The Moral Principles That Actually Drive Right-to-Die Law

Earlier, I mentioned my belief that the right to die rests primarily on the sense that patients may decline continued lite when they are irreversibly ill and suffering greatly rather than on the sense that patients may exercise a broad freedom to choose death over life. Evidence for my view can be found, as I indicated in the preceding section and in my other articles, in the reasons that courts and scholars give for recognizing a right to refuse life-Sustaining treatment. Typically, the right 1s justified both in terms of patient autonomy ana because the patient is irreversibly ill and suffering from the ravages of illness.

Another important piece ot evidence for my view can be found in court cases dealing with retusals of blood transfusions by young adults with a good prognosis tor full recovery. In those cases, trial courts typically authorize transfusion over the objections of the patient (or the patient's family when the patient is temporarily incompetent). Although the clear trend among appellate courts 1s to hold that the right to refuse treatment extends even to young, healthy persons refusing treatment as simple as blood transtusions, the patient's right to refuse is vindicated on appeal only after the treatment has already been imposed. These cases are relevant here because they typically involve a retusal of a blood transfusion by a Jehovah's Witness. If individual autonomy and the authenticity of the retusal were the critical issues, courts should have no trouble permitting the patients to refuse blood transfusions. Jehovah's Witnesses reject blood transtusions as an essential part of their religious belief. Accordingly, the willingness of trial courts and some appellate courts to permit unwanted blood transtusions suggests that the courts are influenced strongly by the fact that the transfusion will restore the patient to good health. A right to refuse treatment belongs to the irreversibly ill, not to those who can be cured.

Many of these Jehovah's Witness cases might be discounted because the patients had minor children or were incompetent when the need for transfusion arose. The judges requiring transfusion might have decided the cases differently if the patients did not have young children, or if the court could have relied on contemporaneous refusals by the patients rather than having to rely on evidence of the patient's wishes that existed before the patient lost decision-making capacity. Yet courts do not invoke a patient's parenthood when the patient is seriously and irreversibly ill. And in the cases involving patient incompetence, the need for a transfusion sometimes arose during surgery, and the patient had given written instructions refusing blood transfusion at the time of admission to the hospital. In any event, when the individual's basis for refusing blood transtusions lies in a firmly held religious belief, it is difficult to justify imposing a transfusion on the ground that the patient is unable to reaffirm the religious belief at the time the transfusion is needed.

I Can also cite my own experiences for the view that physicians see a right to refuse life-sustaining treatment as turning on the severity or the patient's medical condition. During discussions of this issue, I have heard many doctors describe cases in which they have imposed unwanted life sustaining treatment on relatively healthy patients. In such cases, the physicians indicated their belief that patients should not be able to decline care that would give them the opportunity for many years of healthy life.

Or, consider the case of Shirley Egan's daughter discussed above. She asked that her ventilator be withdrawn a few months after she had he shot by her mother. Inasmuch as she had accepted the ventilator for a fair amount of time and her condition was irreversible, her refusal of further treatment likely reflected a genuine and enduring expression of autonomy. Accordingly, if considerations of autonomy underlie the morally justifed wish to die, the daughter's death should not have been controversial. It should have been seen the same as if she had been left permanently unconscious by her mother's bullet and the ventilator withdrawn pursuant to her living will. Yet the public seemed to see her refusal of treatment more as a suicide than as a treatment decision driven by her injury. And the public saw her refusal that way apparently because she could live for many years and with her full intellectual capacities. In other words, the public seemed to question whether she really was injured seriously enough to choose death.

I can offer a final piece of evidence to support the view that the patient's condition is just as important in right-to-die law as whether the patient is acting autonomously. The right to have life-sustaining treatment withdrawn exists not only for patients who are competent or who previously were competent. It also exists for incompetent patients who never were competent. For such patients, a withdrawal of treatment cannot be justified in terms of the patient's autonomy, but only in terms of the patient's best interests. Under a best-interests standard, the key considerations will be whether the patient has a serious and irreversible illness and whether the patient is suffering.

Although I believe that a patient's condition is a key factor behind the patient's right to retuse treatment, concerns about patient autonomy are still important. In my view, the right to have treatment withdrawn (Or withheld) in fact rests primarily on considerations regarding the patient condition. Still, once a right to treatment withdrawal is recognized, it matters whether the patient wants to exercise that right. Some patient will want treatment withheld or withdrawn; other patients will prefer to receive life-sustaining treatment. Patient autonomy comes in, then, on the question whether the patient will accept or refuse treatment once the patient has a choice to accept or refuse it.

Finally, recall my earlier point that whether I am right or wrong about what moral principles actually drive right-to-die law, we end up at the same categorical distinction between physician-assisted suicide and the right to refuse life-sustaining treatment. Whether we defer to the patient's genuine expression of autonomy, or we make an objective assessment of the patient's condition before recognizing patient choice, we still come to a regime in which patients can have life-sustaining treatment withdrawn but cannot die by suicide or physician-assisted suicide.

Because both theories about the morally justified patient death take us to the same categorical distinction, I am not including an argument as to which theory is normatively correct. My theoretical goal in this book is to illuminate the translation of principle into practice, and for that purpose it is not important to decide between the competing underlying principles.

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