. Lewis created a series of letters from a senior devil to a junior tempter on the subject of how to tempt a mortal — with instructions that invert the moral world by inviting us to look at things from the perspective of Satan (for whom God must be "the Enemy"). So, for example, Screwtape advises Wormwood about the attitude toward time that he ought to cultivate in his patient:
Likewise, reflecting upon "the ethics of genetic control," Paul Ramsey noted the relatively greater importance of an "ethics of means" for religious thinkers.
Anyone who intends the world as a Christian or as a Jew knows along his pulses that he is not bound to succeed in preventing genetic deterioration, any more than he would be bound to retard entropy, or prevent planets from colliding with this earth or the sun from cooling. He is not under the necessity of ensuring that those who come after us will be like us, any more than he is bound to ensure that there will be those like us to come after us. He knows no such absolute command of nature or of nature's God. This does not mean that he will do nothing. But it does mean that as he goes about the urgent business of doing his duty in regard to future generations, he will not begin with the desired end and deduce his obligation exclusively from this end. . . . And he will know in advance that any person, or any society or age, expecting ultimate success where ultimate success is not to be reached, is peculiarly apt to devise extreme and morally illegitimate means for getting there. 
My aim is not to inject religious beliefs into public discussion of stem cell research. On the contrary, my point is that such beliefs are already there. To see clearly the kind of background beliefs which might make a ban on stem cell research seem reasonable is also to realize that something like a religious vision of the human is at work in arguments for such research. Precisely insofar as a ban is not really an option, insofar as proponents of a ban cannot possibly be included in any proposed consensus, the argument for research is that we — human beings — bear ultimate responsibility for overcoming suffering and conquering disease. We know along our pulses that we are, in fact, obligated to succeed, compelled to ensure that future generations not endure suffering that we might have relieved. Possible future benefits so bind our consciences that we are carried along by an argument we might well reject in, say, the ethics of warfare.
It is quite true, of course, that a ban on stem cell research requiring destruction of embryos would mean that future sufferers could say to us: "You might have made more rapid progress. You might have helped me." To consider how we should respond to them is to contemplate the moral point of a ban: "Perhaps we could have helped you, but only by pretending that our responsibility to do good is godlike, that it knows no limit. Only by supposing, as modernity has taught us, that suffering has no point other than to be overcome by human will and technical mastery — that compassion means not a readiness to suffer with others but a determination always to oppose suffering as an affront to our humanity. We could have helped you only by destroying in the present the sort of world in which both we and you want to live — a world in which justice is done now, not permanently mortgaged in service of future good. Only, in short, by pretending to be something other than the human beings we are."
Gilbert Meilaender. "The Point of a Ban: Or, How to Think About Stem Cell Research." The Hastings Center Report (January/February 2001).
The writing of this paper was supported in part by a grant from the Luther Institute in Washington, D.C.
The article is reproduced with permission of The Hastings Center and Gilbert Meilaender.
Gilbert Meilaender holds the Board of Directors Chair in Theological Ethics at Valparaiso University. He is the author of many books, among them Bioethics : A Primer for Christians.
Copyright © 2001 Gilbert Meilaender