Util/Trutil with Tom Placido: Conscription CP

Welcome to the first installment of Util Trutil, a weekly column on PDT where I’ll discuss a series of policy-oriented issues on each topic for all you LARPers out there.

The focus of today’s piece is the conscription counterplan.

What is organ conscription? Simply put, organ conscription is the most extreme form of organ procurement policy that a government could adopt (short of killing people for their organs while they are still alive). After people die, the government can just take their organs, regardless of what their wishes were.

For those of you looking for a definition, the one below should be serviceable for explanation purposes.

Kaushik 09, (Jyotika Kaushik, NALSAR University of Law, India, “COMMENT: Organ transplant and presumed consent: towards an ‘opting out,’” Indian Journal of Medical Ethics, Vol. 6, No. 3, 2009, http://issuesinmedicalethics.org/index.php/ijme/article/view/384/686)

A “conscription system” is one where tissue and organs can be removed posthumously for transplantation, irrespective of any consent or refusal. Under such a system, dead bodies and their parts would be treated as public property either indefinitely or for a limited period before what remains is released for burial.

So conscription says that the government should just be able to take dead people’s organs, no questions asked. On face, this policy borders on absurdity. Even with the much softer policy of presumed consent, scholars and debaters alike are quick to point out the disconcerting potential for significant autonomy violations. First, we find something intuitively troubling about violating people’s wishes after death. But even if we don’t think that people have rights after death, there exists the even scarier potential for organs to mistakenly be taken from people who are still alive. Public distrust of the medical system is a main reason why presumed consent has yet to gain serious traction in the US. If doctors know that any deceased person’s organs can be transplanted after death, the potential for doctors to either mistreat or mistakenly take a patient’s organs increases dramatically. As a consequence of these qualms, support for presumed consent in Congress has been virtually nonexistent. And now negatives want to say that we can both pass a much stronger policy of organ conscription AND have the Democrats retain control of the Senate in November? LOL!

But if organ conscription seems like such a bad idea, why has it been so popular amongst negatives on this topic? The main reason is that the conscription counterplan is extremely strategic. It will usually solve the affirmative advantages much better than the affirmative can. Take everyone’s favorite 1NC card, for example:

Conscription = rainbows, unicorns, and some deont crap too!
Spital 05, (Aaron Spital, MD, Medical College of Wisconsin, Adjunct Clinical Professor of Medicine, Nephrologist at Mt. Sinai Hospital, “Conscription of Cadaveric Organs for Transplantation: A Stimulating Idea Whose Time Has Not Yet Come,” Cambridge Quarterly of Healthcare Ethics (2005), 14, 107–112, http://128.143.22.36/ipe/docs/Spital%20Conscription.pdf)

The most important advantage of conscription is that under this plan, the efficiency of organ procurement should approach 100%, which would dramatically increase the number of organs available for transplantation. As previously noted, it is highly unlikely that any other approach could do nearly as well. As a result of the increased avail- ability of organs that conscription would provide, the lives of many more patients with end-stage organ failure could be improved and extended.¶ Another advantage of conscription is that this system would be much simpler and less costly than other approaches to organ procurement. Under this plan there would be no need to search for the best approach for obtaining consent, no need for expensive, labor-intensive educational programs designed to encourage more people to say yes, no need to train requestors to obtain and document con- sent, no need to maintain donor registries, and no need for complex regulatory mechanisms to prevent¶ abuse as would be required were financial incentives allowed.¶ A third advantage of conscription is that because permission from the family would no longer be sought, this plan would eliminate the added stress that devastated families now endure when asked to consider organ donation in the midst of the grief and shock that follow the sudden death of a loved one. Furthermore, delays in organ recovery that result from the current need to wait for family approval, and that jeopardize the quality of organs, would be eliminated.¶ A final advantage of conscription is that, in contrast to other approaches to organ procurement, it satisfies the principle of distributive justice, which refers to equitable sharing of burdens and benefits by members of the com- munity. Under conscription, all people who die with usable organs would contribute to the cadaveric organ pool —there would be no more “free riders” 1 —and all people would stand to benefit should they ever need an organ transplant. This contrasts with our current system in which people can refuse to donate and yet compete equally for an organ with generous people who choose to give.

Damn, that sounds like a pretty awesome idea. If only there were a way that debaters could argue that violations of autonomy aren’t relevant under our moral calculus, we’d have a silver bullet to beat every affirmative that relies solely on organ supply…

Wait a minute, you’re telling me that affirmatives already say that autonomy doesn’t matter because they read util frameworks!? Sign me up for +1 Conscription CP in the 1NC.

And therein lies the true strategic value of the conscription counterplan. Joking aside, conscription, by advocating for a stronger version of what the affirmative already does, flips the script on how the 1AR usually goes down. Examine the following graph:

Here we see the relative differences in donation rates under opt-in, opt-out, and conscription policies. The actual percentages aren’t exact, but will work for illustrative purposes. In a “stock” debate, the affirmative defends presumed consent and the negative defends the status quo. The box labeled “A” thus denotes the critical area where this debate is centered. The people in box A are those who choose not to opt in under the current system but also do not choose to opt out in a presumed consent system. They could simply be indifferent and not willing to go through the process of switching their presumption, or they could be motivated to become donors by the shift in cultural attitude brought on by presumed consent legislation. The affirmative will argue that the new organ donors in box A generate a utilitarian benefit, while the negative will argue that those in box A have their autonomy violated in some way.

However, when the negative advocates the conscription counterplan, the focus of the debate shifts to box B. This region represents people who would have opted out under the presumed consent system but are compelled to give up their organs under conscription. The affirmative no longer gets any mileage out of advantages that rely on organ supply, because conscription will always solve that internal link better than the affirmative. Instead, the only way for the affirmative to establish a distinction between the aff and the counterplan is to claim a benefit from box B: the opt-outs. There are two ways of going about this task. First, the affirmative could claim that conscription violates the autonomy of the opt-outs, and that autonomy violation is morally significant. This poses some interesting problems for the framework, however, given that the 1AC probably claimed that consequences matter, at least to some extent. We could imagine a 1AC that provides utilitarian benefits to presumed consent to beat the stock status quo NCs, but also has a means-based defense of opting out to hedge against conscription (*cough* epistemic modesty *cough*). If that’s too much framework debate for you, though, there’s a second option. The affirmative could answer conscription by claiming a utilitarian impact to violating the autonomy of the opt-outs. 1AR turns of the totalitarianism or biopolitics flavor come to mind. Then again, reading one sentence of the Rummel card as your slayer 1AR impact and hoping the 2NR drops it doesn’t seem like a great strategy either.

It’s for these reasons that theory seems like a necessary (though perhaps insufficient) portion of any 1AR answering the conscription counterplan. Given the three procurement policies outlined in the graph above, any affirmative is forced into a Goldilocks situation: presumed consent must be better than the status quo in utilitarian terms, but once you take the next step into conscription, autonomy violations overwhelm the additional utilitarian benefits of more organ procurement. Now, there’s certainly something to be said for affirmatives being forced to defend that their 1AC is, to the full extent of the word, the BEST policy available. But, there are certainly grounds for the affirmative to make a bidirectionality argument in this vein.

However, I think the most convincing theoretical objection to conscription is that it’s really just a PIC out of opting out. Conscription uses a similar mechanism to the affirmative in that it presumes that everyone’s organs can be taken. In the world of the CP, however, that presumption is unbreakable. There is perhaps a bit of an ideological problem surrounding the word “consent,” though, because consent is irrelevant in the world of the CP. But from functional perspective, the action taken by the CP is the exact same as the affirmative minus one set of regulations (i.e., the educational initiatives, legal requirements, and bureaucratic regime that come with the ability to opt-out).

A last issue I’d like to address is whether conscription can ever be affirmative ground. Lets revisit what our friend Jyotika had to say above, this time including a little more of the surrounding text:

Silly rabbit, conscription’s for the neg!
Kaushik 09, (Jyotika Kaushik, NALSAR University of Law, India, “COMMENT: Organ transplant and presumed consent: towards an ‘opting out,’” Indian Journal of Medical Ethics, Vol. 6, No. 3, 2009, http://issuesinmedicalethics.org/index.php/ijme/article/view/384/686)

An “opt out” or “contracting out” system is one permitting tissue and organs to be posthumously removed for transplantation unless an appropriate objection is made. It is argued that the term “presumed consent” is misleading because consent is fictionalised in the absence of any positive indication that permission for posthumous removal for transplantation has actually been given (2). A distinction can be made between systems that recognise objections only from the deceased prior to his death (narrow opt out systems) and those that recognise the objections of the relatives after his death (wide opt out systems). Opt out systems can also differ according to the level of formality required for registering or recording an objection and according the grounds for a valid objection (eg religious conscientious objection only). Most supporters of this system envisage a narrow opt out system in which the objection need only be recorded on a formal register without any reason being required.¶ A “conscription system” is one where tissue and organs can be removed posthumously for transplantation, irrespective of any consent or refusal. Under such a system, dead bodies and their parts would be treated as public property either indefinitely or for a limited period before what remains is released for burial.

Conscription and presumed consent are clearly distinct, with the divide stemming solely from the issue of opting out. This card even resolves the qualm we had about the word “consent” in the PIC discussion above, because consent is never actually given in the world of the affirmative, it’s just fictionalized. The word “consent” is just used for making explanation of the policy easier and for illustrating the contrast between presumed consent and informed consent (another way of referring to the status quo’s “opt-in” system).

So going into the last few weeks of the topic, affirmatives should think about how their 1AC is, in fact, the “just right” porridge of the topic, along with crafting some smart theory arguments for the 1AR. For all the conscription-loving negatives out there, get ready to win lay debates and debate some theory in flow debates.

If you agree, disagree, or have ideas for future articles, leave a comment below. Until then, stay trutil.

Tom Placido is an LD coach for Flintridge Sacred Heart Academy and Loyola High School. He currently debates for the USC Trojan Debate Squad.