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Abstract
In July 2021 Heidi Crowter took the UK Secretary of State for Health and Social Care to court with the aim of challenging the aspects of the Abortion Act that in her view discriminate against people with Down's Syndrome. The case ignited the civic debate on disability, law and public ethics, re-exposing the shaky grounds and inherent contradictions of human rights discourse and legislation and revealing the acute dangers of utilitarian logic that sustains the status quo. In this paper I argue that if we are to safeguard the dignity and rights of those among us who might not satisfy the utilitarian criteria of “worthiness of existence”, the values that underlie human rights legislation need to be firmly situated in the realm of the absolute and the unconditional. This is an area where religious ethics can offer invaluable contribution. The transcendental grounding of faith-based morality endows the notion of human dignity with universality that is not conditional on any “worldly” category of worth (the concept of “ability” being one such category). Also, it provides a radical and counter-cultural redefinition of the notion of what it means to be a “contributor” to the social sphere, a redefinition that does not exclude those among us living with a disability.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1 Foetal diagnosis of Down's Syndrome is considered as legal ground for abortion after 24-week gestation under the disability provision of the Abortion Act 1967, namely section 1(1)(d) that specifies “a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”. This provision is one of three legal grounds on which abortion is permitted after 24-week gestation. The other two are “that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman” and “that the continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated” (s. 1(1)(b) and 1(1)(c)). Legal scholar Tongue (Citation2022) points out that while the latter two pertain to the health and wellbeing of the pregnant woman, section 1(1)(d) “differentiates between non-disabled foetuses that are granted […] limited ‘right to be gestated’ and disabled foetuses that are not” (p. 183). The implication of section 1(1)(d) in the Act is that “a pregnant person who discovers an unwanted pregnancy after the 24-week limit can only have an abortion (where that person has no medical need) if the foetus they are carrying has a disability” (p. 183).
2 Tongue (Citation2022) points out that “the terms ‘substantial risk’ and ‘seriously handicapped’ contained in section 1(1)(d) are not defined” (p. 178). Indeed, the meaning of these phrases is a subject of significant academic and legal debate. I will not engage with this topic here, as it exceeds the goal and the scope of this article.
3 The second claimant in Crowter v. SSHSC is Maire Lea-Wilson, the mother and litigation friend of the young boy with Down's Syndrome (the third claimant) identified as “A” (Crowter v. SSHSC [2021] EWHC 2536).
4 Beauchamp and Childress, however, do “not conceive of the common morality as ahistorical or a priori” (2013, p. 4). Hence the common morality thesis should not be confused with the similarly universalist theory of ethics known as “natural law”, which proposes that the knowledge of right and wrong is inbuilt in human nature and can be arrived at without reference to any of the religious traditions that proclaim to rely on divinely revealed truths. Though it might sound non-religious at first sight, the latter view is by no means limited to secular ethics. The Christian author C. S. Lewis, for example, is a prominent proponent of the natural law theory. Unlike Beauchamp and Childress's “common morality” which is considered to “comprise moral beliefs (what all morally committed persons believe), not standards that exist prior to moral belief” (p. 4, original emphasis), natural law theory resonates with theologies of wisdom, espoused by Celia Deane-Drummond, amongst others, which propose that “human wisdom, originating in the wisdom of God, may be found in many places and people” and that “it is not the sole preserve of any one community or tradition” (Messer, Citation2006, p. 197).
5 Here, Jason Coppel quotes from the statement issued by the second claimant in Crowter v. SSHSC [2021] EWHC 2536, Maire Lea-Wilson (BBC News, Citation2021).
6 According to the Christian moral philosopher Alasdair MacIntyre, this contradiction is the inheritance of the Enlightenment thought, which still dominates public discourse in the West. It has attempted to provide secular justification for the concepts such as justice and equality inherited from religious and transcendental ethics (e.g. the Bible or Plato), whilst rejecting the systems of thought in which they are rooted. This, MacIntyre argues, makes the belief in these concepts groundless and therefore “one with belief in witches and in unicorns” (2007, pp. 66-67). MacIntyre is by no means the first to point to what in moral philosophy has become known as “Enlightenment fallacy”. In her 1942 treatise on rights and obligations, the French philosopher and Christian mystic Simone Weil offers a brilliant critique of the discourse of “the men of 1789”, who sought “to postulate absolute principles” (which belong to the transcendent realm of the unconditioned) whilst relying solely on the conditioned realm existing “on the human plane”. “This contradiction”, Weil argues, “caused them to tumble into a confusion of language and ideas which is largely responsible for the present political and social confusion” (Weil, Citation2005, p. 107).
7 As Heidi Crowter puts it in a tweet: ‘i don't suffer from Down syndrome, i have the most amazing life - cinema, bowling, walking, singing, dancing , loving, caring, marrying - just brilliant!’ (Crowter, Citation2021).
8 Resources such as Positive about Down Syndrome (n.d.) contain a wealth of first-hand testimonies about living with Down's Syndrome and living with others who have Down's Syndrome.
9 “Act in in such a way”, writes Kant, “that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end” (1785/1996, p. 429).
10 Russian Religious Humanism, for example, represented by the figures such as the theologian Vladimir Solovyov and the novelist Fyodor Dostoyevsky, drew heavily on Kant's moral philosophy. On Kantian elements in Russian religious thought, see Hamburg and Poole (Citation2010).
11 “Christian doctrine of communion”, Williams further writes, “affirms that the body of every other individual is related to its maker and saviour before it is related to any human system of power” (2012, p. 154).
12 The statement “all human beings are born free and equal in dignity and rights” in Article 1 of the Universal Declaration of Human Rights is followed by a declaration that all human beings are “endowed with reason and conscience” (United Nations, n.d.). As such, it potentially links the notion of human equality with that of capacity for rational thought, which, as Williams persuasively argues, can disadvantage certain individuals or groups whose “capacity” in these terms might be seen as limited (e.g. people with dementia or those with severe learning disabilities).