Physician-Assisted Suicide and Personal Action: Responding to the Law

Christopher O. Tollefsen
May 21, 2018
Reproduced with Permission
Public Discourse

As Gerard Mundy noted recently here at Public Discourse, the movement for physician-assisted suicide is gaining ground, with recent successes in Hawaii, Montana, Vermont, Colorado, and California (this last was, however, just overturned by Riverside Superior Court Judge Ottolia). This raises an important question for those who live in such states - a question I was recently asked to address at a debate in Colorado on the topic.

The question is this: Is it morally acceptable to do what the law allows?

There is something interesting about this question. Usually we ask whether the law should follow morality. This question asks the opposite: whether law makes a difference to morality. I think sometimes it could. Suppose you think there is nothing morally wrong with marijuana use. If the law against its use is repealed, then it would seem that the moral reason to abstain would disappear.

But physician-assisted suicide and other forms of so-called assisted death are different. I will make the case for this in two stages. First, I'll argue that the deepest and most principled moral reason against PAS remains unchanged. And second, I'll argue that the pragmatic, consequence-oriented reasons that ought to govern public policy even for those unconvinced by the deep moral reason also still remain valid and action-guiding for individuals after the law changes.

The Principled Argument

Should citizens take advantage of the legal permission to obtain physician assistance in hastening their own death? No. My first argument is similar to that of Colorado native and Supreme Court justice Neil Gorsuch, as articulated in his book The Future of Physician Assisted Suicide and Euthanasia. Like Gorsuch, I believe that human life is a fundamental or basic good. Its value is intrinsic, not merely instrumental. Thus, its value is not exhausted when the human being whose life it is becomes unable, through infirmity or disability, to do other things with his or her life.

Why do I think this? Here are two reasons, which I have rehearsed on Public Discourse before. First, it seems possible to act for the sake of life itself, with no further end in view, as when we save a drowning child, simply for the sake of preserving her life. This makes life unlike merely instrumental goods such as money. So life is valuable for its own sake, not merely for the sake of something else.

Second, I think that human persons have intrinsic value. And I think that human persons are, fundamentally, human beings, living human organisms rather than disembodied minds or spirits. Our biological lives are thus intrinsic to our being. But I think it is not really coherent to say that we have intrinsic value but our lives do not, if our lives are intrinsic to our existence. So human life is a good of great and intrinsic value.

How should we respond to that value? In the same way that we should respond to the intrinsic good of, say, friendship. Friendship should be pursued and promoted. And it is always wrong to act directly contrary to a friendship, either as an end or as a means. That is, it is always wrong intentionally to damage or destroy your friendship. Of course, we sometimes need to do things that we realize our friend will not love, and that might in fact damage the friendship. Jesus, for example, lost many friends who could not accept his hard sayings. But those lost friendships were side effects, not intended damage. They were very unlike Judas's betrayal of his friend Jesus for thirty pieces of silver.

Similarly, we should not act directly against the good of human life; we should not intend damage or destruction to it as either an end or a means. Nor should we aid another who intends to do that. So, intentional self-killing is wrong, as is aiding in such self-killing. It is worth pointing out that this judgment is perfectly compatible with the thought that refusing burdensome medical treatment is permissible, even if death is hastened, because the death is not, in such cases, intended. It is a foreseen side effect that can thus sometimes be permissible.

Some More Pragmatic Arguments

Not everyone will be convinced by this argument, though I think that acceptance of it was a great, albeit precarious cultural achievement. Here is another great cultural achievement: the creation through time of a medical profession whose central commitment was a commitment to human life and health. Those who professed that commitment professed always, as the familiar maxim has it, to heal and care, and never to harm. Those who so professed thus would not kill, intentionally, for they understood such killing always to be a harm.

The advantages of having such a profession seem to me considerable. Physicians treat the most vulnerable among us: infants, the aged, the very ill, the greatly disabled. Yet they also have immense and ever-increasing power. It is no wonder that the well-known clinical ethicist Richard Zaner has asked, why don't physicians act like Gyges in Plato's Republic, who, with his magic invisibility ring, killed the king and married his wife?

That power demands of patients a great deal of trust, and demands of physicians great trustworthiness. Consider those patients in pain and suffering at the end of life who seek palliation from their physicians. Knowledge on the patient's part that her physician will never intend her death creates a space within which the physician can work aggressively to relieve suffering. On the other hand, concern that one solution for suffering might be the patient's death can quickly erode patient trust and lead to more tentative palliative efforts.

There is a more or less absolute social and legal prohibition on intentional killing, and this is of benefit to everyone. Life would be vastly more precarious if individual citizens were expected to make case-by-case judgments about who could and who could not be intentionally killed. Our rule is: such killing is simply not to be done, and our lives are greatly improved in consequence.

There are exceptions to the rule: police, those charged with carrying out capital punishment, and the military. Why are they exceptions? Because they serve the public, not private, good, and this seems to many a sufficient justification for carving out an exception to the prohibition on intentional killing.

But all forms of physician aid in dying extend that exception to a category of essentially private actors - physicians - who are now entitled to make judgments about who may and who may not be intentionally killed or assisted in death, and to aid in or carry out such killings.

Let's return to the police a moment. We are right now in the middle of a large controversy and conversation about the ways in which the police power to kill is potentially being abused. Are police too quick to exercise that power? Do they do so in ways that do not serve the public good but instead are occasionally governed by bias, prejudice, or self-interest, rather than a disciplined concern for the common good? What further safeguards are needed here?

But physician-assisted suicide and its extensions, voluntary and non-voluntary euthanasia, all give physicians a similar power. This is in addition to their already considerable technical powers, in a domain that is vastly more private than the world of police and occupied exclusively by vulnerable persons. Should we not expect that considerations of self-interest, bias, and prejudice are likewise capable of shaping physician judgment and exercise of this power?

Why does this matter for our guiding question? The considerations just raised - about the nature of the medical profession and about the way in which an entitlement to kill or aid in killing threatens both the profession and its treatment of the vulnerable - are among the many important considerations traditionally raised as policy arguments against physician-assisted suicide. But I think they give patients continuing reasons, even after the legalization of physician-assisted suicide, to refuse such treatment.

For only a sustained pattern of such refusals can help maintain the profession of medicine in a way that avoids the Gyges' ring problem. As more and more persons request assistance in ending their lives, physicians will become more and more disposed to see killing - a form of harm - as part of their professional vocation. That itself is an erosion of their vocation's most central norms. But it also opens up the profession to new and pervasive opportunities for abuse, opportunities that will be carried out in a much more secretive context than the abuses of the police are.

We can't really afford to entirely deny the police some powers for the use of force, though we might well question whether we have afforded them too much; in Britain, for example, possession of a firearm by the police is relatively rare. But for the healthcare profession, the calculus cuts in exactly the opposite way: we can't afford to live without physicians who are devoted to always healing and caring, and never harming. Requesting physician-assisted suicide, like legalizing it, erodes that devotion; a refusal to ask, even on the part of those not committed to the inviolability of human life, helps sustain that devotion. It is a worthy act of witness and self-sacrifice that benefits the common good.