May 24, 2012 (thePublicDiscourse.com) - Some of the great civil rights battles of our day are being waged in Massachusetts, Vermont, Hawaii, and Montana this year. If you do not recognize those states as civil rights battlegrounds, you are not alone. While advocates for assisted suicide have targeted those states with legalization campaigns, residents may not fully appreciate what is at stake.
The connection between assisted suicide and the civil rights struggles of previous centuries is foundational. To claim that some human lives are not worth living is to deny the intrinsic and equal worth of every human being. It is, in other words, to deny the principle from which we derived our prohibitions against slavery and racial segregation. Pro-life scholars and activists would do well to make this clear, and may be assisted in their efforts by consulting the arguments of Emily Jackson and John Keown in their new book, Debating Euthanasia. Jackson, a law professor at the London School of Economics, marshals the arguments for legalization of physician-assisted suicide and voluntary euthanasia, and Keown, the Rose F. Kennedy Chair in Christian Ethics at Georgetown University, defends their continued prohibition by law on both practical and principled grounds.
Central to Keown’s case is concern for the equal and intrinsic worth of all human beings. The “cardinal ethical principle” of the inviolability of human life prohibits the intentional killing of an innocent person, and it is precisely this principle that grounds the “equal and inalienable rights” that we enjoy “in virtue of our common membership in the human family.” The authors of the Declaration of Independence thought this principle self-evident. Keown points out that the principle also finds expression in the Preamble to the Universal Declaration of Human Rights, the European Convention on Human Rights, and a 1994 report of the House of Lords Select Committee on Medical Ethics. Neither anachronistic nor novel, this idea explains the law’s insistence on protecting the lives of all, irrespective of age, stage of development, or condition of dependency. No one is better off dead, Keown maintains, “even if some patients lose sight of their worth.”
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It is precisely the failure to grasp the implications of intrinsic human worth that plagues arguments for decriminalization of physician-assisted suicide and voluntary euthanasia, including Jackson’s. Jackson quite candidly rejects the inviolability of human life. “There is nothing independently valuable about being alive, other than that it enables me to live a life.” But to claim, as Jackson does, that the value of life is merely instrumental is to reject the immutably inherent and equal value of all human persons. On Jackson’s terms, any particular human life is more or less valuable, and thus variably worthy of legal protection, according to some standard of instrumental usefulness. But this raises the questions of how the value will be measured and whom the state will authorize to make the valuation.
Jackson recognizes this problem but seems unable to resolve it coherently. She insists that we should not accept the judgment of the lovesick teenager that her life has no worth, and yet we should accept the same judgment from the elderly or terminally ill person for whom “life has become an intolerable burden.” Jackson discounts outright the lives of persons in persistent vegetative states because of the “important difference between simply being alive, and having a life which is worth living.” But here, again, we are no closer to understanding what a worthy life consists of.
Jackson tries to resist the full implications of her own argument. She protests that “accepting that someone’s life has ceased to benefit them is not the same as saying they have no worth.” Family and friends of a suffering patient, she claims, can assent to the request for death without assenting to the judgment that the patient’s life is worthless. Presumably, the operative principle here is one of deference to the personal autonomy of the patient, but Jackson does not explain why deference is necessary. Given the high correlation between terminal illness and depression, deference would seem especially inappropriate in such cases.
Jackson’s conception of human worth becomes clearer in light of her analogy to animal euthanasia. “When it comes to animals,” Jackson observes, “most people accept that euthanasia is not only justifiable, but also often the right thing to do.” For at least some humans, she argues, the experience of dying is no different than a cat’s. Even allowing for differences between humans and cats, such as the practice of making wills and other provisions for resolution at the end of life, these differences do not “justify forcing someone to suffer intolerably.”
That Jackson considers this argument persuasive indicates that she has not fully confronted the claim that human beings have intrinsic and equal worth. Keown is quite clear that we should not force anyone to suffer, nor should we preserve life at all costs. “That would be ‘vitalism,’” Keown explains, “and morally indefensible.” The right to life is a “right not to be intentionally killed” (Keown’s italics). Animals enjoy no such right precisely because they are merely animals, and not humans. Acting with a purpose to bring about the death of a fellow human being is fundamentally unlike acting with a purpose to bring about the death of an animal.
Jackson fails to appreciate her interlocutor’s arguments in other respects, as well. An important corollary of the inviolability of human life is the principle of double effect, according to which it is sometimes permissible knowingly to bring about harms (as foreseen side-effects) that may never be intended directly. Jackson attacks this principle with a hypothetical:
If I visit my doctor complaining of mild stomach cramps, it would not be acceptable for him to give me a life-threatening injection of diamorphine, and he could not escape responsibility for my death by pointing to the doctrine of double effect. My doctor could not claim that his intention was merely to relieve my pain, and that my death was a foreseen but unintended side-effect.
It apparently does not occur to Jackson that the doctor’s disproportionate response to the pain would in fact supply a significant, perhaps conclusive, reason to infer that his intentions were not pure. She ignores what Keown expressly states, namely, that one of the conditions of the operation of double effect requires a “proportionate reason for allowing the bad effect to occur.” Far from excusing the disproportionate conduct that Jackson rightly condemns, the principle of double effect would rule out the doctor’s actions.
By contrast, Keown takes Jackson’s arguments seriously. (In one instance, he makes the effort to strengthen one of her arguments before refuting it.) Indeed, the book’s most glaring weakness is its asymmetry. The rules of engagement required each author to submit his and her contribution blindly, unable to predict precisely what arguments the other would deploy. Nevertheless, Keown and others have developed many of the pro-life arguments over a period of many years. If Jackson wanted to understand the arguments she was trying to refute, then she could have found robust statements of those arguments with little effort.
Despite this asymmetry, Jackson’s contribution to the book is well worth reading. She is often refreshingly candid, as when she acknowledges the limits of personal autonomy. She remarks that the choice of suicidal patients to end their lives requires the cooperation of others: “they are crucially dependent upon other people, namely healthcare professionals, to comply with their wishes.”
Jackson’s contribution also contains important reminders for opponents of decriminalization. Legalization proponents, like many citizens who are open to legalization, are motivated not by bias against the disabled but rather by compassion and respect. “It seems cruel to force someone to endure suffering they find intolerable,” Jackson’s argument goes, “and condescending to disbelieve them when they claim to be suffering so much.” Such advocates, therefore, tend to be unpersuaded by the common pro-life argument drawing analogies between contemporary legalization and Nazi euthanasia practices. As Jackson notes, the Nazis operated on social Darwinist theories of racial hygiene; their “motivation was never a compassionate response to individual suffering.”
Similarly, Jackson offers some insight into the relative inefficacy of “slippery slope” arguments. Accepting assisted suicide and voluntary euthanasia does not, in her view, obviously set one on a course toward “the involuntary extermination of disabled people,” and therefore, a blanket prohibition seems to her “a peculiarly blunt approach to regulation.” Why not give carefully regulated legalization a try?
There are, of course, many good reasons not to try. Keown discusses the failures of regulatory efforts in Oregon and the Netherlands. Despite the prevalence of depression among those who request assisted suicide and euthanasia, fewer than 10 percent are referred for psychiatric evaluation. Oregon’s meager reporting requirements prevent any comprehensive study of abuse, but anecdotal evidence suggests that coercion by family members is sometimes a factor in the decision to commit suicide. And the speed with which the Dutch have moved from voluntary euthanasia of adults to non-voluntary euthanasia of infants should trouble even those who are unmoved by slippery-slope arguments. But for legalization proponents, these failures are insufficient reasons not to proceed with legalization, albeit with more rigorous regulations. Jackson herself criticizes the Swiss regulatory scheme for its lack of safeguards. For example, she favors rules that would require “thorough investigation of the person’s circumstances.” One has the impression that, no matter how many of these safeguards might fail in practice, Jackson will always be prepared to propose more, until reasonable concerns about abuse are satisfied.
Most importantly, Jackson has no answer to the moral argument against physician-assisted suicide and euthanasia. And herein lies a lesson for pro-life advocates as they fight legalization efforts around the country this year: they should resist the temptation to avoid making moral arguments. They are our strongest resources. To skirt the fundamental moral question would be both unnecessary and, it seems, a strategic blunder. Pro-life activists should not give offense or recall images of swastikas. It is enough to point out that a nation committed to racial equality should, for the same reason, be committed to the intrinsic worth of the sick and the disabled.
Adam MacLeod is an associate professor at Faulkner University’s Thomas Goode Jones School of Law. This article reprinted with permission from thePublicDiscourse.com.