As a Proxy for the Morally Justified/Morally Unjustified Death Distinction
According to conventional ethical and legal analysis, it is permissible for both curable and permanent-ventilator patients to refuse medical treatment, despite the lethal consequences of their refusals. The right of self determination and the right to control one's body are viewed as permitting people to decline any unwanted medical treatment, even in cases in which the treatment is life-sustaining. As one court wrote,
[T]he right to self-determination ordinarily outweighs any countervailing state interests, and competent persons generally are permitted to refuse medical treatment, even at the risk of death... . [The] right to self-determination would not be affected by [the patient's] medical condition or prognosis.. [A] competent person's common-law and constitutional rights do not depend on the quality or value of his life.
Conversely, conventional analysis would forbid either the depressed or the end-stage cancer patient to commit suicide. Suicide, it is said, is a moral wrong, even for the terminally ill individual.
Yet I believe our moral intuitions come out differently. Our moral intuitions tell us that the permanent-ventilator and the end-stage cancer patient should be able to die. Both of them have serious and incurable illnesses. Both of them are suffering greatly from their illness, physically and/or psychologically. By insisting that they stay alive, it seems as if we would be only prolonging their dying process. On the other hand, our moral intuitions tell us that the curable and the depressed patient should be denied the option of death. With appropriate medical care, both patients could be restored to many years of good health. For these patients, treatment withdrawal or suicide would begin the process of death rather than avoiding its prolongation. Moreover, we have good reasons to doubt that these patients have a genuine wish to die. In the absence of a religious objection to medical treatment, it is hard to believe that someone would refuse health-restoring antibiotics, unless the person misunderstood the situation or had a diminished decision-making capacity. Similarly, when a person is depressed, we believe that the person is unable to look beyond the current despair to give adequate recognition to longer-term interests.
Our moral intuitions, then, tell us that some people should be able to refuse lite-sustaiming treatment (e.g., permanent-ventilator patients) and other patients should be denied that freedom (e.g., curable patients). Similarly, some people should be able to commit suicide (eg., end-stage cancer patients), while other people should be prevented from that act (e.B, depressed patients). How should we explain the gap between our moral intuitions and the distinction in law (and ethics) between treatment withdrawal and assisted suicide? Why is it that, when deciding who should be able to act in a way that hastens death, our legal (and ethical) rules come to different conclusions than do our moral intuitions?
One possibility is to reject our moral intuitions as misleading. Sometimes, in tact, our moral intuitions lead us astray. For example, we often are uncomfortable with new technologies that are ethically appropriate, Simply because we are not used to them. " When the first child was born through in vitro fertilization, many people argued that it was wrong to have "test tube" babies." Over time, however, we have come to realize that the desire to have children is of such fundamental importance that infertile couples should be able to reproduce even if it means using in vitro fertilization (or some of the other artificial methods of reproduction).
Although moral intuitions are often unreliable, there is no reason to think they are unreliable in the case of our four patients. Accordingly, we need to look elsewhere to reconcile our moral intuitions with the legal (and ethical) distinction between treatment withdrawal and assisted suicide.
To reconcile our moral intuitions with the distinction between treatment withdrawal and assisted suicide, I will argue that society has defined the right to die in terms of categorical, bright-line rules, rather than by using case-by-case judgments about the morality of individual patients deaths. An outline of the argument follows: As I have explained, there is no morally significant difference between the act of treatment withdrawal and the act of suicide (or assisted suicide). What matters is whether the person has made a morally justihed decision to hasten death. In an ideal world, we would consider a patient's decision to ch0ose life-shortening action, and then either permit or torbid that action, depending on the nature of the decision. However, as I will explain, there are serious problems with case-by-case efforts to decide whether a patient is making a morally justified decision to hasten death. Accordingly, as in other contexts, it is helpful to come up with categorical rules that generally result in decisions that retlect our moral principles. The distinction between treatment withdrawal and suicide is one of those categorical rules. Although any particular treatment withdrawal may or may not be morally justified, the typical treatment withdrawal is moraly justiied. Conversely although any particular suicide may or may not be moraly justified, the typical suicide is not morally justified."e By permitting treatment withdrawals and forbidding suicides, we are generally successtul at permitting patients to die when they are morally justifhed in choosing death and preventing patients from dying when they are morally unjustified in choosing death. The distinction between treatment withdrawal and assisted suicide for dying patients, then, reflects a broader distinction in society between treatment withdrawal and suicide. As a general matter, suicide is forbidden on the ground that individuals should not take life-shortening action. However, society has permitted treatment withdrawal despite its life-shortening effects because it is believed that treatment withdrawals typically reflect a morally justified decision to hasten death.
Note that, when I say that treatment withdrawals are generally permitted by ethics and law, I mean that patients generally can choose whether or not to accept lite-sustaining treatment. A treatment withdrawal is permitted with the consent of the patient (or the patient's surrogate decision maker). However, if a patient wishes to have lite-sustaining treatment provided, it generally would not be acceptable to withhold or withdraw the treatment.
My argument raises two important questions. First, what do I mean by "morally justified" and "morally unjustihed" patient deaths? Second, why is it necessary to have a categorical, rule-based approach rather than a case-by-case approach for sorting the morally justified from the morally unjustified?
The answer to the second question depends on the answer to the first question. If one believes that a patient's choice of death is morally justfied when it reflects a genuine expression of the patient's autonomy, we can turn to principles of autonomy to explain the need for a rule-based ap- proach to distinguish morally justified from morally unjustified deaths. If one believes that patient autonomy is not sufficient to justify a choice of death, but that the patient must also be suffering from a serious and irreversible illness, as I think most people actually do believe, we can turn to concerns about excessive government power to explain the need for a categorical approach.
Note that it is not critical to my argument to determine which explanation for the morally justified death is correct. I am arguing that, whether we adopt the autonomy-based or the serious illness-based theory for the morally justified death, we will still end up at the categorical, bright-distinction between treatment withdrawal and suicide (or assisted suicide). Note also that if I am correct in my earlier argument that there is no meaningful moral difference between the act of treatment withdrawal and the act of suicide, both theories for the morally justified death apply equally to treatment withdrawal and assisted suicide. I recognize that some people may reject the idea that any patients are morally entitled to decide in favor of death-hastening action. My arguments here, as in my other article, ultimately rest on the critical assumption that I made in other article. There, I indicated that I was assuming that it is morally acceptable for patients to refuse medical treatment even when death will likely result from the refusal.
I will now turn to the two important moral bases for life-shortening action and demonstrate how they both lead to the same bright-line distinction between treatment withdrawal and assisted suicide.
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