Roland Nadler

A couple of items in the news over the past few weeks have left me in a peculiar (maybe uncomfortable, but probably healthy) position: partly agreeing with the view of a philosopher whose general approach I bristle at, and receiving with some skepticism the work of a scientist whose project I think is important and worthy of much respect.

Writing in the NY Times’ philosophy column a few weeks ago, William Egginton – whose prior essays in that forum were met, rightly I think, with excoriating or at least cautious responses – set about answering the question “Can Neuroscience Challenge Roe v. Wade?” in the negative.  His view, in brief, is that while neuroscience can supply information about pain-related activity in the brain of a fetus, this information is useless (or maybe he means near-useless, there’s some vacillation) when it comes to “the fundamental question of what counts as a full-fledged person deserving of the rights afforded by a society.”

To the extent that Egginton is making a broader claim about the limits of science or the insulation of normative claims from the facts, I am not on board with him.  My sympathies are further attenuated by his article’s final sentence, a maudlin crescendo across a succession of straw men that resolves into pious Kantian cant (“we relinquish something that Kant showed more than 200 years ago was essential to the very idea of a human being: our freedom.”).  But to the extent that he is arguing that neuroimaging results, absent any prior theory to ground them, cannot determine the outcome of moral / political disagreements like that over abortion, he wins my reluctant agreement.

A scientific discovery only settles that kind of debate when channeled through a set of answers to prior theoretical questions.  What kind of pain constitutes suffering?  What kind of suffering constitutes a proper locus of moral concern by itself?  How ought we weigh the competing moral claims that presumably arise between fetuses, women, and society?  Whom do we trust to make those decisions?  Do we consider, or ignore, the fact that these questions are situated in a society that widely internalizes patriarchal narratives about how women make such decisions?  (Well, you can probably infer from the framing how I come down on that last one.)

None of these questions is immune to further factual scrutiny (as elegantly demonstrated, on this topic, by the buzz surrounding that study on women denied abortions).  No moral or political claim can fully rid itself of both prior empirical assumptions and factually evaluable implications for societal systems design.  In emphasizing this I break with Egginton, who, so far as I can understand, thinks that these magisteria are not merely non-overlapping, but at some level hermetically sealed.  But he and I would agree that learning more about pain via neuroimaging can only tip the scales of a deadlocked normative disagreement when applied against the backdrop of countless normative fingers-on-the-scale.

Similar concerns inform my hesitation to react with unqualified excitement to the latest work from Adrian Owen, who, by most accounts, has pioneered a way of discerning whether individuals in various states of marginal consciousness are, in the relevant sense, conscious – a way that purports to allow them to “speak” through neuroimaging.  Dr. Owen’s work is unquestionably rigorous and tremendously exciting, and I hope it yields the kind of fantastic clinical applications we hardly dare to dream of at present.  Here again, though, it is worth recognizing that the science here only means what we are inclined to think it means in the context of various prior theoretical and normative stances.

In particular, the “problem of other minds,” that old philosophical bugbear, is perhaps not so much a bugbear here as a reasonable worry: what independent assurance do we have that patients exhibiting responsive brain activity are conscious as opposed to merely reflexively (if with impressive complexity) activating their brains in ways that we usually associate with consciousness?  To raise this concern is not to abandon naturalism; I still think that in the ideal limit of scientific inquiry, there will be some physical difference between brain activity that underwrites phenomenal consciousness and brain activity that does not.  But it may not be a discernible one, and anyhow, no one has conclusively discerned it yet.

Now, I would be unfair to leave out the fact that some of Owen’s experiments have demonstrated that some patients can use brain activity to signal answers to complex questions in a way that makes the “just a reflex” theory as unlikely to apply to them as it is to apply to the next ordinary person you meet on the street.  But even then, a slew of normative decisions still confronts us: pragmatically, will we make inferences about the consciousness of communicatively impaired patients using the same standards we apply in everyday interactions? More generally, when should we consider the science good enough to aid clinical decision-making?  If patients in these states can communicate preferences for different treatment options (or – a chilling prospect – for euthanasia), to what extent do we factor in their diminished capacity when we consider the options?  How do we respond if we discover that consciousness is so persistent in such a wide variety of cases formerly treated as hopeless that our healthcare resources become stretched to the limit?

My point in stressing all of these questions is, in part, to encourage much careful and open-minded reflection on the implications of neuroscientific advances for society in general.  If I seem bearish about the potential for the cognitive sciences to reshape our world (and, in particular, our law) extensively and straightforwardly, it’s because I think that reshaping will prove anything but straightforward.  Indeed, as to its extent, I am downright bullish.  Discussions like the two I have highlighted here illustrate that evidence from neuroscience can serve to settle liminal cases of disagreement about what moral category a given phenomenon falls into, but that it cannot singlehandedly re-draw the borders of those categories.  That still leaves a tremendous role for the results of cognitive science: both in illuminating how the facts of a given situation fit into the norms and rules we have decided to apply, and in working hand-in-hand with methods of philosophical analysis, legal reasoning, political advocacy, and humanities-grounded critique to re-draw those normative borders as ethics and evidence jointly warrant.

Roland Nadler is at 1L at Stanford Law School and co-director of the Stanford Interdisciplinary Group on Neuroscience and Law (SIGNAL)