II. Decision Procedures for Ethics: DEAL
Carrying on Without Resolution
We may note that we have been presupposing throughout that the
parties to the dilemmas were all in agreement on what the problem
was and that it must be solved. In the messy real world of human
life, these presuppositions do not always hold. Sometimes problems
are particularly resistant to solution, because the interests or
moral or religious commitments of the stakeholders are resolutely
opposed, because the parties simply cannot understand each other,
or for some other reason. Consider the following case:
Michael and Maureen O'Connell are college educated young professionals;
Mike is a physician with a practice in Brooklyn and Maureen teaches
in the nearby elementary school. They live with their five children
(ages 4-13) on the quiet block in Queens where Maureen was brought
up, just two blocks from St. Luke's Roman Catholic Church, which
they all attend. They are staunch Catholics, as is most of the
neighborhood, and they uphold all the public teachings of the Church--including
the prohibition of the use of contraceptives, the strict rules
regarding any sexual relationship outside of marriage, and of course
the absolute prohibition of induced abortion.
The neighborhood is mixed residential and commercial, so they
are not surprised to find that a storefront three doors from their
house is being renovated for use by a new tenant. "Surprise" does
not describe their reaction, however, when finally the medical
equipment is moved in and the sign is hung in the window: "Pregnancy
Termination: Clean, Quiet, and Confidential." They're living virtually
next door to an abortion clinic!
The neighbors want the clinic out: they all, men, women,
and children, picket, obstruct patients and their companions, shout "Abortion
is Murder!" sing hymns, pray loudly, threaten individual doctors
and nurses, court the press, and plan a lawsuit. The clinic operators,
on the other hand, led by two gynecologists, Dr. Alan Bennett and
Dr. Rita Holmes, want the clinic to stay where it is and run successfully.
They know that there is a good market for this service, they know
that the women, pregnant against their will, will often resort
to coat hangers and back alley butchers to get abortions if safe
abortions are not available legally, and they know they have the
law on their side. They too spend time explaining their side to
the media, and they demand better police protection.
The neighbors bring the lawsuit. It loses. The clinic is entirely
within its rights. The police are ordered to protect the clinic
and its workers from violence, a job that they detest: many of
them are from the Queens neighborhoods that produced Mike and Maureen,
and attend St. Luke's or some church of similar persuasions.
At this point the mayor becomes involved. The common wisdom has
it that the elected officials lose three ways in these conflicts:
they lose the votes of that and all similar neighborhoods, for "allowing
the murder of infants a few yards from where our children play";
they lose the votes of liberals for not putting a more forceful
stop to the demonstrations; and they lose the respect of the police
department and those interested in law enforcement for diverting
resources away from drugs and violent crime. Meanwhile the controversy
itself, playing out through the newspapers, presents a very unfavorable
view of the present administration. So the mayor wants peace among
the parties, peace so quiet that the subject will disappear from
the papers, but more importantly, since this is an ongoing issue,
peace that will last. How can he, and the city, obtain this peace?
First, can he persuade the neighbors that the business will do
them no harm, or the clinic managers to quietly move their clinic
elsewhere? We do not usually honor neighborhood objections to a
new business in their backyards; as above, not many neighborhood
preferences are given enough weight to override the individual's
strong interest and prima facie right to live where he wants and
work wherever the zoning laws will permit his business establishment.
The neighbors should be used to that. But there may be many, and
trivial, reasons for locating a business one place rather than
another. Maybe the clinic won't mind moving; his office could help
with the moving expenses. Like any good politician, his first thought
is to make a deal.
The mayor chooses Mike and Maureen, as knowledgeable citizens
and leaders of the demonstrations, and the physicians, Alan and
Rita, as principals in the clinic, to engage in discussions of
the issue. There are two reasons for this move. First, they may
be able to come to some accommodation that will satisfy both sides
permanently (that would have been the purpose of discussion in
the last section). But the politician also knows that dialogue is
good for its own sake: as Winston Churchill put it, "as long as
you `jaw, jaw' you can't `war, war.'" In the process of talking,
the parties become less hostile and hateful with each other.
No significant accommodation or compromise will work, as it turns
out. It doesn't take the mayor long to learn
- that Mike and Maureen and all their neighbors strongly believe
that the human life of a baby begins at conception, that their
belief is informed by medical and scientific knowledge (regarding
the implantation of the genetic code, for instance) and firmly
and rationally held, and that consequently, and quite logically,
they really feel that each and every induced abortion is the
murder of an infant. They feel that they are living next door
to a Nazi Death camp and slave market rolled into one, and that
they are bound by religious and moral obligations to speak up
and protest the slaughter. They are especially horrified at the
prospect of raising their children with this clinic next door,
having to tell them what it is about, effectually rubbing their
noses not only in state-approved slaughter but in the daily consequences
of promiscuous sexual activity!
- that for their part, Alan and Rita of the physicians' group,
the Women═s Health Cooperative, that bought the building and
set up the clinic, know very well what they are doing and plan
to do. They are very much aware of the sexual behavior (if not
the sexual ideals) of Mike and Maureen's neighborhood▄one half
of their first two months' practice was young, unmarried, white,
terrified, Roman Catholic girls, mostly from the neighborhood▄and
they feel very strongly not only that they are providing a desired
service, but also that they are saving the futures of these girls,
permitting them to finish their education, sparing their parents
the shame, and the taxpayers the expense, of dealing with the
illegitimate offspring, and most likely saving the child from
abuse. In the remainder of their practice, mostly older working
women of all ethnic backgrounds, they see themselves as permitting
adults to carry on their work lives, plan their families and
ensure proper provision and education for their children. In
both cases, they are an available alternative to the astronomical
rates of the offshore clinics, the back alley incompetents and
the terribly dangerous self-induced abortion. Their rates are
low; they are not in this for the money, but for the public service,
and they belong right where they are.
When pushed to the wall, the mayor notices, the two sides argue
very differently, apparently reflecting a difference in the way
they see the world. Mike and Maureen cite moral rules and rights--the
Natural Law, the Ten Commandments, the Right to Life, which hold
regardless of situation or consequence. In short, they are reasoning deontologically or non-consequentially.
Alan and Rita, on the other hand, call attention to the pain felt
by the women contemplating unwanted pregnancy, the negative effects
on employment, education and general life prospects of the woman,
from bearing unwanted children, and the welfare costs and other
negative outcomes from denying abortions. In short, they are reasoning teleologically or consequentially.
While there are also deontological pro- choice arguments and teleological
pro-life arguments, in general Alan and Rita are focused on the problems
they are solving, while Mike and Maureen are focused on the
nature of the act itself, and there is not likely to be any
resolution between the two sides.
So the mayor proposes an experiment in peacemaking. One
of the features of the clinic that troubles the neighborhood most
is the mingling of the clinic patients and the children as they
depart for or return from school. Could the clinic open at 9:30,
a bit later than the morning rush, and take a late lunch break
at 2:45, as the children return? In return, the demonstrators will
not picket weekdays between opening and that break.
That concession--given that each side views the other's work as
fundamentally criminal--is strictly unethical, for both sides:
any concession is incompatible with the moral beliefs that they have
set forth and clearly defended.
After a week or so the mayor's office does an assessment of
how the experiment is working. The neighborhood seems quieter,
and the newspapers have backed off. Good.
So two of his best mediators bring the four principals back together
to attempt further progress. Will the clinic accede to even shorter
hours in return for complete removal of the pickets? A few more
grudging concessions are obtained; since the prospects for further
progress are not good, and the situation seems stable as it is,
the mediators back away and let the two parties live with the agreements
reached so far.
By continuing the dialogue, even more than joining it to begin with--when
each party could have claimed a genuine hope of converting the other--the
two sides have acknowledged each other's legitimacy. While
there is no possibility of coming to agree with the other's moral
stand, there is no hope of destroying the other: neither one is going
away. Distasteful as it is, each must live with the other in peace,
even while retaining the conviction that what the other is doing
is fundamentally wrong, immoral. This stage of the moral life, a
necessity only in pluralistic societies like our own, could be called,
possibly, live and let live, or leave people alone!
Change in the neighborhood, or the practice, could upset the unhappy
peace that has descended; others must be prepared to step in, should
violence break out again, to restart the dialogue. For DEAL,
the peace process that we have just set forth:
is, like ORDER above, fundamentally an iterative process,
continually restarting in slightly different conditions.
Let's conclude the cases we started above:
Case A, with Dad unconscious as before, not expected to wake in
this life, but occasionally in some discomfort. But this time the
children (two of them, twins) do not agree as to what to do about
him. One of the twins wants everything done, including surgery if
necessary, to save Daddy's life, and threatens to sue if treatment
is "negligently" withheld; the other wants those increasing doses
of morphine to "ease the pain" and incidentally to shorten Dad's
life, and has brought in a lawyer to argue against such "futile" treatment.
No document signals which of the twins is to have the power to decide.
Case B, modified as above, but the pressures are worse: the company
will have to close the plant, ending 10,000 jobs, unless productivity
takes a marked turn for the better in the next quarter. It is possible
that the weakened antibiotic could cause some harm, at least in some
extended sickness, but it is not likely to cause death. On the other
hand, it is entirely predictable that if the layoff takes place,
dysfunction, sickness and death--divorce, alcoholism, mental illness,
diffuse chronic illnesses, suicide--will claim a solid percentage
of those unemployed 10,000. The solution to the manager's dilemma
is not immediately clear, and intermediate principles do not really
solve the problem (for a thought experiment, try applying the Golden
Rule to the case, letting first the workers and then the customers
fill the role of "others"). Here the balance must be struck between
the obligations to shareholders, workers, local community, and others
with a stake in the continuation of the business enterprise, and
obligations to customers, reputation, society at large, and others
with a stake in the integrity of the procedures of that enterprise.
(For instance, the public surely must be notified about the change
in standard--but how?) The principles of concern for the welfare
of those affected by a decision--primarily the employees, in this
case--and of justice, in following the rules applicable to all no
matter what the consequences, are logically independent, and there
is no safe formula for deciding which shall take priority in a given
Given the nature of the situations to which it is applied, DEAL does
not really yield a conclusion that we can all accept as "ethical." But DEAL has
much to recommend it, from the ethical point of view. Without further
elaboration at this point, we can point out that it accomplishes
three tasks, all of which are required by general ethical imperatives.
- It promotes the maximum social welfare obtainable, by preserving
the peace and preventing violence. Whatever may divide the physicians,
the anti-abortion activists, and the uninvolved neighbors--and
there is much that divides them--they share a common interest in
the preservation of life, limb, and property, and the grudging
accommodation reached serves to protect those shared interests.
- It enforces justice, by promoting an even-handed compromise.
Both sides find the state of peace with the other, especially with
regard to the concessions they had to make to obtain it, really
repugnant. But the fact that they both had to make concessions,
and that they are required to stick to the deal they made, makes
it fair, even though the fairness may be much more evident
to a dispassionate outsider than it is to the parties.
- It insists on the dignity, worth, and conscience of every individual,
worthy of respect even from those who are utterly convinced he
or she is wrong. Neither group has the right to destroy the other,
to keep it from the public space or public attention, to relegate
it to a slavish state or second-class citizenship. It affirms,
therefore, freedom of conscience, and the right and duty of every
human being to develop and inform that conscience, to discern,
articulate, and defend a moral position on serious matters, especially
matters of life and death.
Those are not small accomplishments. Nor are those principles arbitrary.
In the next section, we turn our attention to the fundamental principles
that govern ethics.
Materials prepared by Lisa H. Newton, Ph.D. 1998