Don’t Reduce Melise Muñoz or Her Fetus to a Slogan

First and foremost, what has happened to Melise Muñoz and her family is devastating. Muñoz suffered a blood clot while 14 weeks pregnant. She is now brain-dead, and her fetus is 22 weeks old. The fetus appears to have health problems: lower limb malformations, an unspecified heart problem, and hydrocephalus. Her husband, Erick Muñoz, wishes to terminate life support; the hospital has resisted. A judge has ordered the hospital to respect the husband’s wishes. The hospital is weighing an appeal. My heart goes out to her and her family, who are not only going through private grief, but are also fighting a legal battle and suffering the world watching their pain.

For the record, while I have my doubts that abortion is morally permissible in many cases, I am in favor of safe and legal abortion. I wish we could reduce abortions by supporting widespread birth control and creating a society in which the abortion rate was reduced. Here I agree with David Frum: a society in which women are not impoverished, and which helps parents take care of children, is a society with lower abortion rates. And that is a good thing.

I glanced over a few of the comments in the New York Times article linked above. Many people seem to think this is a slam dunk issue, ethically speaking. I’m sure some pro-lifers think it is a slam dunk issue, too, but hey – I’m reading the New York Times. Here are a couple of excerpts:

Thank you judge! Its [sic] a shame you need to wait for the hospital to appeal your decision. The administration should all be terminated. What a despicable system to make a decision like that – under any circumstance. Again religion and politics rear its ugly head…Thank you, Judge Wallace. These two months of torture for the dead woman and her husband have been a travesty of justice…I thought this was 2014, not 1414. Is there no way to send religious maniacs back to their churches where they belong?…All this says to me about the current rush to control women is, 1. Women have no say in the control of their bodies because no one knows better than a man who legislates. 2. Women have no control of their bodies when they are alive, and nor apparently in death…Texas legislators, driven by religious conservatives, have a habit of practicing uninformed legislative gynecology & obstetrics.

I am an atheist. In my adult life, I have only ever lived in extremely blue areas of blue states. (In my childhood, I lived in a Rockefeller Republican area that has since turned blue, partly in revulsion at the current GOP’s stance on social issues). I don’t recall the last time I even considered voting for a Republican. Yet I don’t think it is perfectly obvious that Muñoz should be removed from life support. All things considered, I think that the hospital should respect Erick Muñoz’s wishes and remove his dead wife from life support. But it’s not an easy case.

Here’s part of my concern: if the fetus were developing typically, would that give those of you who think the hospital is being cruel and antediluvian and sexist pause? Is the fact that the fetus is apparently disabled the reason why it is perfectly obvious that this is wrong?

If you would indeed hesitate to condemn the hospital if the fetus were developing typically, I’ll get back to you later. Suppose , however, you say: no. Even if the fetus were developing typically, it would not give me pause at all. Even if the fetus were developing typically, I would oppose interference.

Pro-lifers often seem to assume that pro-choicers are callous child-killers, indifferent to the value of life. Now, obviously that’s not the case. Most pro-choicers, of course, care very much about the quality of lives of babies and children and adults. They are not moral monsters. Most pro-choicers, if they saw a mother about to attack her young child, would not hesitate to interfere with her body and stop her from harming the child.

So why are prochoicers okay with it if someone aborts a fetus at 22 weeks? Some might say, a la Judith Jarvis Thompson, that even though the fetus has a right to life, it does not have the right to use its mother’s body to sustain its life. However, I don’t think most pro-choicers cede that the fetus has a right to life. There’s a simple answer to this for many of them. Abortion is permissible because they do not think that the fetus is actually a child yet. To them, abortion does not involve either killing a child or letting it die. There is no child.

Well, why don’t they think it’s a child? Most believe that being a child (when a child is someone you would protect from a mother’s abuse) is not simply a matter of having human DNA and certain requisite body parts. What makes someone a child? Why would most pro-choicers be okay with a mother aborting a fetus at 22 weeks, and be morally opposed to a mother killing her six-year-old? What is the difference between a 22-week-old fetus and a six-year-old? Is it just that the 22-week-fetus is not yet viable and depends upon the use of someone else’s body for survival? Newborns must use other people’s bodies to ensure their survival, too. They will die if no one uses his body to meet their needs. So will most six-year-olds. So do many people with certain medical conditions. If you dropped me in the middle of the woods with no one around, I’m sure I’d die in short order, too. Most pro-choicers are not okay with killing newborns, six-year-olds, people with certain medical conditions, or me. So viability, in itself, is not really the issue.

The difference seems to be that six-year-old has certain cognitive abilities that the fetus does not. It is cognition of one sort or another that makes us have to treat certain being with respect. Probably, in particular, consciousness or sentience of some sort. This is one reason why many people think factory farms are bad, but are okay with eating carrots and trampling on grass. Animals have cognitive faculties, including the ability to suffer. They suffer on factory farms. Vegetation does not.

So what do we know about the cognitive lives of 22-week-olds? Precious little. They certainly can’t tell us. Neither can chickens. We can make certain guesses based on behavior (do they, for example, flinch when poked?). But behavior is not always a reliable guide to what is happening in conscious awareness. More or less may be going on than is apparent from behavior. Sensory abilities may be intact while motor responses are not, and so someone may feel pain (or pleasure) and not visibly react. On the other hand, motor responses may be in place while sensation is deadened, and flinching may not be from pain, but a mere reflex.

I don’t know what’s going on in the mind of my own mother, much less a 22-week-old fetus. That is why I would at least hesitate before being absolutely positive that the 22-week-old is definitely not a child. (I should also say I do not understand that there is an easy answer in the pro-life case, either. It is not perfectly obvious that a 22-week-old fetus is a child.)

Maybe you still don’t hesitate. I hear you. Here’s the thing. There is at least some uncertainty that the 22-week-old has some conscious awareness and some ability to feel pain. Sadly, we know for certain that Melise Muñoz has none. She is brain-dead. She is not in a persistent vegetative state or a coma. She is brain-dead. If you indeed believe that it is cognitive capacities that make the moral difference between a fetus and a child, if it is due to cognitive capacities that we must treat others morally, then Muñoz is very clearly no longer a person.

How her body is treated (if you think that human DNA and the requisite body parts do not alone require society to protect you) is a not a matter of hurting her, since she can no longer feel pain. It’s not even a matter of violating her rights (as rights are traditionally understood). Her autonomy cannot violated, because autonomy is predicated on the possession of rationality. If we can do what we like to fetuses because we assume that they don’t have requisite cognitive capacities, then Muñoz is morally similar. She can neither consent, nor assent, nor dissent ever again. How we treat her body is, then, a matter of being respectful to her memory.

If it is okay to kill a fetus despite the fact that it is a human body because it seemingly has no cognitive capacities, how should we treat a human body that can no longer have any conscious awareness? Of course, you may still think it is morally wrong to treat her body in a way that is disrespectful to the person she was. And keeping her on life support may well be disrespectful.

Let’s assume that it is disrespectful. Here’s my question: is it perfectly obvious that treating Muñoz’s body with disrespect is morally worse than letting a 22-week-old fetus die? It’s possible that it is indeed  morally preferable. I do not see, however, how anyone can be absolutely certain of it. We know Muñoz is no longer capable of experiences. We do not know for sure that a 22-week-old fetus is or is not deserving of our efforts to preserve its life.

Ms. King, a lawyer for Erick Muñoz, presented a strange argument:

Ms. King apologized in the courtroom for putting it so crudely, but told the judge that pregnant women “die every day,” adding: “When they die, their fetus dies with them. That is the way it’s always been, and the way it should be.”

People die of starvation every day. That’s the way it’s always been. But presumably, if we have the means of preventing those deaths, we would do so. We have a means of preventing the death of the fetus.

What gives family members the moral authority to make medical decisions? If I lose consciousness, why can my husband violate medical advice about what constitutes the best treatment options for me? I mean, it’s a little odd, when you think about it. I wouldn’t trust my mother or husband to choose an outfit for me to wear, yet they are to decide whether I should be taken off a ventilator. Presumably, it’s because they know me and can make the best-informed decision about what I would want. And I do trust them for that. But I certainly don’t think every family member is always acting solely in the interest of the patient when making medical decisions.

Erick Muñoz presumably understood what his wife wanted. His wife, however, is no longer there. He is making decisions for her body, which is (if you believe that consciousness makes the person) not the same thing as making decisions for Melise. No one is able to speak with any authority, of course, on what the fetus would want. Erick Muñoz, however, presumably has more knowledge than anyone else of the fetus’s interests (if it has interests).

So let’s get back to the potential disabilities the fetus faces. We don’t know much about them. Complications from hydrocephalus can vary from mild to profound. Lower limb malformations alone don’t render a life not worth living. Plenty of people lead full, extraordinary lives without legs. We wouldn’t put someone to death if she lost her legs in a car accident. We don’t know the nature of the heart problem.

Here’s the problem, though. It is usually in a fetus’s interests (if it has interests) to be born. A great majority of disabled people feel that their lives may be harder, but are still worth living. It is surely better not to be disabled than to be disabled. But in a choice between a life with disabilities and no life at all? It’s also better to be financially stable than poor. That does not mean poor people’s lives are not worth living.

People often assume that those of us with disabled children who claim their lives are worth living are blinded by sentiment, unable to see reason through a cloud of mama-love. Rather, I tend to suspect it is because we have a far greater knowledge of a life lived with disability than most people have. I see my kid with severe disabilities, and I see someone who does not have as good a life as he could have. Yet he experiences joy, gives joy, has formed tight relationships, laughs at jokes. His painful moments by no means outweigh his positive ones. Indeed, I think he might well be better off than a child who is typically developing, but friendless, abused, and abandoned.

How bad do disabilities have to be before life is not worth living? It may be the case that the fetus has a chromosomal disorder. If the chromosomal disorder is degenerative and/or extremely painful, I would think that it may be better not to live. While I have raised doubts about how clear-cut this case is, ultimately I think I am on Erick Muñoz’s side. I am assuming someone has done an amniocentesis. If the fetus has trisomy 13 or 18, both of which may cause the prenatal problems seen, then life may not be worth living for even for that fetus. Both chromosomal disorders are nearly always fatal either in utero or within the first year of life.

If, however, the nature of the disabilities are unclear, and there is no chromosomal rearrangement, or it is a chromosomal rearrangement compatible with development (however slow), it’s less clear that the fetus’s life isn’t worth living. Now, it may not be in Erick Muñoz’s interest or his family’s interest to raise a disabled child. Believe me, I hear them on that. Getting back to David Frum, would that society better supported families of kids with disabilities. How difficult it would make their lives is a factor worth considering. I don’t know if it would be decisive, here.

My point is certainly not to condemn Erick Muñoz, who is going through a hell I cannot imagine. It is not to stridently defend the hospital or Texas’s abortion laws. It is simply to express that this case, like so many other cases of life and death and disability and respect and rights, is more complicated than it appears.