Denialism Blog can't face a fire in a fertility clinic

Mark Hoofnagle's Denialism Blog is a good blog I agree with 95% of the time (especially about bringing back the Office of Technology Assessment). But - the blogger license requires me to focus on disagreement, where Mark is wrong, wrong, wrong. So let's start.

Mark begins interestingly with a post praising Obama for his willingness to answer hypothetical questions. I agree that politicians should answer most hypos. It fits the rule that one should generally do the opposite of anything Bush does, for one thing. It's not clear that Obama actually follows the rule though, when he says things like this:

AP: Is there any circumstances where you'd be prepared or willing to use nuclear weapons to defeat terrorism and Osama bin Laden?

OBAMA: No, I'm not, uh, there has been no discussion of using nuclear weapons and that's not a hypothetical that I'm going to discuss.

Regardless of Obama though, where Mark goes off the rails is in denying there's any reason to treat especially intelligent animals like chimps as having some special moral value that relates to their intelligence. When asked whether a post-human evolved species could abuse us with moral impunity he says it's an impractical question, and therefore the response is "This is stupid. Fail. Try again." Mark should've just said, "I refuse to respond (and he did refuse to respond, we never got an answer) on the grounds that it's a hypothetical question."

Mark soon tries to rescue himself by saying that realistic hypotheticals must be answered, but it's fine for him to refuse to answer the unrealistic ones. This is where he can't face a fire in a fertility clinic.

The "Fire in a Fertility Clinic" hypothetical is a standard argument used against the people arguing that personhood begins at conception:

Probing the assumptions underlying the equal moral status view of the embryo, Sandel asks how a person holding that view would behave if confronted with a fire in a fertility clinic. Given a choice between saving a five-year-old girl or a tray of 10 embryos, which would one choose?

The right blogosphere has been fumbling with this one for years, with several unconvincing responses, but Mark's advice to them would be "Don't answer it! It's vanishingly unlikely! This is stupid. Fail. Try again."

I think the rest of us can see a value to the question that extends beyond its practicality - it helps us understand what we really believe to be ethical, regardless of what we tell people or tell ourselves about our beliefs.

But, if it's helpful to Mark to try something more probable than the specific fire in a fertility clinic scenario, I can come up with something regarding the treatment of intelligent beings. What if computers get smarter than us? Plenty of experts think that's possible in the next 50 years - some don't, but I think at our current state of knowledge, it meets the reasonable percentage probability that Mark demands. So what about it - okay for the smart computers to use us solely for their own ends?

Eli Rabett raised another sci-fi possibility in a comment, the possibility of "genetically modifying other terrestrial species (chimps/dolphins etc) to increase their intelligence to our level. It would make this a much more interesting place. This actually might be within reach." I agree that within 50 years this may be in reach, so what then? Should they be treated differently? What if we "overdo it" and make them superior - can they do what they want with us?

Finally, something I've not seen anywhere is a discussion about the ethical implications of intelligence distribution curves within a species, say for chimps. If they're like humans, a small percentage are likely to be much more intelligent than average. The tiny number of great apes taught sign language probably means we've never encountered individuals in the top 1% of their species for intellectual ability. What are they like? What can they do? If it's ethically disturbing (to me anyway, if not to Mark) to imagine killing Washoe in a medical experiment, what about a chimp that's twice as smart?

I don't think Mark's reason for refusing to answer an improbable hypothetical is right, and I think reasonably possible hypotheticals present themselves too. At some point, Mark says "I'm making a judgment, speciesist as it is, that human life is more valuable than the lives of other animals." I'll disagree with the first clause of that statement too - it's not a judgment, it's a fundamental assumption that he doesn't use logic to justify, and the only way to question such an assumption is to pose contrasting hypotheticals.

For my part, I'm a sapientist - smart creatures have moral value. There's lots of tricky gray areas that I haven't figured out with this, but I have more confidence with this approach for answering the hypotheticals.

(And yes, this is all about a post from months back. My typical quick response time.)

UPDATE: Mark and I have been emailing, and here's one response he sent me:

I still don't understand.  What is the use of a hypothetical if I can
just propose an alternate one that counters it?  They are
uninformative.  Surely you can see the difference between asking a
politician a question like, "If Roe v. Wade is overturned, would you
support legislation to guarantee or deny abortion rights?"  It's a
hypothetical, yes, but it's about a possible event, of relevance to a
political discussion.  Now, compare this to, "If space aliens came to
earth and enslaved us based on our moral code of speciesism, how would
you feel?"  Yeah I can answer it, but it's not a meaningful response
and has no business being used to justify a moral code.  It's based on
assumptions of the morality of non-existent aliens.  I could just as
easily propose that we get visited by the Klingons, and in their
contempt for our vegetarian/pacifist existence they making us slaves. 
What's the point of such stupid questions?

I'm not composing an argument for why I'm a speciesist based on this,
I'm just relating my contempt for the hypotheticals proposed by ARAs
like Singer, as if they are meaningful.  As long as someone can propose
another that is equally improbable and contrary to the first, they have
no value for a moral discussion. If you like publish this reply as a
discussion of that aspect of the conversation.

I also don't feel as if I have to justify the morality of animal
experimentation and using animals for human benefit.  I believe the
burden is on the ARAs to justify why we are the one species on the
planet that can not use or kill other animals.  Why are we the exception
to the rule?

I think he's missing the distinction between the outcome of a hypothetical versus the lesson we can learn from the hypo. If he can come up with an alternative hypo that teaches a different lesson that backs his moral position, let's hear it, regardless of how outlandish it is. And he hasn't responded to my more probable hypos.

As for why we have to obey morality while animals don't, I would guess that sufficiently intelligent animals may well be capable of right and wrong, something that an intellectually-negligible predator like a shark or crocodile wouldn't. I'll further guess that existing apes are in a gray moral area, whose limited intelligence results in at best, limited moral culpability, but I don't really know. Before Mark jumps on this with the question "Is it then immoral for chimps to attack neighboring chimp groups?" I'd guess the answer is that it's understandable, and the morality is a gray area.