Rebecca Lowe is Director of FREER — a new initiative promoting economic and social liberalism.
I’ve written here various times about the difference between thinking something is morally wrong and thinking it should be legally prohibited. In these increasingly relativistic yet increasingly moralistic times, this seems an ever-forgotten distinction.
However, it should also be remembered that strength of feeling related to moral issues, particularly when expressed en masse through large-scale activism, is usually what drives political and legal change about such things. Classic examples — including the introduction of laws banning voting discrimination — can be found from the period of the American civil rights movement. Legislators didn’t just suddenly dream up these morally progressive ideas; the resultant laws didn’t have societal effect just because they’d been officially passed.
This, on one level, is democracy in action. Its gradual yet responsive change also makes for a stable society, in which people know their legal rights and obligations. Whether or not individual Irish citizens agree with the final result of next month’s abortion referendum, they will have been well aware of growing desire for the issue to be addressed and properly deliberated.
Over the past decades, however, political activism — in the sense of lobbying elected representatives to push for democratically deliberated change — has been joined by activism targeted at the judiciary. Lobbying through the court system, by repeated high-profile and often highly-emotive attempts to ascertain certain judgments or interpretations, can seem easier (not least quicker, and cheaper if crowd-funded or paid on a contingency-fee basis) than old-fashioned marches for gradual democratic change.
There are outstanding questions about the societal costs of the rise of judicial activism, not least in terms of the effect on our political institutions. But an emphasis on legal battles involving individuals — rather than “people” in general, who tend to be politicians’ focus — elicits a more human concern. Obituaries of the late Linda Brown, whose father launched Brown v Board of Education when she wasn’t allowed to enrol in an all-white local school, revealed that being at the centre of a monumental case made her “the focus of unwanted press attention”. That was in the 1950s. Today, new technology means new intrusions as well as new opportunities. In the case of Alfie Evans, the terminally-ill toddler who died last week, the internet helped his parents find support for their legal battles to seek new treatments and forms of palliative care; it also made a suffering family into a “test case” that some have seen as a political football.
The Evans case reminds us of the many unanswered ethical questions related to the use of new technologies in healthcare, as well as the need to continue to assess whether our laws are fair and just. Paul Goodman wrote here about how it should make us ask whether “the overall rights of families and the state [are] in proper balance”; Fraser Nelson has called for the law to be “updated” for “rare cases” like Evans. In an ideal world, ethically-sound law would already be in place when such cases occur, because the final moments of a suffering child’s life are surely not the best time to involve distressed parents in a large-scale push for more general answers. When such cases do show the current law to be in question or outdated, however, they can add to a wider process of careful deliberation, taking into account the general good, as well as the need to consider exceptional circumstances.
Last week’s happy news that Ruth Davidson and her partner are expecting their first child reminds us of another challenge related to the opportunities of new technology: fair access. IVF, which Davidson used to become pregnant, is often touted as an exemplar by those who think the NHS’s resources are overstretched by the provision of certain “optional” services. Believing that IVF should not be provided as a public service, however, does not mean that you shouldn’t want access to it — in that it currently is provided as such — to be fair. That different hospitals have different types of expertise and different resources should not be a barrier to that. The NHS Constitution’s wording provokes many questions (and while it talks of “rights”, is not legally-binding), but it purports to give people the opportunity to “choose where to receive treatment”. Believing in fair access to public services about which you have cost fears is not only consistent, it’s part of living in a democracy. It doesn’t detract from your arguments against such provision in general.
This is also true with regard to moral qualms. Let’s bring in a third recent news story: a campaign has been launched calling for a change in the law to allow those women who are prescribed abortion pills to be able to take them in their own homes. It is the second of the pills prescribed in such cases that causes bleeding and other distressing symptoms. Women who suffer miscarriages are sometimes prescribed this second pill, too, but that they are allowed to take this pill at home, however, has led campaigners to claim the reason that the women having abortions are currently required to take it on licensed premises is “political” rather than “clinical”. If this is, therefore, simply as a disincentive to those seeking an abortion, then that seems particularly cruel, and potentially harmful. Women who leave the clinic shortly after taking the pill sometimes suffer the distressing symptoms on the way home or elsewhere. Regardless of whether you find it morally acceptable or not, abortion is legal in the UK, and, as such, surely you should want it to be safely accessible.
My opening claim was that we live in increasingly relativistic yet increasingly moralistic times. It can be hard to argue with someone who doesn’t believe in right and wrong, yet “knows” that they’re right, because they feel so strongly about something.
It can also be hard, however, to accept that believing in objective right and wrong doesn’t mean you’re necessarily on the right side of any argument: believing in right isn’t the same as being right. We all need to continue to question even those things about which we feel the most strongly. There are certain forms of “moral progress” about which we are all, clearly correctly, united: the banning of slavery being the most obvious. But there are others, such as the legalisation of abortion or euthanasia, which are in no sense so clear-cut. These two examples, of course, are particularly complicated because they involve the interests of more than one individual: it is not just the mother we need consider, but the foetus, too; it is just not the person wishing to die we need consider, but also the person who will help them to do so, as well as others who might be pressured into seeking such an outcome for themselves.
These days, ethics can seem forgotten in the midst of pressing economic and new technological concerns. Those concerns, however, often only add to the need for us to remain ethically and democratically engaged, particularly regarding the most emotive cases — those about which we tend to have the strongest views.