Fish, Fetuses, Fletcher and the Idea of Pain

Illustration showing fish hook and “pain” receptors in trout

Illustration showing fish hook and “pain” receptors in trout derived from Lynne U. Sneddon, Trigeminal somatosensory innervation of the head of a teleost fish with particular reference to nociception,Vol. 972, Brain Research pp. 44-52 (May, 2003) (Figure 1).

Many years ago, as fathers and sons are apt to do, Keller and I came together over a fishing rod, or more precisely, a cane pole. Our sojourn took us to a small pond in the hinterlands of the high plains of America. A fish was caught by the boy as the father looked on. Years passed.

The son became a fish biologist in Nebraska, New Zealand and then Australia. The father became a federal judge. The son studies fish and became interested in whether those creatures suffer pain during fishing*, and the father studies law and became interested in whether fetuses suffer pain during abortion.**

As it turns out, fish, fetuses and the idea of pain have more in common than one might think. Not surprisingly, we talked about our work and how our inquiries intersected. What follows is a thin thread from that discussion, but it represents only my thoughts, and not Keller’s.

While doubting that a fetus is aware of pain in a manner comparable to that felt by a human being, the Royal College of Obstetricians and Gynaecologists acknowledges that there “is disquiet [my emphasis] in denying a rawer, more primitive, form of pain or suffering that the fetus . . . and many animals might experience.” (RCOG, Fetal Awareness―Review of Research and Recommendations for Practice, at p. 6 (March 2010).) Several years back, Annie Murphy Paul beautifully elaborated on this anxiety when discussing the issue of fetal pain. (Annie Murphy Paul, “The First Ache,” New York Times Magazine (February 10, 2008).) As for fish, Professor Victoria Braithwaite’s book (Victoria Braithwaite, Do Fish Feel Pain?, Oxford University Press (2010)) collects and presents solid reasons for a similar unease.

It becomes difficult to reject, out of hand, the idea that fish feel some form of pain, albeit not akin to the human experience, when one realizes that fish can learn to avoid frightening stimuli (such as a plunging net), which in turn suggests long-term memory, or that fish, when injected with acid, rub themselves in an apparent effort to shed themselves of the irritant, or that morphine appears to work on fish, or that some fish have receptors associated with the transmittal of pain in higher vertebrates. Similarly, when one understands that fetuses as young as 18 weeks show a spike in stress hormones and a defensive shunting of blood to the brain when subjected to an invasive procedure, but those responses can be dramatically reduced by the administration of analgesic, one might also question assertions that fetuses are incapable of suffering pain.

While I am persuaded that fish and fetuses probably experience some form of pain, I have no definitive answers about the morality of fishing or abortion. This is partly because the underlying questions are so hard. For example, each time I turn to the question of morality, I trip over a mind-numbing series of conundrums. What do we mean by “pain?” What if a fish (or a fetus) cannot distinguish between pressure and pain but perceives both as the same thing? How does one prove or disprove that organisms such as fish and fetuses are “conscious” of pain, although that pain may be “raw” and “primitive?” That is, must an organism be able to think about thinking to be conscious of pain? Is sentience (the ability to perceive sensation) the equivalent of consciousness? If not, what are the material differences and should those differences matter? And the difficulty of understanding consciousness scientifically is daunting enough without also trying to understand and synthesize how philosophers of morality approach the question for beings like fish and fetuses that are unable to speak. (E.g., Rene´ Descartes, “Animals Are Machines,” in Passions of the Soul (1649).)

Despite these ambiguous views, I have one firm conviction. I gently rebuke the absolutists. For them, complexity and subtlety blunt their enjoyment of outrage. For me, complexity and subtlety engender wonder, yet uncertainty. Call me a relativist if you like, but a skeptic if you please.

It is facile to deride the idea of pain and snicker at those who genuinely fear that fish and fetuses suffer. There is mounting evidence that creatures great and small suffer a sort of pain, and we should not pretend that is not so in order that we may continue as if the infliction of pain were not an integral part of abortion―and fishing. Conversely, it is nonsensical to anthropomorphize fish and fetuses–particularly when weighed against the life and liberty of a living woman–based upon the egocentric notion that those organisms are no different from the human beings who study them. Fetuses do not scream, and Charlie the Tuna is a cartoon character.

We know far too little for bans on fishing or abortion. We know far too much for neglect. Small, incremental steps designed to address pain―but premised only on hard science―hold out the only hope for a rational resolution. That will not satisfy the true believers, but it is the truth.

So, I will end as I began—at a pond. The boy now has a darling little boy, and the father now has a grandson. His name is Fletcher. Someday soon, I will take Fletcher fishing. When I do, it will be with a sense of awe and humility.


*R. Keller Kopf, Ph.D.  Postdoctoral research fellow, Institute for Land, Water and Society, Charles Sturt University, Albury, Australia.  He is the coauthor, with P.S. Davie, of “Physiology, behaviour and welfare of fish during recreational fishing and after release,” New Zealand Veterinary Journal 54(4), 161-172 (2006) and “Phylogeny of Cognitive Development and the Capacity to Suffer,” Australian Department of Agriculture, Fisheries and Forestry (2010).  Again, the thoughts expressed in this essay are mine alone.

**I authored both of the federal district court opinions involving Dr. Leroy Carhart on the subject of partial-birth abortion that were ultimately resolved in the United States Supreme Court.  I have since recused myself from abortion cases for reasons unrelated to this essay.

9 responses

  1. Beautifully poignantly written.

    On right to life vs pro-life, we usually miss the issue. The issue is whether an act turns our love inward (selfishly) or outward (to God and mankind). We have the right to have our government to allow us to be as selfish as we wish to be – until we hurt others. Then we must balance.

    We have struck the balance incorrectly, in my opinion. I was always horrified instinctively as a child at movies when the Aztec or Mayan Priest engaged in human sacrifice. Even though the deluded belief they were acting under was presumptively noble, such homicide was shocking and wrong – to me. Doesn’t anyone protect the child. Everything in me cried out to protect the child from such barbarism and ignorance.

    In abortion, we have people who wish to engage in “personal freedom”, rationalizing -( as people do when they try to justify something that goes against even their own core values), that they aren’t hurting anyone else. In order to make that assumption, they have had to “rationalize” that a human fetus is not really human.

    At least the Aztec and Mayan priests thought they were serving the Gods.

  2. Thanks for your thoughts. The Aztec and Mayan imagery and the connection to their no doubt deeply felt religion, is something that I had never thought about in this context.

    All the best.


  3. For other thoughts on abortion, from a conservative perspective, I recommend the blog of a warrior philosopher, Grim’s Hall.

    Do a search on keyword “abortion.” Unfortunately, Blogspot “upgraded” a couple of years ago, and all prior comments were lost (wise choice, WordPress…), but the surviving discussions and all of the original posts are worth the read, regardless of one’s going-in position on abortion. Other searches on related keywords will turn up much more.

    In all your vasty free time.

    Eric Hines

  4. I appreciate the sensitive exploration of moral philosophy questions in your essay. But considering your position as a federal judge, I think it would have been better to say explicitly that explorations of (not to mention one’s opinions concerning) moral philosophy cannot, in the end, be equated with principles of constitutional law. You get at this only obliquely, in your tenth paragraph. It is constitutional law, not moral philosophy, that decides legal questions concerning the validity of anti-abortion legislation.

  5. Peter,

    Thanks for your insightful comment. I agree with you that I should have made that distinction explicitly.

    However, I do have a question. Do you think your view–that moral philosophy is different from constitutional adjudication–is truly followed by the Justices of the Supreme Court in abortion litigation? If so, which ones are scrupulous about making that distinction? Which ones are not?

    All the best.


  6. This is complicated, in my opinion. While moral philosophy is different from constitutional adjudication, the two are not entirely separate. The Framers and the members of the First and Thirty-Ninth Congresses used a critical term in the Due Process Clauses — “liberty” — that takes its meaning from moral philosophy and cannot be understood without knowledge of Enlightenment Era moral and political philosophy. But moral philosophy alone cannot tell us whether enforcement of any given anti-abortion legislation would deprive a pregnant woman of her “liberty” without “due process of law.” The discussion of whether a fetus is a “person” or has, or is, a form of, “life,” on the other hand, are pure questions of moral philosophy. (The latter [life] question is easy, as a matter of biology.) But the “person” and “life” questions are irrelevant when posed about abortion with reference to the Due Process Clause — even though Justice Blackmun carelessly raised them in Roe v. Wade. That is because an abortion is not state action; it is private action by a woman and (hopefully) her doctor — only the state or federal government is prohibited from depriving a “person” of “life” without due process. The only state action in abortion policy is directed against the pregnant woman, and what is at stake for her is an important kind of “liberty,” says the Supreme Court (and I agree), that is, the freedom to make fundamental decisions about her own body, her health, and her future. I think all the Justices, in their own ways, understand this. Some seem to try harder than others not to let their own sincerely (and thus by definition, deeply) held religious opinions dictate their constitutional law conclusions about the extent of the woman’s “liberty” interest, and what constitutes the sort of regulation that does or does not exceed the bounds of “due process.” There’s more, but I’ll stop there for now.

  7. sorry – “pdgpa” is the same person as “Peter G,” and the previous comment was intended as a direct reply to RGK’s question directed to Peter G.

  8. Dear Peter,

    Thanks for your elaboration. It is beautifully stated.

    I agree with much of what you have written. Indeed, the name of this blog hints at the distinction you are making.

    Two quick points.

    Point 1. I have made the same distinction in other contexts. For example, when appearing before the Sentencing Commission, I wrote that “judges are not Jesuits.” By that I meant that sentencing judges are to apply the law as written by Congress, and as construed by the Commission, without infusing their sentencing decisions with their own moral (or religious) philosophies. (For what it is worth, I think I lost that battle as a practical matter.)

    Point 2. Truth to tell, however,I think psychologists and psychiatrists (and neuroscientists) would tell us that human beings cannot neatly segregate out and cabin abstract activities like constitutional adjudication from deeply (subconsciously) held beliefs of morality or philosophy. Indeed, the Constitution itself (the idea of “liberty,” for example) is infused with the thoughts of the natural law philosophers like Locke. This makes the effort to keep “law” separate from “morality” or “philosophy” (or “politics,” for that matter) even more difficult.

    I very much appreciate your thoughtful comments. I may end up writing more on the ideas you have raised.

    All the best.


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