Tuesday, December 9, 2008
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Dec. 9, 2008
A killer argument against assisted suicide
In exposing the euthanasia lobby’s disregard for equality before the law, and for free will itself, Neil M Gorsuch has written the most important book yet on the ‘right to die’.
by Kevin Yuill
Given the currency of the issue of assisted suicide, it is surprising how few well-written books arguing against changing the law to allow euthanasia have been published.
There are a few lucid arguments in favour of changing the law. The best texts to appear so far address the issue from a philosophical perspective. The books produced by Margaret Battin, Ronald Dworkin and Peter Singer present direct philosophical arguments in favour of changing the law to allow assisted suicide, though they do not deal with specifics. In Europe, Raymond Tallis, John Harris, John Griffiths and others have argued in favour of legalisation from a medical-legal perspective.
However, there have been far fewer book-length treatises from the ‘against assisted suicide’ camp. Ian Dowbiggin, though opposed to legalisation, has produced the best history of euthanasia and assisted suicide to date, but, as good histories should be, it is objective. Physician Ezekiel Emmanuel has produced several excellent articles containing secular arguments against assisted suicide.
Now, with his book The Future of Assisted Suicide and Euthanasia, Neil M Gorsuch is clearly filling a gap in the debate about assisted suicide.
Gorsuch comes at the question from a legal perspective and is well qualified in legal philosophy. A former clerk to US Supreme Court Justices Byron White and Anthony Kennedy, he was nominated by President George W Bush and confirmed by Congress last year as a federal judge on the United States Court of Appeals for the Tenth Circuit. The remit of this book is, as Gorsuch tells us, ‘to introduce and critically examine the primary legal and ethical arguments deployed by those who favour legalisation, and to set forth an argument for retaining existing law that few have stopped to consider’. Readers (like myself) who might not warm to the task of following the circuitous logic of American law courts would do well to persevere, for Gorsuch lucidly lays out key ethical and philosophical arguments on both sides.
“For Plato, suicide was an ‘unjust judgement of death’ that sprung from ‘a spirit of slothful and abject cowardice’”
Gorsuch begins by showing how the debate remains unfinished within the context of American law. He then provides an excellent chapter on the history of assisted suicide and suicide. Punching holes in the classical pretensions of some advocates, he notes Plato’s condemnation of suicide as akin to a soldier leaving his post. In Laws, Plato condemned suicide on the grounds that it ‘imposes [an] unjust judgment [of death] on [oneself] in a spirit of slothful and abject cowardice’.
An outstanding historical point – again, a useful counterpoint to the claim by supporters of assisted suicide that they are carrying on an Enlightenment tradition – is that the more lenient attitude towards suicide, away from the medieval tradition of burying the suicide at a crossroads with a stake through them, reflected the view that suicides were often the result of madness, rather than malfeasance. As Gorsuch rightly declares, ‘it is a large leap from that merciful fact to the conclusion that suicide had become normalised in law, let alone a matter of legal right’ (2).
Most of the other chapters deal with the ethical and logical problems with arguments in favour of assisted suicide. Gorsuch reconstructs the arguments of advocates before effectively knocking them down. Willing participation of the victim does not render the act harmless or victimless. As Gorsuch shows, repeating arguments by John Stuart Mill, it takes nothing away from our ‘freedom’ to be prevented from duelling, selling one’s organs, or selling oneself into slavery. There are some activities prevented by a liberal or even libertarian society for the good of all. It would be perverse to say that the prevention of any of theses activities – or suicide – destroys the basis to our freedom.
Gorsuch spends altogether too much time on the canard of autonomy. It needs to be said that all are free to commit suicide, a reflection upon the impracticality of making suicide illegal. What is being requested today, however, is the right to kill those we judge (and who agree with our judgement) to be living worthless lives.
As Gorsuch notes, few argue that all must have the right to be killed if they cannot kill themselves. This leads pro-assisted suicide commentators to draw lines between those with terminal illnesses and others. One of Gorsuch’s stronger and more original arguments shows that delineation between the terminally-ill and everyone else (the basis for Oregon’s definition between those who qualify for assisted suicide and those who do not) erodes equality. To be treated as equals before the law can bear no demarcations between subjects; we cannot set down simple criteria for which lives are worth living and which are not. The arbitrariness of a line based on physical health matches the arbitrariness of lines between, say, Jews and Gentiles. How can one judge the worth of an individual’s life in such random and simple terms?
There is, as Gorsuch makes clear in a laugh-out-loud section (how many books on law or, indeed, assisted suicide can boast of this?) on Peter Singer, a real question of what constitutes a ‘person’ or ‘personhood’ running throughout the debate. Gorsuch demonstrates how Singer’s grotesque argument that a newborn infant can be killed because it is not an autonomous, self-aware being ‘is but a modest extension of the argument advanced by Ronald Dworkin or Margaret Battin’ that we should ignore the demented pleas of an Alzheimer’s patient because they had given a prior request to be killed when dementia sets in (please don’t laugh yet!). Using Singer’s somewhat simple-minded thesis based on a being’s autonomic qualities, Gorsuch concludes that a diet of spring lamb rather than mutton, veal rather than steak and poussin rather than chicken would be appropriate. We cannot establish who deserves to live and who does not on the basis of whether they are self-aware.
“Gorsuch’s concept of the inviolability and the inherent value of human life is somewhat mystical”
Yet Gorsuch also stumbles on the question of personhood. His concept of the inviolability and the inherent value of human life as it is now constituted is somewhat mystical. Humanity is defined socially and historically rather than suspended through time and space, like the monolith in 2001: A Space Odyssey. We define humanity through our relations with others and recognise even the profoundly disabled as human, no matter what Peter Singer argues. Gorsuch would doubtlessly agree that if the profoundly and hopelessly disabled were killed, the importance would be the diminished humanity of those who did the act. Though Gorsuch is correct to note the erosion of the concept of human equality, and thus of humanity itself, the idealist hinge to his arguments must be questioned. It is possible to make a secular case against assisted suicide without the shadow of God looming behind.
Apropos of this, abortion is barely mentioned by Gorsuch but is germane, especially because proponents use the association with anti-abortion to gain support amongst liberals. It would be difficult to justify abortion using Gorsuch’s inherent value of human life without justifying why this should exist from birth and not before. However, it is perfectly possible to argue that placing real value on human life as it is lived between us allows us to prioritise the existing humanity of a woman over the potential humanity of a fetus.
Gorsuch might also be open to the criticism that he does not adequately track the changing justifications for and against assisted suicide. In response to the charge that doctors regularly despatch patients by giving them enough morphine both to kill the pain and the patient, assisted-suicide advocates call for the process to be regulated; though the argument will not appeal to libertarians, it may build on common fears and negate the occasionally hysterical ‘slippery slope’ argument. The issue of disabled rights has also been used to justify legalising assisted suicide; if the able-bodied can do it, why shouldn’t disabled people?
Gorsuch’s book has been criticised for being too abstract, for not dealing with practical issues (3). But if anything, it is not abstract enough. The problem exists almost wholly within the minds of those for whom death is still a distant prospect. It is worth remembering that in Oregon less than one per cent of those who qualify for assisted suicide actually take that option. Despite Gorsuch’s somewhat flimsy supply-and-demand argument (legalisation will create a market for assisted suicide), the evidence from Oregon shows there is no real increase in the numbers annually who opt for assisted suicides.
With these qualifications in mind, Gorsuch’s best contribution – one that is profoundly important – is his insistence that intention be the gauge of actions taken regarding assisted suicide. If a patient requests to be withdrawn from life-saving equipment with the intention of destroying herself, the doctor must refuse the request. If the doctor kills a patient with an overdose of morphine but with the intention of relieving pain, the doctor’s action is justified.
The intention argument directs the issue away from the purported needs of the ‘patient’ towards the rightness or wrongness of an action, towards the actor himself. Gorsuch elaborates on Justice Oliver Wendell Holmes’ discussion of intent: ‘[E]ven a dog distinguishes between being stumbled over and being kicked.’ As Gorsuch notes, ‘[t]o kick a dog intentionally – to choose to hurt an animal – says something about the kicker, his or her way of interacting with animals, and, perhaps, it tells us about the kicker’s character and beliefs, about who the kicker is.’(4)
“In Oregon, less than one per cent of those who qualify for assisted suicide actually take that option”
This intent idea is important, for it places actions in relation to assisted suicide back within a moral sphere. The emphasis on intention also militates against the corrosive idea that there is little to delineate between conscious human actions and unconscious human actions, something that those who would condemn ‘climate criminals’ or equate drunk-driving with murder seek to deny. As Gorsuch comments: ‘To disregard whether or not an act is intended would be…in a very real way to disregard the role of the free will in the world – leaving, for example, those who fail to assist charities that feed the hungry open to the same censure and penalties as those who would starve such persons.’ (5) To put it another way, the driver who speeds with reckless disregard for the lives of others but who has no intent to harm the child is different to the depraved killer who deliberately aims for the child.
Gorsuch’s emphasis on doing rather than on being done to, on intent rather than effect, begins to put the argument about assisted suicide back on track. If trust is to be rebuilt between doctor and patient we must believe that doctors really do have our best interests at heart rather than treating them as all potential Mengeles or Shipmans and demanding regulations.
To conclude, Gorsuch’s is the most important book published so far in consideration of ethical and legal issues. As any good book should, it raises as many questions as it provides answers, advancing a continuing dialogue.
Kevin Yuill is lecturer in American studies at the University of Sunderland. He is the author of Richard Nixon and the Rise of Affirmative Action, published by Rowman & Littlefield. Buy this book from Amazon(UK) or Amazon(USA).
The Future of Assisted Suicide and Euthanasia by Neil M Gorsuch is published by Princeton University Press. (Buy this book from Amazon(UK).)
(1) See Physician-Assisted Suicide: Expanding the Debate, Margaret Battin (ed.), 1998; The Least Worst Death: Essays in the Bioethics at the End of Life, Margaret Battin, 1994; Life’s Dominion: An Argument about Abortion and Euthanasia, Ronald Dworkin, 1993; Rethinking Life & Death: The Collapse of Our Traditional Ethics, Peter Singer, 1994; Euthanasia and the Law in the Netherlands, John Griffiths, et al., 1998.
(2) The Future of Assisted Suicide and Euthanasia, Neil M Gorsuch, Princeton University Press, 2006, p31
(3) Legal scholar Stephen Arons complains: ‘But the primary weakness of the book is that its approach, while not insensitive at all, is nonetheless too detached from the realities to which its ideas are meant to apply.’ See Law and Politics Book Review Vol. 17 No. 1 (January, 2007) pp.5-10.
(4) The Future of Assisted Suicide and Euthanasia, Neil M Gorsuch, Princeton University Press, 2006, p55
(5) The Future of Assisted Suicide and Euthanasia, Neil M Gorsuch, Princeton University Press, 2006, p56