Euthanasia, Morality, and Law
Individual and State power collide.
1) Moral: Is assisted suicide or euthanasia ever the best choice?
2) Can a State prohibit "physician-assisted suicide without violating a fundamental right protected by the Unites States Constitution?"
3) Given the nature of moral and religious pluralism in America, how should the law treat issues concerning fundamental moral values?
Make decisions based on Aristotelian virtues.
-Moral Virtues: States of character concerned with choice; courage, temperance, and justice.
-Intellectual Virtues: practical and theoretical wisdom.
Practical wisdom = phronesis or excellence in deliberation.
Theoretical wisdom = Sophia or abstract thinking, science, and theory.
-In decisions about assisted suicide "we want to make a decision that is sensitive to the particular situation---to concrete individuals who are affected by the choice, to the medical condition of the patient, and to the values that gave meaning to the life that person lived".
-Legal Dimension of question should be guided by concept of public reason.
-"Civility and public reason are particularly important in a society like ours, which is characterized by the fact of pluralism.
-Pluralism is not likely to disappear and we aren't likely to see a single religion or philosophy in a free society.
-Public Reason (John Rawls) = limited to premises and modes of reasoning that can be viewed as reasonable by reasonable citizens. Availability to the public at large. "Presently accepted general beliefs and forms of reasoning found in common sense, and the methods of science when these are not controversial."
-Applies to citizens and public officials involved in public political actions like official decisions and votes.
-Nonpublic Reason= "reasons located within the deep premises of a comprehensive religious doctrine or philosophical moral theory".
-Applies to "background culture" and personal reflection and deliberation.
Duty of Civility = "To be able to explain to one another on those fundamental questions how the principles and policies they advocate for can be supported by the political values of public reason".
-Whatever our views, the debate should be guided by political virtue and civility.
PART II (professor Finnis)
-Arguments for legalizing euthanasia rely on claims of autonomy...[and] political pluralism.
-1) Advocates of legalization have failed to describe the alleged right pertaining to assisted suicide.
-2) advocates of legalization neglect the victims that would be created by success.
-3) advocates proceed on a theory of the value of human rights that can be rejected under the same pretense we reject a right to "free yourself from crushing burdens by selling yourself into slavery".
-Differentiate between voluntary and non-voluntary euthanasia.
-Euthanasia and assisted suicide were exempted from criminal sanctions by a decision of the Dutch Supreme Court in 1984. No distinctions between active and passive assisted suicide.
-All activities or non activities with the purpose to terminate a patient's life is considered euthanasia.
-Murder: intention to cause death. "Causation plus intention equals murder by omission".
-Intention (legal term): Not only what you may intend, but also whatever you for see as the certain or even likely outcome of your conduct.
-Right to refuse treatment was considered important so the state wouldn't have to be tied up in the matter. Those that use it to hasten death are the same as the guilty who are set free by the language of the due process clause.
-Court wont even define a class of people who would possess a "right to die" thus seeing no relevant distinctions aside from voluntary or non voluntary termination of life.
-How do you base the right to assisted suicide on an argument of a right to autonomy and not allow healthy American's to ask medical personnel to help them kill themselves?
-When "should we allow some people to sit in judgment on the life of another human person, to judge that person's life worthless, and so to authorize themselves or others to carry out that person's right to death?"
-"There is a difference between intending to kill and accepting death as a side eddect".
-Legalizing euthanasia would create a new set of doctors trained to be willing to kill based on standards that are bound to shift to and fro.
-Can patients feel safe being explicit with doctors on matters of suffering, depression, or fickle statements?
-Criticizes Dworkin for not paying attention to the practical applications of legalized euthanasia.
-It is not possible to set secure limits on voluntary euthanasia or adequate safeguards against non-voluntary euthanasia.
-Legalization would "pose profound risk to many patients, especially those who are poor, elderly, members of a minority group, or without access to good medical care."
-Pain, because it can be relieved, is not an acceptable justification for euthanasia.
-What stops euthanasia from once being applied to the dying and the comatose to spreading next to the mentally handicapped?
PART III Dworkin
-"I have watched people with excellent medical attention, who died near the end screaming in agony."
-Two questions: 1) What is the right articulated by the slogan "right to die?" 2) What competing considerations might justify a government in regulating and restricting that right?
- Solicitor General articulates the right to be "free from pain and indignity".
- Some say it's the right "to medical treatment that is in the best interest of the patient".
-"Rights don't exist in a vacuum, they exist in a culture that recognizes responsibilities of people, interests of people, that takes a view on what it is to live well."
-Master Idea of Ethical Individualism: "it is not only the case that human beings each have a life to live, but that each human being has a life to make something of."
Autonomy: "so far as decisions are made primarily affecting a person's life, and so far as those decisions are made with the aim that a person's life go better, be more successful, run less of a risk of waste, then those decisions must be made by the person whose life it is or, when that's not possible, in accordance...with the standards that that person chose".
-It is a decision to be made based on our basic ethical responsibility to ourselves (not a blanket government decision).
-Does the government have a responsibility and, therefore, legitimate power to protect life in these circumstances?
-Paternalism argument: We know better than the individual whether the choice they made is right.
-Subjective paternalism: differentiates between the dying cancer patient and the angst ridden teenager through community standards. State has a legitimate interest in denying help and forbidding others to help someone planning to commit suicide, if it is a reasonable judgment.
-Objective paternalism: example: Not in someone's interest to commit suicide because his or her soul will be punished in the afterlife. UNACCEPTABLE in a democracy that accepts the principle of ethical independence.
-There is a big moral difference between a doctor choosing not to connect a patient to a life sustaining machine, and choosing to disconnect a patient from such a machine.
-With omission, nature takes its course and the patient dies of the disease. There is an important distinction between aiming for death and not aiming for death. Doctors can aim for death when they violate no one's rights in doing so.
-Is there a rational basis for the state to take interest in the case of death?
-"If it is suggested that we have no mechanism for enforcing paperwork requirements, reporting requirements, and that that's our justification for turning our back on people whose constitutional rights are concededly being ignored...it's simply not good enough."
-Potential mistakes: 1) misinformation, 2) Incompetence, 3) People want to send kid to college more than they want his grandfather to live.
-There are risks and uncertainty with any medical procedure, but no one would limit free speech even though riots have occasionally been started by unpopular political speech.
-SUBJECTIVE PATERNALISM TEST
PART IV Finnis response
-"If someone wishes to say---a person sedated, intubated, etc., lacks human dignity,...death is better for such a person, then we should say that's a mistake".
-Human people are all equal even in a state of radical subjection to illness, decay, and weakness.
-It's objective paternalism against the view of people who want the right to sell into slavery.
-Doctors are not authorized to aim at death.
PART V Dworkin's response
-Issue will become greater in the move away from trusted family doctors to "managed medical care" and HMOs.