Sunday, September 13, 2015

LD Sep/Oct 2015 - Adolescent Right to Make Medical Choices - Negative Position


Resolved: Adolescents ought to have the right to make autonomous medical choices.


For previous articles in this series, click here and here.


The Neg Position

Now that you have read the introduction and had time, perhaps, to absorb the Affirmative point of view, let's flip things around. There are many good arguments on the Neg side and I will explore a few of them.  First of all, the capability of all adolescents to make good decisions is not exactly a consistent tenet in U.S. law. On the one hand, the law suggests adolescents should have autonomy in making some kinds of medical decisions such as abortion, pregnancy prevention or treatment for substance abuse and on the other hand, the law holds that adolescents' decision making capability is deficient enough to justify different and more lenient treatment in the criminal justice system. It seems there are times when perhaps adolescents can make legally reasonable decisions and other times they can not. Yet the Affirmative burden is to defend the idea adolescents ought to have decision-making autonomy.  There are no qualifications to the position, so we consider all adolescents ought to have the right. Perhaps we could capitulate and agree that "all" has the same limits imposed on adults of 18 years or older. It seems reasonable we can exclude individuals whose ability to make decisions is limited due to debilitating illness or injury, or who have demonstrated a lack of ability to make decisions which are self-beneficial to the satisfaction of a court.

One important position I would like to put forth in this analysis is the argument that legal decisions supporting decision making by minors is not based upon any particular widespread notion that adolescent autonomy should be absolute or even a primary consideration by states in allowing adolescents a voice in personal medical decisions. Let's see how this develops.


Unreasonable Reasoning

Perhaps we can agree that adolescents ought to be allowed to make autonomous medical decisions as long as those decisions appear to be well-reasoned and conform to what the majority of rational adults would think. But, what if the adolescent decision was contrary to what would be considered a rational consideration?  One is faced with two possibilities; either the adolescent is incapable of making a rational decision for any number of reasons unique to the individual's status of being "underage" or the adolescents' wishes should be honored despite the interests of others such as parents, or greater society. The line between these points of view represents a razor edge upon which the state must tread in executing its responsibility to serve the best interests of citizens and to preserve life. This duty is linked very firmly in the social contract.

Leonard (2015)
[Dr. Douglas S.] Diekema says adolescents' brains are not adequately developed to make these kinds of decisions, that they are heavily influenced by social and emotional reactions, including the wishes of friends and family. "It's the role of the state to protect children," he says. "Just because we let them make decisions at 18 is not a sufficient enough reason to let them make them at 17. ... I'm not saying they shouldn't be involved or shouldn't have their wishes respected, but at a certain point you have to set a limit." [ellipses in original source]

The above quotation refers to the case of a Connecticut teenager who objected to a potentially life-saving treatment for a form of leukemia.  Her decision was shocking and some may think irrational since the treatment is considered 85% effective at curing the patient. The State Supreme Court ruled the girl must receive treatment in compliance with state laws; laws aimed originally at protecting public health and the best interests of citizens, including children. A similar case, involving a younger adolescent occurred in Minnesota where a teen refused 90% successful, life-saving chemotherapy citing strong beliefs in Native American "medicine man" treatments and religious ideology.

There are many examples of the state intervening in medical decision making which has direct application to the Negative position in this resolution. In fact, there are times when even the decisions of adults violate public interests and so it can be argued personal autonomy has limits enforced by just governments.


Adolescent Health and the Public Interest

The health choices of a teenager with a potentially life-threatening disease may seem to have minimal impact on the best interests of society at large and the responsibility of states to protect those interests.  After all, there is little doubt, many adults make the decision to refuse life-saving treatment and we usually never hear about it much less consider the impact of the decision on societal well-being.  However, personal health decisions and public health concerns very often overlap. It can be argued, for example, that risky behaviors such as engaging in substance abuse, violence or unsafe sex are in fact choices with wide-ranging public health implications.  Therefore, if teens are inclined to make choices without regard to public health risks a guarded consideration of their choices in routine medical decisions is warranted.

WHO (2014)
The life-course provides an important perspective for public health action. Events in one phase of life both affect and are affected by events in other phases of life. Thus, what happens during the early years of life affects adolescents’ health and development, and health and development during adolescence in turn affect health during the adult years and, ultimately, the health and development of the next generation. Effective interventions during adolescence protect public health investments in child survival and early child development. At the same time, adolescence offers an opportunity to rectify problems that have arisen during the first decade. For example, interventions during adolescence may decrease the adverse long-term impacts of violence and abuse in childhood or of under-nutrition and prevent them from undermining future health. [3]

The law makes exceptions for adolescent medical decisions, precisely because the state rightly recognizes the oft-time impulsive, thrill-seeking, risk-taking decisions taken by teens can have far reaching public health implications.

Campbell (2013)
Adolescent motherhood has a multitude of consequences, both negative and positive, not only for the adolescent mother but also for her children. Adolescent mothers are less likely to finish high school and are often unable to maintain consistent employment, which leads to welfare dependence (Singh, Darroch, & Frost, 2001). Furthermore, many adolescent mothers continue through life as single parents, which also cause higher dependence on public assistance, higher stress, and more difficulty with childrearing (Black et al., 2006). Infants of adolescent mothers are more likely to be low birth weight, have childhood health problems, experience child abuse and neglect, be placed in foster care, and experience school problems such as truancy, grade repetition and early sexual initiation (Klerman, Baker, & Howard, 2003; Levine, Emery, & Pollack, 2007). Moreover, with each additional child born to an adolescent mother, the previous children are at higher risk for neglect, trauma, and delinquent behavior. These children often continue the cycle of adolescent pregnancy (Black et al.; Klerman et al.).

There is an overarching utilitarian consideration permitting minors to privately seek and consent to medical treatment or procedures which is not motivated by pressure to preserve the autonomy of minors. States are motivated by their fiduciary responsibility to preserve the quality of life of citizens. The risky decisions taken by minors with respect to substance abuse and unprotected sex contributes to the proliferation of HIV, HPV, and other communicable diseases.

Gittler, et al (1990)
The fact that these statutes impose either no age limit or a very low age limit for minors to consent to or to receive services for these diseases without parental consent appears to stem from a legislative recognition that society has a critical interest in facilitating and encouraging access to health services to reduce the spread of disease among its citizens.[128]

While governments will make exceptions and indeed, the Supreme Court has upheld a certain allowance for minors to make decisions which can ultimately minimize harms to society, recognition of parental rights predates the emergence of increasing risks of unwanted teen pregnancy or diseases spread by risky behavior. The recognition of parental authority also serves an overarching public interest.

Gittler, et al (1990)
Another rationale for the parental consent requirement—apart from the need to protect minors from their own improvident decisionmaking--is a belief that the parental consent requirement promotes family autonomy and privacy and promotes parental authority and control of minor children. Family autonomy and parental authority, in turn, are often viewed as fostering the stability and cohesiveness of the family as an institution and of individual family units. The U.S. Supreme Court has commented in a series of decisions on the importance of family autonomy and parental authority, and the Court has extended Federal constitutional protection, albeit not absolute protection, to family autonomy and parental authority . The parental consent requirement also seems, at least somewhat, to be designed to protect parents from financial liability arising from the provision of health services, without their consent, to their children and to ensure providers of the availability of a payment source for the services they provide to minors. [125]


Changing Minds

In the Affirmative position we looked at the physical development of the adolescent mind and in particular the prefrontal cortex region which is responsible for inhibiting impulsive behavior.

Anderson (2011)
The frontal lobe, the judgment center or CEO of the brain, allows the individual to contemplate and plan actions, to evaluate consequences of behaviors, to assess risk, and to think strategically. It is also the “inhibition center” of the brain, discouraging the individual from acting impulsively. The frontal lobe ultimately develops connections to many other areas of the brain, so that experiences and emotions are processed through the judgment center. The frontal lobe does not fully mature until approximately 23 – 25 years of age. The immaturity of the adolescent’s judgment center explains much of the inability of adolescents to properly interpret experiences in the environment and thus make appropriate and healthy decisions. Many other areas of the brain likewise are not completely myelinated until the early 20s. The amygdala, which is the emotion center of the brain, is immature in adolescents and not fully connected to the frontal lobe. Adolescents, then, may have a more difficult time interpreting their emotions, as well as the emotions of others.

Despite the fact the decision-centers of the brain do not fully develop until the mid-twenties some researchers and advocates claim adolescents can make good medical decisions under the right conditions, free from peer-pressure or stress. Yet in reality such decisions must be made under extreme duress and pressure, the kinds of decision-making environment which stimulates impulsive thinking. Studies show the lack of risk-aversion and desire for reward in adolescents results in decisions which favor high-risk gambles with greater reward rather than low-risk gambles with small rewards.

Burnett, et al (2010)
The extent of risk maximisation differed by age. There was an inverted U-shaped relationship between age and the influence of risk on decision-making. Logit regression showed that the impact of the difference in risk between alternatives increased with age at the younger end of the age range. Toward the middle of the age range, the increase in impact of the difference in risk started to decrease with age. By adulthood, the effect was reversed. That is, adolescents showed the strongest tendency to select high-risk gambles. In addition, there was a significant effect of age on the proportion of trials for which participants selected the high risk alternative. Young adolescents (aged 12–15) made a significantly greater proportion of risky choices than did adults, and the age at which risky choices peaked was 14.38 years. [194]


Another Interpretation of Rights

Within the U.S. and international community there is a defacto recognition that all human beings deserve respect and dignity, regardless of their age. However, the decision to permit autonomous decision making for minors is not at all cut and dry. Consider the following explanatory report arising from the Convention on Human Rights and Biomedicine.

COE (2001)
As indicated before, the second and third paragraphs prescribe that when a minor (paragraph 2) or an adult (paragraph 3) is not capable of consenting to an intervention, the intervention may be carried out only with the consent of parents who have custody of the minor, his or her legal representative or any person or body provided for by law. However, as far as possible, with a view to the preservation of the autonomy of persons with regard to interventions affecting their health, the second part of paragraph 2 states that the opinion of minors should be regarded as an increasingly determining factor in proportion to their age and capacity for discernment. This means that in certain situations which take account of the nature and seriousness of the intervention as well as the minor's age and ability to understand, the minor's opinion should increasingly carry more weight in the final decision. This could even lead to the conclusion that the consent of a minor should be necessary, or at least sufficient for some interventions. Note that the provision of the second sub-paragraph of paragraph 2 is consistent with Article 12 of the United Nations Convention on the Rights of the Child, which stipulates that "States Parties shall assure the child, who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child".

Nowhere in the preceding statement is the claim made that adolescents ought to have autonomous decision making rights.  It reasonably considers the best way to respect the autonomy and thus dignity of minors is allow them who are deemed capable of forming views to express them. The convention statements imply there is a great deal of variability in the capability of adolescents which must be evaluated on a case-by-case basis and by expressing their views, minors serve ever-increasing roles in a collective decision making process as their capability matures. So what about all those studies which claim adolescents are just as capable as adults to make autonomous medical decisions. Are they sufficient grounds for making policy decisions?

Gittler, et al (1990)
Are the empirical studies reviewed in this chapter sufficient to establish that adolescents as a group, ages 14 or 15 and above, are competent to consent to their own health care? Probably not. Beyond being rather few in number, the studies reviewed leave gaps in the knowledge ideally needed for the formulation of public policy pertaining to adolescents’ involvement in health care decisionmaking. One limitation of the available studies is that most of them did not examine minors’ decisionmaking performance in situations sufficiently real and stressful to see what effects such situations may have on their decisionmaking performance (although the few that did examine this found the same pattern of results as the other studies). Another limitation of the available studies is that they generally compared minors’ decisionmaking with the decisionmaking of very young adults rather than with that of adults of various ages. Still another limitation of available studies is that they leave open several important questions about the effects exerted on minors’ decisionmaking by factors such as socioeconomic status, ethnicity, social influence, skill training, and experience, and how these might interact with the age-competence relationship found in the generally white middle-class groups studied. It is difficult to know how well one may generalize from the groups studied to the groups not studied. [148-149]

The Gittler, et al paper continues:

Gittler, et al (1990)
Some of the empirical studies reviewed for this chapter note the great variation of performance within age groups, but they do not go beyond that. Because of individual variation in decisionmaking capacity among adolescents, some adolescents ages 14 and older do not, in fact, have the requisite capacity to make health care decisions. Even if the average minor of any given age group can make health care decisions as well as the average adult, if the variability is much greater among the minors than it is among adults, then a large absolute number of minors might fall below whatever the standard of competence is.[149]

It is the variability of this age-range which forces us to Negate the resolution. The State has a responsibility to protect its citizens and all the more protect minors who are incapable of protecting themselves. Sufficient evidence exists that while some minors may be capable of making self-benefiting decisions, there are many who do not  Dr. Steinberg claims the age of maturity is variable and usually falls within the range of 15 to 22 years. So given the variability how can lawmakers establish an appropriate age when minors as a class can make autonomous medical decisions?

Steinberg (2012)
The first option is to pick the mid-point of this range. Yes, this would result in classifying some immature individuals as adults and some mature ones as children. But this would be true no matter what chronological age is picked, and assuming that the age of neurobiological maturity is normally distributed, fewer errors would be made by picking an age near the middle of the range than at either of the extremes. Doing so would place the dividing line somewhere around 18, which, it turns out, is the presumptive age of majority pretty much everywhere around the world. In the vast majority of countries, 18 is the age at which individuals are permitted to vote, drink, drive, and enjoy other adult rights. And just think—the international community arrived at this without the benefit of brain scans.


The Value Decision

To conclude this Neg position, I will spend some time discussing the all-important value framework inherent in this analysis. The social contract theory is based upon the philosophy that free and autonomous individuals, defer some of there freedoms to the state in order to gain the protection of the state.

Friend (undated)
According to [Thomas] Hobbes, the justification for political obligation is this: given that men are naturally self-interested, yet they are rational, they will choose to submit to the authority of a Sovereign in order to be able to live in a civil society, which is conducive to their own interests...According to Locke, the State of Nature is not a condition of individuals, as it is for Hobbes. Rather, it is populated by mothers and fathers with their children, or families - what he calls "conjugal society". These societies are based on the voluntary agreements to care for children together, and they are moral but not political. Political society comes into being when individual men, representing their families, come together in the State of Nature and agree to each give up the executive power to punish those who transgress the Law of Nature, and hand over that power to the public power of a government. Having done this, they then become subject to the will of the majority. 

Based upon this theory, the government has a responsibility to protect the rights of citizens and those extend to the youngest members. However, a just government cannot play favorites in executing its fiduciary requirement to guard the best interests of the citizens.  Its decisions are typically utilitarian in nature, designed to maximize the greatest good for the greatest number balanced against the obligation to protect those who are unable to protect themselves. This idea leads naturally to the values of societal welfare/well being and governmental legitimacy through upholding the social contract or upholding the duties of governments.  While the rights and autonomy of all individuals should be protected and respected, there are limits to freedom in civil society.  Due to the variability and uncertainty of the capabilities of adolescents to make rational decisions under pressures and stresses accompanying critical medical decisions supporting the resolution exposes potential societal harms as well as risks to minors. For this reason I must negate.



Sources:

Anderson, J (2011), he Teenage Brain: Under Construction, American College of Pediatricians, May 2011. Accessed Aug 22, 2015:
https://www.acpeds.org/the-college-speaks/position-statements/parenting-issues/the-teenage-brain-under-construction

Burnett S; Bault, N; Coricelli, G; Blakemore, SJ, Adolescents’ heightened risk-seeking in a probabilistic gambling task, Elsevier Inc. doi:10.1016/j.cogdev.2009.11.003, 2010. Access on Aug 22, 2015:
http://ac.els-cdn.com/S0885201410000201/1-s2.0-S0885201410000201-main.pdf?_tid=74090236-5978-11e5-82c3-00000aab0f01&acdnat=1442081138_d5962a4827b050a326722b2a0ef4f6de

Campbell, D. (2013), Adolescent Mothers' Decisions Impacting Additional Pregnancies, Submitted to the graduate faculty of The University of Alabama at Birmingham, in partial fulfillment of the requirements for the degree of Doctor of Philosophy BIRMINGHAM, ALABAMA ,2013. Accessed Aug 22, 2015:
http://www.mhsl.uab.edu/dt/2014r/Campbell_uab_0005D_11115.pdf

COE (2001), Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, Council of Europe, 2001
http://conventions.coe.int/Treaty/EN/Reports/Html/164.htm

Friend, C. Social Contract Theory, Internet Encyclopedia of Philosophy and its Authors, ISSN 2161-0002. accessed Aug 23, 2015:
http://www.iep.utm.edu/soc-cont/

Gittler, J, Quigley-Rick, M, Saks, MJ, Consent and Confidentiality in Adolescent Health Care Decisionmaking, Adolescent Health—Volume III: Crosscutting Issues in the Delivery of Health and Related Services, (This chapter is based on a February 1990 background PaPer entitled “Adolescent Health Care Decisionmaking: The Law and Public Policy,” prepmed for OTA’s Adolescent Heath Project under contract to the Carnegie Council on Adolescent Development by J. Gittler, M. Quigley-Rick, and M.J. Saks. That background paper has been published separately in its entirety, including extensive legal citations, and is available from the Carnegie CounciI on Adolescent Development, WashingIon, DC, or from OTA)
https://www.princeton.edu/~ota/disk1/1991/9104/910406.PDF

Leonard, K, (2015), Case Sparks Debate About Teen Decision Making in Health, U.S. News and World Report, News, accessed Aug 22, 2015:
http://www.usnews.com/news/articles/2015/01/22/case-sparks-debate-about-teen-decision-making-in-health

Steinberg, L (2012), Should the Science of Adolescent Brain Development Inform Public Policy?, Issues in Science and Technology, Volume XXVIII Issue 3, Spring 2012. Accessed Aug 22, 2015:
http://issues.org/28-3/steinberg/

WHO (2014), Health for the World’s Adolescents A second chance in the second decade, World Health Organization, WHO/FWC/MCA/14.05, 2014. Accessed Aug 22, 2015:
http://apps.who.int/adolescent/second-decade/files/1612_MNCAH_HWA_Executive_Summary.pdf

Monday, September 7, 2015

LD Sep/Oct 2015 - Adolescent Right to Make Medical Choices - Affirmative Position


Resolved: Adolescents ought to have the right to make autonomous medical choices.


Click here for part one of this analysis.



Affirmative Position

Let's consider some observations based up the wording of the resolution and anticipating certain counter-arguments.

First, the resolution asks us to consider granting the right to make medical choices to adolescents as a general principle.  There are no specific locales or jurisdictions specified, no particular nation, no particular cultural identities to consider. Conversely, there is no reason we can not isolate particular nations, cultures or jurisdictions as examples.

Second, we can take the position that adolescents who have the right do not necessarily have to exercise it.  The right to make autonomous medical decisions is a positive right and like many positive rights, one may choose not to exercise the right. So in this case the adolescents may still decide to allow their parents or others make the final decision. Related to this view, adolescents with the right may still consult with their parents, guardians or peers and seek advice from a number of sources. The fact an individual seeks consultation or advice does not harm autonomy since in the end the individual's final decision is the one that counts and is the one that cannot be overturned by a parent or guardian. (Of course in the U.S. even adult decisions can be challenged and ultimately reviewed by a court!).

Third, we must allow that not all situations that can be contrived in this debate are conducive to rational decision making.  Sometimes individuals are required to make very difficult medical decisions under very stressful or emotional conditions which may impede one's ability to make good decisions. But there is nothing unique about this with respect to adults versus adolescents.  Adults also face the same difficulties and in some cases may be so emotionally invested in their children, they make poor choices believing they are doing what is best for them.

Fourth, we must deal with the fact that medical treatments cost money and certainly cost is one of the factors which impacts one's choices. Most adolescents are not financially independent and most have little knowledge about the financial details of their parents or guardians and may not comprehend the impact of their decisions on the financial well-being of their families. Hospitals and medical personnel (in the U.S.) often recommend, more costly alternative treatments or procedures with minimal additional benefit to the patient, for the purpose of reducing the liability of the staff or pay for or promote new technologies which make the facility more attractive and competitive in the medical market-place.  In my opinion, we can easily argue that financial considerations are no more difficult to comprehend than the medical choices to be made. In addition, we can refer to the second point above and decide that in those circumstances where financial impacts are an important part of the decision calculus, the adolescent is still allowed to seek advice from others, including those financially responsible.

Finally, I want to talk about the emotional maturity of you, the debater.  It is possible this debate can deal with subject matter which is difficult to discuss.  Topics like abortion, birth-control, substance abuse issues, cosmetic surgery, assisted suicide, and other medical choices which may embarrass or impact your personal beliefs or evoke emotional responses from past experiences with self or other family members.  Your ability to debate this topic, rationally and with appropriate emotional expression will go a long way toward convincing an adult judge who must decide whether adolescents are capable of making good medical choices. I don't know if I needed to say that, but I said it.


Contention Layout

Since this is the first Lincoln-Douglas debate of the season, I have decided to outline the Aff position in a way that hopefully provides some understanding of one way a case can be built (there are many ways to structure your contentions, this is one). Since we intend to defend a V/VC (Value/Value Criterion) framework, we need to isolate a value and show how it relates to the topic at hand.

First, I will prove that adolescents have capacity to make autonomous medical choices. I begin by showing there is a problem in the status quo which needs corrected, namely that current views toward adolescent consent are built upon false assumptions. Next I will show how adolescents are competent at making medical decisions.  But first, I must acknowledge the adolescent brain is still developing, but despite this fact, adolescents still have competency in making medical decisions. Now that we've shown that the resolution CAN be true, we need to show why it OUGHT to be true, and we will say it ought to be true because the resolution upholds a core value. Therefore...

Second, I will provide a link to some core value. Actually, I will provide sources which provide direct links between adolescents' (or anyones') capacity to make autonomous medical choices and several different core values to make it as easy as possible.  This "link" is very important because we can claim adolescents are capable of making good medical choices and we can talk about really important values like dignity or freedom or justice but unless we show how the claim is linked to the value, what is the point? The best you can do without a link to a value is hold to a very pragmatic, perhaps legal justification for the resolution.

Third, I will discuss how to wrap it up.


The Current Situation

While there is a predisposed belief that minors are incapable of giving informed consent for medical treatment, such presumptions ignore the reality that adolescents are already given limited decision-making rights in many states throughout the U.S. Exceptions are already made for so-called emancipated minors, those who are living on their own and supporting themselves or who may be serving in the military; as well as some who fall under mature-minor rules in which a legal authority determines a minor is capable of providing informed consent.

Hill (2012)
...all states have statutory exceptions allowing minors to consent to medical treatment for at least some purposes. For example, all fifty states and the District of Columbia allow minors to seek testing and treatment for sexually transmitted diseases (STDs) without parental consent. In addition, many states allow minors to consent on their own to substance abuse treatment, mental health services (on an outpatient basis), examination and treatment for sexual assault, prenatal care, and contraceptive services. A complex set of rules, moreover, governs minors‘ access to abortion.50 Many states require parental consent or notification before a minor can receive an abortion, but the Constitution has been interpreted to require that a minor be given the opportunity to bypass that requirement by proving to a judge that she is sufficiently mature and well-informed to make the decision without parental involvement or that the abortion would be in her best interests. [42-43]

The Supreme Court decisions granting adolescents access to abortion without parental consent suggests that within the United States, there exists a Constitutional right to bodily integrity for all individuals.

Hill (2012)
Though it does not appear that this doctrine has been widely applied in cases outside the reproductive health care context, it nonetheless seems likely that minors possess some sort of right to bodily integrity that may limit the power of the state to restrict their health care choices.91 Finally, when confinement for treatment is at issue, the Supreme Court has held that minors have a protected liberty interest and a procedural due process right not to be arbitrarily deprived of their liberty.[48]

As for parental rights, again there is a presumption parents have a right to make decisions on behalf of their children free from state coercion. Indeed, the Supreme Court has overruled some state laws regulating educational requirements granting parents authority in these situations. Nevertheless, in relation to medical choices, courts have recognized parental rights but have been reluctant to give them much legal weight. For example, parents are usually restricted from denying their children medically necessary treatments even when included with religious freedom arguments (Free Exercise Clause).

Hill (2012)
Parental rights are often invoked to argue that parents should have a right to dictate their children‘s medical decisions, but those arguments often fail. Parents generally cannot deny medically indicated care to their children—even when the parental rights claim is combined with a claim under the Free Exercise Clause. In addition, while parental rights claims are sometimes discussed in the context of state laws allocating decision-making authority over minors‘ health care, they rarely seem to make any difference to the outcome.[58]

We see the default assumptions of parental control and inability of minors to make informed consent are not necessarily valid in all circumstances. Moreover, it is doubtful challenges to these assumptions can withstand Constitutional scrutiny. However, we need not limit our investigation of the status quo to the U.S. and its Constitution.

Ruggeri, et al.(2014)
As part of an attempt to increase children's participation in decision making, Articles 12 and 13 of the United Nations Convention on the Rights of the Child specify that minors have the right to express themselves freely, be heard on all matters affecting them, and have their views taken seriously. In recent years, there has been a shift from a paternalistic medical model, where physicians and parents hold an authoritative role in determining a child's treatment, to one advocating minors' involvement in their medical treatment

Ruggeri, et al.(2014)
According to the Article 6 of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, ratified in Italy in 2001, “the opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.”

The Ruggeri, et al study was probably the first to measure the desire of children and adolescents to participate in and even decide important medical choices for themselves rather than defer the decision to a parent or the doctors. According to Ruggeri, "children and adolescents want to be involved in the decision process, even when the outcome involves serious negative consequences" (Ruggeri 2014) and their findings correlate with the research of others which claim a strong desire in adolescents in particular to be more autonomous in many important issues which affect their lives.

Ruggeri, et al.(2014)
As hypothesized (Hypothesis 1), this willingness to make autonomous decisions and not to let parents make the choice was stronger for adolescents than children. Our findings, thus, are nicely aligned with results of previous developmental research showing adolescents' greater desire for autonomous decision making in more everyday contexts with less difficult outcomes.

Adolescent Brain Development and Competence

Much scientific research is available to show that the prefrontal cortex (pfc) region of he adolescent brain is not fully developed. This region is associated with decision-making insofar as it appears to regulate impulsive behavior. While research is ongoing, the hypothesis is made "that a less-developed pfc may correlate with a lesser ability to control impulsiveness, weigh future consequences, and engage in rational, cost-benefit analysis-hallmarks of typical behavioral differences between teens and adults."(Pustilnik & Henry 2012:7). The research suggest teens are more likely to evaluate risks by considering the impact on their social life as a primary consideration. While peer-influence may play an important role in normal adolescent decision calculus, what happens when peer-pressure is not an issue?

Pusilnik & Henry (2012)
Based on these and other findings, we might expect-and data confirms-that teens are most likely to act impulsively, break the law, and make bad choices in situations where peer salience is high. When teens are on their own, however, or are structurally insulated from peer-related considerations, their cognition and decision making is equivalent or even superior to that of adults. This kind of finding could be useful in evaluating and constructing legal regimes related to adolescent decision making. [8]

While perhaps, a lesser developed prefontal cortex presupposes a tendency toward impulsive behavior, the question is are adolescents capable of making reasonable and informed decisions even if the analytical processes by which they reach decisions are substantially different than adults?

Hattab & Kohn (2007)
Weithorn and Campbell (1982), administered to 96 children and adolescents a measure developed to assess competency according to 4 legal standards. Their findings confirmed that access to formal thought was necessary for a subject to be able to consent [to medical treatment]. While minors of 14 years of age had a degree of competence identical to that of adults, children of 9 had lesser understanding of the difficulties of taking into account the various factors involved in the choice they are being asked to make. However, they were found to be capable of expressing, like adults, their preferences concerning treatments, and of participating actively in decisions. [2]

McCabe examined this question of competence against the backdrop of the legal standard for informed consent.

McCabe (1994)
There are three legal requirements for consent to medical treatment: (a) The decision must be informed, including information about the risks and benefits of alternative treatments; (b) the decision must be voluntary, or free from coercion; and (c) the individual must be "competent" (e.g., Lidz, et al., 1984; Weithom, 1984). There are actually various standards for competence, including (a) evidence of a choice; (b) a "reasonable" decision; (c) a reasonable decision-making process; and (d) the most stringent standard, "appreciation" of the information provided, with the ability to make inferences about it (Roth, Meisel, & Lidz, 1977). [506-507]

McCabe also cites several studies which confirm that even young children have some capacity to "understand simple information and ask questions". Citing the innovative Weithorn & Campbell, 1982 study, Mccabe notes that even children as young as nine years match decision outcomes with adults and minors are age 14 matched the competency level of adult groups.

McCabe (1994)
Results suggested that children in the 9-year-old group were less competent than adults in terms of the higher standards of understanding the information provided and rational reasons; not surprisingly, they used one or two concrete factors in their decisions. However, they did not differ from adults in the standards of evidence of choice or reasonable outcome; that is, they still tended to arrive at logical decisions which were similar to those of adults. In terms of all four standards, the 14-year-old group demonstrated the same level of competency as the two "adult" groups; they showed a similar level of understanding and reasoning, and made similar choices. [508]

So we conclude this contention with an excerpt from Dr. Sabrina Derrington's essay...

Derrington (2009)
With support from legal cases and professional societies this body of work has resulted in general agreement that we ought to obtain informed consent from adolescents with “appropriate decisional capacity”, usually those [greater than or equal to] 14 years, and that we should seek the assent of younger children along with informed permission of their parents.


The Value of Autonomous Medical Choice

In this part I will provide the link between the resolution and the specific values you can pick up and close the case with.  I will highlight each value in bold text.

Kettle (2002)
In moral philosophy four principles are particularly relevant to biomedical ethics: the principle for respect for autonomy (self-governance), the principle of nonmaleficence (obligation not to harm others), the principle of beneficence (obligation not to harm others and also to contribute to their welfare), and the principle of justice (fairness, equality, entitlements). For the theory of informed consent as it applies to clinical settings, the principles of respect for autonomy and beneficence are most relevant

Kettle nicely isolates several intrinsic values in this statement.  Autonomy, as a value is a clear choice since it is included in the resolution.  But, autonomy is often itself, a value which links to many others. The value of justice is often defended in Lincoln-Douglas debate conceptualized as "giving each her due" or the concept of "just desserts". In this link, Kettle suggests another conception of justice as fairness which potentially provides a connection to the philosophy of John Rawls.  The ideas of nonmaleficence and beneficence are expressions of the value of morality which provides connection to a number of moral philosophers such as Aristotle, Kant or Singer.

Hartman (2008)
Adolescents realize personal dignity in large measure by participating in decision-making processes that impact matters of importance to them and in having their participation regarded and respected by others who talk with rather than to them. An inability to express their voices and views about significant personal matters or a perception of unjust deprivations of their interests demoralizes adolescents. The demoralizing effects from withered self-concepts and damaged identities can harm adolescents in the long-term. Deprivations of dignity are not inconsequential for anyone, let alone adolescents who seem more sensitized to perceiving affronts to their abilities and hence to their worth.[87]

Hartman gives us a good connection to dignity, another core value often defended in Lincoln Douglas debate.  Dignity also links to self-worth as a valued concept which is easily connected to this resolution. Hartman also gives a back-door to justice.  By using the language "unjust deprivations" he is telling us, the denial of autonomous choices, results in demoralization, deprives them of dignity and harms their sense of self-worth. Justice (defined as giving each her due) is upheld when we avoid these deprivations by allowing adolescents to make autonomous medical choices.

Kettle (2002)
The moral philosophies of Thomas Reid, Jeremy Bentham, and Immanuel Kant provided “the normative belief about the dignity and worth of the individual that led to conceptions of morality as self-governance.” According to this view, we all have “an equal ability to see for ourselves what morality calls for and are in principle equally able to move ourselves to act accordingly, regardless of threats or rewards from others.” The two points mentioned here, an equality in determining the demands of morality and self-motivating ability to meet those demands without fearing punishment or having expectations of rewards from others, gained wide acceptance in moral philosophy to the extent that most contemporary moral philosophy simply assumes them. The significance of the notion of morality as self-governance is that it supplies a conceptual structure for “a social space in which we may each rightly claim to direct our own action without interference from the state, the church, the neighbors, or those claiming to be better or wiser than we.”

This particular link requires a thorough reading of Kettle's thesis. She spends many paragraphs, particularly with the philosophy of Immanuel Kant drawing the links between autonomy (or self-governance) and rational decision-making. In Kant's philosophy, rationality is a trait which sets humans apart as moral agents.

Hartman (2008)
The freedom for determining boundaries of bodily integrity and the dignity that is derived from decision making about one's body, whether adult or adolescent, involve liberty interests that trigger procedural safeguards. Minimally, this includes the due process essentials of fairness, impartiality, and orderliness required by the Court in [re:] Gault whenever minors' liberty interests are implicated. By explicitly including minors in due process's protections, the Court implied that adolescents, like adults, must experience an ethic of mutual respect and self-esteem-in a word, dignity." One could even say that dignity is the most fundamental of all values anchored in the liberty protections of the Due Process Clause.(86)

Again, Hartman strongly links adolescent choice with dignity along with bodily integrity which is the idea that our body is our property (a natural right) and only we can decide what should be done with it. The main theme of Hartman's paper deals with the implications of the Supreme Court decision re Gault, 387 U.S. 1 (1967) which extended due process rights to juveniles accused of crimes. It is significant as one of several SCOTUS decisions which established constitutional rights and protections for minors and as Hartman clarifies, implies adolescents are constitutionally due "mutual respect and self-esteem". Hartman provides the link to civil liberties as well from which we can extract liberty as a conceptual value or specific liberties expressed in the U.S. Bill of Rights.

Kettle (2002)
Some (Beauchamp, Childress, Faden) define informed consent as autonomous authorization, which relies on the principle of respect for autonomy or autonomy as self-governance. Others (Katz, Moreno) define informed consent as the right to self determination, which is "a legal equivalent of the moral principle of respect for autonomy." The right to self-determination refers to “the right of individuals to make their own decisions without interference from others.” Some define autonomy the same way. Both definitions rely on the principle of autonomy, which Immanuel Kant envisioned as the capacity for rational action and the supreme principle of morality [1]

Finally, I will close this part of the discussion with the above snippet from Kettle's thesis. The link between informed consent and autonomy is pretty clear in her later analysis. Here again we see her express the connection between informed consent, rationality and morality and so we can conceive of a case supporting morality as a value, upheld by the value criterion of self-determination (i.e. autonomy).

The Closing

At this point in the case we make our pitch for the value and explain to the judge why it is of supreme importance she votes Affirmative because only by permitting adolescents to make autonomous medical choices do we maximize; dignity or justice or autonomy or fairness or equality or morality. Of course we do need to tell the judge why the chosen value is important to everyone, even minors. You will have no trouble finding information on chosen values and wrapping up this case by running it full circle back to the resolution, so I will leave this last little bit of work to you.  See my other links on this site which explain in detail, how to write your first case, if you've never done it before and hopefully I have given you enough of everything else in the analysis to get you off and running.


Click here for the Neg position


Sources:

Derrington, SF (2009), Advocating Autonomy: Fulfilling Our Duty to Adolescents at the End of Life, Section on Bioethics 2009 Essay Contest 1st Prize Essay, accessed Aug 18, 2015:
https://www2.aap.org/sections/bioethics/PDFs/EthicsEssayDerrington.pdf

Hartman, RG (2008), Gault's Legacy: Dignity, Due Process, and Adolescent's Liberty Interests in Living Donation, 22 Notre Dame J.L., Ethics & Pub. Pol'y 67 (2008). Accessed Aug 18, 2015 at:
http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1114&context=ndjlepp

Hattab, JY, Kohn, Y (2007), Informed Consent in Child Psychiatry – A Theoretical Review, Journal of Ethics in Mental Health (ISSN: 1916-2405), 2007, accessed Aug 18, 2015:
http://www.jemh.ca/issues/v2n2/documents/JEMH_V2N2_Article_InformedConsent.pdf

Hill, BJ (2012), "Medical Decision Making by and on Behalf of Adolescents: Reconsidering First Principles" (2012). Faculty Publications. Paper 82. Accessed Aug 18 at:
http://scholarlycommons.law.case.edu/faculty_publications/82

Kettle, NM (2002), "Informed consent: its origins, purpose, problems, and limits" (2002). Graduate Theses and Dissertations. accessed Aug. 18, 2015:
http://scholarcommons.usf.edu/etd/1523

Mccabe, MA (1994), Involving Children and Adolescents in Medical Decision Making: Developmental and Clinical Considerations, Journal of Pediatric Psychology. Vol. 21. No. 4. 1996. pp. 505-516, accessed Aug. 18, 2015:
http://jpepsy.oxfordjournals.org/content/21/4/505.full.pdf

Pusilnik, AC, Henry, LM (2012), Introduction: Adolescent Decision Making and the Law of the Horse, Journal of Health Care Law and Policy
, Vol 15 Issue 1, accessed Aug 18, 2015 at:
http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2295&context=fac_pubs

Ruggeri A, Gummerum M, Hanoch Y (2014) Braving Difficult Choices Alone: Children's and Adolescents' Medical Decision Making. PLoS ONE 9(8): e103287. doi:10.1371/journal.pone.0103287, accessed Aug. 18 at:
http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0103287

Saturday, September 5, 2015

LD Sep/Oct 2015 - Adolescent Right to Make Medical Choices - Introduction

Resolved: Adolescents ought to have the right to make autonomous medical choices.


Overview

This is the first topic of the 2015/2016 NSDA debate season so I know many of you will be debating for the first time.  Welcome to Lincoln-Douglas debate. On these pages I support the traditional form of Lincoln-Douglas debate very much in the style seen in the final round of the NSDA National Tournament.  If you are new to Lincoln-Douglas you can click the Lincoln-Douglas tab above and find links to other resources on this site which can help you get started. Debate tests a high-school student's ability to think on ones feet, make strategic decisions, and analyze facts; skills which are at the core of the resolution we will be analyzing.  This resolution forces us to look at the relationship between parents and their children and examine the question of when individuals are capable of making rational decisions with respect to their own medical care. In keeping with the tradition of Lincoln-Douglas debate, we will examine both sides of the question while focused upon some overarching principles such as; what is right?, what is just?, what is fair?  After all, at the end of the round, it is the answer to these larger questions which wins the debate in Lincoln-Douglas.

adolescents
Generally speaking adolescents are individuals whose level of maturity is somewhere between puberty and legal adulthood.  In the U.S., for example, with a few exceptions, individuals are considered legal adults at the age of 18 (even though you can't buy certain controlled substances or rent a car until you are older). The age of puberty, is much more difficult to pin down since it depends on a lot of biological factors but we can assume, for the purposes of this debate that all high-school debaters under the age of 18 are adolescents.

An article in Psychology Today states:
Adolescence describes the teenage years between 13 and 19 and can be considered the transitional stage from childhood to adulthood. However, the physical and psychological changes that occur in adolescence can start earlier, during the preteen or "tween" years (ages 9 through 12). Adolescence can be a time of both disorientation and discovery. The transitional period can bring up issues of independence and self-identity; many adolescents and their peers face tough choices regarding schoolwork, sexuality, drugs, alcohol, and social life. Peer groups, romantic interests and external appearance tend to naturally increase in importance for some time during a teen's journey toward adulthood.

The age-range of adolescence is likely not going to be an issue. Even if everyone has a slightly different conception of when a child enters adolescence most people understand we are talking about young people who, though they may live under the guardianship of adults are transitioning to independence and will soon be considered adults themselves with all associated rights and responsibilities.

ought to
I have often quibbled over the verb 'ought to', which finds its root in the word 'owe', hence, it suggests a duty or obligation to give something which is owed.  Indeed, quite often I hear debaters declare the word 'ought' as virtually synonymous with a moral imperative. The oft-time substitute word 'should' conveys a sense of permitting an action which is perhaps necessary but not obligatory. Ought and should are often used interchangeably in modern English/American language and whether or not the meaning of the two words are interchangeable in this resolution depends upon on the context of your case. So why quibble?  In this resolution we debate the bestowing of a right (which we discuss below) and the force we put behind the interpretation of 'ought' drives one toward the idea this right is universal to all adolescents and withholding it violates some universal principle of what is correct behavior. Or, we can interpret ought like 'should' and suggest the bestowing of the right is acceptable because its risks are no worse than those found in the status-quo but it offers advantages which make it a good idea.

have the right
Because the resolution says 'have the right' we debate a world where adolescents do not currently have this 'right' and the affirmative side will argue we ought to overturn the status-quo and grant the right. I like this wording because we don't need to spend time focusing too deeply on legal differences between nations.  We merely debate the idea, that given a world where the right is not granted to adolescents, should it be? Basically, rights are what individuals are entitled to in the form of conditions or qualities (right to happiness) or permissions (right to vote).  Generally, in Lincoln-Douglas debate, we make distinction between two classes of rights; civil rights (legal rights) and natural rights. Civil rights are those granted by governments or society and vary by jurisdiction and societal views, such as the right to education, vote, drive, protest, speak freely, etc.  Natural rights are the so-called god-given rights, the ones common to all human beings regardless of physical attributes, location or ideology. It is commonly argued in Lincoln-Douglas debate that no legitimate law can deny a person their natural rights, such as life, liberty, happiness, or property (although they may be forfeited). In this resolution, the right to make autonomous medical choices would not be considered a natural right. It is one of the legal rights granted by a government. For completeness, I should mention the so-called Human Rights such as those which appear in the Universal Declaration of Human Rights.  These are formulated from natural rights, and in my opinion, tend to codify specific entitlements which support natural rights. Finally, rights may be positive or negative in nature. A positive right is one a person must perform to secure. For example, to exercise my right to vote I must go out and vote.  A negative right places an obligation upon others to uphold. For example, to secure my right to privacy, others are under obligation not to violate or expose my personal spaces.

autonomous (autonomy)
Autonomy is simply self-governance; the capacity to make decisions and take actions free of coercion from others. Autonomy is considered an important ideal closely related to individualism and often in Lincoln-Douglas debate can serve as a value premise (as we shall explore in the Affirmative position).

Christman (2003)
Autonomy can play a role in moral theory without that theory being fully Kantian in structure. For example, it is possible to argue that personal autonomy has intrinsic value independent of a fully worked out view of practical reason. Following John Stuart Mill, for example, one can claim that autonomy is “one of the elements of well-being” (Mill 1859/1975, ch. III). Viewing autonomy as an intrinsic value or as a constitutive element in personal well-being in this way opens the door to a generally consequentialist moral framework while paying heed to the importance of self-government to a fulfilling life (for discussion see Sumner 1996).

medical choices
The act of choosing is the act of picking from a list of two or more options. The decided item is the 'choice'.  The adjective 'medical' describes things related to medicine or the treatment of health related issues. So we are talking about allowing individuals the right to choose medical treatments for themselves.

Discussion

This resolution could be worded, the right of informed consent ought to be extended to adolescents. The idea is very similar and by researching informed consent, the debater may find justifications for the Aff or Neg positions. 

DeBord (undated)
Informed consent is the process by which the treating health care provider discloses appropriate information to a competent patient so that the patient may make a voluntary choice to accept or refuse treatment. (Appelbaum, 2007) It originates from the legal and ethical right the patient has to direct what happens to her body and from the ethical duty of the physician to involve the patient in her health care.

The real issue at the heart of this debate is whether or not adolescents are capable of making informed decisions related to their medical treatment and care. I believe several perspectives on the issue will be contentions in this debate.  One important consideration is the role of the parent or 'guardian' in the decision-making process.  In many matters of law, minors are often considered to be not fully aware of the consequences of their choices. As a result, their parents or guardians are sometimes held responsible for consequences arising from the poor choices of minors. Conversely, we have seen many cases where the parents or guardians make choices which are contrary to societal sensibilities and result in legal prosecution in some jurisdictions. Another important consideration is when do minors actually achieve the ability to make the kind of medical choices that any rational adult would make and should the fact that others would make the same choice even be a criterion for granting the right? We can also consider the impact of siding with the Affirmative upon other types of decisions adolescents make and the extent of parental responsibility. If adolescents can make autonomous medical choices then are they capable of making other kinds of autonomous rational choices when it comes to things like whether to stay in school or being held responsible for making choices which violate the law?


About Values

Every year students ask me to help them choose values and value criterion for their cases. That is not easy without knowing the particulars of the case you plan to present. Sometimes I can clarify some ideas for values, but deciding on good criterion requires knowing the case and understanding how the case supports the selected value. That is something best discussed with your coach or more experienced team members. Nevertheless, by clicking the Lincoln-Douglas tab above you will find links to articles about how to select values and how to setup a value criterion. I will try this year, to present ideas for values as I layout the Aff and Neg positions, much like I tried to do last year but these will only be suggestions to stimulate your thinking. if all else fails and you still have no idea of what value to choose, consider 'autonomy'. The NSDA has handed that one to you on a silver platter.



Sources:

Christman, John, 2003, "Autonomy in Moral and Political Philosophy", The Stanford Encyclopedia of Philosophy (Spring 2015 Edition), Edward N. Zalta (ed.). http://plato.stanford.edu/archives/spr2015/entries/autonomy-moral/

DeBord, J, Informed Consent, ETHICS IN MEDICINE, University of Washington School of Medicine.
https://depts.washington.edu/bioethx/topics/consent.html

Dryden, J, Autonomy,  The Internet Encyclopedia of Philosophy, ISSN 2161-0002
http://www.iep.utm.edu/autonomy/

Psychology Today, (undated), Psychology Today © 1991-2015 Sussex Publishers, LLC
https://www.psychologytoday.com/basics/adolescence

Wenar, Leif, "Rights", The Stanford Encyclopedia of Philosophy (Fall 2011 Edition), Edward N. Zalta (ed.).
http://plato.stanford.edu/entries/rights/

Tuesday, September 1, 2015

PF Sep/Oct 2015 - Reparations for African Americans - Con Position

Resolved: The United States Federal Government ought to pay reparations to African Americans.


For part one of this analysis, click here.

The Con Position

There is very little support for reparations across the broad spectrum of the U.S. population. Even the mere notion of forming truth commissions or issuing an official apology is viewed negatively and indeed, no U.S. President has done so as of the date of this analysis. Perhaps much of the reluctance to apologize is rooted in the fact an apology is defacto admission of culpability or guilt and no one can predict what will follow such a declaration.  Much of the argument against reparations is a pragmatic one.  How can they be implemented? A significant number of U.S. citizens had no part in slavery, or Jim Crow laws. Indeed, many entered this country well after the conflicts of those times. Perhaps reparations are in order in very narrow, specific cases but this resolution calls for the U.S. Federal Government to take a collective action on behalf of African Americans generations removed from the direct atrocities of slavery. In addition, since the 1960s the USFG has taken actions and enforced laws aimed at leveling the playing field for disenfranchised and discriminated groups.

But the core of the argument for this analysis boils down to the fact reparations are legal redress and so certain standards must be met to the satisfaction of the courts, all the way to the U.S. Supreme Court.  As for the passage of new legislation, there seems to be zero support in Congress. Representative John Conyers Jr. of Michigan introduced H.R. 40, The Commission to Study Reparation Proposals for African Americans Act in 1989 and has reintroduced it to every session of Congress since and it has never been picked up even though support for the bill has at various times increased.  Amazingly, if Congress is unwilling to consider a bill to merely study the problem, how much less to enact a reparations proposal. So it would seem, even if Pro can make a prima-facie case the USFG OUGHT To pay reparations, under the present political environment and mood of the citizenry, it will not happen. In fact, the evidence for Con shows the issue is exceedingly divisive and may alienate blacks and whites even more than they may be today. It also seems, the idea of a collective action shakes the very core of a fundamental American value which is where we shall begin.


American Individualism

Collective actions are tough to enact because they rub against a very core value rooted deeply in the American psyche: individualism.

Biddle (2012)
With government expanding ever more rapidly—seizing and spending more and more of our money on “entitlement” programs and corporate bailouts, and intruding on our businesses and lives in increasingly onerous ways—the need for clarity on this issue has never been greater. Let us begin by defining the terms at hand. Individualism is the idea that the individual’s life belongs to him and that he has an inalienable right to live it as he sees fit, to act on his own judgment, to keep and use the product of his effort, and to pursue the values of his choosing. It’s the idea that the individual is sovereign, an end in himself, and the fundamental unit of moral concern. This is the ideal that the American Founders set forth and sought to establish when they drafted the Declaration and the Constitution and created a country in which the individual’s rights to life, liberty, property, and the pursuit of happiness were to be recognized and protected.

While an individual may be willing to pay for collective projects such as a city park levy, they are very resistant to paying for something for which they receive no direct, perceivable benefit. In addition, individualism endures different outcomes based upon abilities and resources. It's natural to expect that some people will rise above their circumstances and some will fail because each is endowed with individual traits, strengths and weaknesses. Of course within the American individualist's mindset is recognition that equal opportunity is essential.

Hall (2000)
Reparations was the advocacy flag of the nationalists in their internal struggle with integrationists, who argued that ending the old de jure discrimination was sufficient, and now people of African descent have to be able to work and cooperate within the system. The reparationists argued that America had a duty to remedy the past and maintain measures to equalize a society that was more than superficially divided. The two camps differed primarily in their particular views of the dominance of the individual versus that of the group. Integrationists focused on the individual. For integrationists, "[t]he war [was] seen, in essence, as a war between individuals with different attributes, of which race [[was] only one. Equality exist[ed] as long as the rules of the game [were] fairly and even applied to everyone, without regard to race."  

From a legal point of view, which we shall explore more fully in this analysis, compensation for wrong-doing requires the identification of a perpetrator and while the perpetrator may, under certain circumstances, be a collective entity such as a corporation, the claim becomes much more complex when the initial harms occurred many years before involving different sets of individuals. As a result of these legal difficulties, reparationists are often forced to resort to more esoteric principles.

Posner & Vermeule (2003)
But the problem facing those seeking reparations is that positive law never recognized the initial claim (as in the case of slavery), or that the victim never assigned the claim even if he could, or that the statute of limitations bars legal proceedings. Reparations claims appeal over the head of law to morality, and it would be only under the most unusual circumstances that a third person has a moral claim against a wrongdoer, who has never harmed this third person, as a result of the latter's purchase of the claim from the victim. (pg 699-700)

The value of autonomy and the concept of strong individualism is carried over into the legal system such that each is responsible for her own actions. Sometimes strong individualism is softened by weakening the 'hard' individualist identity on the basis of a philosophical premise or a moral ideology which collects individuals into a corporate identity. However, "[t]o some, this strategy is a subterfuge." (Posner & Vermeule p.703)


The Legal Case

It is a core principle of American jurisprudence that a wrong-doer should pay for harms inflicted upon others and indeed the law prescribes many ways this payment can be made. As I have already noted in the previous contention, identification of individuals is a core requirement needed to move forward with a claim. In the Pro position I presented the statement of Rep. Henry Hyde who reasonably asks the question why individuals who had nothing to do with slavery, or other crimes against African Americans should be held liable for harms against the ancestors of those living today?

Brophy (2004)
It appears that the type of argument that has gained the most attention-and is advanced most seriously against reparations-is that the people currently asked to pay had nothing to do with the injustices of the past. This argument draws on a popular thought in the United States, and western culture more generally, that liability should attach to fault, that people should receive punishment (or rewards) based on their personal culpability. Carried to an extreme, as many reparations skeptics do, that implies that one should be liable only for the harms one causes, that there is no general societal culpability.

It is also important to note the person claiming compensation is due, should indeed be able to prove suffering or loss as a result of the harms for which the perpetrator is held culpable. This puts an enormous burden on the claimant to show how, after more than one century of various attempts to outlaw or correct for the sins of the past, do those harms inflicted upon one's ancestors continue to harm one today?

Thompson (2005)
The third problem faced by those who defend reparations for slavery is explaining why presently existing African Americans are owed reparation for this historical injustice. Since they are not the ones against whom this injustice was committed, then, according to the standard account, it is difficult to understand how they could be candidates for reparation. If injustices have been committed against them during their lifetime, then they are entitled to reparation for these wrongs – but not for slavery, not for the system of oppression that was put in place in the South after the Civil War, and not for other historical injustices to African Americans. (pg 5)

While the ugly scenery of America's past remains in clear view, we must also look tothe ensuing struggle which followed for both black and whites to correct these wrongs; a struggle which began long before the 1860s and resulted in a war which left the country in a deep divide for at least another century until the Civil Rights movements of the 1960s.

Brophy (2004)
There are other ways of paying the debt, though, besides cash payments. Part of the argument that reparations have been paid is the assertion that the Civil War paid that debt. Lincoln scholars are particularly active in advancing the argument that the Civil War was part of abolishing the debt to African Americans. (pg 1208)

This begs the question, is there really a debt owed by today's society?  Both sides paid a heavy toll in the struggle to end slavery and eventually the reforms which began in the 1960s have more than paid back for past harms.

Brophy (2004)
The next most popular argument is that reparations have been paid in the form of Great Society programs, like the war on poverty and affirmative action, as well as welfare. (pg 1206)

So we can sum up this contention, if necessary, with acknowledgement that many horrible wrongs were committed. It would be foolish for Con to deny them. So because of the difficulties in assigning blame to individuals, Pro may shift the focus to the collective and point to those groups, corporations, and government structures which perpetuated the harms. Let's also not lose sight of the fact if the USFG pays the burden is on individuals. But Con has a rebuttal.

Thompson (2005)
The second problem is identifying the agent who can legitimately be made responsible for reparations in the case of a historical injustice like slavery. The slaveholders are dead, and so are all of the government officials, politicians and others who supported slavery or made it possible for it to exist. The most plausible candidates for responsibility are those intergenerational associations which in one way or another aided and abetted slavery: the American government, which for a long time tolerated slavery and passed and enforced laws that supported it, companies which profited from it, churches which condoned it. But there are obvious problems with assigning responsibility to collectives – especially a collective like a nation which has a largely non-voluntary membership. At one time, says Boxill, the US Government had a duty to pay reparation to slaves. (pg 3)

And really, that is the point.  At one time the government had a responsibility, and so did the churches, and banks, and railroads and companies.  But the opportunity for redress has long passed, as tragic as that may be.


The Lessor of Two Evils

Now let us consider another aspect of legal redress. We can recognize the evil of slavery for what it is and wonder what possible remedy can now be offered that would even come close to compensating such treatment of a fellow human being. The root meaning of reparation is "to repair"; to restore to wholeness, so to speak and how is it possible in these days to make whole those victims who lived and died so long ago?

Thompson (2005)
The problems of claiming reparations for slavery are obvious. First of all, to enslave someone is an evil for which there is no reparation in the above sense – any more than there is proper reparation for torture or murder. Forms of reparation for slavery that have been proposed reveal the gap between the nature of the injustice and any possibility of repair. Corlett, for example, suggests that reparations are owed for the labour power stolen from those who were enslaved; others have suggested that compensation should be based on what slaves could have earned if they had been free workers. But the evils of slavery go far beyond the stealing of labour power (which, according to Marx, is done by capitalists to every worker) or denial of wages. The point is not that it is inappropriate to offer monetary compensation for irremediable injustices, but that in these cases compensation is not reparation in the standard sense, but should be regarded as a symbolic gesture that shows the willingness of perpetrators to aknowledge an injustice and their desire to make recompense for it.(pg 2-3)

Pro is now advocating that all these generations later, the descendants of those victims are claiming damages for themselves. Additionally the charge is made the descendants and heirs of the perpetrators financially benefited. While we may sympathize and have compassion for the suffering of others, the law prescribes standards by which to measure the damages.

Thompson (2005)
But there is a well known difficulty in making these bad effects into grounds for reparations for slavery. For it seems that existing African Americans, in order to claim reparations for slavery, have to show that they are worse off than they would have been if slavery had not existed. But if their ancestors had not been enslaved, removed from their country, shipped to America, these descendants would not have existed at all, and can therefore not claim to be worse off. So it seems that reparations for the legacy of slavery can only be owed to black Americans for the unjust deprivations that they have suffered during their lifetimes. (pg 5)

This standard is not only unique to American law.  It was apparently inherited from the common law tradition which originates in Britain. Needless to say, British colonialism as yielded many calls for reparations and the same standard is applied.

Butt (2014)
The principle challenge which this approach faces turns on its use of counterfactual reasoning. In order to say that a given group has been advantaged and another group has been harmed by historic wrongdoing, we need to make some kind of claim as to how they would have fared in the absence of the injustice in question.(pg 4)

Therefore when we compare the present state of African Americans with their sub-Saharan counterparts with whom they share common ancestry, the damages are difficult to measure since that region is among the poorest on the planet with a myriad of poor health outcomes, poor governance and social problems far worse than those in the U.S. I personally, find this contention difficult to argue as it forces us to consider a kind of lessor-of-two-evils scenario in which the irreparable crime of slavery has resulted in a bad situation which is comparatively less bad than the outcome would have been for this generation if the forced slavery had never occurred. I bring it into this analysis because Con literature addresses it, no doubt much better than I do. It is the kind of question which courts may demand answered. There is no justification for slavery and some authors contend, there are no reparations possible.  But when we speak of what is due to or owed by members of this generation it is a matter of debate; hence the resolution.

Before moving on to the next contention, we address the question of whether whites in general and the South in particular profited from the unpaid labor of slaves.

Williams (2014)
Reparations advocates make the foolish unchallenged argument that the United States became rich on the backs of free black labor. That's nonsense that cannot be supported by fact. Slavery doesn't have a very good record of producing wealth. Slavery was all over the South, and it was outlawed in most of the North. Buying into the reparations argument about the riches of slavery, one would conclude that the antebellum South was rich and the slave-starved North was poor. The truth of the matter is just the opposite. In fact, the poorest states and regions of our nation were places where slavery flourished -- Mississippi, Alabama and Georgia -- while the richest states and regions were those where slavery was absent: Pennsylvania, New York and Massachusetts.

Dr. Williams' sums up the question of whether slavery was profitable for the South quite nicely, but reparationists will often claim that many of the social ills suffered by African Americans today are due to the lingering effects of a culture of repression and as some may claim, a sort of stress induced trauma arising from centuries of racism. We can allow dr. Williams to provide an answer.

Williams (2015)
Today the overwhelming majority of black children are raised in single female-headed families. As early as the 1880s, three-quarters of black families were two-parent. In 1925 New York City, 85 percent of black families were two-parent. One study of 19th-century slave families found that in up to three-fourths of the families, all the children had the same mother and father. Today’s black illegitimacy rate of nearly 75 percent is also entirely new. In 1940, black illegitimacy stood at 14 percent. It had risen to 25 percent by 1965, when Daniel Patrick Moynihan wrote “The Negro Family: The Case for National Action” and was widely condemned as a racist. By 1980, the black illegitimacy rate had more than doubled, to 56 percent, and it has been growing since. Both during slavery and as late as 1920, a teenage girl raising a child without a man present was rare among blacks. Much of today’s pathology seen among many blacks is an outgrowth of the welfare state that has made self-destructive behavior less costly for the individual.


Answering the Moral Argument

It seems inevitable that many Pro cases will attempt to justify reparations on the basis of some moral philosophy.  This is often ground for Lincoln Douglas debate but I think appealing to general principles of right and wrong is legitimate in Public Forum Debate. We can all agree that forcing a people into slavery is an immoral act. We can debate whether or not reparations for later generations is moral.

Thompson (2005)
But a political practice of requiring present citizens to honour past agreements or past debts needs a moral justification. The government is supposed to represent the people, and the problem remains of justifying the imposition of moral debts on citizens who were unborn when the wrongs occurred. There is in fact a robust tradition in American thought, and indeed in liberal thought in general, that holds that a democratic nation of free individuals ought not to tolerate such impositions. According to Thomas Jefferson, ‘one generation is to another as one independent nation to another’ (pg 4)
Is it moral to "punish" children for the sins of the fathers?  It is a question that can be debated in a myriad of ways. Nevertheless, this analysis questions not only the legitimacy of reparations but also the impossibility of implementation in a fair and equitable way. Look to the age-old drowning child scenario.  If I see a child drowning and I am unable to swim, then how am I morally obligated to attempt rescue? A moral burden must be doable or it is not moral.

Closing Thought

Consider the learned opinion of Professor Alfred Brophy...

Brophy (2004)
...reparations talk divides the country along racial lines. By talking about the past and by focusing on past injustices, blacks alienate themselves from the rest of the country. Reparations talk leads blacks to see themselves as victims who deserve government payments.(pg 1209)

Brophy (2004)
Even more than recalling the past tragedies, however, reparations will require the government to draw further lines on the basis of race. For many reparationists see reparations not as a way of achieving integration and a color-blind society; they see it as a way of achieving further race-conscious action. (pg 1211)

The coaches and students have chosen a rich topic to open the 2015/2016 season.  Have fun with it.



Sources:

Biddle, C. (2012), Individualism vs. Collectivism: Our Future, Our Choice, The Objective Standard, vol. 7, No. 1, 2012.
https://www.theobjectivestandard.com/issues/2012-spring/individualism-collectivism/

Brophy, A.L.; (2004); The Cultural War over Reparations for Slavery; Volume 53, Issue 3, Spring 2004: Symposium - Race as Proxy in Law and Society: Emerging Issues in Race and the Law; Article 10
http://via.library.depaul.edu/cgi/viewcontent.cgi?article=1466&context=law-review

Butt, D. (2014) Reparative Justice: the debate over inherited inequities, From Rupert Jones-Parry and Andrew Robertson (eds.), The Commonwealth Yearbook 2014
(Cambridge: Commonwealth Secretariat, 2014), pp. 197-99.
http://users.ox.ac.uk/~wadh1010/commonwealth.pdf

Flaherty, P. & Carlisle, J. (2004), The Case Against Slave Reparations, National Legal and Policy Center,  October 2004.
[In my opinion one should use this source only as a tool for finding primary sources!]
http://nlpc.org/sites/default/files/Reparationsbook.pdf

Hall, AA (2000), There Is a Lot to Be Repaired Before We Get to Reparations: a Critique of the Underlying Issues of Race That Impact the Fate of African American Reparations, 2 Scholar: St. Mary's Law Review on Minority Issues 1, 32-41 (2000) (295 Footnotes Omitted)
http://academic.udayton.edu/race/02rights/repara22.htm

Posner, E & Vermeule, A, "Reparations for Slavery and Other Historical Injustices," 103 Columbia Law Review 689 (2003).
http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2787&context=journal_articles

Thompson, J (2005), Memory and the Ethics of Reparation, Proceedings of the Seventh Annual Gilder Lehrman Center International Conference at Yale University, October 27-29, 2005, Yale University, New Haven, Connecticut
http://www.yale.edu/glc/justice/thompson.pdf

Williams, WE (2014), Slavery Reparations, Townhall.com, June 18, 2014.
(Dr. Williams serves on the faculty of George Mason University as John M. Olin Distinguished Professor of Economics)
http://townhall.com/columnists/walterewilliams/2014/06/18/slavery-reparations-n1852058/page/full

Williams, WE (2015), The True Black Tragedy, LewRockwell.com May 19, 2015.
https://www.lewrockwell.com/2015/05/walter-e-williams/the-real-black-tragedy/