Letter to the Senate Standing Committee on Legal and Constitutional Affairs of the Government of Canada in Opposition to Bill C-7

This morning, as per Catherine Frazee’s request, I submitted a letter to the Senate Standing Committee on Legal and Constitutional Affairs of the Canadian Government. The letter articulates my opposition to Bill C-7, which would expand access to medically-assisted suicide (“MAID”) for disabled people. Given the dearth of disabled philosophers (of disability) in Canadian philosophy, my letter will likely be the only letter opposed to the legislaton that was written and signed by a Canadian philosopher.

I have in fact written here on various occasions about the potentially devastating effects of MAID on disabled people in Canada; however, (nondisabled) feminist (and other) philosophers who aim to subvert asymmetrical forms of social, political, economic, and institutional power within and beyond both philosophy and the university seem not to have recognized that the threat of this legislation and opposition to it provide opportunities for them to substantiate their message of solidarity with disabled people and their professed claims of integrating analyses of ableism and disability into their work. When it comes to disability, every feminist philosopher seems to be a good liberal, invoking notions of individual choice and personal autonomy.

My submission to the Senate Standing Committee on Legal and Constitutional Affairs appears below. Formatting has been modified for BIOPOLITICAL PHILOSOPHY.

_____________________________________________________________________________

November 23, 2020

Dr. Shelley Lynn Tremain,   [street address redacted]   Hamilton, Ontario Canada sltremain@gmail.com

Senate Standing Committee on Legal and Constitutional Affairs, Government of Canada, c/o Mr. Mark Palmer, Clerk, lcjc@sen.parl.gc.ca

Dear Honourable Members of the Senate Standing Committee on Legal and Constitutional Affairs,

Please accept this submission to the deliberations of the Standing Committee on Bill C-7. I write to you as a disabled philosopher who specializes in philosophy of disability, political theory, and feminist philosophy, with a concentration on how the institutional structures of the discipline of philosophy and the biases of philosophers themselves contribute to the social subordination and exclusion of disabled people. I am deeply concerned that a handful of bioethicists have represented their positions on MAID and expansions of it as the outcomes of their philosophical expertise and as objective and value-neutral responses to the question of how Canadian society should treat disabled people who may feel hopeless, may be socially isolated, may live in poverty, and may lack social resources.

I have experienced first hand how the biased philosophical assumptions and contextually specific and socially-situated perspectives of these bioethicists have limited both philosophical thinking about the circumstances that surround disability and the social and professional opportunities available to disabled people, both within professional philosophy in Canada and in Canadian society more broadly.

I want to point out, first of all, that the positions on MAID, and especially its expansion, that these philosophers have articulated run counter to the philosophical, especially feminist philosophical, work on oppression, power, inclusion, and diversity that some of them have done in other contexts and upon which they have in fact built their professional reputations and careers.

Indeed, insofar as the proposed expansion of MAID specifically targets disabled people, these philosophers and bioethicists engage in a discriminatory form of practical reasoning that, in my monograph Foucault and Feminist Philosophy of Disability, I refer to as “ableist exceptionism,” which I define as “the phenomenon whereby disability, because it is assumed to be a prediscurisve, natural, and politically neutral human characteristic (difference, attribute, or property), is uniquely excluded from the production and application of certain values, beliefs, principles, and actions that circulate in political consciousness” (33).

In a passage of my book, furthermore, I explain how these proponents of MAID have relied upon assumptions about autonomy and social power that are outdated and have thereby misconstrued technical jargon in ways that support these outmoded ideas about how social power operates. Below I have quoted at length the most pertinent passage from my book. On pp. 174-179, I write:

[Quote begins] Despite the regularity with which medical and scientific abuses have been inflicted upon various marginalized social groups during the last century, bioethicists (predominantly nondisabled, white, and male) have tended to cast such clinical practices and research programs as anomalies and rarities, as disturbing relics of days gone by, and as disruptions in the history of an otherwise noble, emerging endeavor that strives to ensure that established practices and new developments in biomedicine and biomedical science uphold the highest ethical standards. Even the critiques of bioethical practices that feminist bioethicists and philosophers of disability and disability theorists articulate tend to implicitly assume the self-understandings and self-image that the subfield of bioethics explicitly presents; hence, the scope of these critiques has for the most part been limited to arguments against a particular biomedical practice or the position of a certain bioethicist, leaving the historical conditions of possibility for the overall enterprise of bioethics unexamined and unchallenged.

My argumentative strategy in this chapter is a distinct departure from these other critiques of bioethics. For my argument is that the subfield of bioethics (including feminist bioethics and disability bioethics)—as a concerted enterprise—is a mechanism of biopower whose increasing institutionalization and legitimation in the university, in the discipline of philosophy, and in public policy (among other contexts) consolidate and conceal the fundamental role that this field of inquiry plays in biopolitical strategies of normalization and hence the government of populations. I contend that the field of bioethics is increasingly a premier arena for racism against the abnormal; that is, I contend that the subfield of bioethics rationalizes (among other things) the proliferation and use of biotechnologies such as prenatal testing and screening and SC research and, in doing so, bioethics effectively contributes to the constitution of impairment (among other so-called anomalies) through the identification, evaluation, assessment, classification, and categorization of it, thereby expanding the purview of the apparatus of disability and extending its reach. The subfield of bioethics, I maintain, is a set of strategic discursive practices that works in the service of the mechanism of normalization and the government of conduct to eliminate impairments that medical, juridical, and administrative discourses claim to discover and manage, while simultaneously enabling these discourses to enlarge the scope of the broad outlines of the category of impairment itself.

Bioethics is generally regarded as the most suitable (if not the only) domain in philosophy for critical considerations about disability; however, bioethics actually operates as an area of philosophy whose guiding assumptions and discursive practices are significant obstacles to (1) acknowledgment that the questions—metaphysical, epistemological, political, and ethical—that the apparatus of disability raises are genuinely philosophical, and (2) recognition that disabled philosophers who investigate these questions are credible philosophers. Indeed, bioethicists serve as gatekeepers, guarding the discipline from the incursion of critical philosophical work on disability and shielding the profession from an influx of disabled philosophers. Exceptions to this exclusion are of course admissible and even serve to legitimize both the subfield of bioethics and the discipline in general, typifying the polymorphism of the (neo)liberal governmentality from which the subfield of bioethics has emerged and enabling philosophy to proceed under the guise of political neutrality, objectivity, and disinterest. The charge according to which critics of genetic technologies, physician-assisted suicide, and euthanasia employ “slippery-slope reasoning” is a striking case in point. Many bioethicists—some of whom have substantial influence on hiring practices and publishing (among other things) in philosophy, as well as on public policy and public perceptions of their field—maintain that philosophers and theorists of disability (and disabled activists) who criticize the production of these technologies and practices engage in fallacious argumentation by using “slippery-slope reasoning” to advance their claims; thus, their positions, these bioethicists argue, ought not to be taken seriously (for instance, see Schüklenk et al. 2011). That is, bioethicists who argue in favor of physician-assisted suicide, euthanasia, and genetic technologies such as prenatal testing and screening imply that although the arguments that philosophers and theorists of disability advance to oppose these practices and technologies are politically motivated, ideological, and unsound, their own arguments in favor of these practices and technologies are disinterested (yet compassionate), objective (yet caring), and rigorous (yet flexible and sensitive).

Jocelyn Downie and Susan Sherwin (1996, 316) distinguish between two kinds of slippery-slope arguments that critics of assisted suicide and euthanasia make: logical slippery-slope arguments and psychological slippery-slope arguments. Downie and Sherwin explain logical slippery-slope arguments in this way:

If we allow assisted suicide and euthanasia, we will not be able to draw any meaningful distinction between acceptable and unacceptable killings, and, hence, we will inevitably slide toward the bottom of the slope (i.e., toward allowing involuntary euthanasia and thus the killing of demented patients, mentally handicapped humans, indigent humans, and any other group deemed to be “unfit” for continued existence). (emphasis in Downie and Sherwin)

Downie and Sherwin claim that there is a simple response to this sort of slippery-slope argument, namely, that if there is a morally significant difference between evaluation of life at the top of the slope and evaluation of life at the bottom of the slope, then the necessary materials to erect a barrier on the slope are available; or, if there are good reasons why practices at the top of the slope should be allowed that are not available at the bottom of the slope, then descent down the slope is not logically necessary (317).

The second type of slippery-slope argument—psychological slippery slopes—poses more difficulty, Downie and Sherwin write. Psychological slippery slopes, they explain (quoting ethicist James Rachel), take this form: “Once certain practises are accepted, people shall in fact go on to accept other practices as well. This is simply a claim about what people will do, and not a claim about what they are logically committed to” (Rachels 1975, 65, in Downie and Sherwin 1996, 317; emphasis in Rachels).

Downie and Sherwin state that the question of whether people will accept involuntary euthanasia if they previously accepted voluntary assisted suicide and euthanasia is an empirical one, requiring investigation that has not been conducted. They remark, furthermore, that “There are many reasons to doubt the validity of the Nazi experience as an appropriate test, since the death camps were created under a totalitarian regime with little concern for individual autonomy” (Downie and Sherwin 1996, 317). For Downie and Sherwin, the respect afforded to personal autonomy provides a safeguard against abuses of physician-assisted suicide and euthanasia, distinguishing modern uses of these practices and procedures from extermination programs of the past. To be sure, Downie and Sherwin acknowledge that there is “reason to fear that legitimization of assisted suicide and euthanasia may lead to it normalization.” They point out, however, that they “do not think that this is an insurmountable obstacle” (325). Rather, they maintain that the normalization of physician-assisted suicide and euthanasia can be prevented if the appropriate regulations are put into place to ensure that people “do not feel coerced” to choose this option in response to their situation. In other words, the position that these feminist bioethicists advance on physician-assisted suicide and euthanasia relies upon a juridical conception of power and ideas about the self-originating character of the freedom and autonomy of the (neoliberal) subject that I wish to undermine. Indeed, one of my aims in this chapter is to draw critical attention to the increasing privatization and normalization of state eugenics and the continuity between eugenic practices and policies of the past and such practices and policies in the present (see also Hall 2016).

My argument is that the critiques of physician-assisted suicide, euthanasia, and prenatal and other genetic technologies that bioethicists associate with slippery-slope reasoning astutely identify the incremental normalization of modern force relations that operates through the inculcation and utilization of a relatively recent kind of subjectivity; that is, I contend that the charge of slippery-slope reasoning that (many) bioethicists direct at critics of physician-assisted suicide, euthanasia, and genetic technologies results from the failure of these bioethicists to recognize that the critiques address the nature and operations of force relations under neoliberal governmentality, including the production of neoliberal subjects whose management and modification of biological life is taken as fundamental to self-hood and responsible citizenship (see Pitts-Taylor 2010).

Let me underscore and elaborate these assertions. I maintain that (1) these critiques cohere with a sophisticated and compelling account of the productive character of modern force relations; (2) these critiques cohere with the conception of disability as an apparatus of force relations that I have articulated throughout this investigation of disability, philosophy, and feminism; and (3) the arguments with respect to autonomy, choice, and informed consent that mainstream and feminist bioethicists advance to undermine these critiques are themselves products of and implicated in this apparatus of disability, operating in the service of neoliberal governmentality (see also Kolářová 2015; Hall 2016; Tremain 2006a, 2010). Thus, this chapter offers additional evidence of how the reconstructive-conceptual sphere of my research (from which the argument about the productive character of the apparatus of disability emerged) is inextricably intertwined with the metaphilosophical sphere of my research that aims to demonstrate the eventalization of the current state of affairs in philosophy, that is, the contingency of the discursive, disciplinary, institutional, and conceptual factors that contribute to the exclusion of disabled philosophers from the profession and the marginalization of critical philosophical work on disability in the discipline.

The argument of this chapter is certain to elicit negative and defensive responses from philosophers in general and from bioethicists especially, responses that may range from condescending amusement and dismissal to skepticism and even hostility. Since I do not wish to have my argument for a feminist philosophy of disability rejected outright, nor do I wish to underestimate philosophers who have specialized and trained in bioethics, I should reiterate that my claims in this chapter operate at a different level of generality and differ in scope than the objections that other philosophers of disability and disability theorists have raised with respect to the positions that particular bioethicists articulate on, inter alia, prenatal testing, infanticide, physician-assisted suicide, and euthanasia. For my argumentative claims in the chapter, and indeed throughout this book, rely upon Foucault’s understanding of power (force relations) as both intentional and nonsubjective. Power, Foucault (1978, 94–95) explained, is calculated and always exercised with a series of aims and objectives. In this way, power is intentional. Nevertheless, usually no seat of power can be located nor can a group be identified as the holders of power, that is, be identified as the decision makers who direct and coordinate the complicated network of dispositifs (apparatuses) that circulate in society. In this way, power is nonsubjective. As Foucault put it:

[L]et us not look for the headquarters that presides over its rationality; neither the caste which governs, nor the groups which control the state apparatus, nor those who make the most important economic decisions direct the entire network of power that functions in a society (and makes it function); the rationality of power is characterized by tactics that are quite explicit at the restricted level where they are inscribed . . . tactics which, becoming connected to one another, but finding their base of support and their condition elsewhere, end by forming comprehensive systems: the logic is perfectly clear, the aims decipherable, and yet it is often the case that no one is there to have invented them, and few who can be said to have formulated them: an implicit characteristic of the great anonymous, almost unspoken strategies which coordinate the loquacious tactics whose “inventors” or decisionmakers are often without hypocrisy. (95)

On Foucault’s understanding of power as intentional and nonsubjective, the rationality of force relations is tactical. These tactical force relations become connected with each other and attract each other, ultimately forming widespread systems of power. The logic of force relations is quite clear and its aims and objectives are discernible; nevertheless, these aims and objectives are usually not attributable to anyone who can be said to have invented them, nor are they attributable to anyone who can be said to have introduced them into practice. In other words, practices on the micro level of the subject make possible more comprehensive networks of power, though rarely can the subject be identified who performed an initial practice from which these networks of power at the macro level have derived, accumulated, and coalesced.

This account of power explains how the field of bioethics can be a fundamentally pernicious enterprise populated with many well-meaning and even critical practitioners. Notice that this account of the relation between bioethics and power does not require the attribution of bad intentions or personal responsibility to any given individual or group of individuals; on the contrary, the claim that the force relations from which the subfield of bioethics emerged and through which it persists are both intentional and nonsubjective underscores the deep and far-reaching derogation of disabled people by and through the discipline and profession of philosophy. Notice, furthermore, that insofar as this account of how the subfield of bioethics is politically motivated assumes, following Foucault, that power relations are productive and circulate between and through multiple and often conflicting sites, the account does not take recourse in foundationalist assumptions about truth and knowledge that invariably underpin appeals to “ideology” as either the font of or result of power relations. Indeed, dominant notions of ideology, insofar as they assume that power suppresses truth and authenticity, advance a juridico-discursive conception of power whereby power is fundamentally repressive, generally is held by and operates from a centralized authority such as the state or a certain social institution or group, and reigns from the top down. Foucault penned his (in)famous and evocative remark that Western political theory still has not “cut off the head of the king” in order to signal that juridical conceptions of power are outdated and do not capture the diffuse operations of contemporary force relations, that is, are inadequate to address new forms of governmentality. (Tremain 2020, 174-179). [Quote ends]

The above-cited passage from Foucault and Feminist Philosophy of Disability represents a cutting-edge understanding of how modern power currently operates in society, including the way that the notion of autonomy—once regarded as a “liberating” idea upon which many of the (dated) arguments in favour of expansion of Bill C-7 rely—can no longer be understood as oppositional to power but rather must be recognized as actually functioning in the service of contemporary forms of power. On pp. 165-166 of my book, I write:

[Quote begins] I understand the emergence of bioethics and the doctrine of informed consent as historically specific institutional responses to the demands of neoliberal subjectivity; that is, I regard the emergence of bioethics and the doctrine of informed consent as institutional responses to the relatively recent social and cultural production of a new kind of individual who is self-directed and self-legislating, endowed with the capacity to make autonomous choices that can be put in the service of certain political ends. Power is neither external to the subject’s autonomy and freedom nor antithetical to these values, but rather contributes to their constitution and operates through them. [Quote ends]

This passage of my book also suggests the ways in which the very entrenchment of policies such as Bill C-7 contribute to the social construction of disability and its naturalization, that is, to the representation and understanding of disability as natural, as prior to policies, practices, and laws, and thus as irremediable by social, economic, institutional, and political adjustments and transformation.

I implore the Standing Senate Committee on Legal and Constitutional Affairs to expand the scope of the field of scholars and other interested parties from which it gathers views on the expansion of MAID. The current body of bioethicists and philosophers who have hitherto represented themselves as the professional and disciplinary experts on the subject for legislative purposes on the issue have little background knowledge on the social epistemology of disability and are not recognized as experts in philosophy of disability by practitioners in this subfield of philosophy. In short, they should not be regarded as authorities on the current social situation of disabled people and what is required to improve it.

Additional pieces that I have written in opposition to MAID and its expansion can be found on BIOPOLITICAL PHILOSOPHY (a philosophy blog that I coordinate) by following the links below:

https://biopoliticalphilosophy.com/2020/02/03/bioethics-and-maid-in-canada/

https://biopoliticalphilosophy.com/2020/11/16/bioethics-catherine-frazee-and-maid-in-canada/

Sincerely yours,

Shelley Tremain, Ph.D.

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